At the close of the evidence the defendant moved that the complaint be dismissed on various grounds, which was denied, and an exception taken. The defendant then moved that the jury be directed that the plaintiff was not entitled to recover a greater amount than the value of the 900 shares of preferred stock and the dividends of July, 1891, and January, 1892, on those shares, which motion was denied, and the defendant excepted. The plaintiff thereupon asked the court to direct a verdict in his favor for $225,580.72, based upon the following statement:
1,800 shares at 100............................................$180,000 00
Interest (May 27/92-Apr. 18/94)................................ 20,460 00
5% dividend..................................................... 9,000 00
Interest (May 9/92-Apr. 18/94).................................. 1,048 00
Dividend July 1/91.............................................. 6,750 00
Interest (May 9/92-Apr. 16/94).................................. 786 30
Dividend Jan. 1/92 .............................................. 6,750 00
Interest (May 9/92-Apr. 16/94).................................. 786 30
$225,580 72
The plaintiff’s motion was denied, and he took an exception. Thereupon the court directed a verdict for the plaintiff for $167,625, stating that it was arrived at by taking the value of 1,400 shares of preferred stock, as proved, and adding thereto interest from June 3, 1892; also the dividends of July, 1891, and of January, 1892, with interest from June 3d to the date of the trial. The defendant excepted to the direction. Upon the argument of this motion the defendant insisted that the verdict should be set aside, and a new trial granted; and the plaintiff insisted that the verdict be increased from $167,625 to $225,580.72, and that, in case the court held that it was without power to increase the verdict, it be set aside as insufficient, and a new trial granted.
We are unable to see any just foundation for the plaintiff’s position that he is entitled to recover the value of the 1,400 common shares and the 5 per cent, dividend, amounting to $9,000, paid on the 18 certificates, pursuant to the plan of reorganization. Field, Bindley & Go. assumed to collect this dividend for the plaintiff, and gave him their check therefor, which was paid. Ten days before the plaintiff ordered the firm to sell his 1,400 common shares, they had assumed to sell and transfer the title to them, without authority, but, after receiving the plaintiff’s order of February 10, 1891, to sell, they, on the next day, credited him with $107,800, their then market value. On March 31, 1892, the account was balanced as per this statement:
*598
*599April 1,1892, the plaintiff received a copy of the foregoing statement, in which he acquiesced and accepted the new firm of Field, lindley, Wiechers Sc Co. as his debtor for $58,103.26, the balance due from the former firm. Whether this credit was paid to the plaintiff or lost by the failure of the firm does not appear. He testified that he authorized Field, Lindley & Co. to sell the 1,400 common shares, and when he received credit for them he was charged with knowledge that his agents to sell had assumed to be his agents to transfer the shares to the purchaser, for he must have known that an assignment or transfer was necessary. True, he testified that he had never dealt in stocks, but he had then recently transferred 1,000 shares in the usual way to the firm as security for the debt of his son, and so was not wholly ignorant of the mode of transferring the title to shares. The plaintiff having placed the 18 certificates in the possession of the firm with power to exchange them for shares in the new corporation, and having afterwards given the firm power to sell the common shares, and having received the avails of the pretended sale, we think he cannot recover their value of the defendant, though when he gave the order to sell and when he received the credit he was ignorant of the fact that the shares had then been wrongfully disposed of. The plaintiff had no greater-claim against this defendant than he has against Field, Lindley Sc Co., and clearly he could not retain the price of the 1,400 common shares, and also recover from the firm the value of those shares; nor could he retain the $9,000 paid to him as a dividend, and recover from them the amount of that dividend. The court did not-err in refusing to direct a verdict for the value of the 1,400 common shares and for the 5 per cent, dividend, amounting to $9,000. As before stated, the court directed a verdict for the value of 1,400 preferred shares and the dividends declared on them in July, 1891, and January, 1892, with interest. Five hundred of the preferred shares had been assigned and transferred by the plaintiff to Field,. Lindley Sc Co. as collateral security for the loan to his son, which transfer was absolute on its face, was executed by the plaintiff,, and the defendant did not violate the plaintiff’s rights in accepting the surrender of the receipt which represented those shares;, and in issuing a new one to Field, Lindley Sc Co. or to their transferee. Subtracting the 500 preferred shares from 1,400 preferred shares leaves 900 preferred shares, which the plaintiff had not authorized Field, Lindley & Co. to transfer, and the plaintiff’s recovery should have been limited to the value of those shares and to the dividends declared on them in July, 1891, and in January, 1892, with interest on those dividends. In case the circuit directs a verdict for several distinct items, the amounts of which are not disputed, and the exceptions taken on the trial are ordered heard by this court in the first instance, it has power, when there is no-conflict of evidence, to modify the verdict by rejecting one or more of the items, and direct the entry of a judgment on the verdict as-modified. This court may apply the law to an agreed state of facts, and order an appropriate judgment. Had a judgment been entered on the verdict, and an appeal taken, the power of this court *600to modify the judgment by deducting some one or more of the items entering into it would not be doubted, and the court has the ■same power to modify a verdict on which a judgment has not been entered as it has one which has ripened into a judgment. ‘The judgment should be modified so as to provide that the plaintiff ¡recover the value of 900 preferred shares and the dividends declared on them in July, 1891, and in January, 1892, with interest <on those dividends, and a judgment is ordered upon the verdict as modified in favor of the plaintiff, without costs of this motion to either party. All concur.