40 N.Y.S. 130 | N.Y. App. Div. | 1896
Lead Opinion
The action was "brought, to recover" the balance of an account which the plaintiff claimed against the defendants. It Ayas conceded that for a considerable time before the month of February, 1893, the defendant .Campbell had been in the employ of Brown, Riley & Co., who were brokers in the city of Boston. -During that time the. plaintiff,.who was a personal acquaintance and friend of Campbell, had procured to have purchased by the firm of Brown, Riley & Co., 200 shares of stock of the Louisville, NeAV Albany and Chicago Railroad Company upon a margin; and to secure BroAvn, Riley & Co. he had deposited with them as collateral thirty-one • shares of stock of the Oregon.'Railroad and Navigation .Company.-. In February, 1893, there was due to BroAvn, Riley & Co. for their advances for the purchase of the Louisville, New Albany and Chicago stock about $4*200, while the value of the stocks held by them belonging to the plaintiff amounted to Something in the neighborhood of $7,000, leaving" about $3,000 apparently due to. the plaintiff.
In the early part of February, 1893, Campbell severed his connection with Brown, Riley & Co., and became a partner in the firm of Clark, "Ward & Co., the present defendants, and the account of the plaintiff was transferred , by Brown, Riley & Co. to Campbell’s new firm, who paid to Brown, Riley & 'Co. the amount due on the stocks and held them for the plaintiff as the former firm had done.
It appears that these 200 shares of stock which were bought upon a margin by Brown, Riley & Co. for the plaintiff had been Carried by them for a long time, and it -is fairly to be inferred from the testimony that it was the only speculative transaction which they had had in behalf of the plaintiff.- The' plaintiff testifies that, he was induced to buy this particular stock upon speculation, because Mr. Campbell was a director of the company and had adAdsed him to buy" it, .and that he bought it and carried it upon the faith -of Campbell’s recommendation. He say's that he had no other speculative transaction, arid this is not denied by Campbell and must be assumed to be the truth of the case.-
The defense set up is that the defendants had purchased the Reading bonds; that such purchase had been authorized by the plaintiff, or was subsequently ratified by him; that the result of the purchase was a loss, so that in fact there was nothing due to the plaintiff as a balance upon the stocks which the defendants held on his account. Upon the trial in the Court of Common Pleas, the plaintiff had a verdict for what was conceded to be due him if the: purchase of the Reading bonds was not authorized or had not been ratified. A motion for a new trial was made upon the ground that the verdict was against the weight of evidence, which was denied by the learned justice who presided at the court, and judgment was thereupon entered for the plaintiff. From that judgment' and the order denying a motion for a new trial this appeal was taken.
It is apparent that the questions which must be decisive-of this-, case are, whether there was original authority given by the plaintiff' to the defendants through Campbell to purchase the Reading bonds-on his account, or, if no such authority was given, whether that purchase was -subsequently ratified.
Just what questions were submitted to the jury by the trial judge does not appear in the record, because the charge is not printed but we have a right to assume upon this appeal that the defendants;
So far as the parol testimony is concerned, but two witnesses were sworn, the plaintiff on his own behalf, and Campbell on behalf «óf the defendants! Both agreed that shortly before the 11th of February, 1893, the plaintiff called upon Campbell at the office of the defendants in the city of Boston, and that there took place a conversation with regard to the business transactions between the defendants’ firm and the plaintiff. As to what was said at that time the parties are sadly in conflict. The plaintiff says that the final result of the conversation was that Campbell was to buy for him, if lié' sáw añ opportunity, some ¡stock of the Lamson Cash Carrier Company which would cost from $1,400 to $1,500 for 100 shares; that he told Campbell he would like to. have him buy him 100 ¡shares of it; that no other stock was talked of, and that he had repeatedly and distinctly told Campbell that he would not under any circumstances speculate, because, being a married man and having a child, he did not think it would be proper for him to speculate,-and he refused in every way to do it, and that Mr. Campbell Tunder'stood that distinctly. -The plaintiff states positivély that at that time there was nothing said about buying any bonds, and that there was no authority given to "buy any stock except that of the Lamson Cash Carrier Company. . Mr. Campbell says that the "business of the plaintiff with Clark, Ward & Co. was generally talked over, and that, after discussing as to purchases and business Tor the plaintiff’s account, the plaintiff' offered to transfer that account, using the equity in it as security for any further purchases that he might make ; that the plaintiff “ came in to, discuss generally the market, the situation in stocks, and stated that now he was out of business, having been in -the dry goods business, and that he had a family to support, and that if possible he would like to make a dollar, and. if I could help him he would like to "have me do it.” He says that then followed a general discussion of the general con
