Opinion
July, 1905.
I.R. Oeland [ O.N. Brown with him on the brief], for the appellant.
John Henry Hammond [ Russell H. Landale and Edward B. Boise with him on the brief], for the respondent James B. Taylor.
Philip J. Britt, for the respondents Talbot J. Taylor and Foxhall P. Keene.
The plaintiff pleaded a refusal by the defendants to sell certain shares of stock as a breach of the ordinary stockbroker's agreement to purchase and carry stock subject to the customer's order. It appeared that the stock in question was 1,000 shares of a much larger number purchased on account of a pool formed by an agreement signed by the defendants and several other brokers on behalf of customers. The plaintiff's evidence tended to establish a contract between him and the defendants, pursuant to which the defendants were to purchase and carry for him said stock, it being understood, however, that the stock was pool stock. His evidence tended further to establish the fact that the pool agreement was never submitted to him, and that it was agreed that he should be at liberty to sell the stock at any time he desired. The defendants claimed that the pool agreement, which placed the pool stock in the control of a manager, was submitted to the plaintiff, and that there was no agreement that he might sell independent of the pool. This issue was submitted to the jury and resolved by it in favor of the plaintiff, whereupon the court set aside the verdict and dismissed the complaint, on the theory that the law imputes knowledge of the general nature of a pool agreement, and that no valid agreement inconsistent therewith could be made, and that if such an independent agreement could be made there was no consideration for it, and the plaintiff's cause of action was for deceit and not breach of contract. The record simply discloses that decision on the motion to dismiss was reserved; it nowhere appears that such a motion was made, or upon what ground it was based if made; but treating the motion as having been properly before the court we think the learned justice erred in dismissing the complaint. The plaintiff's evidence established, if true, a distinct independent agreement to purchase, carry and sell upon order 1,000 shares of stock, of which the signing of the pool agreement was a mere incident. We do not think that the terms of pool agreements are so far matter of common knowledge that knowledge of the terms of this agreement can be imputed to the plaintiff who swears that he was ignorant of its terms and that he had known of several pool agreements which permitted the members of the pool to sell independent of the pool. One of the defendants testified: "There was a private contract between me and Ridgely, by which he was to participate in a thousand shares of our stock," from which it would appear that the defendants, not the plaintiff, were members of the pool. And whatever may have been the terms of the pool agreement signed by the defendants we can discern no reason why they could not make any agreement they chose with the plaintiff. The reasons which moved the learned justice to dismiss the complaint could properly be urged before the jury.
The judgment and order should be reversed and a new trial granted, costs to abide the event.
HIRSCHBERG, P.J., BARTLETT and RICH, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.