I dissent, and for these reasons, briefly. Assuming that the plaintiff can recover as for a breach of contract, notwithstanding that his complaint is based solely upon fraud and deceit, I think that he failed to make out any case against the respondent, the trust company. The latter did not sell the stock, either as its own, or as agent for an undisclosed principal. It was not in any strict sense Warner's agent. It was merely an agency selected by him for the safe deposit and custody of the English stock and of the moneys, and for the convenient transferring of the interests of those who might deal in the stock. It made no representations as to the value or character of the stock. Its undertaking was contained in the "trust receipts" which it issued, and that was to act as the agent for their transfer and, upon their surrender, to deliver the shares theretofore deposited with it, to the amount called for by the trust receipts, with the deeds of transfer thereof. Whatever material representations were made concerning the stock were contained in the prospectus issued by S.V. White Co. It behooved the plaintiff, if he desired to satisfy himself further upon the subject of the shares as issued by the English corporation, to make proper inquiries. He knew he was buying the stock of a foreign corporation and that he was to receive it under a deed of transfer which accompanied the deposit of the stock. In such a case, prudence would seem to dictate the duty of *Page 131 inquiry concerning the terms of the deed of transfer, if not, perhaps also, concerning the by-laws or regulations of the foreign corporation. He could not saddle the trust company with an unexpected and unusual liability by mere assumptions concerning the shares deposited with it. It was not bound to volunteer information and the plaintiff was no novice in such matters. He knew that the shares offered for sale had been issued by the English company; that the trust company was not placing them upon the market; that the trust receipts expressed the obligations of the trust company toward him and that the functions assumed by it were to hold certain shares of stock delivered to it, until the surrender in exchange therefor of the trust receipts; acting meanwhile as an agent for the convenient transfer of the receipts. Nor could the trust company be made responsible for the acts of the directors, or managing agents, of the English corporation in attempting to reserve, or provide for, a lien upon the fully paid up shares of stock at a time subsequent to their delivery to the trust company. If conceivable that that was permissible under English laws, it was at most a secret arrangement with the stockholder and it could have no retroactive effect. But, as it was, why, or how, is the trust company to be held responsible? As before remarked, it made no representations about the stock; it sustained no contractual relation with the English company and it was not called upon to do anything. It was powerless to change the situation and whatever remedy the plaintiff had was against White Co., or their principal, Warner; if not against the English company. I think the trust company met its obligation to the plaintiff and that if he has sustained any legal damage at all, it is due to his own failure to inform himself concerning his proposed investment and not to any act of omission by the trust company.
I not only doubt the soundness of the doctrine, upon which it is sought to impute to the trust company a liability akin to that which it would be under as a vendor; but I doubt its wisdom. The trust company is one of a number of like institutions, *Page 132 which afford the community safe and convenient agencies in financial transactions of magnitude, where responsibility for the safety of values confided to them, as well as a complete and effective machinery, are demanded. It is sought to impute to this trust company duties and liabilities which its conduct did not suggest and which were not within the strict terms of its undertaking.
I think that the judgment should be affirmed.
PARKER, Ch. J., BARTLETT, MARTIN, CULLEN and WERNER, JJ., concur with VANN, J., for reversal; GRAY, J., dissents.
Judgment reversed, etc.