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United Kingdom House of Lords Decisions
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Cite as: 9 App Cas 1,  UKHL 1, (1883-84) LR 9 App Cas 1
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HOUSE OF LORDS
HOUSE OF LORDS
|- v -
The House took time for consideration.Nov. 26.
My Lords, the principles of equity, with respect to the duties and responsibilities of trustees, and the distinction between those losses of trust funds for which they are, and those for which they are not, liable, are so well settled, and are of such great general importance, that the present case, in which two Courts have differed as to their application, has naturally been considered by your Lordships with some anxiety.
In the early case of Ex parte Belchier(1), before Lord Hardwicke, it was determined that trustees are not bound personally to transact such business connected with or arising out of the proper duties of their trust, as, according to the usual mode of conducting business of a like nature, persons acting with reasonable care and prudence on their own account would ordinarily conduct through mercantile agents; and that when, according to the usual and regular course of such business, moneys receivable or payable ought to pass through the hands of such mercantile agents, that course may properly be followed by trustees, though the moneys are trust moneys; and that if, under such circumstances, and without any other misconduct or default on the part of the trustees, a loss takes place through any fraud or neglect of the agents employed, the trustees are not liable to make good such loss. That authority has ever since been followed; and, in conformity with it, the statute 22 & 23 Vict. c. 35, s. 31, enacts, that every instrument creating a trust shall be deemed to contain a
clause exonerating the trustees from liability "for any banker, broker, or other person, with whom any trust moneys or securities may be deposited."
Neither the statute, however, nor the doctrine of Ex parte Belchier(1), authorizes a trustee to delegate, at his own mere will and pleasure, the execution of his trust, and the care and custody of the trust moneys, to strangers, in any case in which (to use Lord Hardwicke's words) there is no "moral necessity from the usage of mankind," for the employment of such an agency. The cases of Rowland v. Witherden(2), Floyer v. Bostock(3), and many others, shew, that trustees, bound to invest trust moneys in authorized securities, are primâ facie answerable for the proper care and custody of such trust moneys, until they are actually so invested; and will not be exonerated from liability if, in the meantime, they leave them in other hands, though the hands of professional advisers or agents, to whose assistance, for many purposes connected with the trust, they may properly have recourse.
The present question is, whether the respondent, Mr. Gaunt, has been rightly exonerated, by the Court of Appeal, from liability for a sum of £15,275 trust money under the will of John Speight (who died in 1877), of which the respondent was trustee, and which he paid on the 24th of February, 1881, to a broker at Bradford, named Richard Ernest Cooke, for the purpose of a then intended investment? The burden of justifying this payment rests upon the respondent.
The facts which I consider material are these:-
In February, 1881, the respondent had in his hands, for investment, under Mr. Speight's will, that sum of £15,275, and he decided upon investing it in securities of three municipal corporations, those of Leeds, Huddersfield, and Halifax; dividing it between them as equally as he could.
The residence of the testator, and of his widow and children, who were the cestuis que trust under his will, was at Bradford. The respondent was a woollen spinner and cloth manufacturer residing at Stanningley, about half way between Leeds and Bradford, and having a place of business in each of those towns, which
he was in the habit of visiting from time to time, usually on market days.
The will of the testator authorized the investment of his trust funds in the securities of municipal corporations; and the corporations of Leeds, Huddersfield, and Halifax were in undoubted credit. The respondent knew, generally, that municipal corporations, of the class to which these belonged, were in the habit of borrowing money; and he believed that securities of these particular corporations would be obtainable, either in the market, or directly from themselves. Further than this, and that he was able to judge of the credit and character of the corporations, he had no knowledge on the subject; he had not looked at any share lists, or advertisements in newspapers, from which more particular information about it might have been obtained; he did not know which of the corporations were issuing securities at that time, or the particular form (whether stock or debentures) of their securities, or whether they could or could not be purchased in the open market (Questions 1182, 1415, 1571, 1577, 1582, 1591). He considered the business to be one of a kind which would be most conveniently and properly transacted through a broker; and if it had been on his own account, he would have transacted it in the same manner (Questions 1469, 1470, 1564). He accordingly employed for that purpose Richard Ernest Cooke, a stock and share broker at Bradford, who though young was then in good credit there, and who represented a firm of good standing (John Cooke & Son) employed by the testator as his brokers in his lifetime. He had been previously employed in selling securities of large value for the trust estate, and had, when so employed, properly discharged his duty. The respondent had no reason to distrust either the professional capacity, or the solvency, or the integrity of Richard Ernest Cooke. On the 18th of February 1881, he by letter informed Miss Lucy Speight, the testator's daughter, that he had "given Cooke instructions to purchase £15,000 worth of securities in Huddersfield, Leeds, and Halifax, £5000 to be invested in each corporation;" and this information was evidently intended to reach, and did reach, the other members of the family.
The instructions given by the respondent to Mr. Cooke were (according to his evidence, Questions 1413-1417) "to buy £5000 of Huddersfield, £5000 of Halifax, and £5000 of Leeds" free of commission"; which Mr. Cooke undertook to do, saying that he should be able to get his commission paid "by the other side." Being asked (Question 1414), "Did you tell him that you cared whether he got debentures, or debenture stock?" he answered, "No; I simply told him that we were going to invest in those corporations. I did not tell him what to get. I did not tell him where to buy, whether he was to buy them of the corporations themselves, or in the open market."
As a matter of fact (which Mr. Cooke ascertained by inquiry,
but which was not known to the respondent) the corporation of
Leeds was the only one of the three which had issued any debenture
stock, though the other two were then borrowing money on
debentures at 3
The course which would usually and properly be taken by a
broker, acting under such instructions as those given by the
respondent to Cooke, appears by the evidence of Mr. Rhodes, a
Leeds stock and sharebroker Question 756, "When you are
instructed to purchase any securities of this kind, what is the first
step you take after you have negotiated for obtaining the securities?
