In my opinion the judgment should be affirmed.
It makes little matter, as it seems to me, whether the members of the pool are to be regarded as partners or as joint adven*866turers. Whatever their relations were to each other, the defendant Thomas acted as agent for the subscribers to the pool, and I think that we may assume for the purpose of this appeal that he was authorized so to act, and that it was confided to his discretion to manage it and when he saw fit to close it out.
I think that he did close it out when he caused the account to be transferred to his own account or, what is the same thing, to the Silver Syndicate account. That ended his agency so far as Hamilton was concerned, and there is nothing to show that he ever received authority from Hamilton to re-embark in the speculation. Óf course, as Hamilton’s agent, he could not- sell to himself without Hamilton’s consent, but the latter, when he had discovered that his agent had undertaken to sell out to himself, was entitled to adopt and acquiesce in his act. It will not do, as it seems to me, to say that the transfer of the account to the Silver Syndicate account and its retransfer a week afterwards was a mere bookkeeping transaction.- It is true that the transaction was effected by entries on the books of Post and Thomas, but so far as Hamilton was concerned it was a closing out of the pool account. If I am .right in this, Thomas was the sole person liable on the “K K Syndicate account ” when the paper relied upon as a release was executed, and if he was so liable that release was without consideration. Plaintiff was not bound to know then that Thomas was the sole debtor. He may well have believed from Thomas’ statements and actions that Hamilton had consented to the transfer and retransfer of the “KE Syndicate account” and remained jointly or partly liable therefor. Indeed it is probable that he did so believe, for -he testified that a part of the consideration upon which the release was given was the promise that he should be furnished with evidence that Hamilton was liable for one-third of the balance remaining unpaid upon the account.
The judgment should be affirmed, with costs. .
Clarke and Miller, JJ., concurred; Ingraham, P. J., and Laughlin, J., dissented.