[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 482 The stocks in question were purchased by the defendants, for the plaintiff, under the agreement embodied in the instrument signed by her and delivered to them, dated November 28, 1864. Under this agreement the relation of *Page 483 pledgor and pledgee existed between the plaintiff and defendants as to all stocks purchased, they holding a lien upon the stocks for any advances made. It was so decided in Markham v. Jaudon (41 N.Y., 235), and in Morgan v. Jaudon (40 Howard's Pr. Rep., 366). Under this agreement the defendants were not obliged to carry the stocks indefinitely. Whenever they desired to close the transaction in reference to any stocks, it was their duty to tender the certificates thereof to the plaintiff and demand payment for them; then, if within a reasonable time she did not take and pay for the stocks, they had a right to sell them to satisfy their lien, after first giving her notice of the time and place of sale. There was only one contingency in which they could, under the agreement, sell the stock without notice, and that was, if the plaintiff's margin fell below twenty per cent and she failed, upon demand, to make the margin good; then, by the express stipulation in the agreement, they could sell without notice. Here no demand was made for more margin, and hence there was no right to sell on account of the insufficiency of the margin; and there was no tender of the stock, and no demand that the plaintiff should pay for the same; and hence the defendants had no right to sell for the purpose of closing their accounts with her. The sale of the stocks was, therefore, wrongful and unauthorized, and rendered the defendants liable to the plaintiff for such damage as the rules of law entitled her to.
But it is claimed that the parties settled before the commencement of this action, and that the plaintiff voluntarily paid the defendants the balance due them upon an account stated, and hence that she could not rightfully recover in this action. This claim must now be examined.
On the 11th day of January, 1866, the defendants made the wrongful sale of the stocks, and notified the plaintiff of it. On the 14th day of January they made up her account with them in reference to her deposits, and the purchase and sale of these stocks, showing a small balance due them, and leaving in their hands, as security for such balance, two United *Page 484 States bonds for $500 each. Soon thereafter, the plaintiff called upon the defendants and complained of the manner in which she had been treated by the sale of the stocks, and also pointed out some small errors in the account as to items of credit to her which had been omitted. The defendants, soon thereafter, rendered a corrected account, showing a balance due them of $169.88, still holding the two United States bonds as security therefor; and they wrote her several letters stating that unless she paid this balance they would sell her bonds. Finally, on the 28th day of January, she being in ill health and her husband having met with a serious accident, needing her attention, and she having pressing need for her two bonds, wrote to the defendants informing them of these facts, and sent her letter, with the balance, to them by a messenger, who paid it to them and received from them the two bonds and delivered them to her. Upon all these facts the referee found that she did not acquiesce in or assent to the account as to the sale of her bonds, and that she was not concluded by the payment of the balance as a voluntary payment; and in this finding I do not believe that he erred.
It is true that an account stated is conclusive upon the parties to it, unless impeached for fraud or mistake. But what is an account stated? It takes two parties to make one, the debtor and creditor. There must be a mutual agreement between them as to the allowance and disallowance of the respective claims, and as to the balance as it is struck upon the final adjustment of the whole account and demands of both sides. Their minds must meet as in making other agreements, and they must both assent to the account and the balance as correct. But this agreement and assent need not be direct and express, but may be implied from circumstances. If one party presents his account to the other and the latter makes no objection, it may well be inferred that he is satisfied with and assents to it as correct. If an account be made up and transmitted by one party to the other by mail, and the latter keeps it for some considerable time without making any objection, he is held to have *Page 485 acquiesced in it. But in all cases there must be proof, in some form, of an express or implied assent to the account rendered by one party to another, before the latter can be held to be so far concluded that he can impeach it only for fraud or mistake. (Lockwood v. Thorne, 11 N.Y., 170; S.C., 18 id., 290.) Here there is sufficient proof to authorize the finding of the referee that the plaintiff did not assent to the account as rendered, so far as related to the purchase and sale of the stocks, as correct. She claimed that the sale of her stock was unauthorized and wrongful, and the referee was justified upon the proof in finding that she did not intend at any time to release the defendants from any damage which they had occasioned her.
Great stress, however, is laid upon the payment by the plaintiff of the balance shown by the account, as rendered, to be due from her. This payment was in one sense voluntary, as she was not compelled by physical duress to pay it. But the defendants held her two bonds, which they threatened at once to sell unless she would pay this balance. She had great need for the bonds and could not well wait for the slow process of the law to restore them to her, and she paid this balance, not assenting to the account and not assenting that it was justly due, for the sole purpose of releasing her bonds. Under such circumstances it is well settled that the law does not regard a payment as voluntary. It was well said by Judge RUGGLES, in Harmony v. Bingham (12 N Y, 117), that "if a party has in his possession goods or other property belonging to another and refuses to deliver such property to that other unless the latter pays him a sum of money which he has no right to receive, and the latter, in order to obtain possession of his property, pays that sum, the money so paid is a payment by compulsion." In such case the payment is procured by duress of goods, and is no more voluntary in the eye of the law than if procured by duress of the person.
The rule of damages adopted by the referee was doubtless erroneous. He awarded to the plaintiff the amount of all the *Page 486 moneys deposited with the defendants, throwing out of the account all pertaining to the stocks and treating them as if they had been purchased and sold on account of the defendants. But no complaint by exception or otherwise was made of the rule at the trial, and hence none can be made here.
It follows, from these views, that the judgment must be affirmed, with costs.