—The defendant employed the plaintiffs, as his brokers and agents, to purchase certain stocks, and advanced to them $2,000 on account. The plaintiffs having made the purchase, were compelled to pay the whole amount, and the de*145fendant having failed to pay the balance due, they did in accordance with the custom of brokers in such cases, without notice to or demand upon the defendant, or tender of the stocks, sell the same at certain prices. They sue for the difference and commissions, &c.
Merwin a. Hamilton (6 Duer, 249) is a full and decisive authority in support of the demurrer to this- complaint, unless the allegation of the custom prevents its application.
The omission to aver that the defendant had knowledge of the custom, appeared to me at first a clear objection to the complaint. But the authorities cited by counsel, particularly that of Pollock a. Stables (12 Q. B., 765), are decisive as to the English rule, and I do not find that it has been ruled with us that knowledge is necessary. It existed in Horton a. Morgan (6 Duer, 56), but it is not relied upon as essential.
If the Statute of Frauds does apply to such a case, I think the payment of the $2,000 by the defendant prevents its application.
Demurrer overruled, with liberty to answer.