- (A.) We first ascertain if any are on the market, because
they are always cheaper than getting them from the corporation
thomselves. The seller must take less. If you can get them at
In the present case Mr. Cooke saw the respondent in his piece-room at Bradford, on a day not exactly fixed by the evidence, but which was probably between the 18th and 22nd of February, 1881; and he gives the following account (Question 1427) of what then took place: "He said that he had arranged for these securities. He said I shall be some days yet, but I will let you know in time. I said the money is in the bank, and we do not want to lose any interest by taking it out before it is to pay. He said I will not come for it before I want it, but (he said) I cannot get Halifax, they are not issuing, and there are none in the market. He said the corporation are not borrowing themselves, and there is none in the market. I can get Stockton, which will pay you rather more interest than Halifax, if I can get them, and I think they will be quite as safe. I said, Very well; then buy Stockton." In my opinion nothing which passed at this interview was calculated to suggest to the respondent's mind any distrust of Cooke, if (as I think) he had no reason to distrust him before.
Nothing more took place till the 24th of February; when the respondent in the manner and under the circumstances stated in his answers to Questions 1428-39, 1452-56, and 1675-77, gave Cooke cheques for the money in question.
On that day Cooke came again to the respondent's piece-room, bringing with him an advice or bought-note, in the same form (except that "Stockton" debenture stock was mentioned in it instead of "Halifax") with that printed at page 219 of the Appendix. It was dated "Exchange, Bank Street, Bradford, Yorks., 24th February, 1881," was signed "John Cooke & Son," and was in these words: "To the executors of the late John Speight, We have this day bought for you, as per your order, subject to the rules of the London Stock Exchange" (so far in a printed form, except that the address, and the word "London" are in manuscript).
|£5000||Leeds Corporation Com.||Debenture Stock||£||at||105½||net 5,275|
The particulars are in manuscript.
The word "account" (printed) was added at the bottom, and there was a receipt by "J. C. & Son," with a proper stamp.
Cooke then said, "I want the money for these stocks; it is to pay to-morrow." In fact, if the transaction had been a real one, as represented on the face of the bought-note, the money would have been payable on the next day, the 25th February, which as the next account or settling-day on the London Exchange (Macmillan, Questions 451-55; Marshall, Questions 507-508; Cawthra, Question 1233). The respondent referred him to Mr. Musgrave, the accountant to the trust estate, as having the cheque book and all the other papers, and requested Cooke to go to him, and tell him to make out three cheques for the specific amounts, which Cooke was to bring back to the respondent for his signature, and to leave with Mr. Musgrave the bought-note, to be put among the other papers. Cooke accordingly went to Mr. Musgrave's office, and in about ten minutes returned with the cheques, made out by him as directed, which the respondent signed. In this way Cooke was enabled to obtain, and did obtain, the money, which he embezzled, no stocks or securities of any of the corporations having been in fact purchased by him. Cooke had left with Mr. Musgrave, not the same bought-note which he produced to the respondent, but another which (without the knowledge either of the respondent or of Mr. Musgrave) he substituted for it, in which the only difference was that £5000 "Halifax," instead of £5000 "Stockton" stock was represented to have been purchased. Upon this substitution nothing, in my opinion, turns.
Cooke presented a petition for liquidation on the 28th or 29th of March, and it was not until then that the respondent became aware of the fraud which he had committed. The first point requiring consideration is, whether the payment of the £15,275 to Cooke, on the 24th February, was a breach of trust? That depends upon two questions,(1) whether it was proper for the respondent, as a trustee, to use the agency of a broker for the purpose of the intended investment, and(2), whether (if so) the payment of the money to the broker so employed, under the circumstances of this case, was justified upon the principle of Ex parte Belchier ?(1).
I think that, when an investment of trust moneys is proper to be made upon securities which are purchased and sold upon the public exchanges, either in town or country, the employment of a broker for the purpose of purchasing those securities, and doing all things usually done by a broker which may be necessary for that purpose, is primâ facie legitimate and proper. A trustee is not bound himself to undertake the business (for which he may be very ill qualified) of seeking to obtain them in some other way; as, for example, by public advertisement or by private inquiry. If he were to do so, he might, in many cases, fail to obtain them upon the most favourable terms. Securities of English municipal corporations are from time to time bought and sold upon the London and some other exchanges. The evidence in this case shews that the 4 per cent. debenture stock of the Leeds corporation was so bought and sold, and the respondent did not know, and had, in my judgment, no reason to know, that the securities of the other corporations also (whether they might be stocks or debentures) were not also so bought and sold. That was a point as to which he might properly and reasonably determine to avail himself of the superior means of inquiry and information which in the ordinary course of his business a broker would possess.
He was, therefore, in my opinion, entitled to give such instructions to a competent broker as he actually gave to Cooke in the present case, under which, if the securities in question were procurable by purchase on the exchange, the broker might be expected so to procure them: and if he procured them in any other way he might also be expected, in the ordinary course and due performance of his duty, so to inform his principal. It is probable that securities of municipal corporations might be obtained more easily than some others by private inquiry, and perhaps with less probability of their being procurable through a broker on better terms; but I should think it dangerous, and not justified by any sound principle, to hold that the duties and
responsibilities of trustees, in respect of such investments (when duly authorized) vary according to the greater or less facility of obtaining them in one way or another in each particular case.
Thinking, therefore, that the employment of Cooke as a broker in this case, under the instructions actually given to him, was proper, and not inconsistent with the duty of the respondent as trustee, the next subject of inquiry is, whether it was a just and proper consequence of that employment, according to the principle of Ex parte Belchier(1), that the trust money should pass through his hands.
Upon this point I must first observe, that the case appears to me to be different from what it would have been if Cooke had entered into contracts with the several corporations for direct loans to them by the respondent, and had reported to the respondent that he had done so. The agency of a broker, as such, is not required to enter into a contract of that kind; and if the agency of a person who happens to be a broker is, in fact, employed to do so, I do not perceive why the consequences should be different from what they would be if a solicitor or any other person had been employed. The transaction could not be governed by the rules or usage of the London or any other exchange. There would be no moral necessity, or sufficient practical reason, from the usage of mankind or otherwise, for payment of the money to the agent; there would be no difficulty or impediment, arising from the usual course of such business, in the way of its passing direct from the lender to the borrower, in exchange for the securities; and if it should be found convenient to send it by the hand of a broker, or of any other messenger or agent, this might be done by a cheque made payable to the borrower or his order, and crossed, as is usual in direct dealings between vendor and purchaser, debtor and creditor, when payments of considerable amount have to be made. I think it right not to withhold the expression of my opinion, that such a case would fall within the principle of Rowland v. Witherden(2), andFloyer v. Bostock(3), rather than that of Ex parte Belchier(1).On this subject I find myself in agreement with Bowen, L.J.;
nor do I infer, from the judgments of Lindley, L.J., and Sir George Jessel, that either of them thought otherwise.
