Walston & Co. v. Miller

• Decision Date: 02 February 1966
• Docket Number: No. 7338,7338
• Citation: 100 Ariz. 48,410 P.2d 658
• Parties: WALSTON & CO., Inc., a corporation, Appellant, v. Joseph B. MILLER and Adina Miller, husband and wife, Appellees.
• Court: Arizona Supreme Court

Page 658

410 P.2d 658

100 Ariz. 48

WALSTON & CO., Inc., a corporation, Appellant, v. Joseph B. MILLER and Adina Miller, husband and wife, Appellees.

No. 7338.

Supreme Court of Arizona, In Banc.

Feb. 2, 1966.

Ryley, Carlock & Ralston, Phoenix, for appellant.

James E. Flynn, and Allan K. Perry, Phoenix, for appellees.

Evans, Kitchel & Jenckes, Phoenix, and White & Case, New York City, as amicus curiae for Assn. of Stock Exchange Firms.

MARY ANNE RICHEY, Superior Court Judge.

This appeal arises out of a cause of action brought by Walston and Co., Inc., appellant, hereinafter referred to as Walston, against Joseph B. Miller and his wife, appellees, hereinafter referred to as Miller. Walston claimed when Miller's commodity account was closed out on April 15, 1957, Miller owed it $1,105.85. Miller counterclaimed alleging that Walston owed Miller a duty to timely notify Miller of certain information which might affect prices on the World Sugar Market. Miller claimed that this failure caused him to lose monies deposited by Miller with Walston in connection with trades and in addition, to lose certain profits. The trial judge, sitting without a jury, found in favor of Walston on its complaint in the some of $1,105.85, and also found in favor of Miller on the counterclaim and awarded damages in the sum of $18,075.60.

From January 16, 1957 to April 15, 1957, Miller was engaged in the purchase and sale of sugar contracts on the World Sugar Market. The purchase or sale of a contract was done through Walston, and Walston was paid a fee of $35.00 for the handling of each separate contract. During this period, Miller spent much time in Walston's office studying Dow Jones averages, publications, and wire services provided by Walston.

On January 7, 1957, prior to the purchase of any contracts, Miller signed a management agreement with Walston outlining the terms under which Walston agreed to lend him a portion of purchase prices of various securities and commodities.

Miller claims that on three separate occasions Walston was negligent in either failing to advise or failing to give timely advice of certain information in the possession of Walston that directly affected the sugar contracts held by Miller. Specifically, on February 1, 1957, after the market closed, O'Neill, representative of Walston, phoned Miller and read to him a quote from Dow Jones' ticker to the effect that the International Sugar Council had noted the lifting of quotas on the exporting of sugar by member countries of the World Market. Miller and O'Neill discussed the possibility of this causing the 'bottom to drop out from under the sugar market'. Miller claimed later that Steve Greenberg, commodity analyst of Walston's in New York, had information at that time which allegedly might have offset the mistaken inferences both he and O'Neill drew.

Next, Miller complains that Walston omitted to supply him personally with certain opinions and advice contained in the daily market letter of February 4, 1957, sent out by Greenberg to all Walston offices. Miller called Greenberg on February 5, and at that time, received all information known to Greenberg. Miller further complains that Walston failed to timely notify him of confirmation of the fact that Russia had purchased 200,000 tons of sugar on the World Sugar Market. The evidence in the case showed that the Phoenix office of Walston was sent a wire from Greenberg at 12:00 noon (Tucson time), April 10, concerning this fact; that at 12:50 P.M. of the same day, Miller called Greenberg and was told directly of this fact. The market had not closed but Miller took no action to protect his position.

These three events were only a few of the many factors affecting the market price of sugar during the period of January 7, 1957 to April 15, 1957. Not even Miller suggested that these events alone would have influenced all of his action. As he stated in his testimony he 'got the facts and made up his own mind'. Miller at no time sought nor paid for management of his account by Walston, nor did he entrust his affairs to them.

The main question to be resolved in this case was when, in fact, the principal-agent relationship was in existence. The trial court found as a fact that a fiduciary relationship between Walston and Miller was created by the signing of the margin agreement on January 7, and Walston's activities in handling the numerous contracts for Miller during the period from January 16 to April 15, 1957. There is no quarrel with the proposition of law that when a broker serves as a customer's agent, he is a fiduciary and owes his principal a duty to communicate certain information to him. This duty is outlined in the Restatement (Second), Agency § 381:

'Unless otherwise agreed, an agent is subject to a duty to use reasonable efforts to give his principal information which is relevant to affairs entrusted to him and which, as the agent has notice, the principal would desire to have and which can be communicated without violating a superior duty to a third person'.

...