56 How. Pr. 53 | N.Y. Sup. Ct. | 1878
As the cause of action alleged in the complaint and the counter-claim are respectively admitted by the answer and reply, and the only real subject of controversy, is the alleged agreement and transaction thereunder set out in the last named pleading, it was deemed advisable, upon the failure of the jury to agree, in view of the important and novel legal questions involved, the fact that the jurors failed to agree upon a verdict and the heavy expense attending such a trial, to direct a verdict for the defendant for the excess of the counter-claim over the amount claimed by the plaintiff, in order that if, after full argument, I should conclude that the agreement set out in the reply is void, a new trial would be avoided, and if I should come to a contrary conclusion, the same result would follow as if the verdict had not been directed. It is clear, that if the evidence by the plaintiff in support of his reply, assuming it to be true, would not authorize a fipding, that, as matter of law, would constitute a payment of defendant’s counter-claim, in whole or in part, it was folly to submit the ease to a jury, and the defendant is entitled to judgment upon the verdict so directed.
On the other hand, if from the evidence so given by the plaintiff, the jury might have drawn conclusions that would constitute a valid agreement, going to extinguish defendant’s counter-claim, he is entitled to have the benefit of a jury trial upon the questions- of fact involved.
There are two aspects, then, brought to view in this motion to set aside the verdict and for a new trial.
First, what conclusions.of fact, would it be competent for a jury to draw from the evidence given by the plaintiff, and second, do such conclusions, as matters of law, constitute a valid defense to the defendant’s counter-claim ?
•In order to consider the first question fanly’it will be necessary to quote, somewhat largely from- the testimony, aside from stating the undisputed facts of the case.
Prior to February, 1312, the plaintiff had become indebted to defendant in the sum of about $50,000, arising out of stock
The plaintiff states: “I told him that certain facts had come to my knowledge.” “ That feeling confident that if his position was what I thought it was we could both make a great deal of money out of it, and before I would tell him what it was I said to him that I should want him to promise me that when I named his position, named this stock and named what I thought he was (doing) upon it, to tell me first whether I was correct in my surmise as to his position and the next thing was whether, if when I told him the facts that had come within my knowledge, if he a/nd I Tooth concurred in the view that it was goi/ng to ad/oa/nce the price of the stock, that then he would allow me to take an interest of 5,000 shares in the stock that he held, if he held it, to Tooth of which preliminary to going Into the facts, Mr. Drew assented—I then told him,” &e. Upon receiving the information defendant agreed to hold and carry for the plaintiff 5,000 shares at the price of seventy-four dollars per share of $100 each, at the same time pronouncing the information of great value and importance.
There "can be no doubt of the sufficiency of the consideration. Beliable information as to facts upon which the future price of a stock will depend is perhaps the most valuable consideration that could be paid to an operator. In the possession of the plaintiff it would enable him to operate with success. When he imparted it to défendant the latter could do the same.
The knowledge of a fact cannot be called “ mere words.” The information communicated by a professional man has always been held a sufficient consideration to sustain assumpsit.
This information was concededly of great value and was just as effective to take the case out of the statute of frauds as if a cash payment had then been made.
The moment the information was given and the transaction assented ,to by defendant it was an executed contract and the defendant bore the same relation to the plaintiff, in regard to this stock, as stock brokers ordinarily bear to the customers for whom they are carrying stocks.
The plaintiff became the owner and the defendant the pledgee of the stock, charged also with the further duty to continue to carry, without margin, until directed to sell as provided by the agreement.
The title to the stock (5,000 shares) was in the plaintiff and he was entitled to an immediate delivery at any time of the specific stock agreed to be set apart and held by defendant for him on tendering to the defendant the price agreed upon for the same with accrued interest.
These views, if correct, render it unnecessary to discuss the objection that this transaction was a wager.
The stock advanced rapidly in price. When it had reached the price of about eighty-five dollars per share the 'plaintiff and defendant had an interview in which the plaintiff instructed the defendant to close the transaction in one of three ways, to which he readily assented.
The plaintiff had a right to assume, and he testifies that he, did assume, that the transaction was closed and the profits applied in extinguishment of defendant’s claim against him.
The fact that defendant subsequently said he had forgotten to sell the stock does not imply that he thereby proposed to continue to hold it for plaintiff, or that he- then had it even. Heither does ■ it follow that he had not adopted one of the other courses authorized, viz., taken the stock upon his own
On the contrary, the fact that he did.not tender the stock to the plaintiff nor sell it shows satisfactorily that he did elect to adopt the l'atter alternative.
The defendant had agreed to close the transaction in one of the ways directed by the plaintiff, and the plaintiff relied upon that agreement.
It seems to me clear that defendant is estopped from alleging that he did not carry out his agreement.
Furthermore, from the subsequent conversations and dealings between the parties a jury must be satisfied that defendant intended to charge himself with the stock. He acknowledged the extinguishment of the indebtedness by the profits of the transaction, to which plaintiff was entitled, at a time when the latter could have secured a result much more favorable to himself if defendant had not practically agreed that the stock was disposed of-in one of the methods directed.
Again, it does not appear that defendant ever afterwards claimed that plaintiff was the owner of the stock, or that he was continuing to carry it for him. It does, however, fairly appear that defendant, in consequence of having large amounts of the stock, did not desire the plaintiff’s stock should be thrown suddenly upon the market, and therefore he might' well have taken it himself to avoid that result.
Whether an actual entry was made in the books of account or elsewhere showing this disposition is immaterial.
It was doubtless defendant’s intention to do so, and the intention was consummated by his having possession of, and exercising control over, the stock.
As he already had possession a formal delivery of the stock certificates to retransfer to him the title was unnecessary.
It follows, from these views, that the verdict must be set aside and new trial granted.