Worthington v. Tormey

Evidence — Practice in the Court of Appeals — Objection to a Prayer — Purchase and Sale, of Stock— Sufficiency of Notice of the sale of Stock by a Broker. In an action instituted in the Circuit Court for Baltimore County, a commission to take testimony was issued and duly executed and returned. Subsequently the cause was removed to the Superior Court of Baltimore City, and a transcript of the commission and return with the depositions taken thereunder, were transmitted to said Court. Afterward the cause was removed to the Circuit Court for Carroll County, and a transcript of said commission and depositions were sent to said Court, Upon a trial of the cause in the Circuit Court for Carroll County, it was Held : That the commission and return, with the depositions taken thereunder, formed a part of the proceedings in the cause, and a transcript thereof was admissible in evidence. An objection to a prayer that there was not sufficient evidence to support it. will not be hoard in the Court of Appeals, unless it appear that the objection was distinctly made to, and decided by the Court below. A stockbroker in the city of Baltimore, on the 9th of March, 1868, at the request of "W, residing near Koisterstown, in Baltimore County, purchased two hundred shares of the Canton Company’s Stock, through his agents, brokers in New York, at §64.50 a share, which did not exceed the price limited by "W. At the time of the purchase, the brokers in New York were carrying on a margin for the broker in Baltimore, eight hundred shares of the same stock. On the day following- the purchase notice thereof was sent through the mail addressed to W, at lleisterstown, his proper post office A few days afterward "W called at the office of the broker and refused to recognise the purchase, but requested him to do nothing with the stock, until he, W, could see J. On the 17th of March, ~W in an interview with the broker repudiated the purchase, and on the same day, subsequently, the broker wrote to "W notifying him that he would sell, without stating the place of sale, the shares of slock, on or after tlio 19th instant, unless a sufficient and satisfactory margin -was deposited before that time. He at the same time stated that he was. prepared to deliver the shares of slock to W, or his order, upon a tender of the amount of the purchase money, commission and interest. This letter addressed to W at lleisterstown, was handed to the postmaster in Baltimore, who enclosed it to the postmaster at Koisterstown, stating- that the writer requested that he would note its delivery to the person to whom it was addressed The letter reached lleisterstown on the following day, but was not received by W, until the 24tli instant The stock was sold in New York at TV’s risk on the 21st instant at §46.00 per share. In an action against W, by the broker to recover the difference in the price of the stock and the amount at which it was sold, together with his commission and interest, it was Held : 1st. That it was not necessary that the stock which was purchased for W, should have been kept separate from other stock of the Canton Company, which belonged to the broker, or that it should have been marked so as to designate it as belonging to W. 2d. That if the stock were bought for ~W, and the broker or his agents had it in possession so that it could be delivered to W, upon bis paying what was duo therefor, the broker had done all that was required of Mm, and he was entitled to be paid the price of the stock and his commission, whether he himself had paid for the stock or not. 3d That the letter of the 17th of March, addressed to W, at his proper post office, informing him that the stock would be sold after the 19th instant was a sufficient notice to bind him notwithstanding he was in the city of Baltimore on that day, and a personal notice might, by the exercise of reasonable diligence, have been served upon him. In the case of a sale of stock by a bailee, it is not obligatory upon him to give notice to the bailor of the place of sale.

