Billingslea v. Smith

• Decision Date: 20 June 1893
• Citation: 26 A. 1077,77 Md. 504
• Parties: BILLINGSLEA v. SMITH ET AL.
• Court: Maryland Court of Appeals

26 A. 1077

77 Md. 504

BILLINGSLEA v. SMITH ET AL.

Court of Appeals of Maryland

June 20, 1893

Appeal from circuit court, Carroll county.

Action by John S. Smith and Harry Pride, trading as Smith & Pride against Charles Billingslea. Plaintiffs had judgment, and defendant appeals. Reversed.

Argued before ROBINSON, BRYAN, McSHERRY, and FOWLER, JJ.

Wm. P Maulsby and Wm. H. Thomas, for appellant.

Wm. A McKellep, H. M. Clabaugh, and John Henry Keene, for appellees.

BRYAN J.

Smith & Pride brought suit against Charles Billingslea in the circuit court for Carroll county. The declaration contained the common counts for goods sold, for work done, for money lent, for money paid by plaintiffs for defendant, at his request, for money received by defendant for the use of the plaintiffs, and for money found to be due on accounts stated. The following account was filed with the declaration, verified by the affidavit of the plaintiff Smith:

Balto., Nov. 12th, 1890.

Dr. Chas. Billingslea, in ac. with Smith & Pride. 1890.

Nov. 5th. To 100 C. Gas stock 310. Bot. at 42 1/4 $4,225 00

By cash on same 500 00 $ 3,725 00

__________

To 100 N. Pac. stock 312.

Bot. at 74 1/4...... $7,425 00

By cash on same 500 00 6,925 00__________

Nov. 5. To 200 N. Pac. stock 314.

Bot. at 73........ $14,600 00

By cash on same 800 00 13,800 00

__________ __________

$24,450 00

Ints. from Nov. 5th to 12th 28 50

__________

$24,478 50

Credits.

Nov. 12. By 100 C. Gas 310. Sold out at 39.... $ 3,900 00

By 100 N. Pac. 312. Sold out at 56.... 5,600 00

By 200 N. Pac. 314. Sold out at 56.... 11,200 00 20,700 00

__________ __________

Due S. & P................ $3,778 50

E. & O. E.

On the trial the plaintiff Smith testified to the partnership between himself and Pride as stockbrokers in Baltimore, and that in October, 1890, the firm had a transaction with defendant in respect to the buying of stock for him, and that he told defendant where he bought stocks in New York, and of whom he bought stocks; and notice having been given to defendant to produce an original paper which witness had sent by mail to defendant, and defendant failing to produce it, without giving any reason, the plaintiff offered in evidence the following paper:

S. & P.

H. Pride & Co., brokers, will receive no business except with the understanding that the actual delivery of property bought or sold is, in all cases, intended, agreed, and understood. Deliveries in grain and provisions made in accordance with the rules of the Chicago Board of Trade.

Baltimore, Md., Sept. 5th, 1890. 18. No. 100.

H. Pride, Broker. Telephone 289.3.

11 South Street, Upstairs. Smith & Pride.

Stockbrokers.

Has bought for account and risk of ______.

Amount. Month. Article.

Price. Margins. Exhaust.

25 Mop. 71.4

This order filed by New York Stock and Produce Clearing-House Company, 18 Broadway, New York.

