1909 PARKER J. to what is at most an announcement of what a man intends to do in the future, and is not intended by him as a gift in the present which though failing on technical considerations may be subsequently perfected. INNES, In re. INNES v. INNES. I think I ought to say that my attention has been called to the case of Vavasseur v. Vavasseur (1), where apparently Channell J. took the same distinction between a promise to give in the future and an attempted actual gift in the present which I have taken in the course of my judgment. There is a third suggested way in which the plaintiff might claim, and that is by way of declaration of trust; but I do not think that was really seriously argued. The difficulty of arguing that there is a declaration of trust in the present case is that there is really no specific property to which that declaration of trust could relate. Therefore I need not deal further with the matter. Solicitors Needham, Tyer & Barrow, for Alfred Caddick & Son, West Bromwich; Helliwell, Harby & Evershed, for Charles E. Innes, Birmingham. (1) 25 Times L. R. 250. H. C. R. STUBBS v. SLATER. [1907 S. 4345.] Stock Exchange-Broker and Client-Purchase of Shares-Carrying over— In November 1904, the plaintiff instructed brokers on the London Stock Exchange to buy certain mining shares for him, it being understood that the shares were not to be taken up on the settling day, but were to be carried over. No agreement was made as to the remuneration of the brokers for arranging the carry over. The brokers bought the shares from a jobber, and in the bought notes sent by them to the plaintiff they charged an opening commission of 1s. per share. The brokers arranged the carry over with the jobber, and the contract note of the first carrying over sent by them to the plaintiff contained a charge of "8d. net." The shares were carried over in this way every fortnight until January, 1906, the "net" rate varying with the market price of the shares. The plaintiff having failed to pay the balance against him on the mid-October, 1905, carry over, they pressed for payment, and the plaintiff deposited with them as security a certificate for 390 gas shares and signed a blank transfer of the same. The fortnightly balances continued adverse to the plaintiff and were not paid by him, and in January, 1906, the brokers closed his account with a balance of 697. 10s. against him and sold the 390 gas shares for 1627. 108. Throughout the above transactions the plaintiff thought that he would be charged an opening and closing commission by the brokers and that the "net" rate charged for every carry over represented only the jobber's contango, but it included also in fact a charge by the brokers for arranging the carry over which they did not disclose to the plaintiff. It appeared that the "net" rate was well known on the Stock Exchange to indicate that in the jobber's contango was included the broker's remuneration, and that the charge the brokers had so made was reasonable. In an action by the plaintiff against the brokers for an account and payment of the undisclosed charge they had made on every carry over, and for damages in having recklessly and without due regard to his interests sold the whole of the 390 gas shares :— Held, that the principle of Salomons v. Pender, (1865) 3 H. & C. 639, and Andrews v. Ramsay & Co., [1903] 2 K. B. 635, applied, and that the brokers were bound to account for the secret charge they had made and were not entitled to any remuneration for carrying over the shares. But held, that the brokers had, under the circumstances, exercised NEVILLE J. 1909 Oct. 10, 11, 13. NEVILLE J. 1909 STUBBS v. SLATER. their implied power of sale over the gas shares reasonably and after due notice to the plaintiff, and that he was not entitled to any relief in that respect. ACTION. The defendants were a firm of brokers on the London Stock Exchange carrying on business under the style of Slater & Bond. The plaintiff was a metal merchant at Liverpool, and at the end of November, 1904, he instructed the defendants through a Mr. Mounsey to purchase on his behalf fifty Gold Fields ordinary shares and fifty East Rand Proprietary shares for the next settling day, December 15. It was understood, however, that the shares were not to be taken up, but were to be carried over. The defendants accordingly bought the shares from a jobber on the Stock Exchange, and the bought notes sent by the defendants to the plaintiff were in common form, and therein the defendants charged the plaintiff a commission of 1s. per share, which was a usual charge to make in opening such an account. On December 13, 1904, the defendants sent the plaintiff a contract note of the continuation account which they had arranged, and which, omitting formal parts, was as follows: "Dear Sir,-We beg to advise continuation on your account of the under-mentioned stocks, subject to the rules of the London Stock Exchange. The item "8d. net" in the above account meant the contango, i.e., the jobber's charge for carrying over the shares, plus a small charge by the brokers (the defendants) for arranging the carry over, but the plaintiff was not aware of this and thought that the "8d. net" was only the contango. The shares were carried over in this way every settling day, the "net" rate varying with the market price of the shares, until January, 1906, when the account was closed as after stated. 