46 Cal. 209 | Cal. | 1873
It is alleged in the complaint that the defendant employed J. H. Jones & Co., stock brokers, to purchase and hold for him certain mining stock “on thirty days time, and at the expiration of said time to sell the same for cash, and again to purchase the same on thirty days time, and so to continue the purchase and sale of said stock, under and subject to the rules of the Board of Brokers, in San Francisco, until the further directions of the defendant.” The complaint then states that, in pursuance of such agreement, J. H. Jones & Co. purchased and sold stock on account of the defendant up to the 20th of July, 1869, when a balance was struck, and there was found to be due from the defendant to J. H. Jones & Co., the sum of seventy-nine dollars and forty cents; and that thereafter, in pursuance of said contract, J. H. Jones & Co. continued to purchase and sell stock for and on account of the defendant, and advanced money on his account, as shown in an exhibit annexed to the complaint. It further states, that on the 23d of September, 1869, J. H. Jones & Co. became insolvent, and on that day all the stock held by them for and on account of the defendant was sold by the President of the Board of Brokers, under the rules of the said Board, as set forth in the said exhibit. It is also alleged that, in purchasing the stock, J. EL Jones & Co. advanced certain sums of money, and that in the performance of the contract certain commissions became due to them from the defendant.
There is attached to the complaint an account which purports to be an account of the transactions between J. H. Jones & Co., the brokers, and the defendant. The defendant now presents the objection that the account is unintelligible. It is said to be in the usual form of broker’s accounts; and, although it may be unintelligible to one who is not familiar with that business, yet as the defendant did
The plaintiffs rely upon a rule of the Board of Brokers,
It does not appear that there was an agreement in writing for the payment of interest at the rate of one and one quarter per cent per month. A party cannot recover interest at a conventional rate unless there be an agreement in writing fixing the rate.
It is not averred in the complaint that the defendant contracted in writing to pay in a specified kind of money, nor that it was so understood and agreed by the respective parties, and therefore the plaintiffs are not entitled to a recovery in gold coin.
Judgment and order reversed, and caúse remanded for a new trial.
Mr. Chief Justice Wallace did not express an opinion.