If the justice before whom this cause was tried at the circuit was correct in stating to the jury, “ If McNair had authorized Mackay to buy 500 shares of stock, and he had bought only 100 shares, McNair would not be liable, for Mackay would not have carried out his directions," the verdict must be sustained. If this ruling was correct, the case would have presented a conflict of evidence as to the authority to purchase 100 shares, which would be the only question for the jury, and this decision should not be disturbed.
An agent who is commissioned by his principal to purchase a certain specific amount of property, is a special agent, and can no more purchase a smaller than a larger quantity of what he is commissioned to purchase. Five hundred shares of a certain kind of stock may be of sufficient importance to a purchaser in his calculations and hopes of profit, when one hundred shares may not be sufficient to induce him to incur any risk, and may not at all answer the purpose for which he wants it. It is like the purchase of the mulberry trees, in Davenport v. Buckland, (Lalor’s Sup. 75,) where the agent purchased only five hundred instead of six hundred dollars worth of trees, which his principal had ordered. There may be cases, undoubtedly, where the purchase of a smaller quantity than that ordered would be deemed valid as an execution of the authority pro tanto. But such cases could only be where an express or implied discretion was committed to the agent in the exercise of his authority. No such discretion could be implied in the case before us, from the language employed by McNair, if what he said to Mackay can be regarded.
The judgment should be affirmed with costs.
Leonard, Clerke and Sutherland, Justices.]