If, however, the respondent - being justified (as I think he was), in the employment of Cooke in the way in which he employed him - was entitled to give credit to the representation made on the face of the bought-note which he received from Cooke, and to act upon the faith of it, the rules and usage of the London Stock Exchange are material; and the payment to the broker, if made conformably to such rules and usage, was no breach of trust, and was not at the respondent's peril. The whole evidence satisfies me, that the usual and regular course of business on the London Exchange is, for the money, under such circumstances, to pass through the broker's hands. The Bradford brokers, Marshall, Macmillan, and Gaskell (Questions 445-451, 538, 539, 1020, 1021); the Leeds brokers, Williamson and Rhodes (Questions 741-750, 890-896); the London broker Carr (Questions 637-645, 717-721), and Musgrave, the accountant to the trust estate (Question 1147); witnesses called, some on one side, and some on the other, - are all substantially agreed in this; and their evidence is consistent with what your Lordships may perhaps think within your judicial cognizance, from the case ofNickalls v. Merry(1) in this House, and other cases, in which the rules, customs, and usages of the London Stock Exchange have come in question before Courts of law and equity. In such transactions, on the London and other exchanges, the brokers are personally liable for the fulfilment of their contracts.
Unless, therefore, it can be shewn that the respondent was not entitled to give, or did not in fact give, credit to the bought-note, as a representation made by the broker (whose good faith he had then no reason to suspect) that the securities in question had been bought upon or under the rules of the London Stock Exchange, the just and reasonable conclusion from the evidence is, that he was justified in paying the money, as he did, to Cooke.
The bought-note has been made the subject of close professional criticism by brokers examined as experts on the part of the appellants; and some of the respondent's witnesses of the same class also regarded it as in some respects irregular. But
their evidence does not lead me to the conclusion that there was any irregularity, patent and obvious to an ordinary man's understanding, on the face of the document, sufficient to be notice to the respondent that it could not, or did not, mean what it appeared expressly to say; or that there had been, or was likely to be, any deviation by Cooke from the proper and ordinary course of business. One of the respondent's witnesses (Rhodes, Question 770) said that the custom, when brokers were instructed to purchase corporation securities of this kind, was always to send out the bought-note "in the same form," whether they bought in the market or of the corporation. But the respondent is not shewn to have been aware of any such custom, or of any other reason for taking the words of the document otherwise than in their natural sense. The word "London," inserted in manuscript, could not have been meant, by any one dealing bonâ fide, as a mere matter of form. Mr. Rhodes himself, and Mr. Musgrave (Questions 783, 784; 1131), were agreed that there was nothing to excite suspicion on the face of the document; nothing to suggest to a prudent man that he ought to hesitate about paying over the money or that it would be dangerous or irregular to do so. The respondent said (Questions 1442-1444) that, as far as he knew or could judge, it was a regular document.
Some stress was laid by the appellants' counsel upon an admission, which was very frankly made on cross-examination by the respondent (Questions 1678 - 1684), that he "would have drawn the cheques in the same way even if he had known that the purchase had been one direct from the corporation." If, in that supposed case, he had actually done so, I have already said that he would, in my opinion, have incurred peril from which he now escapes. But the fact that he might have failed to make a distinction necessary for his safety in a case which, according to the information given to him by his broker, did not happen, is no reason why a Court of justice should not make that distinction in his favour, if what he did was justified under the actual circumstances of the case.
It remains to be considered whether the respondent is liable, on the ground of wilful default, for his omission to take any active measures between the 24th of February and the 28th or 29th of March, 1881, to obtain from Cooke the transfers or documents of title, which (if the purchases had really been made, as represented by the bought-note), Cooke, or his London broker, ought to have received, in exchange for the money, from the sellers of the securities.
I prefer to rest my judgment, as to this part of the case, on the facts, so far as they were or ought to have been, during that interval, within the knowledge of the respondent, rather than upon the evidence given by Mr. Musgrave that Cooke was, during the whole of that interval "irretrievably insolvent," so that nothing could, by any diligence, have been recovered from him.
As to what the respondent did during that interval, the evidence stands thus. He was told by Cooke, on the evening of the day on which the money was paid (about two or three hours after the cheques were given), that he had "sent the money to the proper parties," and that he could not, at that time, tell when the respondent might expect to have the securities. On two or more subsequent market days, the respondent made inquiries after the documents directly from Cooke, or through Charles Speight (one of the cestuis que trust), with a view to get them, and "put them in the safe along with the other mortgage deeds." (Questions 1460-1467). Cooke said (on the 28th of February) that "they had not come yet; there had not been time;" and that "he could not tell when they would be there; they took some time to make out." The respondent was asked in cross-examination Questions 1693-1695), "After you had parted with the money you held nothing in your hands. When did Cooke tell you that he would obtain the certificate or receipt from the corporation?" He answered, "As soon as it was ready;" and (to subsequent questions) that Cooke said he could not tell how long it would be; "it might be a fortnight, or three weeks."
The usual course in such cases seems to be, for the purchaser's broker, after receiving the transfer deeds in exchange for the purchase-money, afterwards to see to the registration of the transfers in the books of the corporations, and to obtain from them the proper certificates; for which purpose he must necessarily in the meantime retain the transfer deeds in his own hands. It appears from Mr. Rhodes' evidence (Questions 815-817, 833-849) that, when such securities are obtained directly from corporations, the completion of the formal documents of title usually occupies from three to four weeks; and I see no sufficient reason for supposing that the delay would be greater in that case than when the securities had been bought in the market.
