Thompson v. Brown

The only question before this court, arises upon the refusal of this court to direct a verdict for the defendants, and to charge as requested. Assuming the agreement between the parties to have been as claimed by plaintiffs, that plaintiffs should hold and sell the stock at discretion, I think plaintiffs could not recover in this action, because they did not fulfill their agreement. The action of one of the plaintiffs, Henry Thompson, in taking that stock from *5the safe of the plaintiffs, and selling the same, and applying the proceeds thereof to his own. individual account, without, the consent or knowledge of his partner and co-plaintiff, was not a sale pursuant to this agreement. If considered as the personal act of him who did it, it was an unlawful conversion of the property of others. If considered as the acts of plaintiffs, it was a breach of the agreement between them and the defendants to sell on joint account. The plaintiffs, by their subsequent action in the premises, ignored this sale as their partnership act under the agreement, "and sought to replace this stock that had been clandestinely taken and sold on the personal account of one of them. '

The defendants were entitled, under the agreement, to the judgment and action of the firm and each member thereof in the sale of that stock, and cannot be held to an account upon such a sale as made by Henry Thompson. The exceptions to the refusal of the judge to direct a verdict for the defendants, and to charge the jury as requested, in regard to the effect of this sale by Henry Thompson, were well taken, and there was error in those refusals.

I think there is nothing of merit to be considered in the facts attending the subsequent purchase and sale of one hundred and fifty shares of this kind of stock by the plaintiffs, for that display of .broker’s craft could not, and did not, change the situation nor effect the result sought for by plaintiffs.

The judgment and order denying a new trial must be reversed, and a new trial ordered, with costs to abide the event.