(dissenting):
There is not now, and has not been on any of the appeals in this case, any difference of view among the members of this court upon the proposition that the declarations of a partner or agent 'are not admissible to prove the partnership or agency and that such declarations can only be received to bind the partnership or principal after prima facie evidence of authority has been given. It is assumed in the prevailing opinion that the only issue in the case was “the existence of the partnership or Judson’s authority to represent Hoadley and Leiter ” and that evidence of Judson’s declarations was received to . establish the partnership. We differ only as to the correctness of that premise. Of course, no one disputes that if correct it requires the conclusion that the judgment should be reversed. It is necessary, therefore, to understand precisely what issues were involved, what the evidence in question was,, and for what purpose it was received.
It was conceded that'on April 29, 1902, the plaintiffs, brokers, *233executed two orders given them by Judson, each for the purchase of 500 shares of International Power Company stock at 198;-that Judson failed to accept and pay for the stock, and that the plaintiffs thereby sustained a loss of $65,681.50. That left to be tried the issue “whether the purchase by Judson was a transaction done for Leiter and Hoadley within the terms of his authority,” as stated by my brother McLaughlin, in quoting the statements of the appellants’ position made by their counsel on the trial. But that issue involved two elements, viz., a, whether Judson had authority to bind Hoadley and Leiter; b, whether he gave the order to purchase on them behalf-or on his own account. Proof of “ a ” would not establish “ b.” Evidence of what. Judson said to the plaintiffs when he opened the special account and gave the orders in question was not competent to establish his authority, but it constituted the only proof available, outside of Judson’s testimony, to show for whom the orders were given. The evidence, said to have been erroneously admitted, was the testimony of the plaintiffs to the effect that, when he opened the account, he stated that it was for a pool consisting of himself, Hoadley . and Leiter. That evidence was admissible, not to prove his authority, but, there being prima facie evidence of that, to bind his principals by showing that the orders were given for their account. (Mullen v. Quinlan & Co., 195 N. Y. 109). His statement was not evidence of its truth; it was provable, not as a declaration, but as a fact characterizing the transaction of which it was a part. In a nutshell, the case is this: A, who is dealing in stocks on his individual account, also has authority to deal for the account of B and 0. He places -an order with brokers, telling them that it is for B and 0. The brokers bring suit on the transaction against B and 0, and prove A’s authority; but if the decision about to be made is correct, they must be nonsuited because they cannot give evidence of A’s statement to them for the purpose of proving that the particular ■ transaction was for the account of B and 0.
When the said evidence was admitted, and again in the charge, the court plainly instructed the jury that it could not be considered on the question of Judson’s authority to bind the defendants, that it could only be considered in case the jury *234found from other evidence that he had such authority, and then only on the question, whether the orders were given for himself' individually or on behalf of the other defendants. As I view it, that ruling and instruction strictly complied with the rule twice laid down by this court in this case. On the first appeal (115 App. Div. 538) Mr. Justice ’ Houghton, writing for the majority of the court, undertook to clear up the point for the guidance of the court on a retrial and distinctly stated the rule to be that, while evidence of Judson’s statement was not competent to prove his authority, it was. admissible,after prima facie evidence of such authority had. been received, upon the question whether he gave the orders on his ■ own account or for the other defendants.- On the second trial the court failed to follow that rule and refused a request to charge that “the jury cannot consider the declarations of Judson to plaintiffs or either -of them, as binding upon the- defendant Leiter, until the jury finds from other evidence than those declarations that a partnership existed between the three defendants on the 29th day of April, 1902:” For that error alone the judgment was reversed on the second appeal. (126 App. Div. 687.)
The other point, upon which the judgment is about to be reversed, may appear at first blush to be well taken. The .plain-' tiffs brought suit, as they were certainly justified in doing, on the theory that the orders were given for the “pool,” or joint, account of Judson, Hoadley and Leiter. The testimony of Judson, if accepted, established his authority to purchase and sell stock for the joint account of the three. On the first and second trials the case was tried and submitted to the jury solely on that theory. But the liability of the appellants to the plaintiffs depended on Judson’s authority to represent them, not on whether he was also a principal. The question was one of 'agency in-either case, and by joining top many as defendants the plaintiffs were not precluded from, recovering against those who were proven to. be principals. • The real issue was, whether Judson had authority to give the orders on behalf of Hoadley and Leiter, irrespective of whether he was also in fact a principal. For the first time in the history of this litigation that issue was perceived by the court on the *235trial now being reviewed and was defined to the jury in terms which they could' easily understand.