If there had been, in fact, proper transfers executed, and duly received in exchange for the purchase-money, the trust estate would have suffered no loss or prejudice from this delay; and the question, therefore (as I view it), is, whether the answers made by Cooke to the respondent's inquiries, and the fact of the non-delivery of the securities before the 28th or 29th of March, ought to have roused the respondent's suspicions, and to have put him at some time before that date on taking active proceedings against Cooke? He swears that he did not suspect, and that he had no grounds for suspecting, that anything was wrong, till Cooke's insolvency became known, when it was too late to recover the money; and I cannot discover in the evidence any reason for disbelieving him. If he is not liable on other grounds, I cannot hold him liable merely for believing that such an interval or delay as took place between the 24th of February and the latter part of March might be no more than it was proper or reasonable to allow, in the ordinary course of such business, for obtaining from the corporations the proper evidence of title.
The result is, that I agree in the conclusion arrived at by the Court of Appeal; and I must move your Lordships that the present appeal be dismissed with costs.
My Lords, the question raised before this House is, whether the order of the Court of Appeal, so far as it varied the judgment of the Vice-Chancellor, is right. The Vice-Chancellor had declared that the now respondent, Isaac Gaunt, had committed a breach of trust with reference to the sum of £15,275, and was bound to make good the loss, and ordered him to pay it into Court and to pay costs. The Court of Appeal ordered that so much of the judgment below should be reversed, and that so much of the action as prayed for special relief against Isaac Gaunt should be dismissed out of Court, Isaac Gaunt's costs to be paid out of the trust estate.
The case is of importance to the parties as involving a very considerable sum of money. It is also of general importance, so far as the application of the principles, on which the Court acts in respect to the liability of trustees to make good losses of trust funds, to the facts disclosed by the evidence, will be an authority in future cases. After some consideration, and reading the evidence, I have come to the conclusion that the judgment appealed against is right, and should be affirmed.
I do not think that there is any doubt as to the state of facts existing on the 17th of February, 1881, when Mr. Gaunt began the transactions in which it is alleged that he was guilty of a breach of trust.
The testator, John Speight, of Bradford, was a stuff manufacturer, and he had in his lifetime made some investments, and both bought and sold stocks, in doing which he had been in the habit of employing John Cooke & Son, a firm of stockbrokers in Bradford. John Cooke had long carried on that business; he had latterly taken into partnership his son Richard, a young man (whose dishonesty has given rise to the loss in question); and the new firm which, after the death of John Cooke in 1877, consisted of Richard only, carried on the business, which seems to have been one of the best in Bradford.
The testator died in 1877, leaving a considerable property, and by his will left it all to Isaac Gaunt and another (whom I need not afterwards allude to) upon trusts which required the trustees, amongst other things, to convert the funds into money, and to invest the moneys in the names of his two trustees on certain securities mentioned. There was a power given to permit any money which at the time of his death should be invested to remain in its then present state of investment as long as the trustees thought expedient.
Isaac Gaunt was also a stuff manufacturer. He had sometimes bought stocks for investment for himself, in which cases he had employed Messrs. Rhodes & Rayner, stockbrokers of Leeds. He had no special knowledge on the subject of investments, and the testator must have known he had none.
The children of the testator were all minors, and Mr. Gaunt accepted the trust, which seems to have been a troublesome one, out of regard to his friend's family. It was perfectly gratuitous on his part. I do not think this prevented it from being his duty, since he accepted the trust, to exercise proper care about its execution, nor prevented his being responsible for any loss sustained in consequence of his neglecting to do so. But I think where a person is to be remunerated for what he does, he ought not to accept the employment unless he has competent knowledge and skill in the business he is to transact, and may properly be held liable if he proves deficient in either. I do not think that a person requested gratuitously to accept a trust, involving in it incidentally the conversion of investments into money and the reinvestment of the money, is under any obligation to have more knowledge or skill as to the business of converting property into money, and investing money in stocks and shares, than that which the testator knew him to possess when he selected him as his trustee. The fact that Mr. Gaunt had no special knowledge on the subject furnished an additional reason why, besides using all the knowledge and skill he had, he should employ a stockbroker; perhaps he might be excused if he was deceived by that stockbroker, when a man more conversant with that business would not have been deceived. I do not think it makes any further difference in his duty and responsibility, and I do not think it necessary for the decision of this case to say whether it makes even that difference.
Charles Speight, the eldest son of the testator, came of age in October, 1880, and a considerable part of the trust estate had then to be paid to him. Mr. Gaunt seems to have intended to retire from the trust on Charles coming of age, and hand it over to Charles Speight and some other trustee to be selected by the family, and, with a view to all this, he took steps to convert into money those investments which had been made by the testator in securities not such as were authorized by the will. For this purpose he thought it necessary to employ a stockbroker, and instead of employing his own stockbrokers, Rhodes & Rayner, he employed John Cooke & Son, who had been the stockbrokers employed by the testator. The work was properly done, and a considerable sum, apparently more than £10,000, was realized and collected and paid by John Cooke & Son. This, and the other cash belonging to the trust, was paid into an account opened in the name of the trustees in the Bradford Banking Company. This was a proper place in which temporarily to deposit any moneys belonging to the trust whilst looking out for investments such as were authorized by the trusts of the will. And Mr. Gaunt suffered it to remain there, apparently intending to leave it to the new trustees to choose the investments.
At the earnest request of the family, evidenced by a letter from the widow (Appendix, p. 209), Mr. Gaunt consented to continue to act as trustee. He then thought, and rightly thought, that the money should not be left in the bank at low interest, but should be invested in securities such as would give a higher rate of interest, and were authorized by the terms of the trust. He thought that Leeds, Halifax, and Huddersfield, were corporations that were good to lend the money to, and that securities of those corporations could be obtained. In all this he was quite right, and whether he had or had not talked it over with the Speight family is not material. He resolved to employ John Cooke & Son (that is Richard Cooke) as stockbrokers to procure securities of those three corporations to the extent of £5000 each. It was said, though I think it was not much relied on, that supposing him to be justified in employing a broker at all, he ought not to have employed Richard Cooke, who as it has turned out, had secretly indulged in speculative transactions of his own, which proving unsucceessful exposed him to great temptation, and who, as it turned out, was so dishonest as to yield to that temptation, and obtain from the trustees the money in question by false pretences and convert it to his own use. And I quite agree that, if Mr. Gaunt had known this to be the position and character of Richard Cooke, it would have been wrong to employ such a man. But it appears that Mr. Gaunt originally employed John Cooke & Son to sell the trust property which had to be sold, in preference to Rhodes & Rayner, who were his own brokers, because the testator had employed that firm, which was a good reason for giving that firm a preference; Richard Cooke having satisfactorily transacted the sales, which seem to have been to a considerable amount, had established a fresh ground for confidence on his own account. The plaintiffs have been unable, though they have tried, to obtain evidence of anything which should have led Mr. Gaunt to the conclusion that Richard Cooke was not an honest man, or one who ought not to be trusted as far as stockbrokers are usually trusted. And it appears (Question 1176) that in the year 1880 he did a very large business.
