49 N.Y. 301 | NY | 1872
The conclusion of the referee, that the defendant is entitled, as damages, to a credit upon the plaintiffs' account of the value of the 100 shares of Pacific mail stock, which the plaintiffs transferred to themselves on the 26th of February, at the then market price, as reported by them to the defendant, and the conclusion that the complaint should be dismissed as premature, for the reason that such shares have not been sold, cannot stand together. The defendant had the right to treat the sale of this stock by the plaintiffs to themselves as void, and to demand an actual sale of the stock, in which event he would incur the risk of any loss arising from its depreciation, and be entitled to the benefit of any rise, or he could elect to affirm the sale and hold the plaintiffs to the price which they had reported; but he could not do both. If the plaintiffs had, after taking the stock to their own account, sold it at an advance, the defendant could charge them with any profit realized by them from the transaction, or he might treat them as having converted the stock to their own use and charge them with damages for the conversion; but he cannot charge the plaintiffs with the price or value of the stock, either as purchasers or as having converted it, and at the same time claim that the stock is undisposed of, and the account for that reason not closed.
The referee having adjudged the plaintiffs liable for the market value of the shares, as reported by them on the 26th of February, 1870, nothing remained to be done except to adjust the account between the parties on that basis. Neither the evidence nor the report disclose the state of this account. The case does not appear to contain all the evidence, but shows that the complaint was dismissed on the sole ground *303 that the action was prematurely brought. If the plaintiffs are held to have converted the 100 shares to their own use, they are chargeable with the damages for that conversion; but that does not preclude them from recovering whatever sums the defendant may owe them on the other transactions embraced in the account. The judgment should be reversed and a new trial ordered, with costs to abide the event.
All concur.
Judgment reversed.