I shall not undertake in a dissenting opinion to analyze the evidence, contained in a record of nearly 4,000 folios, hut a brief summary of the appellants’ claims and of some of the conceded facts may serve to clear up the point under discussion. They admitted that, some time in 1900, 1,200 shares of the International Power Company stock was acquired and held by Judson for the joint or pool account of himself and them; that later he was authorized by them to deal in the stock of said company for their account, but in his own name and solely as agent, and that during 1901 he purchased and sold upwards of 110,000 shares for their account,, but they asserted that his agency was terminated on December 11, 1901. That assertion was based on the fact that some time in the early part of 1902 his accounts were balanced as of December 11, 1901, and he gave Hoadley a certificate, dated February 18, 1902, to the effect that he then held in trust for Hoadley 6,900 shares of the common stock of the International Power Company. It is conceded that Leiter was jointly interested with Hoadley in that stock. Judson continued to deal as he had done theretofore, and Hoadley continued as theretofore to furnish him stock to use as margins or with which to make deliveries. Hoadley claimed, however, that, after the alleged settlement, he merely loaned stock to Judson and that he and Leiter agreed to keep out of the market and allow Judson to carry on a campaign of market manipulation oh his own account but from which they expected to profit. The latter’s dealings during March and April, 1902, amounted to upwards of $20,000,000. His transactions were reported daily to Hoadley with the purchase and sales slips and were entered in books kept at the office of Hoadley, Leiter and the International Power Company, and, during the month of April, he turned over to Hoadley nearly $1,000,000 which the latter said was for stock loaned. The plaintiffs said that Judson’s dealings were for the joint account of himself, Hoadley and Leiter". The appellants said that, up to December, 1901, he had dealt solely- as agent for their joint account, but that thereafter his dealings were for his individual account. As *236the learned trial-judge plainly perceived, it' was of-no consequence whether Judson was-a member of the partnership or “pool,” and the real question-was whether his authority to represent the appellants continued up to the time .of the trans-action in suit. That issue was made plain to the jury, who decided upon sufficient evidence that the agency continued up to the crash on April 30, 1902.
It was urged that the plaintiffs could not have a judgment against both the agent and his principal; but this is not the case of an agent dealing for undisclosed principals, which requires a plaintiff to' elect against whom to proceed. The appellants were disclosed principals. The plaintiffs were justi-' fied, in any view of the case, in suing all three as principals, and if, as claimed by the appellants, Judson was only an agent, the plaintiffs were still entitled to a judgment against him, because he was estopped, by his representation to them, to deny that he was also a principal.
Another point, earnestly urged -by the learned counsel for the appellant Leiter, deserves consideration. Judson testified that he only had authority to purchase on specific instructions from Hoadley, and that the latter instructed him before the opening of the market on April twenty-ninth to purchase 500 shares on every two points down from the opening and to sell 500 shares on every two points up. The-market opened'at 198, the price at which both orders in question were given. Jud-. son’s testimony, however,’ with the other evidence in the case, justified a finding that the first order to purchase 500 shares at 198 was reported to, and -approved by, Hoadley, and that the latter, then and at subsequent times during the day, gave Judson practically unlimited authority to purchase at the market by telling him at each conversation.over the telephone “ to continue buying and selling. ” While the exact quantities and prices for which orders were given do not appear to have been definitely stated by Judson to Hoadley, the latter was told the price’at the opening, and the jury probably concluded'that,- in view of the volume of: the transactions reported to him_ and of his interest in them, -he occasionally glanced at the tape, which was at hand, and fully understood at what price the orders were being executed. It was plainly a question for the jury *237whether his direction “ to continue buying and selling’’was intended as a general authorization or one to be limited by his instructions before the opening.' The court carefully instructed the jury on that point.
Many other exceptions are referred to on the briefs. The record is replete with discussions and with testimony in regard to the so-called “pools,” which might well have been eliminated in view of the narrow issue which was finally presented. But that issue was only developed as the case progressed and after the appellants had stated their view of the transactions. It would be very strange if some erroneous rulings could not be found in a record of the size presented on this appeal. In my view of the case, the appellants have failed to establish that prejudicial error was committed, and the usual burden sustained by an appellant under the rule now" applied by appellate courts in this State is certainly not lessened in this case by the • fact that the respondents have recovered three Verdicts.
]Tor the foregoing reasons I vote to affirm the judgment.
Scott, J., concurred.
Judgment and order reversed, new trial ordered, .costs to appellants to abide event.