The authorities cited by the late Master of the Rolls, I think shew that as a general rule a trustee sufficiently discharges his duty if he takes in managing trust affairs all those precautions which an ordinary prudent man of business would take in managing similar affairs of his own. There is one exception to this: a trustee must not choose investments other than those which the terms of his trust permit, though they may be such as an ordinary prudent man of business would select for his own money; and it may be that however usual it may be for a person who wishes to invest his own money, and instructs an agent, such as an attorney, or a stockbroker, to seek an investment, to deposit the money at interest with the agent till the investment is found, that is in effect lending it on the agent's own personal security, and is a breach of trust. No question as to this arises here, for Mr. Gaunt did nothing of that kind. Subject to this exception, as to which it is unnecessary to consider further, I think the case of Ex parte Belchier(1) establishes the principle that where there is a usual course of business the trustee is justified in following it, though it may be such that there is some risk that the property may be lost by the dishonesty or insolvency of an agent employed.
The transactions of life could not be carried on without some confidence being bestowed. When the transaction consists in a sale where the vendor is entitled to keep his hold on the property till he receives the money, and the purchaser is entitled to keep his money till he gets the property, it would be in all cases inconvenient if the vendor and purchaser were required to meet and personally exchange the one for the other; when the
parties are, as is very often the case, living remote from each other, it would be physically impossible.
Men of business practically ascertain how much confidence may be safely bestowed, or rather whether the inconvenience and hampering of trade which is avoided by this confidence is too heavy a premium for insurance against the risk thus incurred. When a loss such as that which occurred in Ex parte Belchier(1)occurs from having bestowed such confidence, they doubtless re-consider all this; and when a new practice, such as that of making bankers' cheques payable to order and crossing them arises, as it has done within living memory, no doubt it is made use of in many cases to avoid incurring that risk, which was formerly practically inevitable. So that what was at one time the usual course, may at another time be no longer usual.
Judges and lawyers who see brought before them the cases in which losses have been incurred, and do not see the infinitely more numerous cases in which expense and trouble and inconvenience are avoided, are apt to think men of business rash. I think that the principle which Lord Hardwicke lays down is that, while the course is usual, a trustee is not to be blamed if he honestly, and without knowing anything that makes it exceptionally risky in his case, pursues that usual course. And I think that, independent of the high authority of Lord Hardwicke, this is founded on principle. It would be both unreasonable and inexpedient to make a trustee responsible for not being more prudent than ordinary men of business are.
The question as it seems to me is whether Mr. Gaunt has done more than this.
It is to be remembered that in the state of things which existed in February 1881, Mr. Gaunt was not only authorized to invest in securities such as were authorized by the trust, but was bound to do so if he could.
For this purpose it was necessary to ascertain what securities of that sort could be obtained, and what were the most favourable terms, to make the bargain with those who furnished the securities, and when the proper time came to exchange the money for the documents of title to the securities. Stockbrokers
professionally manage all this class of business, and the very large number of persons who pursue this trade is quite sufficient to shew that it is usual to employ them.
Something should now be said about the stock exchanges. The brokers in London first established a voluntary society who met in the Stock Exchange, so that London brokers who had been instructed to buy and brokers who had been instructed to sell might meet and make their bargains; then, with a view to economise business on the same principles as those which led the bankers to establish a clearing-house, rules of the London Stock Exchange were established, which from time to time have been improved and altered. It is unnecessary to say anything about the class of members of the London Stock Exchange who are jobbers, not brokers; nor as to the complicated and very ingenious system of tickets and novations by which this is worked out. A great deal will be found about them in the many cases which arose after the failure of Overend, Gurney & Co. as to the liabilities of jobbers. It is enough to say that a broker who has bought for the account and given in a ticket stating the name of the person to whom the transfer is to be made out is personally liable to pay, in exchange for the executed transfer deed, to the member who has become the holder of the whole or part of his ticket, and that as the person who has become holder of the whole or part of the ticket has by the rules ten days to get the transfers drawn up and executed, the broker must be prepared to pay on the pay day, but may not actually have to pay, and consequently cannot get the transfer till some time after.
This system has been found to work in practice so satisfactorily that not only are enormous sums paid on the account-day in London, but the brokers in those large towns, where the business is sufficient to make them what a witness calls "stock exchange centres," have established stock exchanges of their own with rules not identical with those of the London Stock Exchange but founded on the same principles. In a town like Bradford, where there are it seems only five stockbrokers, the numbers are not sufficient to have caused a stock exchange to be established. The brokers of Bradford do not, nor I suppose do any other provincial brokers, confine themselves to dealing with the other brokers of their own town, in which case their business would be very limited. The evidence of Mr. Marshall (Appendix 80, Questions 510, 511) shews that they do through agents utilise the stock exchanges in London or any other stock exchange centre.