Appeal from the Circuit Court for Carroll County. This action brought by the appellee against the appellant, was instituted in the Circuit Court for Baltimore County, was removed upon the application of the plaintiff to the Superior Court of Baltimore City, and thence at the instance of the defendant, removed to the Circuit Court for Carroll County. The plaintiff who was a broker transacting business in the city of Baltimore, received from the defendant on the '9th of March, 1868, an order to purchase for him two hundred shares of stock of the Canton Company — a stock on the New York Stock Board — not to exceed $64.50 per share; in compliance with that order the plaintiff on the same day, telegraphed to Gray, Prince & Co., of New York, brokers, and bought the stock as directed. At the time of the purchase, Gray, Prince & Co., were carrying on a margin for the plaintiff, eight hundred shares of the same stock. On the following day, notice of the purchase was sent by mail to the defendant, at Reisterstown, in Baltimore County, his proper post office. Some days afterward the defendant called at the office of the plaintiff and refused to recognize •the transaction, but requested him to do nothing with the stock until he (the defendant) could see Edward F. Jenkins. The plaintiff held on to the stock until the 17th instant; on that day he met the defendant in Baltimore, who, according to the plaintiff’s testimony, said “ he would have nothing to do with the transaction,” but in his own testimony stated that “nothing was said on the subject.” Immediately after the interview the plaintiff went to his office and wrote to the defendant, notifying him that ho would sell the stock, without naming the place of sale, on or after the 19th instant, unless the defendant deposited with him before that time sufficient and satisfactory margin ; the plaintiff also stated that he was prepared to deliver to the defendant, or his order,- two hundred shares of Canton Company’s stock, on the tender of the amount of the purchase monej’’, commission and interest, and would hold the stock subject to his order, until the 19th inst. This letter addressed to the defendant at Reisterstown, was handed to the postmaster in Baltimore, who enclosed it in an envelope directed to the postmaster at Reisterstown, stating that the writer requested that he would note its delivery to the person addressed. The letter reached Reisterstown on the following day, hut was not received by the defendant until the 24th instant. In the absence of any response to the letter of the 17th instant, the plaintiff, on'the 21st, sold the stock in New York, through Gray, Prince & Co., at §46 a share. The defendant was not known to Gray, Prince & Co., in the transaction ; they looked alone to the plaintiff for the losses. The plaintiff' had in his possession on the 21st of March, two certificates of stock of the Canton Company, each for one hundred shares, ready to be delivered to the defendant. This action was brought by the appellee to recover from the appellant the difference in the price of the stock, and the amount at which it was sold, together with his commission and interest. First Exception: At the trial the plaintiff offered to read the evidence taken under a commission scut to New York, and properly executed and returned, and which was contained in the transcript of the record transmitted from the Superior Court.; to the reading of this evidence the defendant objected; the Court overruled the objection and the defendant excepted. Second Exception: The plaintiff offered the following prayers: 1. If the Jury shall find from the evidence, that the plaintiff was a stock broker in Baltimore, and that the defendant, on the 9th of March, 1868, authorized him to purchase on his account two hundred shares of Canton Company’s stock, and shall find that the place where said stock was ordinarily bought and sold, was at the Stock Exchange in New York; and shall further find, that the plaintiff therefrom actually purchased «two hundred shares of said stock through his sub-agents, Messrs. Gray, Prince & Co , stock brokers in New York, and at a price not exceeding the price limited by the defendant, and that the defendant did not supply the plaintiff with funds to make said purchase, and that the plaintiff had funds and credit with his sub-agents which were applied by them in making said purchase; and if they shall further find, that the defendant, on the next day after the purchase, was informed of said purchase, and that the plaintiff notified the defendant, on the 17th of March, 1868, by letter addressed to him at his proper post office, that he was ready to deliver to him two hundred shares of Canton stock, so purchased on his account, and that unless he came forward and paid for it, he, the plaintiff, on or after the 19th of March, 1868, would sell said stock at the risk and cost of the defendant; and they shall further find, that' the plaintiff had ready for delivery to the defendant such stock, and that he did sell, on the 21st of .March, 1868, at the public Stock Board in New York, two hundred shares of said stock, for and at the risk of said defendant, and that after applying the whole proceeds of said sale, there was a loss upon the said original purchase, which said loss the plaintiff did pay to his sub-agents, then the plaintiff is entitled to recover the amount of said loss, or difference in price, together with his reasonable commission for the purchase and the expenses of said re-sale. 2. That if the jury shall find, that the defendant resided near Reisterstown, in Baltimore county, and the plaintiff in Baltimore city, and that there was a daily mail from Baltimore to Reisterstown, which was the proper post office of the defendant, and that the plaintiff deposited in the post office in Baltimore, on the 17th of March, a letter containing the notice mentioned in the first prayer, then the said notice was sufficient, notwithstanding the fact, that it was not received by the defendant until the 24th of March, 1868, and after the sale. 3. If the jury shall find that the plaintiff made a purchase of two hundred shares of stock on account of the defendant, as stated in the first prayer; and shall further find, that the defendant had notice thereof on the day after the purchase, and that he failed to call and pay for the same, and that