Page:Harvard Law Review Volume 8.djvu/471

PURCHASE AND SALE. 455 pay the commission, but it matters little which time, for there is no obligation upon him to actually pay it until the stockbroker asks for it. In the case of a purchase of securities the stockbroker may demand his commission at any time that is convenient to him, but in the case of a sale of securities the custom is for him to wait until he has received the purchase price from the buyer, and then to deduct his commission from it before turning it over to his customer. The Performance pf the Contract. If the stockbroker has not previously demanded and received from the customer the means to perform the contract or contracts he has made, he will demand them at the time he notifies the cus- tomer of the " execution " of the order, or as soon thereafter as he needs them. The customer is bound ^ to comply with this demand by reason of his offer, already described, to do so, in consideration of the execution of the order. As already stated, the stockbroker has authority to perform in the regular way the contract or contracts he has made, which authority is dormant till the contract or contracts is or are made, and comes to nothing if the stockbroker fails to " execute " the order. In carrying out this authority the stockbroker^ must act in good faith and with due care towards his customer. As already stated, this duty is created by " taking " the order, and where at that time there is no communication from the stockbroker to the customer it can only rest on his status as agent, and no contractual obligation to act as the customer's agent can be implied. But a contractual obligation can be implied, and will usually be implied from the deposit of the means to perform by the customer after the " execu- tion " of the order at the stockbroker's implied or express request 1 I£ the customer fails to supply the means to perform, the stockbroker can per- form with his own means. See ante, p. 446, note 2. In such a case, the stockbroker can, if he has bought securities, resell them without notice or tender, and charge the customer with the loss, if any. Knapp v. Simon, 96 N. Y. 284, s. c. 86 N. Y. 311 ; Whitehouse v. Moore, 13 Abb. Pr. (N. Y.) 142 ; Markham v. Jaudon, 49 Barb. (N. Y.) 462, on p. 465 ; or he can hold the stock for the customer's account, and sue for what he had to pay, i. e., the original purchase price. Giddings v. Sears, 103 Mass. 311 ; Knapp V. Simon, 96 N. Y. 284, s. c. 86 N. Y. 311; Bennett v. Covington, 22 Fed. Rep. 816. 2 This duty is not affected by the fact that for acting as agent in performing, the stockbroker receives no pay. Isham v. Post, 141 N. Y. 100.