Was then Mr. Gaunt justified in employing a stockbroker and giving him authority to procure the desired securities on the London Stock Exchange if that was the best way to get them? I think he was. It was argued by Mr. Millar that he was not; for that in fact the securities of the different corporations were not in the market, and could only be obtained by lending the money to the corporations; and that anyone could obtain from them the documents of which copies are in evidence and so learn that he had no more to do than make his offer, and when it was accepted pay the money into a bank named by the corporation, which was, Mr. Millar argued, so simple an operation that anyone could do it without a stockbroker at all. This is not quite accurate, for we know from the evidence that Leeds had issued a large quantity of debenture stock which from time to time was sold by the holders, and if sold would necessarily be sold somewhat below the price which would have to be given to the corporation, and therefore, as is explained by Mr. Rhodes (Question 756), it would have been proper to inquire if they were for sale on the market. But it is true that it was not likely that so large a quantity as £5000 would be got at once. We also know that Halifax and Huddersfield had no debenture stocks at all, though they had borrowed and were borrowing money on mortgages for a fixed term of years, which would be equally good securities. And though someone might be found who wished to transfer a mortgage not yet due, that would not be likely. But Mr. Gaunt did not know this: and there is neither principle nor authority for saying that he ought to have inquired, and might have learned, and is to be responsible for not doing so. For independent of the unreasonableness of requiring a trustee to leave his own business, and do part of what a stockbroker is generally employed to do, there would be great risk of a trustee missing the most profitable way of obtaining the investment, which a stock-broker would not. I think, therefore, Mr. Gaunt was justified in employing John Cooke & Son.
The instructions given were verbal, and though the word "buy" seems to have been used, I think it meant "procure," and so Cooke, who when he received his instructions, probably did not yet know that his own clandestine speculations were to turn out disastrous, or at all events did not then, as far as appears, intend anything dishonest, understood them. For he received his instructions on Thursday the 17th of February, and on the 18th wrote to each of the three corporations to inquire if they were issuing debenture stocks and on what terms. He received the answers from Leeds and Huddersfield, which were dated on the 19th, I suppose on Monday the 21st. The answer from Halifax was not written till the 22nd, and could not be received on the 21st. On the 21st Cooke called on Mr. Gaunt at his office in Bradford, which he visited on market days, which were Mondays and Thursdays. He told Mr. Gaunt that he had arranged about the securities but could not get Halifax, they were not issuing, and there were none in the market, but Stockton was. Mr. Gaunt said "Then buy Stockton," and asked when he, Cooke, would want the money. Cooke answered "In a few days," and would let him know. I do not know whether Cooke had yet made up his mind to commit a fraud or not. Mr. Gaunt's account of what then passed between them is to be found in his answers to the Questions 1426 and 1427. It is all that we have to go by, and I have no doubt is honestly and sincerely narrated, and is as accurate as any account of a conversation which took place some months ago can be. I draw the inference from it that Mr. Gaunt had not the least suspicion of Cooke's honesty or veracity, and that he thought that it was a matter of course, in the usual course of business, that when stocks bought through a broker had to be paid for, the broker was the person who was to pay the money to the vendor, and that the purchaser was to put him in funds to do so.
The account-day on the London Stock Exchange was the 25th of February. On Thursday the 24th, by which time Cooke must have known that his own clandestine speculations had proved disastrous, and that, unless he could provide funds on the 25th to meet the demands on himself, he was a ruined man, Cooke came again. There is no doubt that then he did not mean to act honestly, and that he then used false pretences to obtain the money from Mr. Gaunt, with intent to apply it for his own purposes. In that he was successful. Mr. Gaunt was deceived, and did put the money in his hands.
It is not suggested that Mr. Gaunt was not bonâ fide and honestly doing what he thought right. And in my opinion the whole question in the cause is whether it is made out that he neglected his duty as a trustee not to expose the property of his cestuis que trust to unusual risks so far as to be guilty of a breach of trust. And the answer to that question, according to the authorities cited, and as I think on principle, greatly depends on the evidence of what was, at that time, the usual course of business. The Vice-Chancellor seems to have thought that there was great negligence in acting on the belief that Cooke had bought these stocks on no better evidence than the word of Cooke and the production of an advice-note, which the Vice-Chancellor calls a scrap of paper.
I do not think an advice-note, however formally drawn up, is really anything more than the assertion of the broker that he has made the contracts. That assertion, if made in an advice-note, is made in such a shape as to be easily proved against him, but if he is prepared, as Cooke no doubt was, to lie, and say he had bought when he had not, it was as easy for him to draw out an untrue advice-note as to make an untrue verbal statement. Now I do not think that where a broker has really bought on the London Stock Exchange he has any document which he can shew to prove that he has done so. As far as I know, and certainly there is no evidence to the contrary in this case, the clients of a broker do not in the ordinary course of business require the production of anything else than the broker's advice-note. They act on the belief that the broker whom they have deemed trustworthy is not telling a lie. It is a more difficult question whether, believing that Cooke had made contracts on the London Stock Exchange, Mr. Gaunt was justified in handing over the money. To that I will return afterwards.
The Vice-Chancellor (I think assuming that Mr. Gaunt knew all that we now know about the stocks) comes to the conclusion that Mr. Gaunt must have known on the 29th of February that, if Cooke had made any arrangement at all, it must have been one to lend to the corporations, and that, if he had made such an arrangement, Mr. Gaunt, as a trustee, was, the Vice-Chancellor thinks, not justified in handing over the money to the broker, but ought, as he says, to have drawn cheques in favour of the corporations, by which I suppose he means to have made his cheques payable to the bankers named by the corporations. Now I have already said that I do not think that Mr. Gaunt knew what we now know, and I do not think there was any duty on him to learn what was to be learned about them so as to make him responsible as if he had known. And I agree with the whole three Judges of the Court of Appeal that the primâ facie inference which any one would draw from the form of the advice-note (accompanied by the verbal statement, which was true, that the 25th was pay-day, which was all that would have been stated if the blank after "account" had been filled up by inserting "25th February") was that Cooke stated that he had "bought."
If Cooke had really arranged with the corporations to lend to them, he might without any great irregularity have made out the advice-note as he did, and if Mr. Gaunt had thought it made any difference which way it was done, he might have asked. He was not, I think, called upon to be suspicious and ask, and it is evident that he thought, whichever way it was, the broker having made the bargain and being the person who was to superintend the payment, it was right that he should be put in funds to make it.
Now when a purchase has been made on the London Stock Exchange, it is necessary that the money should be ready in London, to be paid in exchange for the transfers, from the date of the settling-day till the transfers are all delivered, in order to keep the buying broker out of cash advance, and the evidence is, I think, that it is the usual course of business to do this by giving to the buying broker a cheque for the money, so that he may be in funds to take up the transfers when ready. If the broker appropriated the money to any other purpose it would be an act of dishonesty on his part, but all men may be dishonest; and even if he is not dishonest, there is a possibility that he may fail before the stocks are ready, and that the money advanced can be no longer recovered in specie. There is, so far, some risk incurred by trusting the broker for a few days with the money.
