It is not disputed in this case that on 1st September 1909 the appellants, on behalf of the respondent and as his brokers, purchased 200 Globe and Phœnix mining shares for a sum, including brokerage and contract stamp and transfer and registration fee, of Â£865. Neither is it disputed that the respondent, by his letter of 13th September 1909, repudiated that transaction and refused to carry it out. It is conceded that, if the respondent was not entitled thus to put an end to the contract, the appellants were entitled to sell those shares against him and recover any loss they sustained on the resale. The appellants resold the shares, and, in my opinion, the whole trial proceeded on the assumption that on that resale and by means of it the appellants had lost Â£50, 2s. That is absolutely plain, and is, I think, found as a fact by the Lord Ordinary. The respondent justified his repudiation of his contract on the ground that he had not only instructed the appellants on 9th September 1909 to sell these 200 shares for cash and settlement on 10th September, the day following, which is undoubted, but that the appellants contracted to do this, i.e., bound themselves to do that which they had, in a letter written on the very same day, before the absolute contract to sell is alleged to have been entered into, stated could not be done.
In my opinion there is no proof whatever, of a character to be safely acted upon, that the appellants ever entered into this absolute contract to sell these shares.
The respondent's repudiation of his contract to purchase these 200 shares was consequently unjustifiable, and he is therefore liable to pay to the appellants the amount of the loss so found to have been sustained.
This is not, however, the real or important point arising in the case.
The appellants, in the course of an earlier transaction, a purchase on behalf of the respondent of 100 shares of the same company, got into their possession, in the course of their business as stockbrokers and as agents of the respondent in that behalf, a transfer of those 100 shares. They claim to have a lien upon this transfer in respect of this sum of Â£50, 2s. This claim is resisted by the respondent, as I understood, on two grounds: first, on the ground that a stockbroker has, in the law of Scotland, no general lien on documents such as transfers of this kind coming into his hands in the course of his business and lawfully in his custody, in respect, at all events, of debts due by a customer to him not arising out of the transaction to which the transfer relates; and second, on the ground that this transfer should have been delivered up to the respondent some days before he gave the order to buy the 200 shares ultimately resold, and that the transfer was not therefore in the appellants' lawful custody, either at the time the 200 shares were bought or at the time when the respondent repudiated his contract to purchase them.
As to the first point it is difficult to see for what reason the principle of the common law as to general lien should not apply to the case of a stockbroker.
In the case of Fisher v. Smith the plaintiff, on the instruction of the agent of the owners of a ship, effected policies of insurance on her cargo. He paid the premiums, and claimed to retain the possession of the policies till the amount of those premiums and the sums due for brokerage were repaid to him. There were subsidiary points raised which need not be referred to; but at p. 5 of the report Lord Cairns, in giving judgment, said: “As to the question whether this is a case in which lien originally would arise in the respondent, I think there can be no doubt. He is the person who effected the policies of insurance. He either paid the premiums or became liable for the premiums, and his was the labour and the care through which the insurances were effected. According to the well-known rule of law he would be entitled, by common law, for his labour and care and his money expended, to a lien, in the nature of holding possession of the policies, and he would be entitled to that lien against every person—against the owner of the goods for whose benefit the policies were effected, and against any intermediaries who might have intervened between the owner of the goods and himself. That appears to me to be the ordinary and well-known rule of law, and I do not think it was seriously disputed at your Lordships' bar.” Every line of that extract from the judgment of Lord Cairns applies, I think, to the case of a stockbroker who buys stock for a client. And the cases of Jones v. Peppercorne, and In re London and Globe Finance Corporation, establish that in England as part of the law merchant, which apparently must be judicially noticed (Brandao v. Barnett ), bankers and brokers have a general lien on securities in their hands as between themselves and their customers for the balance due from those customers on account between them.
