81 N.J.L. 441 | N.J. | 1911
The opinion of the court was delivered by
The defendant employed Sheldon & Company as brokers to sell stock which he owned. According to the testimony of the plaintiff the order was to sell “at 50% or stop at 50.” According to the defendant his order was to “sell at 50^ or %, hut not below 50, stop at 50.” The plaintiff sold at forty-nine and three-quarters. There was testimony on the part of the plaintiff that in the trade such an order as the former authorized a sale at a price below fifty. The defendant was notified- of the sale and immediately ordered the brokers to cover that stock at once. The defendant testified: “That
The defendant attempts now to sustain this verdict on several grounds, which we shall notice in order.
First. The contention that the verdict can be sustained because the plaintiff cannot recover upon the common counts in assum,psit is untenable. It is an attempt to justify a verdict for the defendant upon a mere failure of the plaintiff to plead correctly. Even if we were dealing only with a nonsuit, the objection to the declaration ought not to prevail. It contains a count for money paid. This count is proper where as in this case money has actually been paid, provided it has been paid at the defendant’s request, express or implied. 1 Chit. Pl. 350. A request will be implied where a principal is bound to indemnify an agent and the agent pays the money to prevent loss. Leake Cont. (3d ed.) 38. In reference to this very subject, the author says: “The employment of a broker to buy or sell stock or shares imports a request to make all payments required by the then existing rules of the stock exchange, or other market in which he is employed to act, so far as such rules are legal and reasonable.” The cases he cites support his statement. The question has been dealt with in Perin, v. Parker, 126 Ill. 201, which was a case of a sale of grain by a broker on the Chicago board of trade. Moreover, the testimony of the defendant himself that he authorized the plaintiff to cover the sale at a price as high as forty-nine and seven-eighths at least, so that there would not be much loss on either side, would justify an inference by the jury that the defendant recognized his liability and authorized the plaintiffs to expend their money for his use.
Third. There is sufficient evidence to warrant a finding that the account had been assigned to the plaintiff. The objection that lie could not sue in his own name, if tenable at all, ivas cured by an amendment at the trial.
Fourth. The more important question is whether it was proper for the court to construe this contract in accordance with (he defendant’s view or whether the question what the actual contract was should have been submitted to the jury. Since the, contract was an oral one, and the parties differed as to its exact terms, it was obviously necessary for a jury to settle which version was correct, under proper instructions as to the meaning of the words, if that meaning itself was so plain that it also did not involve a jury question. Wigm. Ev., § 2556. The words used in this case were not plain. Unexplained, they mean nothing to me, and probably nothing to anyone not familiar with the language of the stock exchange. They required evidence to explain their meaning as much as if their were written in a foreign tongue or formed part of a cipher code. This whole subject is admirably discussed by Professor Wigmore. Wigm. Ev., §§ 2461, 2467. It is needless, however, to go into the subject at length since it has already been dealt with in our own decisions, of which the more recent are Halsey v. Adams, 34 Vroom 330; Smith & Wallace Co. v. Lunger, 35 Id. 539; Wallace v. Leber, 36 Id.
There was error in directing a verdict for the defendant. It is urged that no assignment of error presents this question. The fourth assignment, however, is that the court directed a verdict in favor of the defendant, whereas the court sliolild have directed a verdict in favor of the plaintiff. The words after "whereas” may be regarded as surplusage, and in that case the assignment presents the error squarely.
The judgment should be reversed to the end that a venire de novo may be awarded.
For affirmance—Rbkb, Minturn, Bogert, Vroom, JJ. 4.
For reversal—The Chancellor, Chief Justice, Garrison, SlVAYZE, TrENOHARD, PARKER, BERGEN, VoOKHEES, Vredenburgh, Congdon, Sullivan, JJ. 11.