135 N.Y.S. 1024 | N.Y. App. Term. | 1912
Lead Opinion
The plaintiff employed the defendants as brokers to purchase for him a considerable number of shares
Thereupon the plaintiff brought suit for the amount of the money paid to defendants and the defendants counterclaimed for the amount of the purchase price still unpaid according to the account rendered. At the trial the defendants showed that they had actually purchased the stock at the times and prices shown by their account. They also-testified to the conclusion that they had at all times in their control sufficient stock to deliver to plaintiff, on demand, the stock ordered by him. Upon these facts the trial justice rendered judgment for the defendants for the amount of their counterclaim, apparently upon the theory that, since the defendants purchased" the stock when ordered and tendered the stock two days after demand, they had fully performed their duty as brokers.
The defendants were employed only ás brokers in the purchase of this stock. If they failed in their duty as brokers and failed to purchase and retain" the stock for which the plaintiff had partly paid, then they have diverted the money paid by the plaintiff and must account for it to
The defendants on this appeal claim that the case of Helm v. Ennis, 109 App. Div. 42, is not in accordance with this view and that the decision in that case was to the effect that a delivery of certificates of stock purchased and delivered three days after a demand is sufficient to show that the brokers at all times had sufficient stock in their control. The plaintiff in that case however had received, retained and paid for the stock tendered and brought suit merely to recover the difference in the market price .between the stock purchased for the purpose of delivery upon the theory that since he had not received the identical certificates purchased he could not be held for their price but only for the price actually paid for the certificates. The court in that case held only that since the broker had a right to take the certificates in his own name and to deliver to his client a certificate for an equal number of shares when demanded, if the client received the certificates he was bound to pay the price at which the purchase was originally made. It expressly, however, refused to pass upon the question of the client’s rights if the client had elected to rescind the entire transaction and return the stock.
Judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Seabuby, J., concurs.
Concurrence Opinion
I concur for reversal of the judgment which in effect sustained defendants’ counterclaim, on the ground that it sufficiently appears that defendants did not “ keep at all times on hand or under their control either the particular shares purchased for their customer or an equal amount
Plaintiff appeals only from so much of the judgment as sustains defendants’ counterclaim.
Judgment reversed and new trial ordered, with costs, to appellant to abide event.