I will state the inference I draw from the evidence, referring to the numbers of the answers which have most weight with me.
All bankers, I believe, are willing to undertake for their customers the purchase or sale of stocks and securities on the London Stock Exchange. They find no difficulty in getting brokers to act for them in doing so, without any charge to the customer beyond what would be made by a broker acting for the customer without the intervention of any banker. I do not know in what proportions the banks and brokers divide the commission between them; but they do make some arrangement which is not popular amongst brokers.
Mr. Eastwood, who himself was the manager of a bank at Bradford, advised every one who sought an investment to employ a banker. This is not unnatural advice from a banker, though not that which a broker would give, and it is not generally followed; it is still very usual to employ brokers. He says that where (Questions 334-338) a local broker is employed, it would be the judicious course to take the advice-note to the purchaser's banker, and desire the banker to arrange with the broker that he should present the securities, when ready, at a bank, the correspondent of the banker in the town where the securities were to be taken up. That he always advised that course, and speaking up to 1878, when he ceased to be a banker, he says, "I have not had much experience with regard to local transactions. It is pretty general now, I think, in Bradford, with regard to London transactions. It is more general of late years than it used to be."
Mr. Rhodes, who for forty years was one of the principal brokers in Leeds, had never known an instance of this; and I draw the inference that such a practice, if not unknown, in local transactions is very unusual. Mr. Carr, a broker in London, of great experience in London, confirms Mr. Eastwood's evidence, that the course is sometimes adopted in London, but says (Questions 646, 647) that it is very rare that the money is left with bankers to pay the brokers as they deliver the stock, and gives as the reason that it is too cumbersome; and he (Question 717) explains how it is cumbersome by an instance in his own experience.
Mr. McMillan says that, except in very rare instances, it was, up to the time of Mr. Cooke's failure, usual to pay the money to the broker. He suggests, what I think is probable, that the confidence in brokers was shaken by that failure, and I think it very likely that until that confidence is restored there will be more caution, perhaps to the extent of vexatious timidity; and it may very possibly become unusual, at least where the sum is large, to pay, as Mr. Gaunt did in this case; and if the usage change, a trustee who should pay in this way after it had ceased to be usual so to do, may be responsible. As to that I give no opinion. But we must look to what was usual at the time he acted; and I think that the effect of the evidence is to bring the usual course very near to that which was the usual course in Ex parte Belchier(1).There the broker, who had sold the tobacco, might have brought the purchaser and the vendor together, and let the vendor receive the money in exchange for the dock warrants or whatever it was that represented the goods; the only reason why that was not usual was that it was cumbersome, not convenient, not that it was impossible. Yet Lord Hardwicke thought that the defendant was justified in following the usual course. And I agree with the judges of the Court of Appeal that Mr. Gaunt, without improper want of caution, might here believe that Cooke had bought on the London Stock Exchange and might put the money in his hands on the pay-day.
The judges in the Court of Appeal did not think it necessary to pronounce an opinion as to whether it would have been a breach of duty in Mr. Gaunt to pay the trust money into the hands of the broker, if it had been represented to him (as the Vice-Chancellor thought it was) that the transaction was one of loan negotiated with the corporations and not of purchase in the market. No doubt there are differences where that is the case. The broker who had negotiated a loan with the corporation of Huddersfield, for instance, would have a letter in the form printed (Appendix 211), and the client need not trust to his bare
word; for that letter might be shewn to him. The broker also would not have come under any personal obligation to pay the money; and the time when it was to be paid would not be fixed, and, as soon as it was paid, the banker's receipt would be a good security for the money. If the client choose to pay the money through the broker (and in most cases he would wish to do so in order that the broker might save the client the trouble of seeing to the due making out of the securities, and also to entitle the broker to the commission paid by the corporations to brokers) he would, by giving his cheque to the broker, only give it to him to hand over at once to the banker, and would incur no further risk than if he had sent it by post or by messenger. And even that risk, which would be nothing if the broker was honest, might be much reduced by crossing the cheque to the bankers, to credit of the account directed in the letter from the corporation. If he did so, the broker could not appropriate the cheque, unless he was not only dishonest enough to steal, but bold and skilful enough successfully to commit forgery. I think the judges were right in thinking it not necessary to pronounce any opinion on what might have been the liability of Mr. Gaunt if he had believed, or ought to have believed, this to be the state of the case, for there was nothing to lead him to think it was the state of the case. I wish, however, to say that I am not to be understood as agreeing with the Vice-Chancellor on this. I do not think it necessary to form a final opinion on a point which does not arise.
My Lords, I entirely concur in the view which your Lordships have taken of this anxious and difficult case.
My Lords, the case now before us presents for our consideration questions of the proper inferences to be deduced from the facts in evidence rather than difficulties in law. It is observable that the general law, so far as it was stated by the Vice-Chancellor, seems to have been accepted by the Court of Appeal, and your Lordships have now laid down the principles of law which should govern the case, in a manner so full and clear as to leave nothing to be added.
I accept it then as settled law that although a trustee cannot delegate to others the confidence reposed in himself, nevertheless he may in the administration of the trust fund avail himself of the agency of third parties, such as bankers, brokers, and others, if he does so from a moral necessity or in the regular course of business. If a loss to the trust fund should be occasioned thereby, the trustee will be exonerated unless some negligence or default of his has led to that result. Then, looking at the trust before us and the intended investment of the trust fund, I concur in thinking that the trustee was entitled to employ a broker, and not the less entitled to do so even if he could have obtained the securities direct from the corporations without the intervention of a broker; but I must add that looseness and seeming carelessness characterise the conduct of the trustee in the absence of specific instructions to the broker, and in not withholding his final instructions until the broker had informed him what the specific securities were to be and how to be obtained. I think, too, that nothing has been brought home to the knowledge of the trustee which would have suggested to him that Cooke was an unfit person to be entrusted with the transaction, and it appears that the prior dealings with Cooke in reference to the same trust had been of a satisfactory character. There was much time consumed in criticism on the terms of the fabricated "bought-note" of the 24th of February 1881, but on the whole I think that the trustee was entitled to interpret it, as he appears to have done, in the language of Sir George Jessel, namely, "that the broker had bought those things for me on the Bradford Exchange, subject to the rules of the London Stock Exchange."
