This action was brought by the plaintiffs against the defendants, who were stockbrokers, for an alleged sale, without authority, of certain stocks which they, as brokers, had purchased and were carrying for him.
It appeared in the case that, on the 24th of November, 1870, a written agreement was signed by the plaintiff in respect to certain stock transactions between him and the defendants. This agreement clothed the defendants with the greatest possible power with respect to the use and sale of the stock, and subjected the plaintiff to stringent obligations to keep his margin at all times at ten per cent. The transactions existing when that agreement was made, and the accounts in respect to them, were fully closed more than two years before the purchase of the stock in question. At the'time the stock in question was bought, nothing seems to have been said with reference to the contract of 1870. After that contract had been introduced in evidence, the plaintiff offered to show under what circumstances it was made, and, in substance, that it only applied to the stocks which the defendant was then carrying, or might purchase while he was absent at the south, in case of a decline in the market below ten per cent. The court excluded this offer, and the plaintiff’s counsel excepted. At the close of all the evidence in the case, the court ruled that the contract of 1870 covered all the dealings between the parties.
Counsel for plaintiff then requested the court to submit to the jury the question as to whether the contract was contemplated by the parties when the transaction in question was entered into; also, if they found that it was so contemplated as to apply to the present transaction in its inception, whether there was not a new agreement entered into by the parties on the 19th and 20th of September, 1873, when the additional margin was deposited by the plaintiff, which was thereaftei *130applicable to this transaction, and controlling upon the parties ; also, whether the defendant, on the first of November, sold the stock in the proper manner, and at the fair market-price at the time of the sale.
The court declined to grant any of the above requests or to submit any question to the jury, on the ground that the rights of the parties were governed by the contract, and that there is no evidence in the case which would sustain a finding of the jury that it was rescinded or rendered nugatory, and plaintiff’s counsel duly excepted.
We think the court erred in these rulings. It appeared by evidence that all the transactions existing at the time that contract was made, or which constituted continuous dealings under the then current account, had terminated, and the account was closed between the parties some two years before the transactions out of which this action arises took place. By the purchase of the stock in question the plaintiff opened a new account with the defendants; and if there be any legal presumptions (which we much doubt) that the former contract existing between the parties was thereby revived, so as to apply to and cover the new account, yet the facts and circumstances proved in the case very clearly, as it seems to us, make that question an open one of fact for the jury to determine.
It was entirely competent for the plaintiff to show any facts and circumstances surrounding the making of that contract, which would enable the jury to determine the subject-matter to which the contract was in fact applicable; that is to say, whether it was intended to apply to transactions then current between the parties and those which should grow out of their then present dealings and form a continuous account, or whether it was intended to cover any and all other transactions which might, through any indefinite period, take place between the same parties after that account had been com-t pletely closed. Besides, there was evidence sufficient to go to the jury upon the question whether or not the parties them*131selves did not treat the transaction of 1873 as an entirely new and independent one, not governed or affected by the old contract, and this evidence ought to have been submitted to jins jury. There was evidence, also, on the part of the plaintiff tending to show that on the. 19th and 20th of September 1873, a new agreement was entered into between the parties, which thereafter controlled and limited the authority of the defendants in disposing of the plaintiff’s stock. This question should properly have been submitted to the jury, for, if the jury had found upon it favorably to the plaintiff, there is no reason why it should not be held to have abrogated the contract of 1870, and placed the parties, in respect to the stock held, after the twentieth of September, upon an entirely different footing. The evidence upon this question was conflicting, but that fact had no effect upon the right of the plaintiff to have the question passed upon by the jury. It is at least doubtful whether the court, upon all the evidence, ought not to have held, as a question of law, that the contract of 1870 had no o/pflieoMon to the stock purchases in 1873. The presumption of the continuance of that contract was certainly not a strong one, under the evidence in this case, and there was sufficient testimony tending to rebut the presumption to render the ruhing of the cou/rt as matter of law, that that contract covered all dealings between the parties, one that cannot be sustained.
The judgment must be reversed and a new trial granted; with costs to abide event.
Beady and Daniels, JJ., concurred.