Smith v. Hutton

Ingraham, P. J.-

(dissenting) :

The defendants were • carrying ;for the plaintiff various stocks upon margin, which was nearly exhausted.' On March 25, 1907, plaintiff was in Boston, Mass., and in the morning of that day lie, went to the office of Paine, Webber & Co., who were, stockbrokers in that city and had. a special telegraph wire connecting their office, with the office of the defendants in the city of New York. It would seem that the plaintiff when he first got to the office telegraphed the defendants to sell his Union Pacific stock at 130§ and shortly after sent another telegram instructing them to sell at 129-J. Mot hearing from them, and at about half-past ten lie telegraphed : “What did.you do ans qk,” and received in reply a message from the defendants stating that .they had done nothing; that plaintiff had canceled his stop order, and asking for more ’ margin. Shortly after the defendants sent another message to plaintiff stab ing that his limit was. 130§ for Union Pacific and asking him if that was not correct. . About half-past eleven plaintiff telegraphed defendants, that that was wrong; that his first limit wired .nine-fifty was 130§ but his second message gave a.limit of 129£; that Union Pacific1 should have been sold ; that an error was' made, but it was riot plaintiff’s ; arid' plaintiff thought defendants should allow sale. Immediately afterwards the defendants replied that they regarded plaintiff’s telegrams.in the order they came; that the message to make limits came at opening and other message a minute or so later; *865the fault in the wire not defendants; and “ taking it up in meantime shall we change limits to 129$. "x" * * Ans qk.”

In answer to this plaintiff telegraphed : Close out the acct at discretion, but feel that I am justly entitled to sale of U P at 129$.” And following this was a telegram asking defendants to mail statement of account and saying, “1 assume you have closed out or will on this recovery, please wire reply after 3. Am writing.” There is some dispute as to the receipt of these first two telegrams. Plaintiff, however, expressly testified that he sent the telegram fixing the limit at 130$ first and the telegram reducing that, limit to 129$ a few minutes later; that he understood telegraphy and listened as the operator sent both messages; and that he heard a reply from New York acknowledging receipt of them both in the order he had testified to. Having this personal knowledge that the telegrams had been received in the New York office in the order named; knowing the price at which stocks had sold in New York in the morning and that Union Pacific had sold at a price above 129$ after his message had been-received in New York; informed of the' fact that the defendants had not acted upon that dispatch and sold the stock at 129$ because of a claim that the first message fixing the price at 130$ had been received after the message ■ fixing the price at 129$ and that they had been unable to sell the stock at 130$, plaintiff nevertheless telegraphed the defendants to sell at their discretion and followed it up with a telegram stating that he assumed they had sold on the recovery in the afternoon. It seems to me that in this situation the' defendants were justified in accepting the plaintiff’s order to sell this stock in the afternoon. Plaintiff knew the order in i which the telegrams had been sent and had been received- in New York. It is true he knew that the defendants had claimed that they had received the telegrams so that the one fixing the price at 130$ was received subsequent to the one fixing it at 129$ and that they had acted upon that fact as to the order in which the telegrams had been received. It was a day of excitement in the Stock Exchange; these telegrams were coming in constantly, and there is no evidence to justify a finding that the’defendants' did not in good faith suppose that the first telegram had been sent after *866the second. The mistake was one of either the telegraph operator in New York of some of- defendants’ employees. But there is nothing to justify a suspicion of bad faith or that the defendants were not actually doing the best they could to protect the plaintiff. The plaintiff knowing these facts could not have been deceived by any representation that the defendants had made as to the order in which these telegrams had been received. He acquiesced .in the failure of the defendants to fill his order and then sent a telegram in answer-to a call for instructions to sell his stock at discretion. He certainly cannot complain because the defendants obeyed this order. If he had intended then to hold the defendants responsible for a failure to sell at 129% he should have distinctly notified the defendants to that effect. so- as to allow the defendants to protect themselves. Certainly if the stock had. subsequently advanced in price, the . defendants not having sold the stock, the plaintiff could have claimed the benefit of that advance. When the defendants telegraphed for instructions plaintiff then had to elect whether he would insist upon a sale at 129% in pursuance of. the telegram that he had sent and that he knew had been received by the defendants after the first telegram fixing the limit at 130|:. But that, he did not do. On the- contrary, he accepted that situation; treated the stock as still belonging to him; gave an order directing its sale, which Order the defendants complied with; and I think it is too late for the plaintiff to hold the defendants responsible for the failure to sell the stock as required by the. second telegram. It is not a question of i’atification based upon anincompleteknowledge -of the facts, but rather the question of an election based upon knowledge of the facts. Plaintiff knew the telegram had been received by defendants; he knew, it is true, that the defendants claimed that the telegrams had been received in the in vérse order; but with this knowledge, without being at all deceived by any misstatement of any fact by the defendants, he ordered the defendants to sell the stock, which- order they obeyed, and of - that sale the plaintiff has the benefit.

It is conceded by the prevailing opinion that if this telegram directing the defendants to close out his account was with full knowledge of . all that had occurred it would have been an adoption and ratification by him of the acts complained of. It seems to me *867that is just what happened. The plaintiff knew the order in which the telegrams had been sent and the order in which they had been received in New York. He was not deceived and does not pretend to have been deceived by the statements in the defendants’ telegrams that there had been some mistake about the delivery of the telegrams. With this knowledge the plaintiff deliberately accepted the fact that he still owned the stock and gave directions as to its sale. It was then too late for him to object. It was a question of law for the court and not for the jury and I think for this reason the verdict cannot be sustained.

Laughlin, J., concurred.

Judgment and order affirmed, with costs.