1849. BAYLEY V. WILKINS. the 411. 5s. Lord Denman, in delivering the judginent of the court, said: "The precise nature of the dealing between the plaintiff and his principals, does not appear upon the case; nor is it stated that the scrip was ever transferred by the plaintiff; for all that appears, it may have been a mere time bargain, and the scrip may still be in the hands of the plaintiff. If the scrip was actually transferred by the plaintiff, he must have known, or ought to have known, that the price he paid was premium merely, and could not have included any sum paid for deposit. In either view of the case, we think that the defendants are entitled to set off the amount, which, by the course of business, they were bound to pay, in order to procure the scrip, beyond the premium; and that the omission to debit the plaintiff with such payment in their account, does not take away their right. They dealt with the plaintiff as the principal in the transaction, and are not concluded by having, by mistake, omitted to charge him with a payment of which he has had the benefit, by the actual possession of the scrip, which could only have been obtained by the payment in question. The case of Sutton v. Tatham, as well as the other cases cited in the argument (a), are consistent with the view we take of the case; and our judgment, therefore, is in favour of the defendants." [Maule, J. Dails v. Lloyd was a - (a) The cases cited were, 9 B. & C.577., 4 M. & R. 486; Pickard v. Sears, 6 Ad. & E. 469., 2 N. & P. 488.; and Gregg v. Wells, 10 Ad. & E. 90., 2 P. & D. 296: and, for the defendants, Fletcher v. Marshall, 15 M. & W. 755.; Sutton v. Tatham, 10 Ad. & E. 27., 2 P. & D. 308.; Bayliffe v. Butterworth, 1 Exch. 425.; and Willoughby v. Backhouse, 2 B. & C. 821., 4 D. & R. 539. case of estoppel in pais, - like Brisbane v. Dacres (a), and that class of cases.] The defendant was bound to pay the call, and might have been compelled, by a bill in equity, to execute and register the transfer-deed: Wynne v. Price. (b) In Grisewood v. Justice (c), one J. agreed to purchase fifty shares in a railway company, at ten guineas a share, the same being a premium of 87. a share, the sum of 27. 10s. having been paid for calls: G., the plaintiff, afterwards delivered to the broker fifteen of the shares, upon which such calls had been made, when he refused to accept them, and asked for a return of the purchase-money from the brokers, which they declined, on the ground that the calls had already been paid on the fifteen shares, but not on the remaining thirty-five: by a deed of assignment, the plaintiff had transferred the thirty-five shares to J., but, he not being registered, the plaintiff was obliged to pay 3611. in respect of calls, and the defendant refused other shares as a substitute for the fifteen: it was held that the representative of J. (then deceased) was bound specifically to perform the contract, by taking fifty shares, and paying the amount of calls which had been paid by the plaintiff. Humble v. Langston (d) and Bowlby v. Bell (e) will probably be relied on for the defendant, to shew that the broker was not liable in respect of the call in question. In Humble v. Langston, the facts were these:On the 20th of February, 1838, the plaintiff entered into a contract with the defendant, through their respective brokers, for the sale of thirty shares in the Bristol and Exeter Railway, at 71. 5s. per share, and the usual contract-notes passed between the parties, no time being mentioned for the completion of the purchase: (a) 5 Taunt. 143. (d) 7 M. & W. 517. (e) Ante, Vol. III. p. 284. 1849. BAYLEY v. WILKINS. on the 3rd of March the defendant wrote to the plaintiff's brokers, requesting them to "dispatch the thirty Bristol and Exeter shares forthwith," and they replied on the same day, "we herewith send you transfer of thirty Bristol and Exeter shares in blank :" this was accordingly done, and the purchase-money was paid: calls were subsequently made, which calls, the shares not being registered in the name of the defendant, and the plaintiff remaining the apparent owner of them, the latter was compelled to pay: in an action against the defendant for not indemnifying the plaintiff for the payments and liabilities in respect of the calls, it was held, that, under the above circumstances, there was no undertaking implied by law, to indemnify against all subsequent calls, nor any evidence of such an undertaking in point of fact. [Maule, J. That looks very much like an attempt on the part of the broker of the purchaser to accommodate his brother broker at his principal's expense.] Parke, B., there says: "On the 20th of February, 1838, the contract was entered into, which was simply an agreement by the plaintiff to sell, and the defendant to buy, thirty shares, at the price of 71. 