Bavely v Wilkins
| Jurisdiction | England & Wales |
| Judgment Date | 28 May 1849 |
| Date | 28 May 1849 |
| Court | Court of Common Pleas |
English Reports Citation: 137 E.R. 351
IN THE COURT OF COMMON PLEAS
S. C. 18 L. J. C. P. 273; 13 Jur. 883.
[886] bayley v. wilkins. May 28, 1849. [S, C. 18L. J. C. P. 273; 13 Juf. 883.] One who employs a broker to buy railway shares for him, impliedly authorises him to do all that is needful to complete the bargain.-A. employed B., a broker and member of the Stock-Exchange, to buy shares for him. At the time of the purchase, a call had been made, but was not then payable. The seller having paid the call, in order to enable her to make a transfer of the shares, B., who, by the rules of the Stock-Exchange, was personally responsible for it, paid the money :-Held, that B. was entitled to recover from A. the sum so paid, as money paid to his use. This was an action of assumpsit for work and labour, money lent, money paid, and money due upon an account stated. The defendant pleaded non assumpsit. The cause was tried before Wilde, C. J., at the sittings in London after Hilary term, 1848. The facts were as follows :-The plaintiff was a stock-broker, and member of the London Stock-Exchange. The defendant was a publican residing at Swansea, in the county of Glamorgan. On the 22nd of March, 1847, the defendant addressed a letter to the plaintiff, as follows:- : "Dear Sir,-I see Tale of Neath shares quoted 30s. discount. Will you buy me twenty shares at that price,-one shilling more or less. Do the best you can." On the 30th of March, the plaintiff purchased on the defendant's account, twenty Vale of Neath shares at 30s. discount, communicating to him the fact of the purchase in the following letter :- "Dear Sir,-I am in receipt of your favour, and have now the pleasure to report the purchase of twenty Vale of Neath shares, at 1J discount, which I trust may prove satisfactory. Contract inclosed," 352 BAYLEY V. WILKINS 7 C. B. 887, Inclosed in this letter was a memorandum of tie contract as follows :- [887] "Bought, for and on account of E. "Wilkins, Esq., twenty shares in the Vale of Neath Eailway, for the 31st:- "2 0 0 paid 000 premium 1 10 0 discount 0 10 0 per share = 10 0 0 Commission 1 00 11 0 0" . The price of the shares and commission (ill.) was remitted to the plaintiff on _the 3rd of April; and, on the 5th, the plaintiff acknowledged the receipt of it, and promised to send the scrip as soon as possible. On the 6th, the plaintiff addressed the defendant as follows :-:- " Dear Sir,-Herewith I have the pleasure to wait upon you with the transfer of twenty Vale of Neath Railway shares, ' Bennett to yourself.' I am able to hand you, under separate cover, the certificates, as the office will register the transfer unaccompanied by the certificates. Should you return to me the transfer for registra tion, I shall have to debit you the fee of 2s. 6d." . .'. , . At the time the shares were purchased, a call had been made of 21. per share, payable on the 12th of April, of which no mention was made. On the 7th of April, one Fowler, who had acted as the broker for Miss Bennett, the seller of the shares, applied to the plaintiff for the amount (401.), which he informed him his principal had paid on the 31st of March. The plaintiff thereupon wrote to the defendant, as follows:- " Dear Sir,-The seller of the twenty Vale of Neath shares transferred to you, has paid the call of 21. per [888] share due on the 12th instant. Be good enough to transmit it to me, that I may hand it to her. Paid, 31st of March." The defendant not replying to this application, the plaintiff paid the 401. to Miss Bennett's broker, on the 9th of April,-in conformity with a rule of the Stock-Exchange (which all members are compelled to observe, on pain of expulsion), which directs, that, if a call has been made on registered shares, the seller may pay the same though not due, and may claim the amount of the purchaser;.and, on the 13th, he wrote to the defendant, informing him that he had done so. On the 17th of April, the defendant wrote to the plaintiff, repudiating the payment made to Miss Bennett, and observing that it was irregular to pay calls when the shares were in the market, and suggesting that he should call on Miss Bennett to return the money; in reply to which letter, the plaintiff, on the 19th, informed the defendant of the rule of the Stock-Exchange above referred to. After the commencement of the