The action was brought to recover an amount alleged to he due and owing by the defendants who were stockbrokers to the plaintiff. The *216¡defendants in effect loaned the plaintiff $4,368.59, and the plaintiff deposited with the defendants as collateral to the loan 200 shares of the Louisville, New Albany and Chicago Railway Company’s stock and thirty-one shares of the Oregon Railway and Navigation Company’s stock.
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, *217in rendering the verdict, must have proceeded upon the theory that there was no authority for the purchase originally, and that the purchase was not ratified, hut was repudiated by the plaintiff. The appellants are very likely correct as to the theory upon which the verdict was arrived at.
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 *218telephone that day. On Monday morning the plaintiff talked with this defendant over a long distance telephone, between Boston and Philadelphia; Both parties testify as to this interview, and they do not agree .as to its details. The plaintiff testifies that he. said to this defendant that; he,, defendant, had no authority to make the purchase; that he, plaintiff, wanted nothing' to do with these bonds, wanted no speculation, and asked defendant what he was going to do;' that this defendant said he was going- to buy • more for him, plaintiff, and hold them, and that he, plaintiff, replied that he. would have nothing to do' with, these bonds or any other speculation. While this defendant testifies that the plaintiff in this interview discussed the situation or condition of the company whose bonds had been purchased, the prospects and rumors current in Philadelphia, and his disturbance over the situation, his fear that the bonds might go still lower, and said finally that he should Want to rely upon him, Campbell, to look after the bonds for him, and that he- did not in any way repudiate the' purchase. Here, again, the credibility of these witnesses was for the jury, and either might be believed or disbelieved, unless other evidence in the case required the jury to believe one and disbelieve the -other.
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: *219“ Prices are steadier to-day, and the general feeling is that the worst is over, and that from now on we shall see an improvement. It might be policy on a, snap rise to let the bonds go with a view to buying back at a profit, but I would not advise this except on a-good sharp advance. I will watch things for you and keep you posted and don’t think in the end you will be a loser * * * Two days later and on Thursday, February 23, 1893, plaintiff telegraphed the defendants, “I positively decline to accept purchase of * * * bonds. Have written you.” And on the same day the plaintiff wrote the defendants: “ In view of our conversation when I was in Boston last week, I have wired you this morning that ‘ I positively decline to accept purchase of . * * * bonds/ I distinctly told you that I did not wish, under any circumstances, to engage in a speculation * * ' *. The whole tenor of our conversation was against anything involving risk .in a speculative way. The only definite transaction that entered into our conversation was-that * * * (as to a particular stock) I would be willing to take a small quantity * * To this letter the defendant Campbell made a reply the next day, expressing surprise, reiterating his position, etc., etc. It is unnecessary to follow the correspondence farther. If there was a general authority resulting from the interview in Boston, February 14,1893, to purchase securities, no particular ones being agreed upon, it is doubtful, in the absence of fraud, if he could repudiate the purchase at all. If there was no such general authority in fact, but the defendants assumed to have such authority, then, upon being notified of this purchase of the bonds on Saturday, the 18th of February, 1893, it was the duty of the plaintiff, if he desired to repudiate the purchase, to do so at once, promptly, and it was too late for him to do so for the first time on the following Thursday, February 23, 1893, . Unless he did so on Monday, February 20, 1893, in the telephone interview, he was bound by the purchase. It seems to us, however, considering the transactions between the parties subsequent thereto, as disclosed by the correspondence, to which we have referred, the conclusion is irresistible that there was such general authority growing out of the interview in Boston, and, moreover, that there was no repudiation of the purchase in the telephone interview on Monday, February 20,1893. The plaintiff might have used the telegraph on Saturday, February 18, 1893, to *220squarely deny any authority and repudiate the purchase, and it is inconceivable that the plaintiff would have written the letter of '.Monday, February 20, 1893, if there had beén no such general authority, or if, in the telephone interview of the same morning, the plaintiff had actually denied such authority and repudiated the purchase, as he claims he had done. The letter contains no intimation of denial of authority or repudiation; no suggestion that the telephone, interview was to that effect. The letter expressed simple surprise that the bonds had been purchased in view of the rumors current in Philadelphia, and his ideas of the condition of the railroad company whose bonds had been purchased; -and the letter closes with the statement that he, plaintiff!, could not be expected to buy into a lawsuit; that he, plaintiff, had a fair amount of nerve, but that he had sensations which he hoped the defendant Campbell would never experience, and asks for a reply. This letter was written Monday night, while the telephone interview had taken place early in the same day Moreover, the defendant Campbell’s letter, the next day, Tuesday, in reply, makes no reference to any denial of authority to purchase, or repudiation of the purchase, as having been made in the telephone interview, contains reassurances to the plaintiff that he would not be a loser in the end, and promises to watch things for the plaintiff and keep him posted. And to 'this letter the plaintiff made no reply. . Two days latter the plaintiff, for the first time, by telegram and letter, expressly declined to , accept' the purchase. This was too late, as we have said. Letters are troublesome evidence. ' They cannot be gotten rid of by parol evidence. They must be relied upon as telling the truth, while parol evidence may be easily manufactured These- letters were concededly written. They are entirely consistent with the defendant Campbell’s parol evidence. They are entirely inconsistent with the plaintiff’s parol evidence. They lead irresistibly to the -conclusion that there was- general authority originally.to purchase securities, and that there was not a sufficiently prompt denial of such authority or. repudiation of the purchase. We do- not think the jury were at liberty to disregard the effect of this correspondence and óf the transactions subsequent to February 14, 1893, and to believe the parol evidence of the plaintiff and disbelieve that of the defendant Campbell. (Boyd v. Colt, 20 How. Pr. 384.)
*221These suggestions lead to the conclusion that the verdict of the jury was contrary to the evidence in the case, and should have been set aside, and a new trial ordered.
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.