In the result arrived at by Judge O'BRIEN I agree, but I have a different view regarding the recovery permitted the plaintiff. As an infant repudiating his transactions with the stockbrokers he can receive no benefit whatever from his bargain. He must repudiate or confirm in toto from the beginning of his dealings in the transaction. From this speculation in stocks he can derive no benefit. He cannot accept part of the profits and repudiate all the losses. (1 Williston on Contracts, § 236; Anson on Contracts [3d Amer. ed. by Corbin], p. 184, § 161b; Meyer, The Law of Stock Brokers and Stock Exchange, § 125, p. 496; seeMyers v. Hurley Motor Co., 273 U.S. 18, 21; Benson v.Tucker, 212 Mass. 60; Casey v. Kastel, 237 N.Y. 305.) *Page 247
Applying this rule to the present facts, all the infant can get back on this transaction which he has repudiated is the amount of the margin which he deposited with Leopold Spingarn Co. With this brokerage house he had opened a margin account which they carried for him. He could not obtain the stocks which he had purchased on margin without paying to them the amount due. This he never paid. He procured these defendants to take over the account by paying to Leopold Spingarn Co. $13,907.91. These defendants, at the plaintiff's request, were merely substituted for the first brokers. It was all one transaction. The only money ever parted with by the infant was the amount he put up with Leopold Spingarn Co. He cannot confirm his transaction with Spingarn Co. and repudiate it with these defendants. To do so would permit him to recover a profit which he never took, and was never entitled to receive until he had met the conditions by paying up his margin of $13,907.91. From the beginning of his dealings with the first brokerage firm until his account was sold out, he, as an infant, had only lost that which he first parted with. If the courts give him more it is to give him the profits on a transaction to which he was never entitled without confirmation of his dealings and a payment by him of the margin due. When these defendants took over the account and advanced that margin to Leopold Spingarn Co., the apparent profits or increase in the value of the stocks was not the absolute money of this plaintiff; he could not get it even from these defendants without confirming the transaction by repaying to them the amount they had advanced. On the very day these defendants took over his account, he could only have recovered the actual amount parted with by him; he could not recover profits without confirming his dealings.
Consequently, all that this plaintiff is entitled to is the actual money, with interest, which he parted with to Leopold Spingarn Co. The record does not show *Page 248 us the amount of this deposit. While there must be a reversal and new trial, I am of the opinion that the infant is entitled to the return of this money, and no more.
POUND, Ch. J., LEHMAN and HUBBS, JJ., concur with O'BRIEN, J.; CRANE, J., concurs in result in memorandum; KELLOGG, J., not sitting.
Judgments reversed, etc.