Sharp v. Keating

WHITE, J., pro tem. Plaintiff and appellant, Omer L. Sharp, is a physician, and the defendant and respondent, A. G. Keating, is a stockbroker, and also president of Big Jim [638]Mines, Inc. It appears that appellant had bought and sold stocks through respondent’s office over a period of several years. On December 29, 1933, appellant agreed to purchase from respondent 50,000 shares of Big Jim Mines, Inc., stock, at six cents per share, and paid $1100 on account of the purchase price, receiving the ordinary confirmation from respondent’s agent. There is nothing in writing to indicate when the balance of the purchase price was to be paid, appellant claiming that he was to have 90 days within which to pay the full purchase price, and that nothing whatever was said about date of delivery of the stock, while respondent insists that the agreement was that the whole order was to be readjusted at the end of 30 days, and that the oral agreement between the parties with reference to delivery was that the same was to be accomplished at the option of respondent. No further payment was made by appellant on the purchase price of the 50,000 shares of stock, and on March 10, 1934, respondent wrote appellant, canceling the latter’s order for the 50,000 shares, and advising appellant that his account had been credited with 18,333 shares of Big Jim Mines, Inc., stock, which represented approximately the number of shares paid for by the $1100 delivered on account by appellant to respondent at the time the original agreement to purchase the 50,000 shares was executed. Appellant subsequently acquiesced in this arrangement, and about May 29th, at appellant’s request, respondent wrote him what was denominated a “resume of his (appellant’s) account”, showing that respondent was holding for appellant 26,477 shares of Big Jim Mines, Inc., stock, being made up of the 18,333 shares paid for by the aforesaid $1100, and an additional 8,144 shares due appellant from a stock pool. In the same communication respondent offered to sell appellant an additional 523 shares for $31.38, to make an even 27,000 shares. On June 6, 1934, appellant paid respondent the $31.38, thus making appellant’s stock holdings 27,000 shares. About May 29, 1934, there was delivered to appellant the 8,144 shares of pooled stock, leaving a balance of 18,856 shares belonging to appellant in the possession of respondent, after the June 6th payment.

The amended complaint herein presents two causes of action, the first of which sets up the purchase agreement of December 29, 1933, for 50,000 shares of stock, the subsequent [639]