It will be observed that Lord Cairns says, “paid the premiums or became liable for the premiums.” It is therefore enough if the agent or broker has assumed liability though not discharged it. It is urged that this rule does not apply where, as here, an agent contracts for an undisclosed principal, and his liability is in effect, though not in form, only contingent on the principal's making default. It is difficult to see on what principle this distinction rests. It would appear to me to be unsound. In such a case the agent remains primarily liable on the contract to the other contracting party. He has put himself in that position in discharge of the business of his principal, and as against that principal is, I think, entitled to his lien, certainly over documents connected with the transaction out of which the liability arose, until the principal has relieved him from the obligation under which he has put himself.
Again, it is contended that documents connected with a transaction which is closed cannot be retained in respect of a liability arising out of a subsequent transaction, even though those documents happen to be in the lawful custody of the person claiming the lien at the time the subsequent transaction was entered upon, and liability of the agent incurred in respect of it. No authority was cited for this proposition. In the case of a solicitor there is admittedly no such distinction, nor, as would appear to me from the judgment of Lord Eldon in Cowell v. Simpson does it exist in the case of a tradesman or of a factor.
In the passages cited from Bell's Commentaries and Bell's Principles, principles quite in harmony with these decisions are laid down as part of the law of Scotland. I think sufficient evidence was given to show that this general custom of the law merchant applied to transactions on the Edinburgh Stock Exchange.
The last and the most serious point on which the respondent relied is that the transfer was not in the lawful custody of the appellants when, on 1st September, the order was given to purchase the lot of 200 shares, inasmuch as it should have been delivered to him on 26th or 27th August, though he had not demanded it, and, further, that, even if this were not so, the transfer was not in the lawful custody of the appellants after 10th September, three days before the repudiation, when the respondent did ask for the delivery of it.
The appellants did not, in answer to this demand of 10th September, refuse to deliver the transfer; on the contrary, they wrote on 11th September a letter containing the following passage:—“We shall be glad to see you first time you are in town when you will get the transfer for signature.”
I do not think anything in reality turns upon this demand, since the appellants' liability for the price of this parcel of 200 shares had then accrued. But with reference to the non-delivery of the transfer, either on 26th August or 10th September, it is necessary to consider what was the nature of the contract entered into between the appellants and respondent; what the former had bound themselves to do, and were paid to do. They were not employed merely to purchase these 100 shares and obtain a transfer of them. On the facts and documents in evidence it is plain they were employed and paid in addition to have the transfer registered. To do that it should be executed by the respondent and brought, or sent, to the office of the company by the appellants, and registered in the books of the company. It is to this execution of the transfer by the respondent that the appellants in their letter of 11th September refer.
Now what was the nature of the default of which the appellants are alleged to have been guilty before 1st September, which, it is urged, rendered their custody of this transfer on that day unlawful? The transfer could no doubt have been delivered or tendered for signature on 26th or 27th August. The reason why this was not done is stated by the witness Charles Terras Morrison in the following passage of his evidence:—“In ordinary course, if the shares were coming out of our own banker's name they should have been delivered to pursuer on the 26th or 27th. The reason why they were not was that I was working night and day, and I omitted to send the transfer to the bank for signature. I left on the 28th for a holiday, and did not get back till about the 7th of September … Until the letter of the 10th of September from the pursuer, he did not intimate to us any desire to have his transfer. If he had told me before, he could have got the shares at any time, if I had been reminded of the fact that I had overlooked the matter.” That evidence was uncontradicted. It is, I think, clear that the mere omission to deliver this transfer, or tender it for signature, does not, under such circumstances, make the custody of it by the broker thenceforward wrongful or unlawful as against his client, so as to deprive the broker of any lien upon it which he otherwise might have had. For these reasons I think the decision appealed from was erroneous and should be reversed, and this appeal allowed with costs.
I agree entirely with the opinion which has just been delivered, and I should have been content to express my concurrence without adding anything to what has been said by my noble and learned friend were it not that we are differing from the judgment of the Second Division on a question of fact; and I think it is only respectful to the opinion from which we dissent to examine in some detail the grounds of fact upon which the judgment rests.
