355 Mass. 254

December 4, 1968 - January 30, 1969

Suffolk County


Where it appeared that stock not qualified for sale under G. L. 110A was sold in violation of Section 5 at the office of a brokerage corporation through an employee thereof who was registered as a salesman but not as a broker under c. 110A and was not an officer or stockholder of the corporation, and that the corporation was the owner of the stock sold and received the payment therefor, it was held that the salesman was a seller of the stock within Sections 5, 18, and was liable to the purchaser in all action under Section 18 to rescind the sale and recover the purchase price.

CONTRACT. Writ in the Superior Court dated December 15, 1961.

A motion for summary judgment for the plaintiff was allowed by Fairhurst, J.

Jacob Green for the defendant.

Edward F. Myers for the plaintiff.

WILKINS, C.J. This is an action of contract for rescission of sales of securities, allegedly made in violation of the Sale of Securities Act, G. L. c. 110A, Section 5 (as amended through St. 1954, c. 558, Section 3), and for recovery of the purchase price as authorized in G. L. c. 110A, Section 18 (as amended through St. 1938, c. 445, Section 12). [Note p254-1] A motion for judgment for the plaintiff on undisputed facts was allowed. The defendant excepted.

Page 255

The defendant was employed by Keller Brothers Securities Co., Inc. (Keller), but was not an officer or stockholder. He was registered as a "salesman" of securities in this Commonwealth, but not as a "broker." [Note p255-1]

The plaintiff made purchases of Phoenix Savings and Loan Association, Inc. (Phoenix) on five occasions from October 3, 1960, to February 21, 1961, inclusive, which were effected through the defendant at Keller's office in Newton. The stock was owned by, and payment was received by Keller. Ten months after the last purchase, by writ dated December 15, 1961, the plaintiff brought this action against Auditore in count 1 and against Keller in count 2. The latter count has become immaterial.

All the facts necessary to support the judge's action in allowing the motion for judgment are undisputed. Among these is the fact that the shares of Phoenix were never qualified for sale under G. L. c. 110A. The only issue is one of law whether the defendant as "salesman" was a "seller" within G. L. c. 110A, Section 5. [Note p255-2]

In Kneeland v. Emerton, 280 Mass. 371, 376, Chief Justice Rugg, on behalf of the court, said in our first decision under the Sale of Securities Act, "It is manifest from this legislative background as well as from its provisions that the statute was enacted for the protection of the public from fraud and imposition in the sale to them of securities of little or no value or based upon unsubstantial projects and schemes."

Page 256

The general purpose of the statute, as thus expressed, and many of its specific provisions preclude our acceptance of the defendant's contention that the transaction which he "effected" with the plaintiff did not constitute a sale within Section 5. None but registered brokers and salesmen are allowed to sell any security covered by the act. [Note p256-1] An example of such a security is Phoenix capital stock. The definition of salesman applies to a person employed to sell securities as was the defendant. Section 5 applies broadly to every security not expressly exempted, and by way of precaution extends a saving clause in favor of certain enumerated acts by a registered broker or salesman which are placed outside the scope of the "prohibition." Throughout c. 110A salesmen are coupled with brokers without substantial distinction.

The defendant relies upon Section 18, which declares that the purchaser can avoid the sale and receive the full amount paid "upon tender to the seller . . . of the security sold." He emphasizes the provision that the purchaser must accept "an offer in writing of the seller to take back the securities . . . and to refund the full amount paid by such purchaser." From this the defendant argues that it is an unreasonable construction of c. 110A to hold the defendant employee to be the seller when he never owned the stock and never received the purchase price. To the contrary, our opinion is that it would be unreasonable to hold that a sale under c. 110A cannot be made by a salesman. As was said in Kneeland v. Emerton, supra, 280 Mass. 371, 382, the word "sale" is a word of "comprehensive signification." See G. L. c. 110A, Section 2 (d).

The defendant also relies upon what he claims are significant amendments to the Sale of Securities Act enacted subsequent to the sales in the case at bar. We are not impressed by the changes made by St. 1965, c. 131, Sections 1 and 2, in adding Section 5A to G. L. c. 110A, and amending Section 18. These

Page 257

amendments, as we read them, underscore the legislative intention that the statute be of comprehensive scope. None of the defendant's arguments outweighs the logic of the statute and its purpose.

There is no basis in the record for contending that the defendant was the agent of the purchaser. The case of Herscot v. Gerold, 346 Mass. 611, is not an authority for the defendant.

Exceptions overruled.


[Note p254-1] "Every sale or contract of sale of any security made in violation of any provision of section five shall be voidable at the election of the purchaser, who shall be entitled to recover from the seller in an action at law, upon tender to the seller in person . . . of the security sold . . . the full amount paid by such purchaser for such security with interest from the date of purchase . . .."

[Note p255-1] General Laws c. 110A, Section 2 (as amended through St. 1939, c. 442, Section 4) provides: "(e) `Broker' shall include every person, other than a salesman, who in this commonwealth engages, as principal or agent, in the business of selling securities, whether issued by himself or another. (f) `Salesman' shall include every person employed, appointed or authorized by a broker to sell securities within this commonwealth, whether or not the person so employed, appointed or authorized receives compensation therefor."

[Note p255-2] Section 5 (as amended through St. 1954, c. 558, Section 3) provided in material part: "No security, not exempt under section four, shall be sold, except as exempted by section three, within this commonwealth, until there shall have been filed with the commission [supervising and controlling the department of public utilities] a notice of intention to Section 11 the security . . . provided that this prohibition shall not extend to solicitations, or other preliminary negotiations, by a registered broker or salesman, with no consideration paid or received, no transfer or delivery of any security made, and no binding option, subscription or other contract entered into. Upon the filing of said notice, such security may be sold by any broker or salesman registered hereunder . . .."

[Note p256-1] Section 9 (as amended through St. 1938, c. 445, Section 7). "No person shall sell any security within this commonwealth, whether or not such security is exempt under section four, except as provided in section three and section fifteen (a), unless he is registered as a broker or salesman by the commission."