And the witness gave evidence that this paper was a facsimile in every respect of the one sent to defendant except that said paper contained the account of stocks bought, as shown in the account filed with the declaration, and that said paper was sent to the defendant on or about November 5, 1890. The witness further testified that on November 5, 1890, he received by telephone, in Baltimore, from Westminster, an order to buy the stocks above mentioned, and on the same day purchased them by means of a telegram from Baltimore to the New York Stock & Produce Clearing-House Company, 18 Broad way, New York, and purchased the same through the said company; and that it was the universal custom among the brokers in Baltimore to buy and sell stocks through New York brokers for their customers; and that it is the universal custom among brokers to sell out stocks when the customer does not keep up the margin. A number of letters were then offered in evidence in reference to the dealings between the parties to this suit, all of them written by the plaintiffs, except one. The testimony of Smith is further stated in the bill of exceptions as follows: "The said witness then proved that Harvey Pride, one of said partners, stated to the defendant, in the presence of said witness, the terms of the contract between the plaintiffs and the said New York Stock & Produce Clearing-House Company, and notified defendant that he would be charged with interest after 1st November, 1890, on the full price of stock bought; that said Pride stated to defendant the terms on which said stock would be bought a month or two before the transaction in the stocks in question; that the plaintiffs and defendant had several transactions before that of the 5th of November, 1890; that the stocks in question were purchased on the 5th of November, 1890, as before stated, through telephone, in the office of William B. Thomas, in Westminster, to the office of the plaintiffs, in Baltimore. The plaintiffs then offered to read in evidence an original entry made by plaintiffs on a paper called a 'Scratch Sheet,' kept by them to prove that the stocks in question were purchased on the 5th of November, 1890, and to prove an order from the defendant to purchase the same on said day; but the defendant objected to said proof offered, and the court admitted the same, for the purpose of refreshing the memory of the witness, the witness having proved that this paper, called 'Scratch Sheet,' contained original entries of transactions made by him at the very time of the transactions, and he knew it to be correct, and, upon looking at it, remembered the transactions with the defendant here in question, independent of the paper." The witness then testified that he recollected the defendant's order to buy the stocks mentioned in the account filed with the declaration; that defendant gave the order through telephone; that he mailed to the defendant on the evening of November 5, 1890, the facsimile of the paper above mentioned, marked "S. &. P.," which contained a statement of these purchases, and that he received from the defendant payments of money on November 7th, 8th, and 10th; that this transaction was "closed out" on November 12th, at the stock exchange, in the city of New York, by the sale of the said stocks on an order from plaintiffs by telegraph to the New York Stock & Produce Clearing-House Company to sell the stocks; and that on the same day they deposited for the defendant $3,700 in the Franklin Bank of Baltimore, to the credit of the said clearing-house company. The contract was not produced which was testified to have been made by the plaintiffs and the New York Company, and whose contents, according to Smith's testimony, were stated by Pride to the defendant. A copy of this agreement was offered in evidence by plaintiffs, under a commission to take testimony, but it was ruled out by the court. For the purpose of illustrating our views, this copy is here inserted:

"New York Stock & Produce Clearing-House Company, Limited. Capital, $100,000, [[Full Paid.]

Memorandum of agreement made this seventh day of July, 1891, between the Platt, Grenlich Company, party of the first part, and Smith & Pride, Baltimore, Md., party of the second part:

Witnesseth, that the said parties do mutually agree as follows:

(1) That the following are the terms and conditions upon which all contracts between them shall be had, unless others shall be agreed upon in writing.

(2) That the property sold by either party to the other is to be delivered as hereinafter stated on payment of the contract price.

(3) That, if the advance or decline in the market price of any property beyond the contract price equals or exceeds the cash credits of the party of the second part with the party of the first part, the party of the first part shall thereupon be at liberty to close and terminate the contract as to that property; and any credits the party of the second part may have with the party of the first part may be applied by the party of the first part to any indebtedness of the party of the second part to the party of the first part; and the party of the first part may close and terminate any or all other contracts, and apply the payments or deposits and profits to the payment of any such indebtedness.

(4) That the place of delivery of grain and provisions is Chicago, at such houses as the party of the first part may elect; and of all other property, the office of the party of the first part in New York city.

(5) That Chicago warehouse receipts for grain and provisions, and National Trust Co. Pipe-Line certificates for oil, may be delivered in lieu of the property represented by them.

(6) That the party of the second part has and shall have no authority to act as the agent of the party of the first part, and he shall in no way hold himself out or represent himself to be the agent of the party of the first part.

[Seal.] L. J. Grenlich, President.

Smith & Pride."

A number of letters from defendant to plaintiffs were offered in evidence by plaintiffs, dated from October 21, 1890, to November 17, 1890. The witness Smith further testified that on the night of the 11th of November, he telephoned to William B. Thomas, at Westminster, to give notice to persons who had stock transactions with Smith & Pride that he would give them until next morning at 10 o'clock to put up margins, and that plaintiffs would sell out the stocks next morning if margins were not put up, and that plaintiffs would deliver stocks to any broker in New York if purchasers would pay what was due on them, and that no check came from defendant. Defendant, in his testimony, stated that he was present in the office of Mr. Thomas when the telephoning took place, but he denied that anything was said about delivery of stocks. Evidence was given that plaintiffs had deposited in the...