The action is brought by the respondent, Mr Glendinning, against Messrs Hope and Company, who are stock and sharebrokers in Edinburgh, for delivery of a transfer of 100 shares of the Globe and Phœnix Gold Mining Company purchased by the defenders on his behalf. The averment is that he instructed this firm of stockbrokers to buy 100 shares for him, that they did so, and that they now refuse to deliver the transfer in his favour which is, or was when the action was brought, still in their hands. Failing delivery he demands payment of a sum of Â£750; but this alternative conclusion does not call for consideration since it is not disputed that the shares in question were bought for the respondent upon his order and must be delivered to him, subject only to a right of retention maintained by the defenders for payment of a debt of Â£50, 2s. By a very reasonable arrangement in the course of the proceedings the transfer was in fact delivered to the respondent under reservation of all pleas, on his making a consignation of a sum of Â£55 to cover the debt. The actual stake for which the parties are contending was thus converted into money; but their rights must be determined on exactly the same considerations as if the scrip were still in the defenders' hands, and the respondent were still demanding that it should be made over to him unconditionally and without his being required to make payment of a debt which he disputes.
The first question then is whether there was a debt due by the respondent to the appellants when the action was raised; because, if not, it would be unnecessary to consider the more important question of law which is raised by the appellants' plea of right to retain. On this first question I agree with the Lord Ordinary. The respondent had instructed the appellants to buy for him a second parcel of 200 Globe and Phœnix shares; and the point in dispute is whether, in consequence of his refusal to carry out the purchase of this second parcel, the appellants were entitled to sell out against him and recover from him the loss which they incurred on the resale; or whether on the other hand he was not justified in putting an end to the transaction by their previous failure to do their duty as brokers.
[His Lordship then examined the evidence as to Mr Glendinning's justification in putting an end to the transaction, and continued]
I am therefore very clearly of opinion that Mr Glendinning had no justification for the course he actually took, which was at once to intimate to Mr Hope that there was an end of the transaction between them, that he would not take the 200 shares which Mr Hope had bought for him, and that he would have nothing more to do with them. Mr Hope accordingly sold out, as I think he was plainly entitled to do, according to the admitted rules of the Stock Exchange. He sustained a loss upon the sale, and he has a good right against his customer to recover payment of the difference. Mr Glendinning, in the letter in which he refuses to have anything to do with the 200 shares, demands delivery of the transfer for the first 100. In answer Mr Hope refuses to accept his determination of the second contract, and intimates that the transfer will not be delivered until the loss which he had incurred should be repaid.
The next question is whether the appellants were entitled to retain the transfer of the first parcel of the Globe and Phœnix shares which was still in their hands until Mr Glendinning should pay his debt of Â£50, 2s. I think with the Lord Ordinary that they were so entitled.
It has been held by the learned Judges of the Second Division that the evidence adduced is insufficient to establish a custom amongst stockbrokers to retain a client's uncompleted transfer in security of a general balance. I venture to think, with great deference, that the evidence is sufficient. But the right claimed for the appellants does not, in my opinion, rest upon any local custom which requires to be proved by evidence in a particular case; it rests upon the common law rule and doctrine of retention which is part of the law of mutual contract. This is defined to be a right to resist a demand for the payment of money or the performance of an obligation until some counter obligation is paid or performed. In its simplest application the rule depends on the fundamental principle that one party to a mutual contract cannot enforce performance of its obligations in his own favour without giving or tendering performance of the obligations incumbent upon himself. Accordingly, if the appellants' counter-claim against the respondent had arisen out of the same transaction as that which brought the transfer into their hands, I apprehend that there would have been no question at all as to their right to retain. The difficulty is that the respondent's debt arose out of a subsequent contract; and it is said that there is no authority for holding that the law of Scotland recognises a stockbroker's right of retention or lien for a general balance. It is true that there is no Scotch decision directly in point; but, if the question has arisen for the first time as regards a stockbroker, it must be determined by the settled principles which have been held to govern the general class of contracts to which that between a stockbroker and his client belongs. The principle which I take to be very well settled in the law of Scotland is that every agent who is required to undertake liabilities or make payments for his principal, and who in the course of his employment comes into possession of property belonging to his principal over which he has power of control and disposal, is entitled, in the first place, to be indemnified for the moneys he has expended or the loss he has incurred, and, in the second place, to retain such properties as come into his hands in his character of agent until his claim for indemnity has been satisfied.
