1879 Simm v. Anglo-American Telegraph Company. was made, that representation caused no substantial alteration in the position of Burge & Co. As to the first ground, Burge & Co. supposed that they had bought stock through a broker upon the Stock Exchange; they received a transfer supposed to be signed by Coates, and a certificate from the company that Coates was the holder of stock. They sent the transfer to the company in order that the names of their nominees might be put upon the register, and then the company did that which is said to be the ordinary course, namely, they sent a letter to Coates requesting to know whether he had authorized the transfer of the stock. That letter was intercepted by a fraudulent clerk, so that the company received no answer to it, and they therefore supposed that Coates had agreed to transfer his stock, and upon that they registered Skinner and Spurling as the holders, and afterwards they issued a certificate to Simm and Ingelow, stating that they were the holders of the stock. The only fact relied upon as raising an estoppel is the issue of that certificate. It has been argued that this certificate amounts to a representation, although no representation was made in words on behalf 209] *of the company. At the time Burge & Co. bought the stock on the Stock Exchange they did not rely upon anything said or done by the company; they trusted wholly to the broker through whom they purchased, and that broker is personally liable to them by reason of the course of business, and perhaps by the rules of the Stock Exchange; they relied entirely upon him; they paid the price to him upon the faith of a transfer which he alleged that he had obtained from Coates, and not upon the faith of anything done by the company. If Burge & Co. paid the price upon the faith of the former certificate issued to Coates, that certificate is perfectly true, and in it no false representation was made by the company. Nothing in that transaction can possibly raise an estoppel in favor of Burge & Co. against the defendants. After they had paid the money, they sent the transfer to the company in order that they might induce the company to put the names of their nominees upon the register, and thus complete their title. It is true that it is the course of business for the company to make inquiry of the person whose name is upon the register, but it seems to me that they are under no obligation to the person who sends the transfer to make that inquiry; it is obvious that they make it entirely for their own protec tion. I can see nothing which casts a duty upon them to make that inquiry on behalf of the alleged transferees; in Anglo-American Telegraph Company v. Spurling. 1879 truth the intending transferees, if they distrust the broker, can require to be informed of the name of the person whose stock is to be eventually transferred to them, and they can themselves make inquiry and ascertain from him whether the broker has his authority to transfer his stock. It seems to me that all the circumstances which are supposed to have entitled Burge & Co. to have the names of their nominees put upon the register of the company, and to obtain a certificate, lay as much within the knowledge of Burge & Co. as within that of the company: at all events they have the same power and duty to make inquiries as the company, and indeed some of the facts are more within the knowledge of Burge & Co. than of the company; as, for instance, it is Burge & Co. who knew what the contract was, and whether it was a contract to transfer. Under this state of facts the company did that which, if the transfer had been valid, would have made Burge & Co. stockholders-in other words, the company accepted their nominees as fit to be [210 put upon the register: this, however, was done mainly upon the statement, that the nomineee had received a transfer from Coates. The certificate which the company issued to Simm and Ingelow did not contain a statement of anything which Burge & Co. did not know it did not contain a statement of a transaction or of facts which must be known to the company, but were not known to Burge & Co., and with regard to which any statement of the company was to have an effect upon their conduct: the contract had been concluded before the certificate was issued, upon which alone the estoppel is alleged to arise. As I have already intimated, the certificate declaring Simm and Ingelow to be stockholders was issued not for any purposes of the company: it is obvious that the only use of the certificate in the hands of Simm and Ingelow was to empower them to transfer the stock, or to enable them by producing it to show to an intending buyer that they had been admitted as members of the company-in other words, that certificate declaring Simm and Ingelow to be upon the register was issued in order that they might hand over the stock to a subsequent purchaser. That certificate would raise an estoppel against the company in favor of a subsequent purchaser from Simm and Ingelow acting for Burge & Co., because by that certificate the company have made a statement of facts which must be taken to be known to them, and cannot be known to a subsequent purchaser, and because the certificate was issued in order that a subsequent purchaser might act upon it. These facts fall within the well-known principles of estoppel. To my 29 ENG. REP. 35 1879 Simm v. Anglo-American Telegraph Company. mind, however, a person buying from Burge & Co. would have no title to any stock: he would not be a stockholder in the company: he would not be entitled to have stock delivered to him by the company: his only remedy would be in damages. And, whatever may be the rights of a purchaser from Burge & Co., no representation was made by the company to Burge & Co. upon which the latter acted. It is not necessary to consider it, but I doubt much whether any representation was made by the company which could raise an estoppel, even if Burge & Co. had acted upon it: for it seems to me that neither of them made any representation in order that it might be acted upon by the other party. 