Curtis v. Hannaford & Talbot

[183]

DEVINE, J.

Respondent, Curtis, obtained judgment against Hannaford & Talbot, a corporation, stock brokers, on an asserted warranty that shares of a certain stock would produce 100 per cent profit over a period of 12 months; and the brokerage firm appeals.

Respondent had bought and sold securities through appellant and had dealt with appellant’s salesman, Turner, at its Ukiah office. In the transaction which led to this action, it was claimed by respondent that he ordered the purchase of 200 shares of American Marietta and 100 shares of A B C Vending Company, and that he asked Turner to check on “what is happening to Colgate Palmolive,” a stock owned by respondent. Turner understood the conversation, which was by telephone, to direct him to sell the Colgate stock and to buy the other two only after the Colgate sale and from its proceeds. In his testimony at the trial, Turner said that he may have been mistaken, but was not sure. Immediately following the transaction, however, Turner was willing to concede that he had been mistaken. He had sold the Colgate stock, which went up in price immediately, and he deferred the purchase of the others, the prices of which also advanced.

Respondent protested to Turner, but to no one else until many months later. Turner sought to make amends in order, as he testified, to keep respondent as a customer, and also to protect himself in his own position. Without mentioning the matter to anyone in the firm, Turner agreed to pay respondent $700, and made payment of $350 by certified check or a money order which he obtained from his personal funds. In addition, Turner made a proposition about the purchase of Lestoil Products preferred stock, which respondent accepted and which is described in the last sentence of a memorandum which was handed to respondent at his home by Turner. The memorandum reads as follows: “To Whom It Mat Concern : Due to an assumption on the part of the

undersigned,

I failed to ask Mr. William L. Curtis, Star Route, Upper Lake, California if the purchase of two hundred (200) shares of American Marietta and one (100) hundred shares of A B C Vending were contingent on the limit sale of three hundred (300) shares of Colgate-Palmolive, and the two purchases were delayed three days pending the sale at the limit. Mr. Curtis, as a result, incurred a loss. After discussing the discrepancy with Mr. Curtis it was mutually agreed that the