No other testimony was given by Campbell as to this conversation, and there is no claim that there was any further communication with the plaintiff about business until after the purchase of the Reading bonds, which was made on the l'Tth of February, 1893. As was said, the notice of this purchase reached the plaintiff on Saturday, the day after it was made and after business hours, so that he was unable to communicate with defendants until Monday, February twentieth. The plaintiff says that pn that day he had a telephone communication with Campbell in which he said that Campbell had no authority to buy anything but the Lamson Carrier stock; that they had never talked ‘about Reading, or any other stock than the Lamson stock, and that he declined to have .anything to do with it; that he wanted nothing to do with Reading; that he wanted no speculation; that defendants had no authority for that, and that he would have nothing whatever to do with Reading or any other speculative stock; Campbell, admitting that there was a conversation over the telephone on Monday, says positively that no such conversation took place as is stated by the plaintiff, but that he discussed the situation or condition of the Reading Company and the prospect and current rumors in Philadelphia, his disturbance over the situation, and his féar that the security might go still lower, and, finally, said that he should want to rely upon the defendants to look after the thing for him. Campbell says positively that the plaintiff did not repudiate the transaction in any way. This was the sum of the oral testimony with regard to the matter. '
Upon this testimony it is quite clear that there was not only a conflict but a sharp conflict of evidence for the jury to decide.' But' the defendants, admitting that, claim that the correspondence which is in evidence, and which it is concéded took place between the parties with regard to the same transaction, is such as to conclusively contradict the plaintiff’s story that lie repudiated the transaction,
While considering- the weight to be given to this testimony, it is necessary to bear in mind the precise question to be presented to the jfiry, and the position which each party took with regard to it. The fact that the plaintiff was liable for the purchase price of these bonds was set up by the defendants as an affirmative defense. ' Upon them, therefore, lay the burden, not only of proving the purchase of the bond's, but, of proving either that that purchase was authorized, or, if. not authorized, that it was, subsequently ratified so that the plaintiff. was bound by it. All the testimony with, regard to the original authorization has been stated- in the former part of this opinion, and it is-quite clear that the. jury might have found from that that Campbell was.-not.authorized;to make any such purchase or any purchase. Indeed, it seems to us that upon that branch, of the case there-can be. no question that the defendants entirely failed to show an original authorization. It appears in the case that the plaintiff had. had but one speculative, transaction. Nobody pretends anything to the contrary. All the- authorization that the defendants claim is- that which was sworn to by Campbell, and it is very evident, .that what was saiddo Campbell does not amount to an authority to buy stock upon speculation,, unless a much broader construction is-given to it. than the words-themselves would seem to indicate. The most that Campbell says is that the plaintiff told him he would like to.make a dollar'if he could, and that if Campbell would help - him he would like to have him do it. This, standing by itself, is a long way from giving authority to a man to enter into any speculative transaction, and taken in consideration with the fact that neither the defendants’ firm nor Campbell had ever done any such business generally for the plaintiff, it practically required the -jury to find that: there was no original authority.
In order that the defendants might succeed, therefore, they were-obliged to show that.this transaction was ratified by the plaintiff. "The burden of proof lay upon' them from the beginning to the end of the case to do this thing, and in analyzing this evidence it is necessary to bear this in mind. Upon that point the defendants held the affirmative throughout 'the trial, and their relation to the question never changed. Of course, it happens frequently during the pro
What was the fact to be established by the defendants ? It was that the plaintiff, having given no original authority to purchase this stock, ratified the act of the defendants after he had been advised of it. In this case no rights of third parties are involved. Hnder such circumstances a ratification rests upon the actual and existing purpose to approve the act that has been done. It is a thing which rests within the intention, where the question is between the original parties, and depends upon the fact and not upon appearances. (Glenn v. Garth, 133 N. Y. 18.)
Before one is called upon to ratify any unauthorized transaction which has been undertaken for him he is entitled to have all the facts put before him, and after he has received that knowledge he is entitled to a reasonable time in which to act before he can be compelled to take his position with regard to the transaction. (1 Am. & Eng. Ency. of Law [2d ed.], 1205.) So the question here was whether the defendants had satified the jury by a fair preponderance óf evidence when this case closed that the plaintiff, with knowledge of all the circumstances, having a reasonable time to consider the matter, had ratified this transaction which in his name had been entered into without authority.
The defendants claim that the story of the plaintiff is so contradicted by the letters which are presented in the case that his evidence is entirely overthrown and a verdict based upon it cannot stand. The first letter was written on the 20th of February, 1893, which was Monday. It was two days after the plaintiff had received notice of the transaction. It was the first communication, except the telephonic communication, which he had made. It refers to the telephonic communication. It does not, however, state that by the talk
In this particular case, if no testimony whatever had been given, •the defendants surely would have been defeated. Even had the
The judgment and order should be affirmed, with costs.
