The determination of this case will be facilitated by considering, first, what were the rights of the respective parties, under the contract made between them, relative to the purchase of the stocks, to be made by the defendants, and which were afterward purchased by them, pursuant to the contract. The testimony differed widely, as to what the contract was; but the verdict found by the jury, under the charge given, must be assumed as settling that fact, so far as the appeal from the judgment is concerned. The appeal from the order of the Special Term, denying a new trial, which was heard by the General Term, at the same time, with the appeal from the judgment, presented another question; that was, whether the verdict was sustained by the evidence. The contract, as found by the jury, was that the defendant was to purchase such stocks as were ordered by the plaintiff, and carry the same for him; the plaintiff to place in the defendants' hands ten per cent of the market price of the stocks ordered to be purchased, as a margin, and to keep such margin good. That is, to keep such a sum of money, at all times, in the hands of the defendants, as would, together with the present market value of the stocks, exceed by ten per cent the price paid by the defendants therefor. It is conceded, that the defendants were, during the time the stocks were carried, under the contract to hold the title and retain the contract thereof. Upon the part of the plaintiff, it is claimed that, by the true construction of this contract, the defendants became the agents of the plaintiff for the purchase of the stocks; that upon the completion of the purchase, under the contract, the title became vested in the plaintiff, who became the debtor of the defendants for the price paid for the stocks, less the ten per cent advanced by the plaintiff; and that the title, held by the *Page 247 defendants, was that of mere pledgees, to secure to them repayment of the plaintiff's indebtedness; and that any sale of the stocks, made by the defendants, without having given to the plaintiff such notice of the time and place thereof, as is required to be given by pledgees, is a conversion, and this irrespective of whether the plaintiff had performed his contract, by keeping good his margin, or not. Upon this construction, the plaintiff recovered at the trial. In determining, whether such are the legal rights of the parties, it will afford some aid to ascertain the object of the parties, in entering into the contract. That of the plaintiff, it clearly appears, was not to invest his money in the purchase of stocks to hold for the dividends thereon, but to acquire the chance of gain by a sale made when the value had risen in the market. For this purpose he was willing and agreed to keep the defendants indemnified from all liability to loss upon the stocks, by keeping in their hands, at all times, ten per cent more than they had paid for the stocks, over and above their present market value. The only benefit secured to the defendants from the transaction was their commission upon the purchase and sale of the stocks. The contract makes no provision for a transfer of the stocks by the defendants to the plaintiff, at any time or upon any terms, for the obvious reason that no such transfer was ever contemplated by the parties. The plaintiff, notwithstanding, probably had the right, under the contract, to require such transfer upon payment to the defendants of the amount paid by them for the stocks, together with interest and commissions; not for the reason that he was either the legal or equitable owner, or that he ever had any title to or interest therein prior to the purchase by and transfer to the defendants, but upon the ground, that as the whole risk was upon the plaintiff, and no benefit secured to the defendants under the contract except their commissions, the fair construction of the contract would give to the plaintiff the right to control the stocks, when all the benefits secured to the defendants by the contract, were realized by them. The construction put upon the contract by the judge *Page 248 upon trial, is sought to be sustained by the language of the contract; that is, that the defendants were to purchase such stocks as the plaintiff directed, and carry the same for him. It is claimed that this shows that the parties intended, that when the stocks were purchased, the title as pledgor should vest in the plaintiff, and that the interest of the defendants could only be that of pledgees. This construction places the defendants entirely at the mercy of the plaintiff, as to whether he performs his contract in respect to the margin. The careful provisions made by the defendants to protect themselves from loss, by keeping in their own hands, at all times, a sufficient indemnity, in case the plaintiff had performed his contract, shows that no credit was designed to be given to him personally. The construction put upon the contract at the trial, defeats this security of the defendants. That construction requires the defendants, although the whole margin is exhausted, to retain the stocks, though rapidly depreciating, until they can find their customer and give him a reasonable notice of the time and place of sale, to afford him an opportunity to save himself from loss by redeeming the stocks, casting the risk of loss from further depreciation, in the meantime, so far as the indemnity is concerned, upon the broker. This, instead of carrying out the intention of the parties in making the contract, entirely defeats it in this respect. That intention, manifestly, was to keep the defendants amply indemnified at all times, during the continuance of the contract, from the danger of loss by the margin and stocks in their hands. This intention was, under the construction given, defeated by the act of the plaintiff in wholly neglecting, for a long time, to make his margin good, although the ten per cent paid by him was much more than exhausted by the depreciation of the market value of the stocks. Nevertheless, it was held that the defendants, who, together with their clerks, testified that they were anxious to find the plaintiff, and were searching for him for days, while affairs were in this dilemma, and the stocks continuing to depreciate, and being unable to find him, by selling the stocks, in the usual course of sales at the *Page 249 board, for their present market value, rendered themselves liable to the plaintiff as tort-feasors, for the conversion of his stocks, and that the plaintiff was entitled to recover against them as such, not the value of the stocks at the time of sale, for this would have left him in debt to the defendants, but the highest price the stocks attained between the sale and the time of trial. Such a construction working such results, defeating the