Ryder v. Sistare

Van Hoesen, J. The complaint does not allege that the defendants agreed-to advance the money for the purchase of such stocks as the plaintiff might choose to order, nor does it allege that the defendants agreed to sell stocks 716 that the plaintiff did not possess, or to sell stocks that the plaintiff did not ■furnish lor delivery. In the absence of such averments, it was necessary for the plaintiff to allege that she provided the defendants with the means ■of payine for the stocks that she wished them to buy, and that she placed within their reach the stocks that she instructed them to sell; for, unless they agreed to assume the risk, it was not the duty of the defendants to buy ■or to sell stocks on the plaintiff’s account without being provided with the means of carrying out her orders. There is nothing in the complaint, therefore, to show that the defendants were under any obligation whatever to ■obey the instructions to buy and to sell that the plaintiff is said to have given. Fowler v. Bank, 67 N. Y. 143. Again, under the allegations of the complaint, nothing more than nominal damages could be recovered, even if it be assumed that the plaintiff has stated a cause of action. Ho special ■damages are alleged. There is nothing to show that the stocks that the plaintiff instructed the defendants to buy ever increased in value, or that any •change in the market value of the stocks that she instructed them to sell caused her any loss. For aught that is alleged, the plaintiff may not have :suft'ered the slightest pecuniary injury from the defendants’ neglect to execute her orders. Though this defect is not a good ground for a demurrer, we deem it proper to call attention to it, that the proper allegations may be inserted if the plaintiff desires to amend. Railroad Co. v. Curry, 64 Tex. 85; Rider v. Pond, 19 N. Y. 262. We think that the judgment should be affirmed, but we see no objection to granting leave to amend. There may be a question as to whether the case is to be governed by Railroad Co. v. Dane, 43 N. Y 241; or by the cases cited in Miller v. McKenzie, 95 N. Y. 580 et seq. I have assumed that the agreement sued on is not void for want of mutuality. See, also, Railway Co. v. Witham, L. R. 9 C. P. 16. Judgment affirmed, with costs. Larremore, C. J., concurs.