In the ordinary case, whether or not an oral agreement was made presents a question of fact to be determined by the jury. In the case at bar it is a question of the word of one against that of the other, with attendant circumstances and inferences tending to show that the agreement alleged by the defendant was made as found by the jury. It is urged that this agreement is so unusual as to counterbalance the otherwise weight of evidence. But such improbability exists only if the agreement is given the strained construction put upon it by the plaintiffs, namely, that defendant should not be liable for his purchases theretofore or thereafter made (thereby releasing the defendant from repaying some $164,000), and that the plaintiffs guaranteed him against loss and would require no further margin on past purchases or future purchases. This, however, is not the agreement testified to by the defendant. Neither is the agreement susceptible of such a construction. Upon the contrary, it is not an extraordinary agreement, and, under all the circumstances of the case, *240does not impose an undue tax upon credibility. It is simply an agreement that if the defendant would make additional purchases of securities for his account, the manager of the plaintiffs' office at which the defendant traded, would watch the account, and if and when the equity of the defendant was about exhausted, would close out the account without loss to the defendant of more than the equity which he then had in the account. At the time this agreement was made, it was the opinion of the plaintiffs’ manager that the market had turned and was about to go up. At this time the defendant had an equity of about $18,000 in the account, .having already put up $95,000 in cash. This amount he was willing to risk upon the forecast of the plaintiffs’ manager. He was not willing, however, to assume risk of loss of more money than he had in the account, since he had no further means. Hence the agreement. The plaintiffs’ manager proved a false prophet. The decline accelerated into the proportions of a panic. The plaintiffs’ manager then repudiated the agreement. He said: “ Agreements mean nothing in a market like this. I have to look out for myself and my job. You look out for yourself.” Not at all an incredible situation.
It is further urged that the manager in charge of this branch office of the plaintiffs did not have authority to make such an agreement with the defendant. It is admitted, however, that this same manager made the original agreement calling for the maintenance of a fifteen-point margin, and it further appears that the plaintiffs authorized this manager to permit the defendant to trade on less than a fifteen-point margin. Having once modified the marginal agreement pursuant to express authority from the plaintiffs obtained without the knowledge of defendant, and occupying the position of a general manager, there was apparent authority in the manager to bind the plaintiffs and they are responsible for his acts. (McConnell v. Hellwig, 190 App. Div. 244; Bosak v. Parrish, 252 N. Y. 212; Globe & Rutgers Fire Ins. Co. v. Warner Sugar Ref. Co., 187 App. Div. 492, 494.)
The judgment and order appealed from should be affirmed.
Judgment and order reversed, with costs, and judgment directed in accordance with opinion in favor of plaintiffs, with costs. Settle order on notice.