On appeal from a judgment of the Supreme Court.
For the appellant, Samuel Press.
For the respondents, Nathaniel Weltchek.
The opinion of the court was delivered by
HEHER, J. Plaintiff sued to recover the sum paid the defendant stock brokerage firm as the purchase price of thirty-three and one-third undelivered shares of the common capital stock of the Tung-Sol Lamp Works, Incorporated. A verdict was directed for defendants, and this ruling is assigned as error.
The trial judge based his action upon plaintiff's testimony that she accepted thirty-three and one-third shares of preferred stock of the above-named corporation, in lieu of the undelivered common stock. But he manifestly misconceived the situation. While this seems to be the fact, it did not, for the reasons to be stated, dispose of the claim asserted.
There was evidence tending to establish the following matters of fact:
Plaintiff's account with defendants was in the name of her husband, Herman Miller, now deceased. Defendants were aware that it was her account. She testified that it was opened in her husband's name at the insistence of defendants. The parties stipulated that the "trial proceed upon the theory that the account * * * belonged to her." On June 13th, 1929, plaintiff ordered one hundred shares of Tung-Sol common stock. Defendants knew that the order came from plaintiff,
and understood that the certificate was to be issued in her name, and delivered to her husband. On July 3d, 1929, defendants acquired stock of the Tung-Sol Corporation, and proceeded to execute plaintiff's order. Certificates for sixty-six and two-thirds shares of common stock of the corporation, and thirty-three and one-third shares of its preferred, issued in the name of plaintiff were delivered to her husband, and the price thereof charged to her account, which, at the time, had a credit balance in excess of the purchase price. The preferred stock, so defendants claimed, was the property of another, and was delivered to plaintiff by mistake.
At this point there is a marked divergence in the evidence. Plaintiff testified that, shortly after the delivery of these certificates, she called defendants' attention to the error, and insisted upon a delivery in compliance with her contract, but was persuaded by defendants to retain the preferred stock in lieu of the undelivered common. Defendants maintain that in October, 1929, they demanded a return of the preferred stock certificate. This demand was made upon plaintiff's husband. It is conceded that the demand was not accompanied by a tender of the certificate for the undelivered common stock, and that no tender thereof was made until April, 1931, during the trial of an action instituted against defendants by plaintiff's husband, to recover the sum charged to plaintiff's account with defendants, standing in his name, representing the price of thirty-three and one-third shares of Tung-Sol preferred stock purchased by defendants in the open market, after the alleged refusal of plaintiff's husband to return the preferred stock said to have been delivered by mistake. The certificate then tendered was dated December 30th, 1930, and was issued in the name of plaintiff's husband. The tender was rejected, and the certificate was deposited with the clerk of the court below, where it now reposes.
A member of the defendant brokerage firm, called as a witness by plaintiff, testified: "The reason that this certificate is dated December 30th, 1930, is that at this time (after) repeated ...