The most apt example of the principle is probably the case of mercantile factors and commission-agents. It is held both in Scotland and in England that for the balance which may arise on his general account the factor has a right of retention or lien over all the goods and effects of the principal which, coming into his hands in his character of factor, may be in his actual or civil possession at the time when the demand against him is made. This principle is said to have been established on grounds of justice and expediency; and the conditions upon which the right depends in the case of a mercantile factor are exactly those which govern the relation of a stockbroker and his client. The factor's general right to retention depends upon two considerations—first, that he is required to make payments or undertake liabilities for his principal; and secondly, that the goods and effects belonging to his principal come into his possession and control in the ordinary course of his employment. But that is exactly the position of the stockbroker who buys with a liability to pay the vendor and receives a transfer for delivery to his client.
Mr Bell in treating of the subject remarks that the general lien or retention arises from the very nature of the contract of agency as a right resulting out of the actio contraria of the contract by which the principal engages to indemnify the agent. But that again is of the essence of the contract between the stockbroker and the client. The learned Judges have held that there can be no general right of retention because the transfer which the defenders refused to part with was in their possession for the special purpose of forwarding it to the pursuer, but this appears to me to be a misconception of the true position of the legal title. If the transfer had been the respondent's property to begin with, and he had deposited it with the appellants for a special purpose, it might well have been a question whether the special contract did or did not exclude the general right of retention. But the transfer never was the respondent's. He had no real right in the shares, or in the transfer that represented them, until the transfer was delivered to him in the course of these proceedings. His right as against the appellants was a right upon a personal contract only, and they had similarly upon a personal contract a counter-claim against him. It appears to me to follow from the principles which have been well established that they are entitled to set up their right to retain until his counter-obligation has been duly performed. The liability was incurred, no doubt, in a different transaction, but it was one of a series of transactions in the course of which the stockbrokers were employed in the same capacity to act as agents for the same purposes for their customer; and their right at the close of the connection between them is to an adjustment of accounts, in which they are entitled to plead against the demand which has been made against them their counter right of retention until their demand upon their principal has been satisfied.
I agree with my noble and learned friend that the English cases he has cited, although they are not binding on the Court in Scotland, are still valuable authorities in the appellants' favour. It is said that they are inapplicable because of a difference between the laws of England and Scotland; and Lord Salvesen points out that by the law of Scotland property cannot be effectually impledged by the deposit of documents of title. But the point for which they are cited does not affect that doctrine. Documents relating to shares belonging to a customer had been deposited with stockbrokers to secure a specific advance; and the question was whether when the specific purpose had been satisfied the stockbrokers had a general lien for the amount due to them in respect of Stock Exchange transactions. It was held to be a well-established principle that when the transactions between broker and customer have resulted in a sum owing to the broker, and there are in his hands securities which have come into his hands in the course of his business as broker for the customer, he has as against the customer the right to hold those securities for the amount due. If this principle be applied to the present case, it is not inconsistent with the rule to which Lord Salvesen refers, because the appellants maintain no real right in the shares to which the transfer relates. Their claim is to retain the transfer as a document belonging to their customer which has come into their hands in the course of their business as his agent; and the effective operation of retention is to compel the owner of the shares to pay his debt in order to obtain delivery of the document which is the evidence of his right. It is settled law that documents which cannot be used for pledging the property to which they relate may still be liable to retention; and the law-agent's lien is a familiar illustration. I cannot agree with the learned Judge that this is an exception to the rule he lays down. For the law-agent's lien over title-deeds which have come into his hands gives him no real right whatever in the property which they contain. It enables him to keep back the titles from his client until the amount due to him has been paid; but it does not operate as a conveyance of the property to himself. The point is that the agent cannot be compelled to perform his obligation to deliver so long as the client refuses to perform his counter-obligation to pay.
I cannot say that I am moved by the consideration which had great weight with the learned Judges below, that the transfer was still in Mr Hope's hands, at the time when the demand was made upon him, in consequence of his own delay in delivering it for signature to the pursuer and carrying out the transaction. The reason for the delay is to my mind quite sufficiently explained in the evidence to which my noble and learned friend has referred. But mere delay can never convert the possession which the broker had in the ordinary course of business into an unlawful possession. He was still the lawful holder of the transfer at the time when the demand for delivery was made against him.