Then comes the difficult question in the cause which requires careful consideration and a most cautious decision: was the trustee justified in paying over the money to the broker in the manner and under the circumstances detailed in the evidence? Having got that paper called the bought-note, and such being its interpretation, Sir George Jessel asks a question which with the answer he gives deserves very grave consideration. He is represented to have said(1): "Now, if that were so, what is a trustee to do? It is suggested that he might have inquired whether the broker had actually bought them. Of whom was he to inquire? Surely not of the broker. Is it tolerable that a man should so far be bound to suspect his own broker as that he should be compelled to go on the Stock Exchange to find out from whom his broker had purchased, and then to inquire of him? Would it not be that the trustee would be informed by his broker, 'You treat me like a thief; I will have nothing more to do with you.' It is quite plain that no man in the ordinary course of business ever does anything of the kind. … He must rely in the ordinary course of business on the statement of his broker, and he pays the money to him on that statement. Well, that being so, I cannot see any ground whatever for saying that Mr. Gaunt was guilty of negligence. Then there is this allegation, that he did pay this sum of money on the credit of the existence of the stock to Mr. Cooke. Then it is said that no bonds or debentures were given by Mr. Cooke. Of course there were not. Then it goes on to say that no such securities as debenture stocks of Huddersfield and Halifax exist. Does that matter? I think not. It is quite true the representation was that there were such, and I think that that is the fair reading of it. But supposing it were so, Mr. Gaunt did not know it." He then goes on to say further: "I repeat therefore when Mr. Cooke told him he had bought debenture stock he would make no further inquiry as to whether such things existed or not. … It appears to me therefore that the fact of the nonexistence of some of the securities has no bearing on the question;" and he concludes this portion of his judgment thus: "It seems to me, therefore, if you once arrive at the conclusion that Mr. Gaunt was informed by the bought-note that the purchase had been made in that way, there was no obligation on him to make any further inquiry. He trusted his broker, and he was not bound to ask the broker, Have you written me a
falsehood? Have you entered into a contract or not?' The man told him in writing that he had, and he was entitled to trust him, and as it seems to me there was no obligation upon him to make any further inquiry."
It is with extreme diffidence that I venture to criticise the propositions of so eminent a judge, and one whose strong and keen intellect enabled him at once to brush aside all difficulties and reach the true point with unerring precision. This judgment of Sir George Jessel carries inherent evidence of having been delivered immediately on the close of the argument. My Lords, as you are about to affirm it, I feel called on to say for myself that Sir George Jessel seems to place a stockbroker at a greater elevation and as entitled to a greater degree of trust and credit than is ordinarily given to other agents, and to add that these wide propositions convey to me some degree of alarm for the security of trust funds which have to pass through a stockbroker's hands. They seem to me to attain to this, that if a trustee employs an apparently fit broker to invest trust funds, no matter how large the amount, he may act on the broker's representations and transfer the fund to him and may not, and indeed ought not, to make any inquiry.
It seems to me that the trustee before he paid over the money on the 24th of February into the hands of Cooke might well have made some inquiries from him which possibly might have led either to the detection of the fraud about to be perpetrated, or defeated it by either withholding the money for a time or taking some special steps to provide for its reaching the proper destination. Assuming the interpretation of the bought-note to be a purchase of these local securities in Bradford, but according to the rules of the London Stock Exchange, he might well have asked Cooke, "Have you dealt with the corporation direct, or from whom did you buy, and what did you buy? Who is to receive this money?" It is quite certain that Cooke must have answered these or any other such questions by additional falsehoods, but does it follow that each such falsehood would pass current and not lead to detection or precaution? If the answer had been, "I am to get the Huddersfield and Stockton securities from the corporations direct" (they were represented to have been obtained at par), the result might have been that the trustee would have insisted on the cheques being drawn in favour of these corporations. If the reply had been that they were bought in Bradford from local people or local brokers, what more natural than to say, "Then I will make the cheques payable to these people and you can hand them over to each on getting the proper transfers?" I will not pursue this further, for it may be that none of the replies would have excited any suspicion, but we ought not to be left to speculate on that. Then, upon a representation made the same day that the money was to be paid the next day, but without any inquiry as to why, or to whom, or where, the cheques are delivered over to Cooke, who forthwith misappropriates them. The breach of trust, if there was any, and the loss were then complete.
Upon the question whether there was a breach of trust in thus placing the trust fund in the hands of Cooke, I have hesitated very much, but my doubts are not so strong as to warrant me in dissenting. I am overborne by the weight of your Lordships' judgment affirming the decision of the Court of Appeal, and am coerced to concur, but with much hesitation.
There remains but one point, not pressed with much vigour, either in the Court of Appeal or before your Lordships, as to whether there was neglect of duty on the part of the trustee in not making due inquiry after the trust fund or the supposed securities in which it was to be invested, in the interval between the 24th of February, when the fund was parted with, and the 28th of March, when Cooke's insolvency became public and notorious. I shall pass over this very shortly. The money was represented to be required for payment on the 25th of February on the delivery of the transfers, but not until the transfers were delivered. There would then remain nothing to be done but to register the transfers, for as the alleged purchase was of debenture stock there would be no securities to be made out. The evidence has satisfied me that due diligence was not used, and that in allowing himself to be satisfied with the statement of Cooke "that he could not tell when the securities would be there, they took some time to make out," he was not exercising that care which a prudent and reasonable man ought to have exercised if the money had been his own. I do not think it any sufficient reply to say "that the loss was anterior to that negligence." Diligence even then might have reduced the actual loss. Even if my interpretation of the facts on this branch of the case is correct, it could only lead to an inquiry whether any and what portion of the lost money might have been recovered from Cooke by greater diligence. The plaintiffs have not asked for such an inquiry, for the probable reason that they are satisfied that Cooke was so utterly insolvent that nothing could have been got from him.
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