Hope v. Lawrence , 1867 N.Y. App. Div. LEXIS 170 ( 1867 )

Leonard, P. J.

The defendants’ counsel has urged, as error, the refusal of the judge, at the trial, to charge the 'jury as requested, “ that if the order, on the 27th of January, was that the defendants should sell the gold, if the market reached 217, on that day, and, in fact, it did not reach 217 on that day, then the defendants were justified in acting under the previous orders, if any, given by the plaintiff to the defendants.”

The proposition rests upon an hypothesis that did not exist. The defendants’ letter of January 30, in answer to that of the plaintiff of the same date, conceded, as a fact, that the price did reach 217 on that day, and at the evening board reached 219J. There was no doubt that the contingency mentioned in the request did happen. Nor is there any evidence of the existence of any previous orders. A request to charge must rest on facts, which are, at least, possible in the case, in some aspect of the evidence; and where an hypothesis, or contingency, not resting upon any evidence in the case, is the basis of a request to the judge for a direction to the jury, it is no error to refuse to give the direction asked for.

I think the defendants have not presented any error, arising at the trial, upon which an exception was taken.

The case comes here on an appeal from an order denying a motion for a new trial at the special term, involving a review, upon the evidence, as well as upon the law. Some considerations have been presented, to show that the defendants were prejudiced, by certain observations of the'judge, as to the effect of the omission of the plaintiff to insist upon it, or claim that the defendants had injured him, or violated his instructions, by neglecting to sell at 217, when informed on the 28th of January that his gold had not been sold.

The plaintiff in his letter of January 30th referring to the defendants’ statement in answer to his inquiry whether they had sold, says : “ I took a note of your reply, and determined to wait the future course of the market, before writing to you.” It will be remembered that the market was then at 215¿, and that it subsequently continued to fall until the gold was sold on the 4th of February following at 207f.

The judge says in his charge, referring to the sentence quoted above from the plaintiff’s letter : “ What does that mean ? Suppose gold had gone up to 225 ; of course the suit would never have been brought, if he had ordered it sold, and it had been sold then. Perhaps he waited to see. It is not inconsistent with the plaintiff’s writing. He might say, I will wait and see, and if I don’t suffer any wrong, I will say nothing about it. I don’t know as that is inconsistent, or any thing to injure plaintiff’s right to recover.”

The judge here conveys to the jury the idea that it is not important that the plaintiff did not at once state his claim that the defendants had disregarded his instructions, and had thereby made themselves liable for any loss sustained in consequence. I think it must be assumed that the jury have by their verdict found that the defendants were directed by the plaintiff, on the 27th of January, to sell the gold if the price touched 217. It appears, however, to be extremely doubtful whether the defendants understood the order as an absolute direction to sell at that price, and not in any manner dependent on the exercise of their judgment or discretion. The plaintiff states, on his cross-examination, that the defendants’ advice to him was to sell at 217, unless it looked strong, and that he told the defendants to do so. If that was the position in which his directions were left with the defendants, they might well believe that the sale was to be made, only, if the market, in case gold rose to the price named, did not, in their judgment, look strong ; clearly involving an exercise of discretion. It is true the plaintiff afterwards stated the order as having been positive and unconditional “ to sell.” He states, also, that the direction might have been to sell at about 217. This form would give some latitude of discretion. There is nothing in the evidence giving the slightest indication of bad faith on the part of the defendants, or of an intention to assume the responsiblity of disregarding positive directions. The effect of the omission of the plaintiff, when he inquired, the next day, of the defendants if they had sold, to notify them that his instructions on the 27th were absolute to sell, if the price reached 217, was to put them into a feeling of security, and involve them in further loss, if the price of gold continued to decline. The whole risk of the market was on them, while the plaintiff enjoyed the advantage to accrue in case the price advanced up to or above the limit of 217, The plaintiff was aware of this, if he had given absolute instructions to sell at a price which the market had touched. His letter shows that he knew precisely how the price had advanced, and that he intentionally remained silent to see how the market would fluctuate after that. Had he then stated the position now claimed in this action, the defendants might have closed the gold transaction at 215|-, the then market price, being only 1-J per cent below the plaintiff’s limit, an involving a loss of $75 only. What the market price was on the 30th of January, when the plaintiff advised the defendants of his claim on them, does not appear; but on the 4th day of February, when it was sold, the price appears to have fallen to 207f, the price realized. The defendants, by the silence of the plaintiff, had no opportunity to elect, whether to .continue to hold, or to sell, the gold of the plaintiff, then in their hands at their own risk as to the price, without the smallest chance of realizing any benefit for themselves, if the position of the judge at the trial is correct. But, in my opinion, what has been remarked above, as to the practical effect upon the rights of the defendants,, arising out of the silence of the plaintiff, when he should have spoken, establishes that the plaintiff is estopped from inflicting upon the defendants any damage for the subsequent depreciation in the price of gold coin. The plaintiff should he held to assume all the risk of further depreciation, when he saw that the defendants were resting under the impression that they had missed the market by an error of judgment. He asked the reason why the defendants had not sold, and was told that the market looked strong when it was about 217, and thereupon they did not sell. It was evident to the plaintiff, from this answer, that the defendants were acting on their discretion.

The verdict, under the charge, has fixed the'price at which the defendants are to pay the plaintiff for his gold, at 220, the highest price which it reached on the 27th and 28th January. If the defendants had acted in bad faith, the rule of damages would permit this increase beyond the limit fixed by the plaintiff at which the defendants ought to have sold, assuming the order to have been peremptory. The plaintiff should recover only his actual loss sustained by the neglect of his order to sell at 217. Assuming the direction of the plaintiff to be as the jury have found, peremptory, the defendants were bound to sell according to his order, when the price reached 217. The plaintiff sustained no further damage by the price advancing beyond that figure, and then receding. All the plaintiff can claim is obedience to his order. Had the defendants sold above the limit, it would have been for the plaintiff’s benefit; but if we assume that the defendants were acting without authority in holding when the market rose above the limit, it clearly could not have happened from any intention to injure the plaintiff, but must have been from the hope or expectation that the plaintiff would realize an increased price. I think the defendants are not to be charged with any loss from neglect to sell at a price above the limit. This also appears to have been the opinion of the plaintiff when he made the tender of $1444.15," which was based upon the price of gold at 217. The tender of that sum was an admission that so much was due, and damages should not have been allowed at a rate more unfavorable to the defendants.

[New York General Term, November 4, 1867.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

•Clerke, J. concurred.

Sutherland, J. dissented.

Hew trial granted.

Leonard, Clerke and Sutherland, Justices.]