
    Max Peschke, Respondent, v. William May Wright and Howard Slade, Doing Business under the Firm Name of Wright, Slade & Company, Appellants.
    (Supreme Court, Appellate Term, First Department,
    January, 1916.)
    Conversion — technical — action against stock-brokers for conversion — evidence — appeal.
    While a stockbroker guilty of a technical conversion of a customer’s stock is liable for the actual damages sustained, he cannot be held for further loss of speculative profits after the injured party has had a reasonable opportunity to buy back his securities.
    Where the purchaser of certain shares of stock deposited with his brokers, who were members of a stock exchange, considerably less than ten per cent of the market value of the securities, and on demand failed to give additional margin, the brokers, after due notice, had an absolute right to sell at public sale said stock for any unpaid balance of the purchase price.
    In an action against stock-brokers for the conversion of stock so purchased it appeared that for about six months after the day on which said purchase was made the stock exchange was closed and in the interim the members were notified by a duly appointed committee authorized to make rules binding upon the members that no sales might be made by them at less than the closing prices of the day plaintiff's stock was purchased and then only in order to relieve the necessities of the brokers and their customers. It also appeared that several weeks after the closing of the exchange defendants sold plaintiff’s securities at the clpsing prices of the day they were bought by sending an offer to sell to the clearing house which then notified defendants that another exchange had sent an offer to buy at the same price. Held, that even if plaintiff had received due notice that defendants were about to sell his stock the sale was not an appropriate method of disposing of stock held as security for a debt.
    That in the absence of direct evidence that plaintiff ever agreed that the transaction between him and defendants was to be governed by the rules of the stock exchange the rule of its committee was not binding upon him.
    A market price is not necessarily made by public auctions or public sales but by the agreement of ready buyers and willing sellers and a market exists in the legal sense wherever such buyers and such sellers have an opportunity to come to an agreement.
    The evidence showing that there was a market on the curb for the sale of securities at which there were daily offers of the securities owned by plaintiff at prices lower than those obtained upon defendants’ unauthorized sale and that plaintiff received notice of such sale and a letter from defendants stating that if he would send a check for a certain amount as margin defendants would replace the stock in his- account without any loss, it must be held that plaintiff had a reasonable opportunity to purchase back the converted securities before the opening of the stock exchange and that he had suffered no damage by the conversion of his stock.
    In determining the market price of commodities of fluctuating value dealt in upon a recognized stock exchange the courts will receive as the best possible evidence of market value proof of the actual sales made on such exchange.
    Plaintiff having produced evidence only of the market value months after the said conversion and defendants having affirmatively proven that the market value during the intervening period was always at or below a price at which plaintiff could have bought back his securities without loss, a judgment in favor of plaintiff will be reversed and the complaint dismissed.
    Appeal by the defendants from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, borough of Manhattan, fourth district.
    Ehlermann, Hale & Wright (Swinburne Hale, of counsel), for appellants.
    Benjamin J. Brandner (C. Bertram Plante, of counsel), for respondent.
   Lehman, J.

The plaintiff prior to July 30, 1914, brought through the defendants as brokers certain shares of stock. At the time he purchased these shares the parties agreed that the stocks should be carried on a ten per cent margin. On July thirtieth the money deposited by the plaintiff was considerably less than-ten per cent of the market value of the securities. The plaintiff failed upon demand to give the defendants additional margin and the defendants then had an absolute right to sell the plaintiff’s stock which they held as security for any unpaid balance, but they could make such sale only at-public sale after giving due notice.

It appears in this ease that the defendants are members of the stock exchange, and after July thirtieth the stock exchange was closed until December twelfth. In the interim the members of the exchange were notified that “ the Special Committee of Five rules that Members of the Exchange desiring to Buy securities for cash Must send a list of same to the Committee in Clearing House, 55 New Street, giving the amount of securities wanted and the prices they are willing to pay.

