Whipple v. Tucker

Mr. Presiding Justioe Smith delivered the opinion of the court. ■ It is urged in behalf of appellants that the trial court erred in excluding evidence of the custom among brokers in the city of Chicago who are members of the Stock Exchange. The witness, Ailing, to whom the question was propounded had testified that he was a member of the Chicago Stock Exchange, but he had not testified to any knowledge of the rules or custom of the exchange, or that there was any general custom among stock brokers, or that appellee had knowledge of it. The proper foundation had not been laid therefore for the introduction of the testimony of the witness as to the supposed custom. In the second place, the witness had testified that he had expressly told appellee that when appellants wanted any margins they would call for them. And further, it appears from the stipulation of the parties, before the court, that appellee, before the time of the purchase of the stock, had paid §816.75 to appellants, to be used in the purchase, and that the balance of the purchase price was advanced and paid by appellants, who took and held the certificate for the shares as collateral security for the amount so advanced. The stock then was held under a special agreement between the parties, and any custom among brokers as to requiring margins from their customers was not material. Proof of a custom in regard to requiring margins would have tended to vary the express terms of the contract between the parties. The ruling of the court, we think, was correct for these reasons. At the trial appellants submitted to the court to hold as law in the decision of the case the following propositions: 1. “The court finds, as a matter of law, that under the pleadings and evidence in this case the plaintiff is not entitled to recover.” 2. “The court finds, as a matter of law, under the evidence in this case, that at the time said stock was sold by the defendants the said plaintiff was not entitled to the immediate possession of said shares of stock, and that therefore the plaintiff cannot recover in this case.” The court refused to hold them, and error is'assigned on the action of the court. We think the court did not err in refusing to hold the propositions. The first proposition presents a mixed ques¡ilion of law and fact. A proposition presented to the court -trying a case without a jury should state a rule of law .only, and in no case should it assume the existence of facts ■in dispute. Lord v. Board of Trade, 163 Ill. 45. There was evidence before the court tending to authorize a recovery. The proposition required the court to pass upon a controverted question of fact. There was no question of a variance between the pleadings and the proof. The statute does not contemplate that under the cloak of written propositions of law a party litigant shall have the right to call upon the court to find in his favor the facts involved in the evidence. It follows, therefore, that the trial court in refusing to hold the first proposition committed no error. First Nat. Bank v. Northwestern Bank, 152 Ill. 296. The second proposition which the court was requested to hold, in effect, required the court to make a finding of fact. The court properly marked it refused. Order of Foresters v. Schweitzer, 171 Ill. 325. We can see no reason for reversing this judgment. The stock was the property of appellee. When appellee tendered to appellants the amount advanced by them for which they held the stock as collateral security they were bound to deliver the stock to appellee. This they failed to do, and in so failing to deliver it, converted it to their own use. Under such circumstances appellee had the right to recover the value of the stock from appellants less the amount of his indebtedness to them. Kellogg v. Holly, 29 Ill. 437. Indeed, upon the theory of appellants that they had sold the stock in violation of the agreement under which they held it, without a request for the payment of the advance made by them, or notice of their intention to sell it, no tender was necessary before appellee’s right of action accrued. Otter v. Williams, 21 Ill. 118; Hale v. Barrett, 26 Ill. 195; Sinamaker v. Rose, 62 Ill. App. 118; Kilpatrick v. Dean, 3 N. Y. Sup. 60; Sheridan v. Presas, 41 N. Y. Sup. 451; Glidden v. Mechanics’ National Bank (Ohio), 42 N. E. 995. We find no error in the record. The finding and judgment of the court must be sustained on the merits. The judgment is affirmed. Affirmed.