1909 STUBBS SLATER. The balances on the fortnightly accounts were generally against NEVILLE J. the plaintiff, and he paid them until the mid October, 1905, account, which shewed a balance of 43l. 10s. due from him, which he failed to pay. The defendants pressed for payment, and he thereupon deposited with them as security a certificate for 390 shares of the Incandescent Heat Syndicate, Limited, and at the same time signed and handed to them a blank transfer of the shares, and promised but again failed to pay the account. The fortnightly accounts continued adverse to the plaintiff during November and December, 1905, and the beginning of January, 1906, and the balances due from him remained unpaid. On November 30, 1905, the defendants by Mr. King, one of their clerks, had written the plaintiff as follows: "As we have not received your promised cheque for balance of account due I regret I must close the shares open and also dispose of the Incandescent Heat Syndicate shares (which you have left here as security) for what they will fetch to meet the debit balance"; and they wrote him letters to the same effect on December 14, 1905, and January 6 and 13, 1906. On January 11, 1906, the defendants closed the continuation. account with a balance of 69l. 10s. against the plaintiff, and on January 17, 1906, they sold the 390 Incandescent Heat Syndicate shares to a Mr. Boyd for 162l. 10s. The same day, January 17, the defendants wrote the plaintiff that they had closed his account and had sold the Incandescent Heat Syndicate shares. The plaintiff replied the next day, repudiating the sale and stating that he should hold them responsible in damages for any loss that he might sustain, and at the same time he gave notice to the liquidator of the Incandescent Heat Syndicate, Limited (which was in process of reconstruction), not to recognize or register any transfer of his shares. The balance of the 162l. 10s. (after the defendants' debt was satisfied) remained in their hands. and was eventually garnished by a creditor of the plaintiff. In the closing account of the mining shares sent by the defendants to the plaintiff on January 17, 1906, a closing commission was not charged, and this aroused his suspicions. He then made inquiries and ascertained for the first time that the "net" rate VOL. I. 1910. P 1 NEVILLE J. included a charge by the brokers for carrying over the shares of which they had not informed him and to which he had not agreed. 1909 STUBBS x. SLATER. In June, 1906, the liquidator of the Incandescent Heat Syndicate, Limited, took out an interpleader summons with respect to the plaintiff's 390 shares, to which the plaintiff and Mr. Boyd were made parties. The summons was heard in July, 1907, and decided against the plaintiff on the ground that Mr. Boyd was a purchaser for value without notice. The plaintiff then brought the present action against the defendants claiming an account of all the transactions between himself and the defendants, an account and payment of the secret profit made by the defendants in carrying over the mining shares, and damages for wrongfully converting and selling the gas shares recklessly and without due regard to his interests. The defendants by their defence alleged (but failed to prove) a verbal arrangement with Mounsey on behalf of the plaintiff to charge him a net rate instead of half commission for carrying over the shares, the result of which was that, instead of receiving an aggregate commission for carrying over the shares of 591. 7s. 6d., they received as commission therefor 177. 17s. 10d., and that the plaintiff was at all times aware that the net rate was being charged and that it included their commission; and by way of counter-claim the defendants alleged that by the practice of the Stock Exchange they were entitled to charge a commission of per cent. for carrying over the shares, amounting in the aggregate to 591. 78. 6d. ; that except the 171. 17s. 10d. they had received no part of the 591. 7s. 6d., and the balance thereof 41l. 98. 8d., was due to them; alternatively they alleged they were entitled to reasonable remuneration for carrying over the shares, and that such remuneration would considerably exceed the 17. 178. 10d. actually received by them and would amount to 591. 78. 6d., and they claimed payment of the 41l. 9s. 8d., or, alternatively, whatever sum might be allowed as reasonable remuneration for carrying over the shares. It appeared from the evidence of a member of the Stock Exchange that a jobber in carrying over shares charged, either a commission, or a percentage calculated in pence per share, |