on the 17th of March, 1868, he repudiated the purchase and refused to be bound thereby, then the plaintiff was at liberty, without further notice to him, to cause the stock to be sold at the defendant’s risk, and to charge him with the loss on said re-sale. The following prayers were offered by the defendant: - 1. That if the jury find that the plaintiff, in 1868, was a stock broker, doing business in Baltimore city, and that on the 9th clay of March, 1868, the defendant called at his office and directed him to buy two hundred shares of the stock of the Canton Company, at a price not exceeding $64.50 per share, and that the plaintiff in execution of said order, the same day telegraphed to Gray, Prince & Co., stock brokers, residing in New York city, directing them to buy two hundred shares of Canton stock, at a price not exceeding $64.50 per share, and that the same day 'they purchased that amount of Canton stock at the price named, and that said Gray, Prince & Co., at the time, had a large general account with said Tormey, buying and selling stock for him, and were carrying stock for him, including six hundred other shares of Canton stock, upon a margin of from 5 to 10 per cent., and that said two hundred shares of Canton stock was not set apart or designated for said defendant, but was carried by Gray, Prince & Co., for the plaintiff, as his other Canton stock was, and charged in said plaintiff’s general account; and if they find that all the Canton stock so held by Gray, Prince & Co., including,said two hundred shares, was sold by said Gray, Prince & Co., at the timo and for the price named in the evidence of John D. Prince, and that said Gray, Prince & Co., the first of each month rendered accounts to said plaintiff of their dealings, and continued to do so until the 19th of November, 1868, when they had a final settlement with said plaintiff, and that no money was paid or advanced by said plaintiff except what was paid as margins, from time to time, to protect said Gray, Prince & Co., to said Gray, Prince & Co., and was applied and credited to the general account and credit of said plaintiff, then he cannot recover in this case. 2. That there is no evidence of any money having been paid by the plaintiff, prior to the institution of this suit, for or on account of the defendant, under circumstances which will entitle him to recover in this case. 3. That even if the jury find that on the 17th day of March, 1868, the plaintiff held two hundred shares of the stock of the Canton Company, which he had only purchased for the defendant and by his authority, and find that on that day plaintiff wrote the letter offered in evidence, dated 17th of March, 1868, and addressed it to the defendant at Reisterstown, and that plaintiff delivered said letter in person to the postmaster at Baltimore, on that day, informing him it was an important letter, and that he wished the postmaster at Reisterstown to note its delivery to the person addressed, and that in consequence of said directions said letter was enclosed in an envelope with the note to the Reisterstown postmaster, offered in evidence and mailed March 17th, 1868, and that according to the postmaster’s custom, when important letters were received, the letter was not sent with the defendant’s mail, but a message sent by some neighbor, that there was a letter at the office for him whióh he could not get unless he came and receipted for it. And if they find that defendant lived about sixteen miles from Baltimore city, and about four miles from Reisterstown, which was his post office, and that they have a daily mail at Reisterstown, and a letter mailed in Baltimore on the 17th would reach Reisterstown on the 18th of March; and if they find that the defendant sent very irregularly for his mail, sometimes at intervals of three or four days, and if they find that he did not in fact receive said letter until March 24th, 1868, and if they find said stock had been sold by said plaintiff on the 21st of March, 1868, then said sale was made without a reasonable and proper notice to the defendant, and the plaintiff cannot recover in this case. 4. That if the plaintiff was justified in treating the two hundred shares of Canton Stock as the defendant’s, the notice sent him was an unreasonable and insufficient one. 5. That if the stock was bought by the plaintiff without authority of the defendant, or at a higher price than was named, there can be no recovery in this case. 6. That if the defendant authorized the plaintiff to purchase the stock, and in execution of the order the stock was purchased, it was the duty of the plaintiff to have notified the defendant of said purchase with all reasonable diligence, and without such notice defendant would not be bound to accept the stock. 7. If the jury find from the evidence that specific instructions were given by the defendant to the plaintiff on the 9th of March, 1868, that in the event of the purchase of the stock in the evidence mentioned, the plaintiff should immediately communicate the fact of purchase to the defendant, and informed the plaintiff whereto send the notice; and if they shall further find that the said stock was purchased on the said 9th of March by the plaintiff, and that the plaintiff’ did not communicate the fact- of purchase immediately to the defendant, according to the order and instructions of the defendant, then the defendant was not required to take said stock. 8. That it was the duty of the plaintiff to use all reasonable diligence to notify the defendant of his intention to sell said stock in time to enable him to protect himself, and the letter of March 17th would not be sufficient notice, if on the 17th, at the time the plaintiff formed the intention to sell, as afterwards, during that day,-he knew the defendant was in Baltimore, and he could, by the exercise of reasonable diligence, have served notice on him personally on that day. The Court granted the first and second prayers of the plaintiff, and rejected his third prayer, and granted the fifth and seventh prayers of the defendant, and rejected his first, second, third, fourth, sixth and eighth. The defendant excepted to the granting of the first and second prayers of the plaintiff and to the rejection of his first, second, third, fourth, sixth and eighth prayers,' and the verdict and judgment being against him, he appealed.