CLARK a. MEIGS

CLARK a. MEIGS. New York Superior Court; General Term, July, 1861. Pleading.—Complaint against Stook-beokek. „ A complaint in an action to recovet damages from "brokers, which shows that they purchased stock for the plaintiff, to be delivered to him at his option within a specified time, but sold it meanwhile against his express instructions, need not allege a demand and tender on the part of the plaintiff. It is the duty of such agents to keep the stock on hand. The allegation that defendants sold it, may be deemed, on demurrer, to imply that they had perfected the sale by delivery. Appeal from judgment on demurrer to complaint. The action was brought to recover from the defendants, Charles A. Meigs, Augustus Greenleaf, and E. B. Greenleaf, who were stock-brokers, damages for having sold, against their duty as agents of plaintiff, stock which they had purchased for him. The allegations of the complaint are stated in our report of the decision at special term, 12 Ante, 267. From, that decision the plaintiffs appealed. Hyde & Squires, for the appellant. Wheeler & Armstrong, for the respondents. [MAJORITY — By the Court.— Hoffman, J.] By the Court.— Hoffman, J. —I thinkthe allegation in the second paragraph of the complaint admits of the construction that the purchase of the shares by- the defendants, for account of_ the plaintiff, was consummated, and the delivery was to be made by them to the plaintiff within sixty days, if he so chose. Certainly it would admit of proof to that effect. Presumptively, the very stock thus held ought to have been kept undisposed of for sixty days. If sold, the plaintiff’s security was the defendants’ ability to get and to pay for other shares. The cases referred to, such as Horton a. Morgan (19 N. Y., 170), are cases of a defence made out to a responsibility for disposing of stock, by showing the actual possession of a similar number of shares at all times when a demand could have been made. The facts made out a sufficient exemption from an apparent liability. So the allegation of a sale may well imply a perfected sale by delivery of what was possessed ; and the allegation is, that this was against express instructions. Thus, it seems to me, the case is one of an. agent, or rather a pawnee, holding specific property for a principal, partly paid for by such principal, having, ostensible authority to sell it, and & selling it contrary to orders, and before the period for. reclaiming it has expired. It seems to me that a cause of action is made out. The judgment must be reversed; and judgment for plaintiff on demurrer, without costs of the appeal, but with costs of the demurrer and proceedings thereon at special term, with leave to defendants to withdraw demurrer, and answer within twenty days, on payment of the costs of the demurrer and proceedings thereon at special term.