Samuel Blanken v. Harris

PER CURIAM: In this dispute arising between stock investors and a brokerage firm, both parties appeal from the judgment of the trial court ordering a dismissal of a claim and a counterclaim for damages and for money due and owing as a result of two stock transactions, and from the order of the court denying requests for a new trial. We find that the trial court properly held that the plaintiffs-appellants, the Blankens, had failed to sustain the burden of proving their claim for damages for conversion and we therefore affirm as to this claim. As to the counterclaim of the defendant-cross-appellant, Harris, Upham & Co., we conclude that the findings of the trial court are insufficient to show the basis for dismissal and we reverse and remand this cause for further findings. At a time when Harris, Upham was holding (in the normal course of business) there hundred shares of Federal National Mortgage Association (FNMA) stock belonging to the Blankens, a dispute arose between the corporation and the Blankens with respect to another transaction. The controversy began when the brokerage firm purchased two hundred shares of Union Corporation (Union) stock on February 9, 1972 at the market price of $24.75. Although Mr. Blanken admitted that he had ordered two hundred Union shares by telephone from the firm's representative on that date, Blanken denied that the purchase was made in accord with his instructions. He claimed instead that he had ordered the purchase at a fixed price of $24.50 and that on the same day, when informed of the purchase at market price, he informed the representative that the buying had been contrary to his instructions and that he did not want the stock. On the other hand the corporation's representative claimed that Blanken had ordered the Union stock at market price and had impliedly approved the purchase on those terms.