5s. per share, no time being specified for the completion of the purchase; nor was there any such stipulation in the contract as the conveyance itself would have contained if completed, that is, that the vendee should be subject, from the date of it, or any future time, to the conditions upon which the vendor held them. If the case had rested upon this contract, the situation of the parties would have been this:- The plaintiff, after shewing a good title to the defendant, would have had a right to call upon him to complete his purchase in a reasonable time, by preparing a deed in the statutory form; and, if the defendant had done so, the plaintiff might then have executed it, and required the defendant to do the same, and to deliver, or attend with him to deliver, the deed to the company, that a memorial might be entered into and indorsed on the deed of transfer, pursuant to the 169th section. If all this had been done, the plaintiff would have been no longer liable to any call: if the defendant had refused to perform his part, he would have subjected himself to an action for the non-performance of that which he had omitted to do; and if, in consequence of the defendant's breach of his contract, the plaintiff had been obliged to pay future calls, he might have recovered this amount, by way of special damage for the defendant's breach of contract. But, in this case, the plaintiff did not pursue the course which, according to law, he ought to have done." That, therefore, was simply a case of omission on the part of the selling broker, to do that which was necessary in order to enable him to call upon the purchaser to repay him the amount paid for calls. The same remark applies to Bowlby v. Bell. v. Bell. There, A., a share-broker, on the 28th of July, 1845, contracted to sell to B. certain railway-shares belonging to C. The scrip having been sent to the company's office for registration, and A. being consequently unable to deliver the shares, B., on the 23rd of September, purchased other shares at an advanced price, and claimed the difference from A. A. accordingly paid him the amount, after notice from C. not to do so, one of the rules of the Hull Stock-Exchange, of which A. and B. were both members, declaring brokers to be personally responsible for the fulfilment of their respective contracts with each other, and claimed to be recouped the same by C. as money paid to his use. The price of the shares had not been offered to C., nor had any transfer been tendered to him for execution: and it was held that the action was not maintainable. Neither of these cases has any bearing upon the present. [Wilde, C. J. I feel some difficulty ein saying that a man who buys shares, buys subject to 1849. BAYLEY v. WILKINS. 1849. BAYLEY v. WILKINS. the rules of the Stock-Exchange, of which he may not be cognisant. And there is this further difficulty, that those rules are framed by, and are to receive their construction from, a body that is totally independent of the rules of law, and irresponsible.] Brittain v. Lloyd (a), where all the authorities are collected, is distinct to shew that an action for money paid will lie, under the circumstances of this case: it was there held that that form of action is maintainable in every case in which the plaintiff has paid money to a third party, at the request, express or implied, of the defendant, with an undertaking, express or implied, to repay it. Channell, Serjt., in support of his rule. The material facts upon which the defendant relies, are these:The order for the purchase of the shares was given on the 22nd of March. On the 30th, a bought-note was sent to the defendant, making the sum payable by him for the shares and commission 117. On the 31st, the seller of the shares paid a call of 21. per share thereon. Down to this time nothing appears to have been paid by the plaintiff. On the 5th of April, the day on which the transfer was dated, the plaintiff acknowledges the receipt of the 117. from the defendant; on the 6th the certificates are sent to the defendant; and it is not until the 7th that any intimation is given to the defendant of the call having been paid by the seller, or of his liability to repay the amount to her. The authority of the broker was clearly at an end before he took upon himself to pay the 40l. to Miss Bennett. The Stock-Exchange had no jurisdiction in the matter. Bayliffe v. Butterworth and Pollock v. Stables only shew that the brokers are responsible to each other for dif ferences in the case of unexecuted contracts. Sutton v. (a) 14 M. & W. 762. |