*1 et Stebtoe v. of case. Statement Louisa M. Stenton, Respondent, W. v. Leonard al., Appellants. Defendants, stockbrokers, purchased certain stocks for under an by agreement specified which she fbargin security, furnish a keep good upon; non-compliance same when event of called' demand, such defendants were authorized to the account close , public private sale at or or sale These stocks without notice. notice; margin without sold the time was reduced required, amount below the but no call demand for or further made, pay- nor was there a tender of the certificates and demand of held, damages, ment therefor. In an action to recover the rela- pledgor pledgee parties; tion of existed the sale between wrongful, unauthorized and defendants were liable. up presented After such sale defendants made an account , prices crediting the stocks at the showing for which were sold and due they demanded; plaintiff a balance them which complained sale, threatening but defendants other held sell securities belonging use, Held, needed which she the account. acquiescence sale, that this was not an or or assent the account voluntary payment. was not as a concluded stated, To make an account there must Ire a mutual between respective as to the or allowance disallowance of their claims; preclude and to establish such so from it, impeaching mistake, proof save for must fraud there assent rendered, express, implied the account as either from failure to object presentation. time after within reasonable Payment purpose .releasing property of a claim for sole held pledge by claimant, and which he refuses to surrender without payment, preclude voluntary pledgee is not a and does questioning from the claim.
(Argued 20, 1873; September term, 1873.) March decided Appeal the General judgment .Term Court second Supreme district, judicial affirming in favor of entered of a judgment plaintiff, report referee.
The action was the defend- brought plaintiff against ants stockbrokers, as her to recover sale of damages- upon certain stocks them without authority.
About the deal with the commenced to *2 481 Stenton et al. Jerome Statement of case. she and delivered at executed to
defendants, request them an instrument between them, embodying of is a which the to wit: copy, following “ York, New Nov. 1864. 28,
“ Messrs. & Riggs Co.: Jerome, and Please with me for the sale “ open of stocks, on of sum of one which, consideration dol- lar, I cent to agree per deposit you twenty security on the and value of said to said par stock, deposit equal keep to fifteen as the same fluctuate at the stock cent, per may whenever called to and the event of do; so exchange, upon with such are authorized demand, non-compliance you hereby to close the without notice sale, by purchase or at the brokers’ board or public sale, otherwise, private me favor, balance and returning any my agree me on you balance said account. against “ LOUISA M. STENTON. “ This to in force until remain countermanded.” In of this made she pursuance arrangement deposits from time to time with the money her order and carried stock her. they purchased She not at required by secu- keep marginal as the amount rity mentioned high above instru- and whenever ment, demanded additional margin furnished it.
On the 11th of January, 1866, the defendants held and for the plaintiff three lots of carrying stock, wit: 100 shares of the Chicago Rock Island Railroad Com- October 18, 1865; 200 pany, purchased shares of Reading Railroad December Company, purchased 16, 1865, 100 shares the Fort Railroad Wayne Company, purchased 1866. On the 3, 11th January day 1866, January, defendants sold the three lots of at the market rates stock on which were day, lower than cost. considerably Plaintiff’s marginal or four declined to three cent, but notice per thereof her. The sale. given IX. Sickels—Vol. Stenton Commission, per Eael, of the notice, without notice to without call or made
demand should furnish that she further marginal security, tender to without certificates o.f therefor. 6th demand of Janu- or of On defendants wrote letter to ary, plaintiff requesting in reference to 8th them, her to call on the at the time and was informed instant. She called specified *3 firm was and that about dissolving, they defendants’ with which the firm she desired to have desired know The held that the defendants had left. referee for first the no to sell without upon plaintiff, calling right and held she was entitled to further marginal security, in their the balance of money hands, recover of them in the accounts the stocks Other question. excluding facts, opinion. so far as appear important, The fact the' Anthon for the appellants. Wm. Henry had been under the sold agreement stock purchased specific to have agreement defendants, they supposed after by v. 19 Y., material. N. terminated, Morgan, (Barton The Ch., 4 J. v. Prince, 490.) 170; Nourse there due on the balance being a final settlement. v. (Lockwood mistake, error 18 will ; Y., S. N. . Courts Thomas, Kern., 286.) 1 170 C., of an which the opening not encourage 3 Warren, v. settled. (McIntyre Keyes, themselves have ) 262. e Plaintiff’s settl for the H. Cott respondent.
