#### Ida Small, Respondent, *v.*Clarence J. Housman and Sailing W. Baruch, Appellants.

First Department,

May 21, 1915.

Principal and agent — purchase and sale of stock — demand for margins —notice to purchaser before selling for want of sufficient margins — evidence—erroneous instructions to jury — agreement not to sell — consideration.

Where, in an action by a customer against a firm of stockbrokers for conversion in selling out stocks and bonds carried on margin, without due demand and notice, it appeared that the plaintiff, a woman of means, had been carrying an account with defendants for some time through her son, who was employed by them; that in July, 1907, she went to Europe, leaving the key of her safe deposit box with a banker, to which her son had no access; that in August the banker went to Europe, leaving with the son some securities to be used as margins on the mother’s account, if needed; that in October a serious panic occurred, in which the price of stocks fell suddenly and violently, and the defendants called upon the son for additional margins for his mother’s account, and he complied as far as he was able, delivering the securities left with him for that purpose; that thereafter, at the defendants’ request, he cabled to his mother’s European address, but was unable to reach her; that the defendants, after repeatedly and constantly calling upon the *127son for further margins, and notifying him that unless such margins were forthcoming they would be obliged to sell some of the securities, did sell a large block of stock, and the only question litigated was as to whether or not the defendants had given the son reasonable notice of their intention to sell the securities, it was error to charge that in addition to the condition of the market and the relationship of the parties the jury should consider the length of time that the account was carried by the defendants for the plaintiff, also the financial condition of the plaintiff, if they believed that the defendants had knowledge thereof.

It was alsoerror to admit evidence that 1,000 shares of stock were sold through another broker to the brother of one of the defendants. This, because there was no charge of fraud in the complaint and if the notice was insufficient it was of no consequence to whom the sales were made. *It seems,*that an alleged agreement by the defendants to sell no more securities without the plaintiff’s consent, if made, was without consideration and revocable, and, hence, it was error for the court to charge in effect that the agreement could not be revoked and that a sale made in violation thereof was void.

Because of the above errors a judgment in favor of the plaintiff should be reversed and a new trial granted.

Appeal by the defendants, Clarence J. Honsman and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of blew York on the 6th day of December, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of December, 1913, denying defendants’ motion for a new trial made upon the minutes.

*George Zabriskie,*for the appellants.

*Charles H. Tuttle,*for the respondent.

Scott, J.:

This is an action in the usual form by a customer against a firm of stockbrokers for having sold out stocks and bonds carried on margin without due demand and notice.

The action has been twice tried. On the first trial plaintiff contended that her son, Eugene Small, who had been an intermediary between herself and defendants, had not acted in such matters as her agent. The Court of Appeals held to the contrary, however (208 N. Y. 115), and the only questions litigated on the second trial were as to whether or not the defend*128ants had given plaintiff’s son reasonable notice of their intention to sell the securities, and'whether or not they had sold certain securities after having agreed not to do so.

The plaintiff, apparently a person of means, had been carrying an account with defendants for some time prior to July 1, 1907, on which date she owed them $282,893.15, as security for which they held stocks and bonds. In all of her dealings with defendants she had been represented by her son, Eugene Small, who was in defendants’ employ as a sort of assistant office manager.

On July 18, 1907, plaintiff went to Europe leaving the key of her safe deposit box with a Mr. Heinsheimer, a member of a well-known banking firm. Her son Eugene had no access to her box. Heinsheimer went to Europe on August twenty-eighth, leaving with Eugene Small some securities to be used as margins on his mother’s account if needed.

In October, 1907, occurred a serious panic, especially acute in Wall street, in which the prices of stocks fell suddenly and violently. Defendants as early as October twenty-second called upon Eugene Small for additional margin for his mother’s account. He complied as far as he was able delivering to defendants the securities that had been left with him for the purpose and finally notifying them that he had nothing further to furnish by way of margins. The panicky condition of the stock market continued and intensified and defendants continued to call for more margin. One of the defendants suggested a sale of a portion of plaintiff’s holdings in order to protect the remainder, but Eugene Small was unwilling, or perhaps did not feel authorized to consent. At defendants’ request he cabled to his mother’s European address, but' was unable to reach her. Without attempting to repeat the evidence it is sufficient to say that on October twenty-third and twenty-fourth defendants repeatedly and constantly called upon Eugene Small for further margin, and notified him that unless such margin was forthcoming they would be obliged to sell some of the securities, and on the afternoon of October twenty-fourth they did sell a large block of Union Pacific stock. On the afternoon or evening of the same day they addressed a formal notice to plaintiff demanding a deposit of *129additional margin with a statement that unless it was received defendants would sell. A copy of this notice, with a letter stating definitely the amount of deposit desired, was also sent to Eugene Small, and received by him early on the morning of the. twenty-fourth. He protested against the selling of any of the -securities, but as he was unable to furnish further margin defendants persisted and made the sales which have given rise to this action.

