The agreement or written order, upon which the account with the plaintiff was opened by the defendants for the purchase and sale of stock on her account, is very explicit in its terms, and the rights and obligations of the parties under it entirely apparent. The plaintiff was never put in default for not providing the margins required by the contract, and the sale of the stocks by the defendants, complained of in this action, was made without notice to the plaintiff in any form that she was required to furnish more money, or that the stocks were to be sold.
It is entirely true that the agreement under which the account was opened might be determined at any time by either party, but this could not be done except upon reasonable notice. Neither party was at liberty, by a secret emotion of mind, to rescind the contract and then proceed to sacrifice or impair the interests of the other without in some form disclosing the determination to close the account. This, I think, the defendants undertook to do in a somewhat arbitrary manner, and it seems very proper that they should respond to the plaintiff for such damages as, by their wrongful action, she has sustained.
It is urged that the defendants' letter of the 6th of January, 1866, placed the plaintiff in default, but I have been unable to discover it. It simply says that, in consideration of her account with the defendants, she was requested to call at the defendants' office on Monday, the eighth, at any time that should suit her convenience. It gave no intimation of a determination to close the plaintiff's account. She called in pursuance of the request, saw the defendants' book-keeper, *Page 487 and was advised that the firm of the defendants was going into liquidation, and that new combinations were to be formed, and she was desired to indicate to which of the new firms her account should be transferred. There was not then, so far as I can discover, any intimation that her account was to be closed, or that her stocks then on hand were to be sold. Yet, without further notice they, or some of them were, on the eleventh of January, three days after, sold at a sacrifice. I can find no possible excuse in law or morals for the conduct of the defendants.
On or about the thirteenth of January the defendants made out and sent to the plaintiff an account current. On the seventeenth of January some errors in the account current were admitted, and, a small balance appearing against her, the plaintiff was admonished to call and settle or the defendants would be "obliged, unwillingly, to close out the stock we hold against the above balance at your debit" ($170.03). It would seem to be implied from this that the sale of the Fort Wayne, Rock Island and Reading stock, on the 11th of January, 1866, did not in fact, and was not intended to close the plaintiff's account, for the defendants still held securities for the small balance of $170.03, which, in value, greatly exceeded this amount, and which they threatened to sell unless the balance was immediately adjusted. It is to be observed that this balance was produced by charging the plaintiff with all the loss upon her stocks wrongfully sold by the defendants on the eleventh of January. After some correspondence the plaintiff paid the balance of the account insisted on, and received from the defendants such securities as they held for its payment. It is now claimed that this payment of the balance was such a final settlement as precludes the plaintiff from recovering damages for the wrongful sale on the eleventh of January. To this we do not agree. The plaintiff had the right to rescue her property from the perils that seemed impending, even by the payment of a sum wrongfully exacted. Even if this were an action to recover back that money, I think it should be sustained. (Astley v. Reynolds, 2 Strange, 915; *Page 488 Harmony v. Bingham, 12 N.Y., 99, 109; Tutt v. Ide et al., 3 Blatchford, 249.) But this is not the cause of action. It is for the damages resulting from the wrongful sale of the plaintiff's stocks on the eleventh of January. That cause of action existed when the plaintiff exchanged a smaller amount of money, upon the defendants' demand, than the value of the security held for its payment. This did not in any way affect the claim of the plaintiff in this action. It is a principle as old as the common law, that a cause of action once vested can only be discharged by a release under seal, or the receipt of something in satisfaction. (McKnight v. Dunlop, 5 N.Y., 544, and cases cited.)
The case of Markham v. Jaudon (41 N.Y., 236) is, upon the main question, entirely conclusive against the defendants, and the judgment should be affirmed with costs.
All concur.
Judgment affirmed.