54 N.Y. 480 | NY | 1873
Lead Opinion
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The stocks in question were purchased by the defendants, for the plaintiff, under the agreement embodied in the instrument signed by her and delivered to them, dated November 28, 1864. Under this agreement the relation of *483
pledgor and pledgee existed between the plaintiff and defendants as to all stocks purchased, they holding a lien upon the stocks for any advances made. It was so decided in Markham v. Jaudon
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But it is claimed that the parties settled before the commencement of this action, and that the plaintiff voluntarily paid the defendants the balance due them upon an account stated, and hence that she could not rightfully recover in this action. This claim must now be examined.
On the 11th day of January, 1866, the defendants made the wrongful sale of the stocks, and notified the plaintiff of it. On the 14th day of January they made up her account with them in reference to her deposits, and the purchase and sale of these stocks, showing a small balance due them, and leaving in their hands, as security for such balance, two United *484 States bonds for $500 each. Soon thereafter, the plaintiff called upon the defendants and complained of the manner in which she had been treated by the sale of the stocks, and also pointed out some small errors in the account as to items of credit to her which had been omitted. The defendants, soon thereafter, rendered a corrected account, showing a balance due them of $169.88, still holding the two United States bonds as security therefor; and they wrote her several letters stating that unless she paid this balance they would sell her bonds. Finally, on the 28th day of January, she being in ill health and her husband having met with a serious accident, needing her attention, and she having pressing need for her two bonds, wrote to the defendants informing them of these facts, and sent her letter, with the balance, to them by a messenger, who paid it to them and received from them the two bonds and delivered them to her. Upon all these facts the referee found that she did not acquiesce in or assent to the account as to the sale of her bonds, and that she was not concluded by the payment of the balance as a voluntary payment; and in this finding I do not believe that he erred.
It is true that an account stated is conclusive upon the parties to it, unless impeached for fraud or mistake. But what is an account stated? It takes two parties to make one, the debtor and creditor. There must be a mutual agreement between them as to the allowance and disallowance of the respective claims, and as to the balance as it is struck upon the final adjustment of the whole account and demands of both sides. Their minds must meet as in making other agreements, and they must both assent to the account and the balance as correct. But this agreement and assent need not be direct and express, but may be implied from circumstances. If one party presents his account to the other and the latter makes no objection, it may well be inferred that he is satisfied with and assents to it as correct. If an account be made up and transmitted by one party to the other by mail, and the latter keeps it for some considerable time without making any objection, he is held to have *485
acquiesced in it. But in all cases there must be proof, in some form, of an express or implied assent to the account rendered by one party to another, before the latter can be held to be so far concluded that he can impeach it only for fraud or mistake. (Lockwood v. Thorne,
Great stress, however, is laid upon the payment by the plaintiff of the balance shown by the account, as rendered, to be due from her. This payment was in one sense voluntary, as she was not compelled by physical duress to pay it. But the defendants held her two bonds, which they threatened at once to sell unless she would pay this balance. She had great need for the bonds and could not well wait for the slow process of the law to restore them to her, and she paid this balance, not assenting to the account and not assenting that it was justly due, for the sole purpose of releasing her bonds. Under such circumstances it is well settled that the law does not regard a payment as voluntary. It was well said by Judge RUGGLES, in Harmony v. Bingham
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The rule of damages adopted by the referee was doubtless erroneous. He awarded to the plaintiff the amount of all the *486 moneys deposited with the defendants, throwing out of the account all pertaining to the stocks and treating them as if they had been purchased and sold on account of the defendants. But no complaint by exception or otherwise was made of the rule at the trial, and hence none can be made here.
It follows, from these views, that the judgment must be affirmed, with costs.
Concurrence Opinion
The agreement or written order, upon which the account with the plaintiff was opened by the defendants for the purchase and sale of stock on her account, is very explicit in its terms, and the rights and obligations of the parties under it entirely apparent. The plaintiff was never put in default for not providing the margins required by the contract, and the sale of the stocks by the defendants, complained of in this action, was made without notice to the plaintiff in any form that she was required to furnish more money, or that the stocks were to be sold.
It is entirely true that the agreement under which the account was opened might be determined at any time by either party, but this could not be done except upon reasonable notice. Neither party was at liberty, by a secret emotion of mind, to rescind the contract and then proceed to sacrifice or impair the interests of the other without in some form disclosing the determination to close the account. This, I think, the defendants undertook to do in a somewhat arbitrary manner, and it seems very proper that they should respond to the plaintiff for such damages as, by their wrongful action, she has sustained.
It is urged that the defendants' letter of the 6th of January, 1866, placed the plaintiff in default, but I have been unable to discover it. It simply says that, in consideration of her account with the defendants, she was requested to call at the defendants' office on Monday, the eighth, at any time that should suit her convenience. It gave no intimation of a determination to close the plaintiff's account. She called in pursuance of the request, saw the defendants' book-keeper, *487 and was advised that the firm of the defendants was going into liquidation, and that new combinations were to be formed, and she was desired to indicate to which of the new firms her account should be transferred. There was not then, so far as I can discover, any intimation that her account was to be closed, or that her stocks then on hand were to be sold. Yet, without further notice they, or some of them were, on the eleventh of January, three days after, sold at a sacrifice. I can find no possible excuse in law or morals for the conduct of the defendants.
On or about the thirteenth of January the defendants made out and sent to the plaintiff an account current. On the seventeenth of January some errors in the account current were admitted, and, a small balance appearing against her, the plaintiff was admonished to call and settle or the defendants would be "obliged, unwillingly, to close out the stock we hold against the above balance at your debit" ($170.03). It would seem to be implied from this that the sale of the Fort Wayne, Rock Island and Reading stock, on the 11th of January, 1866, did not in fact, and was not intended to close the plaintiff's account, for the defendants still held securities for the small balance of $170.03, which, in value, greatly exceeded this amount, and which they threatened to sell unless the balance was immediately adjusted. It is to be observed that this balance was produced by charging the plaintiff with all the loss upon her stocks wrongfully sold by the defendants on the eleventh of January. After some correspondence the plaintiff paid the balance of the account insisted on, and received from the defendants such securities as they held for its payment. It is now claimed that this payment of the balance was such a final settlement as precludes the plaintiff from recovering damages for the wrongful sale on the eleventh of January. To this we do not agree. The plaintiff had the right to rescue her property from the perils that seemed impending, even by the payment of a sum wrongfully exacted. Even if this were an action to recover back that money, I think it should be sustained. (Astley v. Reynolds, 2 Strange, 915; *488 Harmony v. Bingham,
The case of Markham v. Jaudon (
All concur.
Judgment affirmed.