Patterson and Ingraham, JJ., concurred; Van Brunt, P. J., and Williams, J., dissented.
Dissenting Opinion
The action was brought to recover an amount alleged to he due and owing by the defendants who were stockbrokers to the plaintiff. The
Theplaintiff offered to repay the loan and demanded the return of his stock deposited as collateral. The defendants refused to surrender the collateral upon the repayment of this loan, claiming that they had .also advanced for the plaintiff the further sum of $4,212.5,0 in the purchase of Pennsylvania and Reading preferred, income bonds of the par value of $10,000, for which they paid forty-twó cents on the dollar, their commission being $12.50j and that the collaterals were . held as security for this indebtedness, as well as the former indebtedness of $4,368.59. The plaintiff denied this additional indebtedness,. and the issue tried related to this difference between the parties. It was agreed that the total amount of the plaintiff’s claim upon his theory, including interest, was $3,075.02, and for this amount the jury rendered a verdict. There: was a motion to dismiss the plaintiff’s complaint made at the close of the plaintiff’s evidence, which vvas denied, the defendants taking an exception. There was no motion made at the close of- all the evidence to take the casé from the jury. No objection was made to the submission of the case to the jury. The charge is not in the record upon this appeal. There was a motion made for a new trial upon the minutes, upon the ground, among others, that, the verdict was contrary to the evidence, and this motion was denied, the defendants taking an exception. This raised the question which is discussed upon this appeal, and which the defendants claim calls for a reversal of the order and the granting of the motion for a new trial.
The questions of. fact tried and submitted to the jury were:
1. Whether the defendants tvére originally authorized to purchase the Pennsylvania and Reading bonds for the account of the plaintiff, and, if not,
2: Whether the purchase having been made under the claim of authority, the plaintiff ratified the purchase.
The only witnesses sworn were the plaintiff and the defendant Campbell, but there were some letters Written by these witnesses, which were put in evidence. The appellants claim that the jury,
It is not claimed that there was original authority to purchase these specific bonds. There was no talk about these bonds before they were purchased. On the 14th day of February, 1893, the parties had an interview in Boston. They do not agree as to the particulars of this interview. The plaintiff, in brief, testifies that there was talk about having defendants purchase for him 100 shares of certain stock, but no other stock or bonds were talked about, and he, plaintiff, stated that he would not speculate in any possible way. While the defendant Campbell testifies that there was a general discussion of the stock market, and that the plaintiff said he would like to make a dollar if he (Campbell) could help him do it, and that he wanted him (Campbell) to buy something for him that he could make a profit upon, if he could. The defendants claim that, as a result of this interview, they had general authority to purchase anything they thought would pay the plaintiff a profit. These witnesses are both parties to the action, their credibility was for the jury, and the jury had a right to believe the plaintiff and to disbelieve the defendant Campbell, and their finding as to the real nature of this interview will not he disturbed by this court on appeal, unless the subsequent transactions between the parties as developed from their other evidence and their correspondence were such as to require the jury to credit the defendants’ evidence rather than the plaintiff’s, with reference to this particular interview.
The plaintiff, after this interview, left Boston and went to Philadelphia. On the 17th day of February, 1893, Friday of the week, the defendants purchased the Pennsylvania and Reading bonds for the account of the plaintiff. On the same day the defendant Campbell wrote the plaintiff, advising him of the purchase that had been made for him; that he (the defendant Campbell) regarded the purchase as a good one; that he would look after the bonds, and would sell when they went up. This letter was received by the plaintiff the next day, Saturday, after business hours, and too late to
On the same day, Monday, February 20, 1893, the plaintiff wrote this defendant a letter, which w¡as put in evidence upon the trial, wherein the plaintiff discussed the rumors current in Philadelphia as to the railroad company whose bonds had been purchased, and said : “You can imagine my surprise when 1 found you had bought Reading 3ds., when, as I say,. it was known, * * * . there seemed-no probable way that (the company) could, escape bankruptcy. * * * Could you expect me to buy into a ‘ lawsuit ? ’ You know-my position. * * * Please let me hear from you by return mail. I’ve-got a fair amount of nerve, but. I’ll allow I have sensations to-night which I hope you may never experience.”
There was reference made in this letter to the telephone interview, but no claim made that he (the plaintiff) had in that interview asserted 'want of authority in this defendant to purchase the bonds, or that he had repudiated the purchase -for himself. The next day, Tuesday, February .21,-1893, this defendant replied to this letter, -and having discussed the situation .of the - railroad company, said:
The order appealed from should be reversed, and an order entered setting aside the verdict and directing a new trial, upon payment of costs of the trial, and appellant should have costs of this appeal to abide event.
Van Brunt, P. J., concurred.