Taylor and Another v Stray
| Jurisdiction | England & Wales |
| Judgment Date | 02 April 1857 |
| Date | 02 April 1857 |
| Court | Court of Common Pleas |
English Reports Citation: 140 E.R. 380
IN THE COURT OF COMMON PLEAS, AND IN THE EXCHEQUER CHAMBER.
S. C. 26 L. J. C. P. 185, 287, 3 Jur. N. S. 964; 5 W. R. 761. Applied, Whitehead v. Izod, 1867, L. R. 2 C. P. 238; Cropper v. Cook, 1868, L. R. 3 C. P. 198. See Coles v. Bristowe, 1868, L. R. 6 Eq. 161; L. R. 4 Ch. 3.
taylor and another v. stray, April 2nd, 1857. [S. C. 26 L. J. C. P. 185, 287, 3 Jur. N. S. 964; 5 W. E, 761. Applied, Whitehead v. IM, 1867, L, E. 2 C. P. 238; Cropper v. Cook, 1868, L. 'E. 3 C, P. 198. See Coles v. Bristowe, 1868, L. E. 6 Eq. 161; L. E. 4 Ch. 3.] The plaintiffs, stock-brokers, and members of the London Stock Exchange, on the 28th of August, 1856, at the request of the defendant, bought for him twenty shares in a joint-stock bank called the Eoyal British Bank, to be paid for on the "settlement day," which was on the 15th of September, and duly forwarded to him the usual broker's contract-note. The bank stopped payment on the 3rd of September, and ultimately become bankrupt. On the llth, the defendant repudiated the transaction, and gave the plaintiffs notice not to pay the price on his account. The plaintiffs having been compelled according to the rules of the Stock Exchange to pay for the shares on the settlement-day, sent the defendant the certificates and transfers, and, upon his declining to accept them, sued him for money paid :-Held, that they were entitled to recover. This was an action brought to recover the sum of 6431. 10s., being the price of twenty shares in the Eoyal British Bank, which had been bought by the plaintiffs, as the brokers of the defendant, and had been paid for by the plaintiffs under the circumstances hereinafter mentioned, and also 51., being the plaintiffs' commission on the purchase of the shares. The declaration contained counts for money paid, work and labour, and for money due upon accounts stated. The defendant pleaded never indebted. The cause was tried before Willes, J., at the sittings in London after Michaelmas Term, 1856, when the facts appeared to be as follows :- The plaintiffs (Taylor & Aston) are members of the Stock Exchange, in London, and carry on the business of stock and share-brokers in partnership together. On the 28th of August, 1856, the defendant had a conyer-[176]-sation with Aston respecting the price of shares in the Eoyal British Bank, and requested him to purchase on the (a) The plea was not amended, and the plaintiff had judgment. 2 C. B. (N. S.) in. TAYLOR V. STRAY 381 Stock Exchange for him twenty shares, at 321. per share, for the account day on the 15th of September then next. On the same day, Aston bought for the defendant on the Stock Exchange twenty shares at the price named, of one Eussell, a jobber or dealer in bank shares upon, and a member of, the Stock Exchange. Eussell was not himself, nor was Wadeson, a broker and member of the Stock Exchange of whom Russell bought sixteen of the shares, at any time a registered owner of any shares in the Eoyal British Bank; but Eussell did not buy to fulfil his contract, but had shares to the amount required in his possession, or a right to them, and a control over them, at the time of the sale. There were .at this time only two jobbers who dwelt in these shares, and Eussell was one of them. The Eoyal British Bank was then supposed to be solvent. The purchase was made subject and according to the practice of the Stock Exchange. There was no written contract: but the plaintiffs and Eussell each made a memorandum of the bargain. It was proved to be the practice of the Stock Exchange before and at the time of the transaction in question,-first, that the seller is not bound to transfer, nor the buyer's broker to procure, shares from the person named in the note sent by the buyer's broker to his principal (in this case designated by the works " of Eussell"),- secondly, that members of the Stock Exchange, in bargains for customers, make themselves liable for their performance, -thirdly, that, in case of non-performance by a member, the committee is referred to, and decides; and, if their order is disobeyed, the disobedient party is expelled,-fourthly, that, on the Stock Exchange, payment is made for shares, on handing the shares and a transfer; that the seller is paid by the pur-[177]-chasing broker on handing the shares and