Worthington v. Tormey

Grason, J., delivered the opinion of the Court. The.first exception was taken to the ruling of the Court below, by which it permitted the evidence, taken under the New York commission, to be read to the jury from the transcript of the record. The commission and return, with the evidence taken thereunder, formed part of the proceedings in the cause, and in transmitting the record, the clerk of the Court did right in also sending a transcript of them as part of the proceedings, and they were therefore admissible in evidence. The second exception was taken to the granting of the first and second instructions of the appellee, and the rejection of the first, second, third, fourth, sixth and eighth prayers of the appellant. Two objections were urged to the first instruction — first, that there was no sufficient evidence of the readiness of the appellee to deliver the stock to the- appellant, to authorize the Court to submit that question to the jury; and the second, that the notice to the appellant of the intended sale of the stock was insufficient. 1st. It does not appear that the first objection was taken to the prayer at the trial and decided by the Court below. The fourth rule of this Court, adopted under authority of the 18th section of the 4th Article of the Constitution, provides that this Court shall not deem an instruction defective because it has submitted a question of law to the jury, and that no question shall arise in this Court as to the insufficiency of evidence to support any instruction actually granted, unless it appear from the l-ecord that an objection on that ground was distinctly made to, and decided by, the Court below. The first objection to the first instruction comes too late, therefore, when made for the first time in this Court, it not appearing to have been made in the Court below. But even if it could now be entertained in this Court, we think that there was evidence on that point sufficient to be submitted to the consideration of the jury. The appellee offered evidence tending to prove that he had, at the request of the appellant, purchased for him in the New — 193 — York stock market, ou the 9th of March, 1868, through Gray, Prince & Co., agents of the appellee, two hundred shares of the stock of the Canton Company, at $64.50 per share, the price limited by the appellant, and that notice of the purchase was sent by mail to him the following day, to his post office in Baltimore county; that said shares of stock were kept in the possession of the agents of the appellee, in the city of Yew York, until the 21st day of March, when they were sold at the Stock Exchange in that city, for $46 per share, by direction of the appellee, for the purpose of satisfying the debt to him thus incurred. There was also proof to show that the appellee had in his possession, in the city of Baltimore, on the 21st day of March, two certificates of stock of the Canton Company, each for one hundred shares, ready to be delivered to the appellant. From this proof, the jury was at liberty to find that the appellee was ready to deliver to the appellant the two hundred shares of Canton stock, and they did in fact so find. It was not necessary that the stock, which was purchased for the appellant, should have been kept separate and apart from other stock of the Canton Company which belonged to the appellee, or that it should have been marked so as to designate it as belonging to the appellant. If the appellee bought the stock for *the appellant, and either he or his agents had it in possession, so that it could be delivered to the appellant upon his paying what was owing for it, everything that was required of the appellee had been done, and he was entitled to be paid the price of the stock and his commission. 2d. The other objection to this instruction (and it was also urged to the second,) is, that the notice to the appellant of the sale of the stock at his risk was insufficient, and therefore, that the appellee had no right to make the sale. There was testimony before the jury tending to prove that, on the 13th of March, the appellant requested the appellee to do nothing with the stock until he could see Mr. Jenkins, and that on — 194 — the 17th of March, the appellant told the appellee in Baltimore that he repudiated the transaction, and would have nothing to do with the stock. The appellee then wrote the letter dated the 17th of March, 1868, which is set out in the record, addressed to the appellant at Reisterstown, Baltimore county, it being the post office of the appellant, and handed it to the postmaster at Baltimore, and stated to him that it was of great importance to the writer, and requested the postmaster to see that it was delivered to the person to whom it was addressed. The postmaster sént it under cover to the postmaster at Reisterstown by mail, stating that the writer requested that he would note its delivery to the person to whom it was addressed. The letter reached Reisterstown on the 18th, and was delivered to the appellant on the 24th of March, three days after the sale of the stock had taken place. A notice of the dishonor of a promissory note, sent by mail to the indorser at his post office, will bind him, although he never receives it; and we can see no reason why a notice sent to a bailor in the same way, to inform him of a sale of his pledge, consisting of stocks of this description, should not