Joshua Van and does not defendants’ account by compulsion, ment of Har 24; Wend., claims. (19 her from further bar making v. 1 2 229; Ashley v. Duer, Reynolds, mony Bingham, ;16 Westbury, Bay’s, Collins 212.) Strange, purchased question Earl, under embodied for the agreement plaintiff, and delivered to dated them, in the instrument signed this 1864. relation Under agreement Eovember y. Stentom Commission, per Bari, oí 0. existed defend between pledgor pledgee a lien ants as to all stocks they holding purchased, made. so decided Mark stocks for advances Jau ham N. (41 Jaudon Y.. 235), Morgan (40 Pr. don Howard’s Under 366). Rep., the defendants were not stocks inde carry obliged Whenever finitely. desired to close the transaction they in reference to stocks, was their to tender the duty certificates thereof to the and demand if them; within a then, reasonable she did not take for the stocks, had a sell them right satisfy after first lien, the time and her notice of place giving of sale. There was one in which only contingency under could, notice, sell stock without agreement, that was, if the fell cent below twenty margin per and she failed, make demand, then, margin good; could sell express stipulation agreement, *4 without notice. Here no demand was made more mar for and hence there no on gin, to sell account the right of and there was no tender the insufficiency of margin; stock, and no demand that for should and same; hence the defendants to had sell for right their of purpose accounts with her. sale of closing the stocks was, therefore, and and wrongful unauthorized, rendered the defendants to liable for dam such as the rules of her law entitled to. age
But it is claimed that the settled before the com- parties mencement this action, of and that the plaintiff voluntarily the defendants the paid balance due them upon account and stated, hence that she could not recover in this rightfully claim must action. This now examined.
On the 11th of day 1866, the defendants January, made sale of and notified the stocks, of it. On the 14th made her day January account up with them in reference her and and deposits, the sale of these a small stocks, balance due and them, showing as for leaving security balance, two United hands, y. Stentom per Eabb, Commission,
Opinion of the Soon called thereafter, each. bonds for $500 States and of manner which complained defendants and also treated sale of the stocks, she been some small errors account as to items out pointed omitted. The soon which had been credit to her due abalance thereafter, rendered corrected account, showing as still the two United States bonds $169.88, holding them her and wrote several letters therefor; stating would this balance sell her bonds. that unless she paid in ill 28th she health on the day January, being Finally, met awith serious and her husband accident, having needing and need bonds, two attention, having pressing them of these to the defendants facts, wrote informing them balance, with the letter, sent her messenger, from them the it them received two bonds who to her. all these facts referee and delivered Upon assent did not account found that she acquiesce she was not to the sale of concluded bonds, as as a of the balance voluntary payment; believe that he erred. in this do not finding an account stated is conclusive It is true that unless for fraud or it, mistake. ^impeached parties ? an. stated is takes two But what and creditor. There must be mutual make the debtor one, them to the allowance and between disallow claims, and to the balance as ance of respective the final of the whole adjustment struck upon *5 Their minds must meet as mak of both sides. demands must assent both to other agreements, ing But balance as correct. this and the but be not direct may implied need be assent express, his account If one presents from circumstances. party and the latter makes no it well be the other objection, may it as with and assents to that is satisfied correct. inferred he one made and transmitted an be party If up it for some considera and the latter mail, keeps the other by he is held to have any objection, ble without making Stesttoit Commission, per Earl, of in it. But in all must cases there be acquiesced proof, some assent to account ren form, implied express dered one before the latter another, can held party far that to be so concluded he can impeach only fraud or mistake. 11 N. Thorne, Y., 170; S. (Lockwood C., Here there 'is id., sufficient 290.) authorize proof of the referee that did not assent to finding far account as so as related to rendered, sale of the as stocks, correct. She claimed that the sale of her stock was unauthorized and and the referee was wrongful, that she did not intend justified upon proof finding time to release the defendants from which any damage had occasioned her. stress, Great is laid however, payment by of the balance shown rendered, to be due from This her. was in one sense as she was not voluntary, compelled by physical duress to it. But the defendants held her two bonds, threatened at which once to sell unless would pay this balance. She need for the bonds and could great not well wait for the slow of the law to restore process and she balance, to the account paid assenting and not that it was for the due, sole assenting justly purpose her bonds. Under such circumstances it is well releasing settled the law does not regard payment voluntary.
It was well said by Judge Harmony Bing Ruggles, “ ham if a has in Y.,N. his (12 117), possession other to another and refuses to property belonging goods to that other unless the latter deliver him property pays he has no receive, sum of which and the money right his in order to obtain latter, possession property, pays is a In so sum, payment by compulsion.” money duress of and is such case the procured by goods, law than if no more procured eye voluntary duress of the person. the referee was doubtless The rule of adopted by damages all the amount awarded to the erroneous. He *6 et al. Stentob [Sept;, Reynolds, Commission, per of the 0. the with the out of defendants, moneys deposited throwing all the stocks and them ifas pertaining treating had been and sold on account purchased of the defendants. But no or otherwise was made the complaint by exception rule at the trial, hence none can be made here.
