Rosenstock v. Tormey

• Decision Date: 25 February 1870
• Citation: 32 Md. 169
• Parties: GERSON ROSENSTOCK v. LEONARD J. TORMEY.
• Court: Maryland Court of Appeals

32 Md. 169

GERSON ROSENSTOCK v. LEONARD J. TORMEY.

Court of Appeals of Maryland

February 25, 1870

APPEAL from the Superior Court of Baltimore City.

The facts of the case are stated in the opinion of the Court.

In the course of the trial, the following exceptions were taken to the evidence and order of evidence:

First Exception: After the plaintiff had proved the order to purchase the stock in question; its purchase in New York, according to the regular course of business; the items in the account filed with the declaration, with the credits thereon, &c., and the payment by the plaintiff of $12,850 to Dibble and Cambloss, as the purchase money of the stock, the defendants objected to the giving of said testimony, without producing some requisite to gratify the Statute of Frauds, and without proof of such purchase, by producing or proving that some transfer was made. The Court overruled the objection, and permitted the evidence to go to the jury. The defendants excepted.

Second Exception: This exception rests upon an objection to the order in which certain proof therein stated should be given. The Court overruled the objection, and the defendants excepted.

Third Exception: The plaintiff offered in evidence his letters to and from his correspondents in New York shewing the statement of the purchase and sale of the stocks in question, and on the strength of which the plaintiff had laid out and expended the purchase money of the said stocks. The defendants objected to the introduction of said letters as proof of the purchase and sale. The Court overruled the objection, and the defendants excepted.

Fourth Exception: The plaintiff having proved by himself, that Hoflin gave the order to purchase the stock in question in the joint names of the defendants, in the presence of Gerson Rosenstock, who stood immediately behind Hoflin, ""near enough to have heard" the order;--by heChtel, that he saw Rosenstock following Hoflin in on the occasion when the order was given;--by Hoflin, that he first gave the order to buy for J. Hoflin, but on going to the door and meeting Gerson and Louis, who each agreed to take a third, he immediately returned, and directed the stock to be ordered in their joint names;--by Hechtel, that the witness had asked Louis to settle the balance due on the purchase, and in reply, Louis had not denied the transaction or his interest in it, but said that "he had an interest in the purchase, but had no money, his brother Gerson had the money, and would pay for it." The Court was asked to "exclude all the statements of Hoflin, professing to have been made on account of the defendants, upon the ground that no proof had been given, although the plaintiff had then closed his case, of the said Hoflin being their agent in regard to the alleged purchase." This the Court refused to do, and the defendants excepted.

Fifth Exception: The plaintiff offered the following prayer:

If the jury believe from the evidence that the plaintiff laid out and expended in the purchase of one hundred shares of Illinois Central, for the defendants, at the instance and request of the defendants, the sum of $12,825, and that the amount so expended has not been refunded to him, then the said plaintiff is entitled to recover against the defendants Gerson and Lewis Rosenstock, whatever sum of money may yet remain unpaid of said sum, so laid out and expended; provided the jury shall find that the said stock was purchased according to the usual course of dealing in the purchase and sale of stocks, and shall also find that the sale thereof as made by direction of the plaintiff, as offered in evidence, was also made according to the usual course of dealing in the purchase and sale of stocks, and after due notice to the defendants.

The defendants asked the Court to instruct the jury as follows: 1. That before the plaintiff can recover, the jury must find that the one hundred shares of Illinois Central Stock were bought for the joint account of the three defendants, named in the declaration.

2. That there is no evidence in this cause sufficient to gratify the requirements of the Statute of Frauds.

3. That if the jury shall find that said stock was purchased as alleged by the plaintiff, that then the defendants were in no default, unless the stock was tendered to them or either of them, with a demand of payment therefor and a refusal to comply; and if they shall find such default and refusal, then said plaintiff had no right to re-sell said stock, save at public sale, or at a public stock board, and of which such sale there is no evidence.

4. That if the jury shall find from the evidence that the defendants, Gerson and Louis Rosenstock, agreed to buy of Nathan Hoflin, respectively, thirty-three shares of said stock, then there is no privity of contract between them and the plaintiff, and in that event the plaintiff cannot recover.

