[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 111 The principal question for our consideration, upon this appeal, is whether the evidence adduced by the plaintiff made out a case against the defendant and justified the direction of the verdict for the plaintiff. It is contended, on behalf of the defendant, that the evidence was insufficient to prove that Smith was the defendant's agent in the transaction of the brokerage business conducted at the Glens Falls office. Upon the conclusion of the plaintiff's case, the defendant's counsel moved for a nonsuit upon this and other grounds. *Page 113 The motion was denied and exception was taken. The defendant then rested; offering no evidence. Whereupon, the plaintiff moved for the direction of a verdict in its favor; the trial court granted the motion and the defendant excepted. As neither party had asked to go to the jury upon any question of fact, the court was authorized to determine the case, as one of law, upon the facts in evidence, and if there was any evidence to sustain the determination made, it is conclusive upon the parties. The defendant, in effect, by requesting the court to determine the case upon his motion for a nonsuit, treated the questions as purely legal and acquiesced in their disposal by the court. The exception to the direction of a verdict for the plaintiff avails, only, to bring up the question of the sufficiency of the evidence. (Barnes v. Perine, 12 N.Y. 18; Dillon v.Cockcroft, 90 ib. 649.) The appellant does not appear to question this rule and relies upon the absence of "legal proof * * * showing that Smith was authorized to act as agent of the defendant" and upon the inadmissibility of his declarations to show authority.
The difficulty confronting the plaintiff, in making out a case, was not inconsiderable. The defendant was a foreign corporation, having its principal office in Boston. While admitting in its answer that its office was connected with Glens Falls through the lease of a private telegraph wire, all other allegations as to its connection with, or responsibility for, Smith's acts were denied. The plaintiff, however, succeeded in showing that the office in Glens Falls had been in existence for some time and had several signs about it, upon which, in large letters, appeared the name of the defendant; that the Western Union Telegraph Company had leased to the defendant a private wire running into the office; that the defendant kept a deposit with a bank in Glens Falls; that in the course of the bank's dealings with the defendant, it had furnished to Smith, at least once a week and sometimes oftener, drafts to the order of the defendant and had received and cashed drafts sent by the defendant to him and that these transactions ceased on May 5th, 1906, the date when the office *Page 114 was closed. The writings, or contracts, which evidenced the transactions of purchase by the plaintiff, or by his assignors, bore upon each the name of Smith "correspondent J.J. Quinlan Co., Boston, Mass." It was shown that, at the time of the transactions in question, two customers of the office, who had received from Smith similar contracts, evidencing purchases of stocks for their accounts, had sent an attorney to Boston and that, within a few days after the closing of the office, they had been settled with by the defendant and had received their certificates through the bank in Glens Falls; upon their paying to the defendant the balances due upon the purchases. This evidence sufficiently justified the inference that Smith was representing the defendant. The circumstances, which were disclosed by the evidence, taken together, imported an agency in Smith and that he was conducting a branch office of the defendant's business. Assuming that the evidence may be regarded as slight, it was sufficient, under the circumstances, to cast the burden upon the defendant of rebutting the inferences, if untrue, by other evidence showing the truth. It was, presumably, within the power of the defendant to disclose the truth as to its relations with Smith and, if depending upon an inability on the part of the plaintiff to prove its case and refusing to give evidence in explanation of circumstances tending to connect it with the ownership of the business of the branch office, it subjected itself, and justly so, to all fair inferences, which those circumstances warranted. Its refusal to give any evidence was a circumstance, which might be taken into consideration, and that presumptions, unfavorable to it, might be indulged in upon the evidence, was a consequence to be expected. The plaintiff was only required to make out a prima facie case and, having done so, it behooved the defendant, if not liable, to repel the presumptions of liability.
So, when testimony by the plaintiff as to conversations with Smith, concerning the defendant, its business, his agency and the closing of the office by its orders, was admitted over the defendant's objection, if nothing more had been shown than *Page 115 the plaintiff's transactions with Smith, the admission would have presented a material error. The mere declarations of Smith to the plaintiff would have been incompetent to establish his agency for the defendant. An agent cannot create an authority in himself to bind another by asserting his authority to do the particular act. When, however, the evidence of the conversations with Smith was admitted, a prima facie case had been made to the effect that there was some connection between the defendant and Smith and that responsibility for some of the brokerage transactions had been recognized. To admit the declarations of Smith, therefore, was not error. It was proper as supplementing the previous evidence.
It is, also, contended on behalf of the defendant that the failure of the plaintiff and of his assignors to make a tender of the balance of the purchase price of the stocks was fatal to a recovery. This action was in trover, for the conversion of the securities purchased for the plaintiff and for his assignors, and, there having been an actual conversion, a demand upon the defendant was unnecessary to render it liable. This rule is well settled. (See Amer. Eng. Encyc. of Law [2d ed.], vol. 28, p. 686 where cases collected.) The property in the stocks purchased by the defendant was in the plaintiff and his assignors, and the relations between the parties were those of pledgors and pledgee. (Markham v. Jaudon, 41 N.Y. 235; Content v. Banner, 184 ib. 121.) The sale, therefore, without notice to, or the consent of, the plaintiff and his assignors constituted a conversion. There was no agreement permitting it and there was no default on their part justifying the act. No error was committed with respect to the question of damages. The evidence showed that the recovery was based upon the highest market prices within periods varying from a few days to within two months of the conversion and it was quite within the rule in the cases. (Baker v.Drake, 53 N.Y. 211; Wright v. Bank of the Metropolis, 110 ib. 237.) In the situation of the case, the trial court was authorized to deter mine, as a question of law, what was a reasonable time.
It is not necessary to say that all of the rulings upon the *Page 116 trial were correct; but none was of such materiality as to justify the ordering of a new trial.
I think the judgment was right and that it should be affirmed by this court.
CULLEN, Ch. J., EDWARD T. BARTLETT, WERNER, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur.
Judgment affirmed, with costs.