delivered the opinion of the Court.
This action was brought by the appellee, against the appellant and Louis Rosenstoek and Jacob Hoflin jointly. The latter was returned non est, and the case proceeded against the other two. The declaration contains the common counts in assumpsit, to which the general issue was pleaded. The cause of action, according to the testimony offered by the plaintiff, arose thus: The plaintiff' ivas a stock broker, doing business in the city of Baltimore, and on the 4th of October, 1866, Nathan Hoflin, who, for some time, had been dealing with him in a similar way, under the name of J. Hoflin, came to the plaintiff’s office and ordered him to buy one hundred shares of Illinois Central railroad stock on the joint account of J. Hoflin and his two co-defendants. The plaintiff immediately, and, as ho states, according to the course of trade and the regular custom of the business, wrote to his correspondents, Dibble & Cambloss, brokers in New York city, directing them to purchase, and they accordingly bought the stock at $128 per share, and he paid them the purchase money ($12,825) therefor. The defendants failed to pay hinq and subsequently, on the 16th of April, 1867, after notice to the defendants, and according, also, to the due course of trade and the custom of the particular business, he directed Dibble & Cambios to sell the stock in New York, and it was there sold by them and brought but $11,400. The plaintiff now seeks to recover the difference between the amount thus paid in the purchase and that realized from the sale of the stock.
Before examining the questions raised by the exceptions, we deem it proper to state generally the legal relations, duties and obligations of the parties growing out of this order, and what was necessary to be done in its execution, and the subsequent sale of the stock, to entitle the plaintiff to recover under the pleadings in this case. Assuming, for the present, that Hoflin was duly authorized to give the order for and on behalf of the defendants, the plaintiff thereby became and was constituted their agent to execute it, and if) by reason of
Usage and custom of trade and business have been relied on by the plaintiff, who, in his testimony, says that in this transaction he had done all that was usual and customary in the purchase and sale of stocks, and had followed therein the due course of trade and the custom of the particular business of buying and selling stocks on orders. In a recent case decided by the Court of Exchequer, in 1869, (Maxted vs. Paine, 4 Law Reports, Court of Exch., 210,) some very forcible and pertinent observations on the subject of usages of the Stock Exchange were made by Baron Cleasly. “I do not wish,” says he, “to be understood as expressing an opinion that the plaintiff would be bound by any usage which a Court of Law would consider unreasonable. I think, on the contrary, he would not, unless he had actual notice when he authorized the contract to be made, of the particular usage. A man may, of course, if he thinks proper make a contract with any stipulations in it which are not unlawful, as for instance, that he will not enforce it without the authority of some particular officer or committee; but such a usage would not; I think, bind a person having no connection with the Stock Exchange and no actual knowledge of its usages, simply because he employed a stock-broker, to contract for him even though it was within the authority of the broker to make the contract on the Stock Exchange. It is true the jobber contracts with the broker according to the usages of the Stock Exchange, but if he knew and he generally does know that the broker was contracting for an outside principal, then he could not say as against that outside principal the contract is an act which according to our usages cannot be enforced. It seems to me that in the proper view it is a question of principal and agent, and what is the agent’s authority. If the principal forbids
2d. By the second exception a question, not vital to this case, but important as a matter of practice, is presented. The plaintiff proved that, when Hoflin gave the order, one of the defendants, the appellant, was standing immediately behind, near enough to hear when he instructed the stock to be charged to the three defendants. To the admission of this or any other statement of Hoflin to bind them, the defendants objected, upon the ground that proof, Constituting him their agent, with authority to bind them, should be first given before such statements were admissible or receivable in evidence. But the Court admitted the statement, upon the undertaking and offer of the plaintiff’s counsel to follow it up with the requisite proof of such agency. It has been held, in a series of decisions by this Court, that evidence relevant and pertinent to the issue is to be admitted without reference to the order of its production; the particular order in which a party may choose to introduce his proof being a matter for his exclusive consideration. Whatever inconvenience this practice may sometimes occasion, it has become too firmly settled to be now disturbed. It is also a settled rule of practice, where evidence which, per se, may be irrelevant, but which may become material if followed up by proof of other circumstances and facts, material and competent, with which it may have an important connection, for the Court to accept
3d. The third exception was taken, as we understand it, exclusively to the admission of the letters of Dibble & Cambloss, the New York brokers and agents of the plaintiff, to prove the purchase and subsequent sale of the stock. In admitting these as evidence for that purpose, an error, material and fatal to the judgment, was committed. We have already said that, whilst it was competent for the plaintiff to execute the order and enforce his rights by a purchase and sale of the stock in New York, yet he must establish these facts by legal and competent proof. Without an express agreement to that effect, no usage or custom of trade can be allowed to override the plain rules of evidence, and give to the mere letters of a broker, stating his accounts of purchases and sales, the force and effect of records or judgments importing absolute verity, or impart to the unsworn statements they eontain the same eiScacy as if made under the sanction of the oaths of the writers, with opportunity of testing their truth and accuracy by a cross-examination. The plaintiff’s own letter, written immediately upon receiving the order directing the New York brokers to buy, was admissible to prove that he was prompt to take the necessary steps to execute the order, and gave proper directions to that end; but it would violate cardinal rules and principles of evidence to receive their letters to him to prove, as against the defendants, that the slock was actually purchased and sold in New York.
,4th. If the purchase in the mode we have pointed out had been established by competent proof, the plaintiff was not bound to make an actual tender of the stock to the defendants. We have said it was sufficient.if he notified them of the fact of the purchase, and had certificates of the stock, or other usual evidences of title thereto, in his own hands, or in those of his New York agents, ready to be delivered or transferred to the defendants upon their tender of payment therefor. Nor was it necessary that the subsequent sale upon default should have been made at a public sale or at a public stock board, and at no other place.t A sale, publicly and fairly made, at the stock exchange or a stock board or at a brokers’ board, where such stocks are usually sold, would have been good. In Dalrymple’s Case, 25 Md., 242, it was held that a sale at the brokers’ board, publicly and fairly made by the pledgee of stock, under authority from the pledgor to sell upon default, without further notice, was legal and valid. There was, therefore, no error in the rejection of the defendants’ third prayer.' Their sixth prayer was also properly rejected, because there was in evidence to the jury the positive testimony of the plaintiff, that he had Cactually paid to his New York agents the $12,825 for the stock, which he had directed to be purchased under the defendants’ order.
5th. It is not necessary to decide whether upon the evidence which the Court admitted, the instruction granted at the instance of the plaintiff was' correct, because, as we have shown, there was a fatal error in admitting in evidence the letters objected to, which constituted the only proof of any.
Judgment reversed and new trial awarded.