It follows, views, these that the must be judgment with costs. affirmed, C. The order, or written which agreement
Reynolds, the account with the was the defendants plaintiff opened by and sale of on her account, stock is very in its and the terms, explicit rights obligations under it never entirely apparent. in default for not put' required providing margins contract, the sale of stocks com- defendants, inof was made without notice action, to the plained in form that she more furnish any required or that be sold. money, It is that under which the true entirely determined at time account was opened might either but this could not be done reasonable party, except upon notice. at Neither secret emotion of liberty, by then mind, to rescind the contract and to sacrifice proceed of the other without some form dis- impair interests, clqse the determination to account. This, think, closing in a man- the defendants to do somewhat undertook arbitrary and it seems should to the ner, respond very proper action, for such damages as, has sustained. the 6th Jan-
It defendants’ letter of urged but I have default, been uary, placed It consideration that, unable to discover it. simply says she was to call her account with requested at the defendants’ office on Monday, eighth, of a no intimation suit convenience. should gave called account. She determination close saw the book-keeper, request, defendants’ pursuance *7 487 v. et al. Stenton Reynolds, per Commission, firm of the defendants was going and was advised combinations that new were to into liquidation, new and she was desired to indicate to which of the formed, should be transferred. There was not firms account can so far as I intimation that her then, discover, any hand was to be or then on closed, her stocks some further notice Yet, to be sold. without they, were after, the eleventh of three on were, January, days excuse in law or at a can find sold sacrifice. possible for of the defendants. morals the conduct the defendants made
On the thirteenth of January or about On the and sent to the current. out plaintiff in the account seventeenth of some errors current January and, were small balance admitted, against appearing was admonished to call settle the defendants “ we would be close out the stock obliged, unwillingly, ” the above It hold balance debit against your ($170.03). this seem to be that the sale the Fort would implied Island stock, on the 11th of Bock Wayne, Beading did not in was not intended to closethe fact, January, account, for the defendants still held securities $170.03, which, the small balance of exceeded value, greatly threatened sell the bal this and which unless amount, this It is to be observed that ance was immediately adjusted. all the'
balance by charging produced sold on the the defendants loss wrongfully After some eleventh of January. correspondence plain on, of the account insisted and received tiff balance such securities as held for its from the defendants pay It that this was. ment. is now claimed balance a final from recover settlement precludes sale on eleventh for the of January. ing damages To this we do agree. right, that seemed rescue from perils impending, property if Even of a sum exacted. even by wrongfully back that I think this an action to recover money, 915; 2 be sustained. (Astley Reynolds, Strange, should Moody Osgood. 488 .
Statement of ease. al., Tutt v. Ide et Harmony Bingham, ; N. Y., 99,109 But is not cause of action. Blatchford, 249.) *8 is for th’e of from sale' damages resulting stocks on the That cause eleventh of plaintiff’s January. of action existed when the smaller plaintiff exchanged than amount of the defendants’ demand, money, upon npt in held for did value of the its This payment. in this action. affect claim of the any way of action as old as that a cause law, is the common principle seal, vested under once can a release only discharged (McKnight of in satisfaction. receipt something Dunlop, 5 N. cases Y., cited.)
The case of Markham Jaudon (41 N.. is, Y., 236) the main question, conclusive against entirely should be affirmed costs. .and with judgment All concur. affirmed.
Judgment George A. Respondent, A. Osgood, Matilda Moody, Appellant. Upon jury jo trial court not bound jury, submit to the for their propositions consideration, law; jury abstract of and where the have f properly upon every question disposition been instructed material to the case, may properly the court decline to entertain further application from give either further instructions. Plaintiff, passing while sidewalk, city from a street car to York, pole New sleigh, was struck defendant’s .of knocked down injured. In action to injury, recover for the after the court had jury, substance, instructed the that to entitle the to recover injury solely defendant, must have resulted negligence if negligence way contributed, could recover, requested that, defendant’s charge counsel the court to if the was equally question evidence balanced on the negligence in the plaintiff, defendant and equally and if the evidence was consistent with the absence of as negligence defendant, then could not recover. charge. Held, This the court declined n& error. Also, held, was not chargeable street, with notice that the locality accident, gentlemen r was one where were in the habit