211] *As to the second ground, I think it right to say that, even if there was a representation by the company to Burge & Co., their substantial and legal position has not been altered by that representation, and that there being no alteration of circumstances by reason of that representation, there can be no estoppel against the company. But it seems to me that if a representation was made by the broker who sold to Burge & Co., they had a right of action against him, and that remedy exists just as much at this moment as at the time when the representation was made. It is possible that Burge & Co. might have had some remedy under the rules of the Stock Exchange. If the remedy created by the law remains intact (and by supposition of law that is a perfect remedy), I doubt very much whether the loss of the remedy under the rules of the Stock Exchange would be sufficient to raise an estoppel; but it seems to me that Burge & Co. now have the same remedy under the rules of the Stock Exchange as they had at the moment of the company registering Spurling and Skinner, and therefore that the position and the legal rights of Burge & Co. are not in any way altered. They have their claim for breach of contract against the broker who sold to them; they have the same remedy against that broker under the rules of the Stock Exchange which they had before, and if nothing could have hindered them from availing themselves of that remedy upon discovering at the time the nature of the transaction, nothing prevents them from availing themselves of it now. It has been further argued that Burge & Co. have been put to rest as to their remedy. Possibly they have been put to rest, but it seems to me that that is not sufficient: it must be shown not only that they have been put to rest, but also that they have been damaged by being put to rest. I can understand that it may be held that if a person is Anglo-American Telegraph Company v. Spurling. 1879 put to rest by a representation, and if by the delay in enforcing his remedy he suffers damage, he has the same rights as if his position had been altered at the time of the representation; for instance, if a representation had been made by the company, and if Burge & Co. had been put to rest as against the broker who sold to them, and if between the time when they were put to rest and the time when they resolved to act the broker had become insolvent, they would have suffered damage, and the case would have [212 fallen within Knights v. Wiffen ('), and they might be entitled to recover. I do not, however, think it necessary to say whether an action by them would be successful under these circumstances. At present I do not venture to differ from Knights v. Wiffen (1); I understand that the learned judges construed a certain statement as having not merely its ordinary meaning, but also a mercantile meaning, and they were of opinion that the mercantile meaning of the statement was that the defendant had sold the goods separated from other goods and held them for the benefit of the plaintiff. I confess it seems to me that in that case two well known doctrines were mixed up, the doctrine of estoppel, and the doctrine of attornment by a warehouseman who has goods in his hands. But in any point of view Knights v. Wiffen () does not govern this case, even if the company did make a representation, and even if the doctrine as to putting another person to rest be true; for in the present case there is no evidence that Burge & Co. sustained damage by being put to rest. I have stated my views at length, but the case is important, and I have thought it right to point out what are the reasons, which have convinced me that the judgment of Lindley, J., cannot be supported either on the grounds assigned by him or on any other grounds. In my opinion there was no estoppel between Burge & Co. and the telegraph company, and our judgment ought to be for the company. It is unnecessary to say anything as to the action brought by the telegraph company. COTTON, L.J.: In this case we have the misfortune to differ from Lindley, J., and I think it right to say at starting that he appears to have delivered not a considered judgment but a judgment immediately after the case had been heard in order to prevent delay: therefore he had not had leisure to review the case in all its aspects. The first action is founded upon the supposition that as against the company the plaintiffs are entitled to be treated as stockholders, and (1) Law Rep., 5 Q. B., 660. (2) Law Rep., 3 Q. B., 584. 1879 Simm v. Anglo-American Telegraph Company. it is brought on the ground that the company have denied to them the rights of stockholders. When the real facts are ascertained, it is clear that independently of the question of 213] *estoppel, the action cannot be maintained; for the title of Simm and Ingelow has its origin in a forged transfer from one Coates. The stock which they claim is still at law and in equity vested in Coates, and he alone is entitled to be registered as the holder of it. But it has been urged that by the doctrine of estoppel the plaintiffs are to be deemed the owners of it, and the question has been argued as if Burge & Co. were the only plaintiffs; I will, therefore, deal with the case upon that footing. I will first consider what is the meaning of the words "title by estoppel" or if that phrase be objected to, "right by estoppel." As I understand, it means that where one person makes to another a statement which is afterwards acted upon, in any action afterwards brought upon the faith of that statement by the person to whom it was made, the person making it is not allowed to deny that the facts were what he represented them to be, although in truth they were different. It has been contended that upon this doctrine Burge & Co. had a right of action against the company, and reliance has been placed upon In re Bahia and San Francisco Ry. Co.(), and Hart v. Frontino, &c., Gold Mining Co. (), but they were in truth very different. In the present case certain persons on behalf of Burge & Co. took to the company a transfer purporting to be executed by Coates: he was in fact a stockholder, but the transfer was a forgery, and the question is whether the company by issuing a certificate of registration to Simm and Ingelow, the nominees of Burge & Co., in any way made a representation, which prevents them from now saying that Simm and Ingelow are not the owners of the stock. I need only refer to the first of the two cases which I have mentioned, in order to show how different they are from this: there the persons making the application were not in the position of Burge & Co., but were in the position of a person who might have bought the stock in open market from the nominees of Burge & Co., and might have paid the price upon the faith of the certificate of registration issued by the company. To a buyer who did not know the real facts, the certificate would amount to a representation that the sellers were entitled to the stock, and under the doctrine of estoppel the buyer might maintain an action against 214] *the company, not as the real owner of the stock, but as a person whom the company were bound to treat as (1) Law Rep., 3 Q. B., 584. (2) Law Rep., 5 Ex., 111. |