It was said that the appellants' demand is a demand to retain for a contingent liability. I entirely agree there could be no right of retention for a contingent liability. The right to retain emerges and becomes available only when a demand is made against the person who is to plead the retention. The right became available to Mr Hope because, when he received Mr Glendinning's demand for an immediate transfer, he had already incurred the liability which entitled him to maintain his counter-claim against Mr Glendinning.
There remains to be considered only one very technical point to which perhaps it is hardly necessary to advert, but since an argument was founded upon it I shall say a single word upon the subject. It is said that the judgment of the Lord Ordinary, to which I think we ought to return, cannot be sustained because he gives an order for payment of money to the defenders, and, according to the form of the pleadings before the Court, there was no demand for payment of money which could possibly receive effect. It is perfectly true that according to the frame of the action there could be no demand for payment made by the defenders. The action was an action for delivery of a transfer, and their answer was not a counter-demand for payment which could be made effectual in the course of that action, but a plea of their right to retain until payment should be made. They could make nothing out of that right of retention except through the inconvenience caused to their client by the non-delivery of the transfer. The effect of their right to withhold would of course be that the client must pay; but upon the form of action they had certainly no demand for payment before the Court. But then the whole nature of the proceeding was altered, and altered upon an arrangement between the parties, when Mr Glendinning for his own convenience, with the consent very properly given by the other party, consigned a sum of money in Court to await the orders of the Court. The sum of money so consigned takes the place of the transfer which was in dispute; and I apprehend there can be no question at all that when money is consigned under the order of the Court it is in the power of the Court, upon mere motion to that effect and without any new action for the purpose being brought before it, to order the sum so consigned to be paid to one or other of the parties to the consignation according as they determine the rights between them. It might be a logical result to hold that in point of technical form the order should not have been for payment to the defenders, but for payment to the pursuer so soon as he had paid this sum to the defenders; but there is absolutely no necessity, and I can see no ground or reason for following out any circuitous process of this kind when the Court has in the hands of its officers the sum of money which is in dispute, and which by the terms of the consignation upon which it is put into Court is to remain until the order of the Court is pronounced about it.
On the whole matter, therefore, I am of opinion, with my noble and learned friend, that the interlocutor of the Second Division should be reversed and that of the Lord Ordinary restored.
Lord Shaw of Dunfermline.
The appellants are stockbrokers in Edinburgh, and in August and September 1909, they acted as such for the respondent, their client. In the middle of August they purchased for him 100 shares of the Globe and Phœnix Gold Mining Company. On 26th August, being settling day, they received payment of the price. On 1st September they purchased on his order 200 shares more, for settlement on 10th September. On 8th September Mr Glendinning wrote to Messrs Hope that he had decided to resell the shares, and instructed them to “sell these 200 Globes for cash and settlement on the 10th instant.” On the following day he supplemented this by a letter which, inter alia, said, “I did not see my way to take up these shares.” The parties had an interview, and there are certain differences between them as to what occurred; but on the same day, namely, 9th September, Messrs Hope wrote that they had been unable to sell them for cash settlement, and they added this (a passage which I think must have been overlooked by Lord Salvesen in the Court below):“Over and above this, your name was passed yesterday forenoon for the shares and cannot now be altered.” It is clearly proved in the case that this in point of fact was true.
When the 10th, namely, the settling day, arrived, Mr Glendinning did not settle; and he complained that Messrs Hope had never offered the shares. He was at once answered on the 11th by a protesting letter repeating that no dealings could now be done for cash, “as your name had been passed the previous day and could not be altered.” Mr Glendinning declined to accept this position, and on 13th September repudiated his purchase. Messrs Hope, the brokers, were thus in the position of being responsible for settling the price of these 200 shares, namely, Â£865, or doing what stockbrokers in such circumstances are entitled to do, namely, sell and charge the customer with the debit balance, if any. They did sell, and the debit balance amounts to Â£50, 2s. This is the story of the 200 shares.