“No offers to buy. at less than the closing prices of Thursday, July 30th, 1914, will be considered. Members of the Exchange desiring to Sell securities but only in order to relieve the necessities of themselves or their customers Must send a list of same to the Committee in Clearing House, 55 New Street, giving the amounts of securities for sale.

“ No prices less than the closing prices of Thursday July 30th, 1914, will be considered.”

The record fails to disclose who the “ special committee of' five ” are, or under what authority they presumed to rule. However, for the purpose of this appeal, I think we may assume that the committee of five was a duly appointed committee authorized to make rules binding upon the exchange and that the members of the exchange were bound by their rulings. It follows that the defendants could not make any sale of the plaintiff’s stock except in the manner set forth in the notification unless they were willing to break the rules of the exchange. On August- seventeenth the defendants sold the plaintiff’s securities at the closing prices of July thirtieth. The sale was made by sending an offer to sell to the clearing house which then notified the defendants that another stock exchange house had sent an offer to buy at the same price. In iny opinion, - even if the plaintiff had received due notice that defendants were about to sell his stock, this method of sale was not an appropriate method of disposing of stocks held as security for a debt. The law requires that such sales be made at a public sale and this sale was certainly a private sale. Moreover, while this ruling or rule of the committee of five was binding on the defendants as members of the exchange it was not binding on the plaintiff. There is no direct evidence in this case that the plaintiff ever agreed that the transaction between him and the defendants was to be governed by the rules of the exchange, but even if we assume that the parties did make such an agreement this rule does not provide that brokers may sell out their customers’ securities held by them as collateral in this manner, nor is it a rule 'governing sales on the exchange. It merely provides that no sales may be made by members of the exchange in any manner except as therein provided, but it does not attempt to give the brokers any right to sell in this manner without direct authority of their clients. On the contrary, the rule expressly provides that such sales may be made “ only in order to relieve the necessities of themselves or their customers.” It is, therefore, unnecessary to consider whether a rule which did attempt to give members of the exchange so unusual a power would be binding on previous clients of the brokers. The trial justice, therefore, correctly held as a matter of law that this sale of plaintiff’s securities constituted a conversion.

The real difficulty in the case arises over the question of whether the plaintiff has shown any damages.. Undoubtedly the measure of damages in such a case is the difference between the price at which the securities were sold and the highest market price within a reasonable time' thereafter. The trial justice has held that a reasonable time included the period after the stock exchange opened on December twelfth till February first, and gave judgment for the value of the shares at the highest prices reached on the stock exchange during that period. The plaintiff undoubtedly had the right to wait a reasonable time before replacing his securities, but under ordinary circumstances it would require no argument that a period of almost six months after notice of the conversion is not a reasonable period. A broker guilty of a technical conversion must reimburse the injured party for his actual damages, but after the injured party has had a reasonable opportunity to buy back his securities the broker cannot be held for further loss of speculative profits. The plaintiff now claims that until the stock exchange was reopened there was no open market for the purchase of his securities, and until that time he had no opportunity to buy back his stock. The situation created by the war and the consequent closing of the stock exchange was novel, and naturally there is no precedent to be found in the earlier cases directly covering this situation. It seems to me, however, that logically the plaintiff’s contention must be overruled.

