Wynkoop v. Seal

The opinion of the court was delivered,

by Agnew, J.

— This is the case of an agent who has bought stock for his principal and paid his own money for it, claiming to recover the sum that he has advanced for his principal. Seal testified that he had bought and paid for the stock at the request of Wynkoop, and informed him immediately of the purchase. He repeatedly requested Wynkoop to come and take the stock and pay for it. Seal also testified that there never was a time when he could not have delivered the stock to Wynkoop; it had always been under his control. He stated on cross-examination that there might have been times when there had been no stock in his name on the books of the company, and also that he might have borrowed money on it. He repeated, however, that there had not been an hour since his purchase of the stock, that Wynkoop could not have got it. On the trial, Seal produced a certificate for 200 shares, the number he was requested by Wynkoop to buy. There is no evidence that Wynkoop ever called to take the stock, to make payment, or to request a delivery of it. He seems to have left his agent to carry the stock for him without any effort to relieve him. Under these circumstances the defendant’s counsel asked the court to charge that if the plaintiff had not always in possession the 200 shares of stock ready to deliver to the defendant, but on the contrary, had, during that time, pledged, or in any way disposed of all.he had of the stock, the verdict must be for the defendant. The refusal of the court so to charge, is the principal error complained of. The case we have, then, is an advance of money by one man, at the request and for the benefit of another ; and a notice of the purchase and demand of payment, and to take the stock when the agent was unquestionably able to perform his undertaking. Now clearly, it does not lie in the mouth of the principal to say that his agent could not comply, when he never offered payment or demanded delivery of the stock. The readiness of the plaintiff to comply at the time of the trial was evidenced by production of the requisite number of shares, and his crediting the principal with the dividends. Clearly it was not error, therefore, to refuse to say to the jury that the plaintiff could not recover, because at some intermediate time the agent had not that much stock standing in his own name on the books of the company, or because he might temporarily have hypothecated it. The true test of his ability to deliver the stock would have been a tender of payment, and a request for delivery. Had the request been made, he might have shown his ability to control so much stock, and had the transfer made. Shares of stock are alike, and a transfer procured to be made by another of the requisite number would have been a full compliance.

The case of Gilpin v. Howell, 5 Barr 41, does not resemble this. The judge of the District Court said, that when the stock was purchased and pledged as collateral security to the defendants (the brokers in that case) their character as agent ceased, and they became pawnees, pledgees, or bailees. Throughout the opinion of Justice Bell, the same view is taken that the stock was held in pledge; the defendants being bailees of it. And this court, instead of holding to the rigid rule given to the jury, that the bailees must have been always ready to deliver the same identical shares, held that readiness to deliver the same number of shares would be 'sufficient.

These views in effect dispose of the 2d assignment of error, that the judge refused to charge the jury that the plaintiff could not recover unless he had given notice to defendant of his having the stock ready to deliver to him. Notice that he had bought the stock, and to come and take it and pay for it, was all that was necessary in the first instance. Readiness to deliver, under such a notice, could be tested only, as we have said, by an offer to pay and a demand to deliver.

There was no error in permitting the question to be answered contained in the bill of exception. The question called for the personal knowledge of a fact communicated in conversation with the defendant. It was not in the most proper form, and if the answer had given impressions of the witness only, it might have been complained of. But the answer disclosed facts , clearly indicating knowledge, to wit, a conversation, probably on the same day, about the purchase of the stock; and the reception of a telegram afterwards from the defendant, clearly showing his knowledge of the purchase. A judgment will not be reversed for an immaterial error which does the party no harm.

Judgment affirmed.