The complaint sets forth two causes of action. The first cause of action for $775 is predicated upon the alleged negligence of the defendants as stockbrokers, in failing to purchase certain stocks ordered by the plaintiff. The second cause of action alleged is for cash deposited with the defendants as “ margins,” amounting to $616.32. It appears from the testimony that on May 9, 1901, between the hours of eleven and twelve in the forenoon, the plaintiff gave the defendants an order, which they accepted, to buy for him forty shares of the stock of the Missouri Pacific Eailway Company, at the market price. The order was an “ unlimited ” one and imposed no restriction as to price upon the broker. When the order t„o buy was given to the defendants Missouri Pacific stock was selling at 79.
The circumstances existing on the day in question, on the floor of the Consolidated Stock Exchange, were abnormal. It was a day of panic, and much confusion existed on that account in the offices of brokers and on the floor of the stock exchange.
The first question to be determined on this appeal is, what duty were the defendants under toward the plaintiff when the order to buy was placed with them ? It was not an absolute duty which the defendants were bound under all circumstances to perform. The duty which the law required of the defendants in reference to *838executing the orders of their customers was commensurate merely with existing opportunities for its performance. The law does not require them to do that which is impossible, or to do' that which can only be done as a result of extraordinary diligence or effort. The broker is required to exercise due and reasonable diligence under the existing circumstances. Measured by this standard, I think the jury were justified in finding the defendants guilty of negligence. The evidence showed that over 15,000 shares of Missouri Pacific stock were sold on the floor of the Consolidated Exchange on the morning in question. Notwithstanding the prevailing condition of panic these sales were actually made. Although the stock was selling at 79 when the order was given to the brokers, many hundred shares of this stock were sold at prices ranging between 70 and 79. It should, however, be recalled that the order given to the defendants was an unlimited one, and that they were not limited to purchasing at 79 or less. In view of the fact that thousands of shares of this stock were sold on this exchange that morning, that the broker was not limited as to the price which he could pay for the stock, we think that the finding of the jury, that the defendants were negligent in not purchasing forty shares of this stock for the plaintiff was entirely justified.
• I think the evidence in support of the second cause of action was sufficient to sustain the finding of the jury. Eor the reasons above stated, I concur in the result reached in the opinion of Mr. Justice Conlan, that this judgment should be affirmed.
The judgment is affirmed, with costs.
Judgment affirmed, with costs.