Murphy v. Helmrich

McKee, J. This was an action to recover, the difference between the contract and market price of one hundred shares of San Francisco gas stock, which the plaintiff claims to have sold to the defendants on the 15th of October, 1878.

It is contended that the defendants are not liable, because there was no note or memorandum of the sale in writing, or subscribed by them, and therefore the sale was void; and because in the transaction they acted in the capacity of brokers for another person for whom they purchased, and not for themselves.

The promise by the defendants on the 15th of October, to take the stock at the stipulated price, was verbal. Next day the plaintiff sent word to the defendants that the stock was ready to be delivered to them, and to come and get it, and pay for it. They declined to pay, but, in answer, wrote to the plaintiff as follows:

“ The purchaser of the 100 shares of gas stock has not made his appearance, and it looks very much as if he was trying to back out. If you have accounted for the stock already, we will, of course, make the deficiency good; if not, would advise to do nothing in the matter, as there are to-day no buyers over 94 cents. Yours, etc.,

“ Hansen.”

[70]Written on the back of the note was the following:

“ Will call as soon as I can get a chance.”

On the same day the plaintiff also received the following:

“I have not seen the purchaser of the 100 shares gas stock, but we guarantee that it is all right at 95J-, and you can account for it to your buyer at that rate. But we shall probably only take the stock to-morrow, unless we meet the party. Will that be in order? Yours, etc.,

“ Hansen.”

After the receipt of those notes, the plaintiff tendered the stock to the defendants, at their place of business, and demanded the amount of the purchase money. They declined to take the stock or pay the money, but afterwards wrote the plaintiff as follows:

“ October 24, 1878.

“ In the present state of the market for gas stock, we have not as yet received a satisfactory bid. We think, however, you had better sell the stock, if you have an opportunity to do so.