It is true that after the stock exchange closed on July thirtieth there was no building in this city devoted to the sale of securities and, in a sense, there was no public market for corporate securities. It does not follow, however, that there was no market for . them. There is no building or specific place in this city which constitutes a public market ftir shoes or textiles or countless other articles which are constantly being bought and sold, yet no person would contend that there is not a market, and even an open market, for such articles. A market price is not necessarily made by public auctions or public sales, but it is made by the agreement of ready buyers and willing sellers, and a market exists in the legal sense wherever ready buyers and willing sellers have an opportunity to come to an agreement. If the plaintiff had a reasonable opportunity to purchase back the securities which the defendants converted before the opening of the stock exchange from sellers willing to sell at a lower price than the price at which the defendants sold his stock, then the plaintiff has suffered no damage by the conversion. The evidence, to my mind, clearly shows that the plaintiff had such opportunity. Aside from the method of sale still permitted to members of the exchange the evidence shows that there was a market on the curb for the sale of securities and that at this market there were . daily ■ offers of the securities owned by the plaintiff, at prices lower than those obtained upon the. unauthorized sale. It seems to me quite immaterial whether we call this market ' ‘ unofficial ’’ or “unauthorized,” or even an “ outlaw ’ ’ market, if in fact it was a market where a ready buyer could obtain stock from willing sellers. The plaintiff, however, argues that it does not appear that he knew of the existence of such a market. It seems to me that this contention is also unsound. He received notice on August seventeenth that the defendants had sold his stock at the closing prices of July thirtieth. On October sixth the defendants sent him a letter stating that “ if you will send us your check for $500 as margin we will replace these stocks in your account without any loss to you. ’ ’ The plaintiff, therefore, had notice first that his stock had been sold at some place on August seventeenth, and second that in some way his stock could be repurchased without loss on October sixth. Even if the plaintiff knew little about stock transactions he certainly had notice, not only that there were persons in this city who were dealers or brokers in stocks, but also that actual dealings in stocks were being consummated. The plaintiff had no right to close his eyes deliberately to these facts. If the plaintiff had gone to a dealer or broker in such stocks he would have learned that there was market open to all not bound , by stock exchange rules at which he could have bought back his stock at a lower price than the closing prices of July thirtieth, or if he preferred dealing with stock brokers under the protection secured by the rules of an established exchange he would have learned that transactions in stocks were being conducted through the stock exchange clearing house at the closing prices of July thirtieth. The law makes no distinction in regard to the measure of damages upon a conversion of stock and a conversion of other commodities. In all cases the damages are fixed by the market value of the commodity converted. In ordinary cases the market value is determined as of the date of the conversion, but in all cases the law attempts to reimburse the injured party for his proximate damages, and in cases where there are special circumstances, such as ordinarily exist in the case of a conversion of securities of fluctuating value which are held, as security for a debt, the proximate damages are determined by the market value at such time as would afford the injured party opportunity to buy back the securities within a reasonable time after notice of the conversion. See Baker v. Drake, 53 N. Y. 211; Corn Exchange Bank v. Peabody, 111 App. Div. 553. In determining the market price of commodities of fluctuating value dealt in upon a recognized exchange, the courts receive as evidence proof of the actual sales made on such exchange, for these prices are the best possible evidence of market value. Where there are no sales made on the exchange the rule of damages still remains the same, but the market price must be established by other evidenoe. In either case the plaintiff has the burden of showing his damages by evidence of the market value within a reasonable time. In this case the plaintiff has produced evidence' only of the market value months thereafter and has, therefore, failed in his proof while the defendants have affirmatively proven that the market value during the intervening period was always at or below a price at which the plaintiff would have bought back his securities without loss.

It follows that the judgment should be reversed, with thirty dollars costs, and complaint, dismissed, with costs.

Finch, J., concurs.

Bijur, J. (concurring).

I concur on the ground that plaintiff has not been damaged. I assume the learned judge below to have found that there was a conversion by the defendant of plaintiff’s stock by the sale of ‘August 17, 1914, at prices which both counsel appear to think have been proved as follows: Interborough, 52; Tennessee Copper, 24 3/4; Utah Copper, 46.

Plaintiff admitted that he received a copy of defendants ’ letter of that date notifying him of the sale inclosed in one of September 18, 1914. It appears that during a reasonable time after he received the notice of the sale at the prices named the market price of these stocks was never higher, than the price at which they had thus been sold. He could, therefore, have replaced them at a considerably lower figure, but refrained from doing so, or even from making any inquiry in regard thereto. Under the circumstances plaintiff has suffered no damage for which a recovery can be had.

Judgment reversed, with thirty dollars costs.  