action, viz. on the 4th of November, the defendant wrote to the plaintiffs attorney, offering to pay the 401., if he would give him time. Under the direction of his lordship, the jury found for the plaintiff, damages 401., -the verdict being taken on the count for money paid only, and leave being reserved to the defendant to move to enter a nonsuit, if the court should be of opinion that money paid would not lie under the circumstances; and to the plaintiff to move to enter a verdict on the account stated, if it should become necessary. Channel!, Serjt., in Easter term, 1848, accordingly obtained a rule nisi, on behalf of the defendant. [889] Byles, Serjt., and Phinn, now shewed cause. By the 16th section of the 8 & 9 Viet. c. 16, it is enacted, that, "no shareholder shall be entitled to transfer any share, after any call shall have been made in respect thereof, until h shall have paid such call, nor until he shall have paid all calls for the time being due on every share held by him." Miss Bennett, therefore, could not comply with the defendant's demand of a transfer, until she had paid the call of 21. per share which was made on the 4th of 7 C. B.890. BAYLEY V. WILKINS 353 February, and then due, in the sense of being charged upon the shares : Shaw v. Rowley (16 M. & W. 810, per Parke, R). And it was proved at the trial, that, by a rule of the Stock-Exchange, if a call has been made upon registered shares, before the transfer, the seller is authorised to pay the same, although not yet due, and may call upon the purchaser to reimburse him; and that, if the purchasing broker omits to pay, he is liable to be expelled the house. [Wilde, C. J., referred to Child v. Morley(8 T. B. 610), where it was held that a broker who contracts with others for the sale of stock at a future day, by the authority of his principal, who afterwards refuses to make good the bargain, cannot, by paying the difference to such third persons, entitle himself to maintain an action on an implied assumpsit against his principal for the amount.] It has since been settled, both in the court of Queen's Bench and in the Exchequer, that one who employs a broker to buy shares for him on the Stock-Exchange must be,' held to be cognisant of, and bound by, the rules of the establishment. In Bayliffe v. Butterworth (1 Exch. 425), the defendant, who resided some distance from Liverpool, authorised the plaintiff, a broker there, to sell for him twenty railway scrip shares : the plaintiff sold them to C., another broker of Liverpool: the scrip shares were [890] not delivered on the day, and C. bought twenty other scrip shares at the market price, and claimed the difference between the contract and the market price: the plaintiff paid him the difference, and brought an action for money paid, to recover this sum : it was proved to be the usage amongst brokers at Liverpool to be responsible to each other upon these contracts; and there was evidence that the defendant was cognisant of this usage : it was held that the defendant was liable. Parke, B., there says: " I consider it to be clear law, that, if there is, at a particular place, an established usage in the manner of dealing and making contracts, a person who is employed to deal or make a contract there, has an implied authority to act in the usual way; and, if it be the usage that he should make the contract in his...
To continue reading
Request your trial
- Francis Huang Chang Hsun v Hwang & Yusoff Securities Sdn Bhd (1992) 2 MSCLC 90, 839;
-
Sweeting v Pearce
...off the amount against a debt of their own. [Williams, J. I observe that Maule, J., itt the course of the argument in Bayley v. Wilkins, 7 C. B. 886, 692, says,ù" Scott v. Trying, 1 B. & Ad. 605, is the last of a series of cases, beginning with Russell v. Bang/ey, 4 B. & :195, which went up......
-
Tokio Marine & Fire Insurance Co. Ltd. v Ace Protrans Forwarding Ltd.
...extends to all subordinate acts which are necessary or ordinarily incidental to the exercise of his express authority (Bayley v Wilkins (1849) 7 CB 886; Collen v Gardner (1856) 21 Beav 540; Montaignac v Shitta (1890) 15 App Cas 357, PC; Financings Ltd v Stimson [1962] 3 All ER 386, [1962] 1......
-
Sheppard v Murphy
...Emmersonƒ€™s CaseELR L. R. 2 Eq. 231. Bayliffe v. ButterworthENR 1 Exch. 425. Bayley v. WilkinsENR 7 C. B. 886. Sutton v. Tatham 10 A. & E. 27. Taylor v. StrayENR 2 C. B. N. S. 185. Stray v. RussellENR 1 E. & E. 888. Humphrey v. LucasENR 2 Car. & Kir.......