clear intention of the parties, should be rejected. The terms of the contract, construed by the object of the parties entering into it, import only that the defendants should purchase the stocks and themselves hold the title, at the risk of loss to the plaintiff in case of depreciation, the chance of gain to be his, in case the price advanced during the continuance of the contract. That this contract continued obligatory upon the parties until one party terminated it by notice to the other, or was guilty of a breach thereof. That in case of breach by one, the other, as in all cases of contract, was at liberty to put an end to it and recover his damages. But it is said, that this would place it in the power of the defendants to sell the plaintiff out at any time his margin fell a dollar below the ten per cent. Exactly so. The defendants had only contracted to retain the stocks on account of the plaintiff, while he kept the margin good; and when he failed to do this, the right to require them further to retain them, not, perhaps, at his, but their risk of further loss was not given by the contract. But it may be said that the plaintiff may have had no knowledge of the depreciation of the stocks, and may not, therefore, have been aware that the contract required him to make a further deposit with the defendants. The answer to this is, that by the contract, he had agreed to keep the margin of ten per cent good. He was therefore required to do this at the peril of the contract being terminated by the other party, because of his breach and of rendering himself liable for any loss sustained by the other party therefrom. He was bound to keep himself informed of the price of the stocks from time to time, so as to enable him to perform his contract. His ignorance of the price furnishes no excuse for the non-performance of *Page 250 the contract. The defendants had therefore a perfect right to sell the stocks, when, by the failure of the plaintiff to keep his margin good, their security against loss, provided by the contract, was impaired. This results from the right of one party to put an end to a contract when broken by the other. The defendants could not make themselves liable for a tortious conversion of the stocks of the plaintiff, for the reason that the plaintiff had no title to such stocks. The contract contemplated that the title should at all times remain in the defendants. In case they failed to perform the contract, the plaintiff having performed on his part, he could maintain an action, not for the conversion of the stocks, but for his damages sustained by the breach of the defendants. That the defendants, after receiving the plaintiff's margin and order to purchase stocks, omitted to make any purchase, it is clear that this would have been the remedy for the plaintiff, as in that case there could be no pretense that the defendants had converted any of the plaintiff's stocks. To hold, that if after having purchased, they violated that part of the contract to carry the stocks at the plaintiff's risk, by parting with the same, they were liable for the conversion, although the plaintiff had wholly failed to keep his margin good, or any margin, we have seen, defeats the security of the defendants against loss provided by the contract. The former construction secures to both parties all the benefits of the contract. It keeps the stocks constantly at the risk of the plaintiff, and enables the defendants to protect themselves from loss by a sale, whenever the plaintiff fails to keep the margin in their hands as agreed.
If the construction of the contract was doubtful, I think the judge erred in excluding the evidence of the usage in regard to such contracts, prevailing in Wall street, that being the only locality where they are made. This evidence was not offered for the purpose of changing the established legal rights of pledgors and pledgees by a local custom contrary to the general law, but as showing that by the understanding of the parties, no such relations were *Page 251 created by the contract. The court instructed the jury that the plaintiff, if entitled to recover, was entitled to the highest price between the time of sale by the defendants and the time of trial. To this there was an exception. This direction was material, as it greatly enhanced the recovery. In this, I think there was error. I shall not discuss the cases holding that the rule of damages for the wrongful conversion of property is the highest price between the conversion and the trial. The only reason upon which such a rule can be plausibly maintained is, that the defendant, by wrongfully depriving the owner of his property, has rendered him unable to avail himself of its advance in the market, as he might have done if not so deprived; and that, as it was possible the owner would have realized the highest intermediate price therefor, properly to indemnify him required that the wrong-doer should pay such price. This reason has no sort of application to the present case. Here the plaintiff had not paid for the stocks. He retained ninety per cent of the purchase price in his pocket. The sum so retained, in consequence of the depreciation, would have enabled him to have gone into the market and purchased an equal amount of the same stock. If he wished to risk the future fluctuation of the market, he should have done this. There is no such weight of authority in this State as to require this court to hold that the plaintiff could retain his money, incur no risk of loss from future depreciation, and enjoy all the chance of gain from a rise in the market, the defendants, in the meantime, exposed to all the chance of loss without any possibility of gain. A doctrine so entirely contrary to justice and reason should never be sanctioned, unless sustained by such numerous judicial decisions as imperatively to require the court, while disapproving the rule, to apply the maxim of stare decisis. As above remarked, there is no such weight of authority in this State. I am aware of but a few cases applying such a rule. The soundness of the rule has even been questioned by some of the ablest jurists, when applied to a case where the plaintiff was the absolute owner; much more where, as in the *Page 252 present case, to give him such title he, was bound to pay the defendants a sum sufficient to enable him to purchase the like stocks in the market. But as I think the Supreme Court were clearly right in reversing the judgment and ordering a new trial, upon the erroneous construction of the contract, at circuit, I shall not further discuss the point under consideration, nor the question whether the verdict should not have been set aside as against evidence. The order appealed from should be affirmed, and judgment final given against the plaintiff, upon the stipulation.