transfer, as was done in this case; and that that is so as to all kinds of shares. The plaintiffs had previously to the 28th of August, 1856, purchased Ottoman Bank shares on the Stock Exchange for the defendant, for an account day, in the usual way, and to pay for which the defendant furnished the plaintiffs with the money previously to the settling-day. On the 28th of August, the plaintiffs announced to the defendant that they had purchased the shares, by a letter as follows,-"We have managed to purchase the twenty British Bank shares at 321., agreeably to your directions, for the 15th of September. Contract herein." This letter contained an inclosure called by the plaintiffs in their letter the contract relating to the purchase, which was in the following terms:- "2 Capel Court, London, " No. 5835. " 28th August, 1856. " Bought for Frederick Stray, Esq., for 15th September (501. paid), twenty Eoyal British Bank shares, of Eussell. "Consideration . . . . . . 640 0 0 Stamp . . . . . . . 3 10 0 Eegistration . . . . . . . 26 Commission ... . . . 500 648 12 6 ." taylor & aston, Brokers." The Eoyal British Bank stopped payment on the 3rd of September, 1856, at 11.30A.M. On the 8th of October, the time for paying or compounding the debt expired, whereby the bank committed;an act of bankruptcy, which had relation to the 8th of September. [178] Early on the morning of the 3rd of September, the defendant had a conversation with Aston, respecting the shares in question ; and Aston told the defendant that British Bank shares had been dealt in that morning at 201. per share ; and thereupon the defendant expressed a wish to sell the shares in question at that price. At this time the plaintiffs did not know, nor did it appear, whether the bank had then stopped.. The plaintiff. Aston then went on to the Stock Exchange, and tried to sell the said shares, but'could not. The defendant waited whilst he did so, and was informed of the result of the attempt. 382 TAYLOE V. STRAY 2 C. B. (N, S.) 179. On the 8th of September, the defendant saw Aston who told him that the failure of the bank did not vitiate the contract of purchase; and the defendant said, that, at all events, he should not have the shares transferred to his own name, but should have them transferred into the name of a man of straw. Aston requested authority for that purpose in writing, and was also desirous of obtaining a recognition in writing of the purchase by the defendant; and Aston drew out a memorandum for the defendant to sign, which was in the following terms :- " 2 Capel Court, 8th September, 1856. " Messrs. Taylor & Aston, stock and share-brokers. "Gentlemen,-I request you will not pass my name for the twenty British Bank shares purchased on the 28th of August, as they are not intended to be transferred to me." The defendant took this memorandum away with him to consider about it; and, having done so, refused to sign it: and before the 15th of September, he returned it unsigned to Mr. Aston. On the llth of September, 1856, the defendant, by his attorney, wrote and sent the plaintiffs the following letter :- [179] " Gentlemen,-Having now had an opportunity of ascertaining with some precision the state of the Royal British Bank, not only at the time of the recent sale of their shares in the market, but for some time previously, and the circumstances under which the shares were sent into the market, and the many grounds of objection to the acceptance of such shares under existing circumstances, I give you notice that Mr. Stray will not take any shares in the said bank; and, further, that you do not pay any money on his account for or in respect of any alleged purchase by him of any such shares." On the llth and 13th of September, 1856, the plaintiffs wrote and sent to the defendant letters of which the following are copies :-- " 2 Capel Court, llth September, 1856. " Stock Exchange. " Eoyal British Bank. " Resolved, that no circumstances have been submitted to the committee to induce them to interfere with the settlement of the Eoyal British Bank shares in the ordinary way. "By order, " G. webb, secretary." "Dear Sir,-Our committee have to-day come to the above decision as to the transactions in the Eoyal British Bank shares. We have, therefore, to request you to inclose us a cheque for 6481. 12s. 6d. by the 15th instant, being the cost of the twenty shares purchased on the 28th ult. for you and by your...
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