Sheppard v Murphy

• Jurisdiction: Ireland
• Judgment Date: 03 June 1868
• Date: 03 June 1868
• Court: Court of Appeal in Chancery (Ireland)

Ch. App.

SHEPPARD

and

MURPHY.

Taylor v. StrayENR 2 C. B. N. S. 175.

Stray v. RussellENR 1 E. & E. 888.

Chapman v. ShepherdELR L. R. 2 C. P. 228.

Biederman v. StoneELR L. R. 2 C. P. 504.

Wynne v. PriceENR 3 De G. & Sm. 310.

Paine v. HutchinsonELR L. R. 3 Eq. 257.

Hawkins v. MaltbyELR L. R. 3 Ch. App. 188.

Evans v. WoodELR L. R. 5 Eq. 9.

Burnett v. Lynch 5 B. & Cr. 589.

Craythorne v. Swinburne 14 Ves. 160.

Phene v. GillanENR 5 Hare, 1.

Walker v. BartlettENR 18 C. B. 845.

Musgrave and Hart's CaseELR L. R. 5 Eq. 193.

Grissell v. BristoweELR L. R. 3 C. P. 112.

Coles v. BristoweELRELR L. R. 6 Eq. 149; L. R. 4 Ch. App. 3.

Gillespie v. SheppardELR L. R. 3 Ch. App. 764.

Shaw v. Fisher 5 D. M. & G. 608.

Grissell v. BristoweELR L. R. 3 C. P. 112.

Hawkins v. MaltbyELR L. R. 3 Ch. App. 188.

Kelner v. BaxterELR L. R. 2 C. P. 174.

Duncuft v. AlbrechtENR 12 Sim. 189.

Marino's CaseELR L. R. 2 Ch. App. 596.

Bermingham v. SheridanENR 33 Beav. 660.

Emerson's CaseELR L. R. 1 Ch. App. 433.

Walker's CaseELR L. R. 2 Eq. 554.

Head's Case L. R. R. 3 Eq. 84.

White's CaseELR L. R. 3 Eq. 86.

Musgrave and Hart's CaseELR L. R. 5 Eq. 193.

Ward and Garfit's CaseELR L. R. 4 Eq. 189.

Gillespie v. SheppardELR L. R. 3 Ch. App. 764.

Taylor v. StrayENR 2 C. B. N. S. 175.

Stray v. RussellENR 1 Ellis & Ellis, 888.

Wynne v. PriceENR 3 De G. & Sm. 310.

Shaw v. FisherENR 2 De G. & Sm. 11, and 5 D. M. & G. 596.

Evans v. WoodELR L. R. 5 Eq. 9.

Ward and Henry's CaseELR L. R. 2 Ch. App. 431.

Marino's Case Ibid. 596.

Emerson's CaseELR L. R. 2 Eq. 231, and Ib. 1 Ch. App. 435.

Taylor v. StrayENR 2 C. B. N. S. 175.

Stray v. RussellENR 1 El. & Bl. 888.

Chapman v. ShepherdELR L. R. 2 C. P. 228.

Biederman v. Stone Id. 504.

Head's Case and White's CaseELR L. R. 3 Eq. 84-86.

Paine v. Hutchinson Id. 257.

MUsgrave and Hart's CaseELR L. R. 5 Eq. 193, 206-7.

Ward and Henry's CaseELR L. R. 2 Ch. App. 438.

Wynne v. Price 3 D. G. & Sm. 310.

Evans v. WoodELR L. R. 5 Eq. 9.

Hawkins v. MaltbyELR L. R. 3 Ch. App. 188.

Paine v. HutchinsonELR L. R. 3 Eq. 257.

Grissell v. BristoweELR L. R. 3 C. P. 112.

ELR ELR See L. R. 6 Eq. 149; L. R. 4 Ch. App. 3.

Specific Performance — Purchase of Shares on Stock Exchange — Principal and Agent.