be a sufficient notice to bind him also. The notice in this case was handed to the postmaster, with the request that he would see that it was delivered to the person to whom it was addressed. This manner of having the notice sent, was adopted out of abundant caution, and, no doubt, with the best motives. The party to whom it was intrusted, was an officer of the government, whose especial-duty it was to see that all letters mailed in Baltimore should be sent with despatch, and this letter did in fact reach Reisterstown on the 18th of March, the day after it was mailed. It could not have arrived at that place any sooner, if it had been put into the post office by the appellant and sent off without being inclosed in a letter to the postmaster at Reisterstown. It does not appear in the proof, that the appellant either sent, or went himself to his post office for his mail be — 195 — tween the 18 th and 24th of March, or that he was an hour later in receiving this notice, by reason of its having been sent under cover to the postmaster at Reisterstown. We, therefore, are of opinion, that there is no force in the objection urged to the manner of sending the notice. But it -was also contended, that it was insufficient by reason of its not naming the place where the stock would be sold. There was evidence tending to prove that Canton stock was for sale only at the New York Stock Board, and that the appellant had knowledge of that fact, and, therefore, it was not necessary to name the place of sale in the notice, even if, in the sales of other kinds of stocks held in pledge, it is necessary to do so. But we think, that in the case of sales of stock by bailees, it is not obligatory upon them to give notice to the bailors of the place of sale. In eases of sales of some kinds of pledges, such as heir-looms, plate, and other articles of like character and description, which possess a peculiar value to the owner, or which cannot readily be replaced, it is right and necessary to give notice to the bailor of both the time and place of sale, in order that he may have an opportunity of redeeming his pledge, or attending the sale and protecting his interests. But the same reason does not apply to cases of sales of stocks. One share is exactly similar to, and of the same value as another of the same company, and can be purchased easily and readily if desirable. For these reasons, we think that the first and second instructions were correct. The views we have already expressed with regard to the notice of the sale, are sufficient to show that the third,. and fourth prayers of the appellant were properly rejected. The first prayer denied the appellee’s right to recover, unless the jury should find that the stock was purchased and set apart, or designated for the appellant, and that the appellee actually paid the money for it; and the second prayer asks the Court to instruct the jury that there was no evidence of such payment, prior to the institution of the suit, as was sufficient to entitle the appellant to recover. We have already shown — 196 — that it was not necessary that the stock, which was purchased for the appellant, should have been marked in his name or otherwise designated or set apart for him, but that it was only necessary that it should have been in the possession of the appellee or his agents, ready for delivery. Nor was it necessary that the appellee should have actually paid the money for the stock' to enable him to recover from the appellant. If he had funds or credit with his agents, through whom the purchase was made, and they made the purchase upon his credit and held him liable for the price, and charged him with it in their account with him, he was entitled to maintain his action against, and to recover from, the appellant. There was no error, therefore, in rejecting the appellant’s first and second prayers. The instruction asked, by his sixth prayer had already been granted substantially in the instructions granted at the appellee’s instance, and, therefore, the refusal to grant the instruction asked, forms no ground for the reversal of the judgment. The eighth prayer stated, as a proposition of law, that if the appellee knew that the appellant was in the city of Baltimore on the 17th day of March, at the time the appellee formed the intention to sell the Canton stock, and after-wards during that day, it was his duty to serve the notice of the intended sale upon him personally, if he could have so served it by the exercise of reasonable diligence. The proof in the .cause shows, that the parties met in Baltimore on the 17th of March, and had some conversation, and that the appellee went to his office and wrote the letter of the 17th of March, and then tried to find the appellant, but without success. There is no proof in the record to show that the appellee knew that the appellant remained in the city of Baltimore after the time when they met on the corner of the street, where the conversation between them took place, or that he did in fact remain in the city after that time. But even if the appellee had knowledge that the appellant was visiting — 197 — the city that day, he was not compelled to serve a personal notice upon him then. Hysinger vs. Baltzell, 3 G. & J., 163. This prayer was also properly rejected. We concur in the rulings of the Court below, and its judgment will be affirmed. (Decided 23d February, 1871.) Judgment affirmed.