190 A.D. 244 | N.Y. App. Div. | 1920
The plaintiff, a customer of the defendants’ firm, had two accounts, “ regular ” and “ special.” He sues upon an account stated in the regular account. The special account was “ margined ” solely by the regular account. The defendants counterclaim upon a balance in the special account struck by deduction of the amount due plaintiff in the regular account. At the close of the testimony at Trial Term, the court, under plaintiff’s exception, took the case from the jury and gave judgment for the defendants. This was a decision that the plaintiff was not, and the defendants were, entitled to this judgment despite any findings by the jury that could be justified by the evidence. (Stone v. Flower, 47 N. Y. 566.) The defendants must maintain that there could be no question of fact determined in favor of the plaintiff that entitled him to a judgment. (Middleton v. Whiiridge, 213 N. Y. 499; Carlisle v. Norris, 215 id. 403.)
I think that the learned court erred. The evidence justified a finding that at a period in the special account there was no deficit. The plaintiff testifies that at that period he gave notice that there must be no more transactions in the special account. I think that an issue was thus raised for the jury. In 1914 the plaintiff was introduced to the defendants as a customer by Mayhew. Thereupon the regular account was opened, and thereafter maintained comparatively inactive. Mayhew was an employe of the defendants. At his instance, early in 1916, the special account was opened for speculative transactions. The plaintiff testifies that at first the dealings therein were suggested by Mayhew for plaintiff’s preliminary authority, later that Mayhew had free hand subject to daily report and statement followed by monthly statement, still later this discretion was withdrawn, and finally, in October, 1916, the special account was closed with profits. The plaintiff testifies that in December, 1916, he authorized Mayhew to reopen the special account, and that dealings were had therein until about June 1,1917, when he directed Mayhew to have the special account closed as to all future transactions, and to have it kept open only for the retention of two stocks therein which then showed a profit and were to be sold if ordered by the plaintiff or whenever the margin, in the judgment of the defend
The jury could have found that all of the orders of the plaintiff for the special account were given to Mayhew, were executed by the defendants under Mayhew’s communications to them, and were recorded in the firm books. I think that the court should have determined that in these doings Mayhew was the agent of the defendants. (Franklin Bank Note Co. v. Mackey, 158 N. Y. 140, 147; Mechem Agency, § 105; Gulick & Holmes v. Grover, 33 N. J. Law, 463, 473.)
The plaintiff testifies that he gave this notice to stop all transactions in the special account to Mayhew. If so, the notice was given and received by Mayhew within the scope of the authority and of the duties cast upon him by the defendants, and, therefore, notice to the agent Mayhew was notice to his principals, the defendants. (Henry v. Allen, 151 N. Y. 9; Ingalls v. Morgan, 10 id. 178, 184. See, too, Boyd v. Yerkes, 25 Ill. App. 527.) The doctrine that notice to the agent is notice to his principal, rests upon the duty of disclosure by the agent and the presumption of the discharge of that duty; but the presumption ceases if in the matter affected by such notice the interest of the agent is adverse to that of his principal. (Benedict v. Arnoux, 154 N. Y. 728; Brooklyn Distilling Co. v. Standard D. & D. Co., 193 id. 551, 555.) It has not been, but it may be argued that the interest of Mayhew was adverse because the cessation of transactions in the special account ended the possibility of future profits. But the defendants knew nothing of this agreement until informed by the plaintiff at the time of the discovery of the deficiency. If at the time of the notice to cease all transactions in the special account there was a profit, Mayhew’s interest was not adverse and for the reason
There is no evidence that the defendants actually received this notice, but if it was given to Mayhew and he did not convey it to the defendants, his failure was a breach of his duty to them, but that failure could not affect the plaintiff. (Cox v. Pearce, 112 N. Y. 637, 641.) Whether the plaintiff gave the notice to Mayhew depends upon the plaintiff’s testimony alone. None but Mayhew could contradict him, and Mayhew was discharged by the defendants after their discovery of wrongdoings, and this record knows him no more. But the credibility of the plaintiff was not for the court, but for the jury, under the rule of Hull v. Littauer (162 N. Y. 569).
If the jury find that the plaintiff did not give the notice to Mayhew, the situation is quite different. The plaintiff had left the special account open. Admittedly the plaintiff for a long period had authorized the dealings of Mayhew with the account, and during that period in effect had ratified them. Mayhew but continued his transactions in that special account for the plaintiff and in the same fashion.
If the plaintiff gave the notice to Mayhew and yet Mayhew continued his dealings with the special account, then he imposed upon the defendants while acting in the scope of his authority and his duties as their agent (Birkett v. Postal Telegraph-Cable Co., supra), and the consequent losses are those of the defendants under the rule declared in Caswell v. Putnam (120 N. Y. 153, 158; and see Lee v. Village of Sandy Hill, 40 N. Y. 448), unless the plaintiff forfeited the benefit of the rule.
The defendants contend that plaintiff did forfeit such benefit, in that he had made this agreement with Mayhew to divide the profits on the special account. The motive for this agreement is not indicated by the evidence. It may have been friendship — for plaintiff and Mayhew were old acquaintances. It may
The evidence upon the new trial as in the trial under review may well justify the conclusion that the loss was due to the fault of Mayhew alone, and the case may come to application of the doctrine that is a rule of last resort (Rapps v. Gottlieb, 142 N. Y. 168), of the liability of one of two innocent parties.
The evidence could have justified the finding that the plaintiff and the defendant were the two innocent parties; that Mayhew, despite the directions of the plaintiff, continued these transactions in the special account left open, and imposed upon
I advise a reversal of the judgment and the grant of a new trial, with costs to abide the event.
Mills, Rich, Putnam and Blackmar, JJ., concur.
Judgment reversed and new trial granted, costs to abide the event.