I desire to say that I see no occasion for doubting the honesty of either of the parties as witnesses, or for suggesting that Messrs Hope's action deviated from the line of duty to their client, on account of Mr Hope being also a holder of certain stock in the company in question.
In one of these letters, namely, that of 10th September, Mr Glendinning asked for the transfer of the previous lot of 100 shares, and this was obtained from the company by the brokers on the following day. The dispute as to the 200 shares was, however, then pending. Messrs Hope were responsible on the Exchange for their price, and within two days, namely, on the 13th, Mr Glendinning entirely repudiated the transaction, forcing the selling out against him as above described. In those circumstances, Messrs Hope declined to part with the transfers until their claims against Mr Glendinning were settled. The question is whether this action was justified.
Certain confusion has come into this case on account of allegations as to custom of trade. I am of opinion that Messrs Hope had a right of retention, and this not on account of a custom of trade but on account of a principle in law. It cannot be justly said, although that point was taken, that Messrs Hope were wrongfully in possession of the transfer. They came into possession of the transfer in the course of business, and I do not see in this case that there was such unreasonable delay as fairly to raise such a point. The conditions as to possession of the document seem accordingly to equate with the dictum of Professor Bell in his Commentaries: “The possession on which retention or lien depends must be actual, legitimate, and subsisting at the time when the security is claimed.”
Nor can I agree with the proposition, which was so ably argued by the learned counsel for the respondent, that the transfer should have been at once transmitted for completion, for which limited purpose alone it had come into their hands, and that possession should have been parted with by the stockbroker irrespective of any debt due to him by his client. Upon this matter I venture to quote these sentences from the judgment of Buckley, L. J., in the case of The London and Globe Finance Corporation:
“As to the law, I do not think that there is any room for doubt. Jones v. Peppercorne is a decision pronounced in the year 1858, and which has, been regarded as well settling the law ever since—to the effect that brokers and bankers have a general lien on securities in their hands as between themselves and the customer for the balance due from the customer to the broker.… Here there is nothing at all to exclude the general lien, which it is not, and cannot be, disputed exists. The transactions as between the customer and the broker resulted in a sum owing by the customer to the broker, and there were in the possession of the broker securities which had come into his hands in the course of his business as broker of the customer. It is a well-established principle that the broker has as against the customer the right to hold those securities for the amount due.” I respectfully adopt that language as my own. Further, in my opinion, the securities there mentioned include a transfer of stocks still unexecuted or only partially executed, and the principle there set forth is a principle not only of the law of England but of Scotland.
As has been seen, the proof in this case, and particularly the terms and dates of the letters, are, in my opinion, to an effect opposite to that conceived by Lord Salvesen. I agree with the conclusion which Lord Mackenzie arrived at on that subject. And, as to the principle of law, I think Lord Mackenzie has correctly applied it, and, with much respect to the learned Judges of the Second Division, I think that that principle has not been applied to this case by that Court.
One question to which my noble and learned friend Lord Kinnear has alluded, the question of procedure in the Scotch Courts, was raised at your Lordships' bar as to what was to happen with regard to the amount of, Â£50, 2s., being the balance due to Messrs Hope as the result of selling out against Mr Glendinning. That sum was deposited with the Accountant of Court to await the orders of the Court. It is clear that the inquiry in this case covered not only the right to retain but the whole conduct of parties, culminating in the selling out which resulted in the debit balance. Messrs Hope's conduct in that particular appears to me to have been justified, and, speaking for myself, it would be with the greatest reluctance that I could consent to a fresh litigation on a substantially identical issue having to be undertaken in order that Messrs Hope might recover that money. Lord Mackenzie, I think, acted wisely in granting a warrant for payment of the consigned money to Messrs Hope. In my opinion the judgment of the Second Division should be reversed and that of the Lord Ordinary should be affirmed on all points. I should add that I think Lord Mackenzie's selection of the defenders' second plea as a ground for absolviter was also correct. In the view which I hold, the defenders were entitled to retain the scrip until payment of the debt due to them.
I agree with the conclusion at which your Lordships have arrived.