5. That there is no sufficient legal evidence that the said one hundred shares of Illinois Central Stock were ever purchased as pretended, and that before the plaintiff can recover, he must give such evidence that the same was so purchased.

6. That there is no evidence in this cause to show that the plaintiff ever paid, laid out or expended, the sum alleged, or any part thereof, or any sum whatever on behalf of the defendants, or either or any of them, as alleged in the declaration.

The Court granted the plaintiff's prayer, and the first and fourth prayers of the defendants, but rejected the others. To the granting of the plaintiff's prayer, and to the rejection of their second, third, fifth and sixth prayers, the defendants excepted, and the verdict and judgment being for the plaintiff, the present appeal was taken.

The cause was argued before STEWART, MAULSBY, MILLER and ALVEY, J.

Wm. H. Dawson and George H. Williams, for the appellant.

Contracts for the sale of stocks are within the Statute of Frauds, and must be proved as required by statute. Colvin vs. Williams, 3 H. & J., 38; Baldwin vs. Williams, 3 Metcalf, 365.

Before the actings and doings of an alleged agent can be given in evidence, some proof of his agency must be first given. Worthington vs. Savage Co., 1 Gill, 284; Marshall vs. Haney, 4 Md., 511; Atwell vs. Miller, 11 Md., 359.

The private letters of the plaintiff to Dibble & Cambloss, and their replies, and the recitals respectively contained therein, were not evidence as against the defendants for any purpose, and certainly not proof of sales or purchases of stock, nor even proof of its existence. Langhorn vs. Allnutt, 4 Taunton, 517.

The prayer of the plaintiff should not have been granted, because--

1st. There was no evidence on which the jury could find a joint request to purchase on joint account.

2d. No proof that any stock was ever bought or sold in fact. No proof that Dibble & Cambloss (as vendors, or as agents of vendors, if they were such) ever tendered the stock. No proof, in fact, that any such stock ever existed.

3d. No proof that any money was ever demanded of Tormey by anybody, and so the pretended payment, if ever made, for aught that appears, was purely voluntary.

4th. No proof of any usage or custom, that an agent can fulfil contracts of his principal before somebody asks him so to do, or that an agent can notify his employer to fulfil some contract he has made for him, without demand being made by the other party to the contract, and without proof that the agent was responsible for its performance. Turner vs. Egerton, 1 Gill & J., 433; Mayor, &c., vs. Hughes, 1 Gill & J., 497.

5th. No proof here that any of the defendants solicited the plaintiff to withhold their names as purchasers, and so make himself responsible for their contract.

The rejected prayers of the defendants should have been granted, for the reasons assigned for not granting the plaintiff's prayer.

1st. Because there was no proof to satisfy the Statute of Frauds.

2d. Because that there was no refusal on any order, but even if there was default, a re-sale should not have been made, save at a public place, after notice.

3d. And that there was neither evidence of the purchase of said stock, nor that the plaintiff ever laid out or expended a dollar, as alleged.

Orville Horwitz, for the appellee.

The Court was right in admitting the testimony contained in the first bill of exceptions.

This action was not instituted to recover the purchase money of one hundred shares of Illinois Central, by the vendor against the vendee. In a case of that character, it might possibly be necessary to show a sale within the Statute, and without such proof, the vendor might have no claim. In this State, in an old case, (Colvin vs. Williams, 3 H. & J., 38,) the Court of Appeals, it is true, have said that the sale of bank stock was within the Statute, but even in that case, it would seem to have been so said more for the purpose of showing that the purchase and sale-note of the broker was binding on the defendant, than for any other purpose. In England and in this country, in all the modern cases, the distinction is taken between bank shares and railway shares, and it is held that the sale of railway shares does not come within the Statute. 11 Ad. & Ellis, 205; 16 M. & W., 66; 12 Simons, 189; 3 C. B., 249.

But in this case, the action is brought to recover the balance of a sum of money expended at the instance and request of the defendants by the plaintiff, in the due course of business and according to the custom of that business. The plaintiff was directed to order one hundred shares of a certain stock for the defendants. He immediately ordered it, and on being notified of its purchase, according to the course of trade, he sent forward his money to pay for it. From that moment, having followed...