Davis v. Hilton
| Citation | 17 Mo.App. 319 |
| Parties | J. H. DAVIS ET AL., Appellants, v. M. HILTON, Respondent. |
| Decision Date | 07 April 1885 |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court, BARCLAY, J.
Affirmed.
W. B. THOMPSON, for the appellants.
M. HILTON, pro se.
The plaintiffs, stock brokers in New York, sue the defendant for a balance of $1,350, and interest, alleged to be due to them from defendant on stock transactions.
They aver that from September 30 to October 15, 1880, at the special instance and request of defendant, they paid out and expended for defendant in the purchase and sale of stock $71,615.47, and received from defendant $70,265.47, leaving a balance due them from defendant of $1,350.00, which balance the defendant promised to pay to them. An account is filed with the petition which starts on September 30, 1880, with a credit balance of $69,861.44 in favor of defendant. This and an entry of $400, dividend on 200 shares N. Y. Central, and $4.03 for interest are the only items to the credit of defendant. He is debited in the account with sundry items on stock sales between October 4th and 5th, aggregating $65,650.00, with cash paid October 5th of $4,215.47, and with 3 per cent. dividend on St. Paul common sold short Sept. 24, of $1,750--aggregating together $71,615.47, and resulting in the debit balance of $1,350, which is sought to be recovered in this action.
The defendant's answer denied the allegations of the petition and account generally, and specially denied the following items in the account, namely: The charge of $1,750, for a dividend of 3 1/2 per cent. on 500 shares of St. Paul common, and the charge that defendant was short on September 24, 500 shares on St. Paul common, and also denied the correctness of the balance of $1,350. The answer then set up a settlement had between the plaintiffs and defendant, October 5, 1880, and a mutual accounting between them touching all dealings mentioned in the petition, and the payment by plaintiffs to defendant of the sum of $4,215.47, in full settlement of the balance found due then from plaintiffs to defendant.
Upon a former trial of the cause the plaintiffs were non-suited in the trial court, but the judgment of nonsuit was reversed in this court (13 Mo. App. 590), and the cause was remanded for a new trial. Upon the present trial the jury under the instructions of the court found a verdict for defendant, and all that we are called upon to review is the correctness of the ruling of the court in the admission and exclusion of testimony, and in the giving and refusing of instructions.
The testimony in the case is far from clear, owing to the fact that the witnesses assume that the triers of the fact are familiar with the meaning of phrases used on the stock exchange, and that their testimony furnishes no explanation of such phrases. The following facts, however, seem to be conceded, namely: that the plaintiffs were acting as defendant's agents in the purchase and sale of stock, and that their agency in that regard was limited in each instance by defendant's instructions.
While the account sued on debits the defendant with a number of items, of all such debits there is substantially only one item in controversy. This item is the charge of $1,750.00, which plaintiffs claim to have paid for defendant on account of a 3 1/2 per cent. dividend on 500 shares of St. Paul common stock. The explanation given by plaintiffs of this transaction is as follows: On the 24th of September, 1880, the defendant ordered plaintiffs to make a “short” sale of 500 shares of St. Paul common stock, and in order to make a delivery they were compelled to borrow the stock. That after September 30, 1880, this stock, sold on the stock exchange in New York “ex” dividend, off 3 1/2 previously declared. This dividend the plaintiffs as the borrowers of the stock for defendant, were subsequently compelled to make good and pay to the persons from whom they had borrowed the stock.
That on October 4th and 5th the plaintiffs by order of defendant purchased for him 500 shares of St. Paul common, for the purpose of returning the stock thus borrowed, and subsequently paid to such persons the 3 1/2 per centum dividend, amounting to $1,750.00.
It stands conceded that an account was rendered by plaintiffs to defendant September 30, 1880, containing this entry: “debtor 3 1/2 per cent. div. on 500 St. Paul common, payable October 15th.” Plaintiffs testified that defendant did not object to the account when rendered. Defendant testified that he did object and said he did not understand it, and that plaintiffs' agent told him he did not understand it either but would inquire into it. A few days after this conversation defendant ordered plaintiffs to close out all of his stock, which they did on the 4th and 5th of October. On the 5th of October he called upon them for his account, and they...
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