544 THE IRISH REPORTS. App. pleading, that of specific charge ; and as I am against them upon 1868. that, I think the petition must be dismissed. It may be that the legislation upon this subject has left this hrp. Mime. CREDIT Ass. class of railway creditors in an embarrassing and anomalous NEwRY AND position ; and it would be easy to suggest cases in which it might ARMAGH be extremely difficult to define their relation to other credi- RAILWAY Co. & Jr.-Srocx tors or to incumbrancers. But the removal of those anomalies DISCOUNT Co does not lie within our province ; we must take the Statute as we find it, and it is not for us to say, when confronted with such questions, that we will cut the knot, as this decree has done, by transmuting into mortgages, securities which the Legislature, in language the most explicit, has declared shall be only bonds, as contradistinguished from mortgages. Decree below reversed. Solicitors for the Petitioners : Messrs. William Neilson and Son. Solicitors' for the Joint Stock Discount Company :.Messrs. D. and T. Fitzgerald. SHEPPARD v. MURPHY. Specific Performance--Purchase of Shares on Stock Exchange- Principal and Agent. On the 21st of April, 1866, L. and Co., stockbrokers, bought on the Stock Exchange for M. one hundred shares in the bank of 0. G. and Co., from K., a dealer in shares, the settling day being the 27th April. On the 25th April, the shares were, by arrangement between L. and Co. and IL, continued till the 15th of May, ten days after that day being allowed, according to the rule of the Stock Exchange, for the completion of the transfer. The bank stopped payment on the 10th of May. S., a member of the Stock Exchange, on the 24th of May, sold thirty-four shares of that bank, and the name of M. was then " passed" to him as that of the transferee. Thereupon, S. executed deeds of transfer of those shares to M. ; handed the deeds, with the share certificates, to L. and Co., and was by them paid the price. M. reÂÂÂfused to receive, or execute the deeds of transfer. S., having been obliged to pay subsequent calls, instituted a suit against M., praying specific performance, and to be indemnified against past and future liabilities in respect of the thirty-four shares. EQUITY SERIES. Held (reversing the order of the Vice-Chancellor), that such a suit could be maintained by S. against M., and that S. was entitled to the relief sought by him. THIS was an appeal from the order of the Vice-Chancellor dismissing the cause petition. The facts are stated in the report of the case below (see I. R. 1 Eq., 490). It is, however, necessary at present to refer to one or two matters in greater detail with respect to the question of the authority of Robert Murphy to bind his brother, the Respondent, William Murphy, by the continuance of the contract. The affidavit of Mr. Surgey stated that he had on behalf of his firm, on many occasions in the year 1865, acted by the instructions of Robert Murphy, as the brother of William Murphy, in purÂÂÂchasing shares for him. On none of those occasions did he, Surgey, receive any instructions from, or communicate with, the said William Murphy ; nor did he ever see any instructions sent by him to the said Robert Murphy, who had, as Surgey believed, a discretion given him by the said William Murphy, in making such purchases, and in the general investments of the latter's money. The affidavit referred to twelve different occasions upon which purchases had been made by Mr. Surgey on behalf of William Murphy by the instructions of Robert Murphy prior to the transÂÂÂaction referred to in the cause petition. These purchases were made at different prices according to the variations in the market price, and on each occasion the price was assented to or limited by Robert Murphy, without, so far as Surgey was aware, communicating with his brother, and the purchase money was duly paid by cheques of William Murphy. The purchases were made on each occasion for the current settling day ; and all cheques for the purchase moneys were made payable by William Murphy to the order of Robert Murphy, who indorsed. and handed them to the firm of Lowndes, Surgey and Co. The affidavit also stated, that almost the whole of the instructions given Mr. Surgey by, and communications froth, Robert Murphy with reference to these transactions were verbal, but that Robert Murphy had informed him that he was, during the whole time of the transactions in reference to the shares, in constant communication with William Murphy in reference to the transactions, and had numerous letters from him, or from a son-in THE IRISH REPORTS. law of his, who attended to his affairs, on the subject; and Mr. Surgey stated his belief that William Murphy was well aware that said shares had been continued, and Robert Murphy had informed him, Surgey, that these letters had been since obtained from him, Robert Murphy, by or on behalf of the said William Murphy. The following passages from the letter of Robert Murphy to William Murphy, of the 21st April, 1866, are also material :ÂÂÂ" I wrote to you yesterday with receipt for call on Yallan Tasea. I have had to-day the temerity to buy for you 150 Credit Fonder and Mobilier of England shares, and 100 Overend, Gurney and Co. . . . There have been many lies circulated for the purpose of depressing 0. G. and Co. (Limited), one of which was, that their recent losses would compel a call of 10 per cent. I believe the concern is a good one, and that a very short time will be required to show that present price is much under its value." Mr. May, Q. C., with him Mr. F. Dames, for the AppelÂÂÂlant. The Respondent raises three points in this case. First, he questions the authority of Robert Murphy to enter into the conÂÂÂtract, or at least to continue it. Secondly, he says that no contract ever existed between him and the Petitioner. Thirdly, he says that even if there was a contract, it could not be carried out in consequence of the failure of Overend and Gurney. As to the authority to continue the contract, William Murphy had bought the shares ; and it was no matter to him whether he got them on the 27th April, or later. Robert Murphy had, from the character of his agency, necessarily authority to say when the contract was to be carried out. The enlargement of time was altogether for the benefit of William Murphy. On the 21st April, William Murphy contracts with Kennedy for 100 Overend and Gurney shares. That was a contract upon the Stock ExÂÂÂchange. The result of it is, that Murphy, by Lowndes and Surgey, agrees with Kennedy that he, Kennedy, should procure and hand over to him 100 shares. It does not follow that the shares were all to be in Kennedy's own name. The contract was, that on the particular day he was to be in a position to hand over EQUITY SERIES. to him the shares. That was the fulfilment of his part of the contract. William Murphy took upon himself different liabilities with two classes of persons : first, a liability flowing from the contract ; that was with Kennedy : secondly, a liability to execute the transfer when the shares should be handed over. That was a liability he took with the owners of the shares, for the shares which Kennedy undertook to procure were in all probability not Kennedy's at all. Kennedy's own position was this, that he might sue Murphy at law for non-completion of the contract, but could not proceed in equity for specific performance unless he had the shares in his own name. The contract must be taken accordÂÂÂing to the custom of the Stock Exchange. From the contract with Kennedy necessarily resulted a further...