Upon a substantially similar record this court was of the opinion upon a former appeal (142 App. Div. 760) that, under the circumstances, the defendants had committed no breach of duty to the plaintiff, but the Court of Appeals was of opinion that the question whether or not reasonable' notice had been given was one of fact to be passed upon by a jury, and that ruling, of course, constitutes the law of the case. Upon this subject the court, after giving the general rule as to the duty of a pledgee to give notice of his intention to sell a pledge, said: “ But the rule is a general one which must be applied to an infinite variety of circumstances. In the case at bar the conditions were exceptional. It was a time of tense excitement, of sudden and violent fluctuations in prices, of veritable panic in which individual judgment was torn from its moorings by the' impact of popular frenzy. Notwithstanding these conditions it was still the duty of the defendants to give the plaintiff reasonable notice. Whether the notice given answers that description depends upon the circumstances.”

In attempting to follow the rule thus laid down as applicable to the case, the learned trial justice included among the conditions to be considered by the jury some which, as it seems to us, should not have been taken into consideration, and the inclusion of which was calculated to work prejudice to the defendants. He charged that in addition to the condition of the market and the relationship of the parties the jury should consider “ the length of time that such account was carried by the defendants for the plaintiff,” and also “the financial condition of the. plaintiff ” if the jury believed that the defendants had knowledge of such condition. It needs no argument to show that neither of these considerations could *130have any legitimate hearing upon the question of the reasonableness of the notice, and that the reference to them amounted to the submission to the jury of irrelevant questions.

The defendants’ rights and duties with regard to plaintiff was just the same whether her account was an old or a recent one, and whether she was rich or poor. This error was emphasized by the refusal of the court to call the attention of the jury, as it was requested to do, to the undisputed fact that on October twenty-third, twenty-fourth and twenty-fifth the plaintiff’s son had exhausted all the resources at his command; that plaintiff herself was beyond the reach even of telegraphic communication, and that no means had been provided by her for the protection of her account except the securities which had already been used for that purpose. If these considerations had been submitted to the jury it might well have found that the notice actually given was reasonable, because even a much longer notice could not have availed plaintiff.

It was also error to admit evidence that 1,000 shares of stock sold on October twenty-fourth was sold, through another broker, to a brother of the defendant Baruch. This was wholly irrelevant and calculated to raise a false issue to confuse and prejudice the jury. There was no charge of fraud in the complaint, and no issue to be determined by the jury except as to the reasonableness of the notice of sale. If the notice was insufficient, which was the gravaman of plaintiff’s complaint, it was of no consequence to whom the sales were made ór at what price. Plaintiff’s recovery would be estimated as if the securities had not been sold at all but had been converted by the defendants.

A part of plaintiff’s claim, inconsiderable as compared with the total claim, was for the loss sustained by her through the sale on October twenty-ninth of $30,000 of bonds, in violation, as it is said, of an agreement by defendants to sell no more securities without plaintiff’s consent. The defendants denied ever having made such a promise. Assuming, however, that they did make it, we are unable to see that it was founded upon any consideration, or that defendants were not at liberty to revoke it at any time. „ As to this feature of the case the Court of Appeals said: “ This promise, if made, was probably *131not an irrevocable contract, but it could not be totally ignored to the prejudice of the plaintiff.”

The trial court, while it did not use the word “irrevocable,” did in effect charge that the promise, if made, could not be revoked, and that a sale made in violation of it was void. This, also, was error. Other exceptions (of which there are many in the record) are pressed upon our attention, but we find it unnecessary to consider them, since they may not recur upon a new trial, which the errors already considered will necessitate.

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellants to abide event.