The defendant, in his answer, having admitted the purchase of the bonds by plaintiffs at defendant’s request, and also the price paid therefor, and alleging as a defense that the order to sell was given on the distinct understanding and agreement that the bonds should not be sold for less than 105, or a small fraction below that amount, and that plaintiffs, in violation of that agreement and of defendant’s instructions, and without notice to defendant, sold the bonds at 101, thus creating the greater part of the loss, leaves as the only issue to be passed upon, what was the agreement between the plaintiffs and defendant as to the sale of the bonds? Were there any restrictions as to the sale, and, if so, was a definite price fixed, below which said stock should not be sold without defendant’s consent?
John D. Howard, a witness called on the part of the plaintiffs, testified as to a demand for payment, as follows: “After that date, further demand for payment, I think, was made of Mr. Moller once or twice. I had a personal interview with Mr. Moller after that, on the 9th day of December, at his house, at Kingsbridge, Highbridge, New York. I saw Mr. Moller. Mr. Moller expressed great regret at the occurrence of any difficulty; said that he was very much obliged to Mr. Fisher for his kindness in not pressing it any more than he had done; that it was entirely owing to sickness, and sickness in his family, that it had not been taken up long ago. I asked him to give me a letter authorizing the sale, and to make a deposit with our correspondents in New York, covering the amount due us which he was lacking in margin. At that interview Mr. Moller gave me the note now handed me. ” (Paper referred to offered in evidence. Received and marked “Plaintiffs’ Exhibit B.”)
“Exhibit B.
“Office of Moller & Co., Investment Securities, 11 Pine Street.
“New York, Dec. 6, 1890.
“Mess. J. II. Fisher <6 Son—Gentlemen: You have our authority to sell $16,225 state of Maryland three sixty-fives bonds which you purchased for us, and are now carrying. As soon as Í am able, will deposit $500 with Messrs. Hallgarten & Co. to cover any loss you may make on it. Should there be any balance due us, it is to be returned, and we are to pay you in case the $500 does not cover the balance due you. Very resp’y,
“Moller & Co.”
Defendant testified in his own behalf: “I remember this transaction of Maryland three sixty-fives. I don’t dispute the purchase at prices that have been given here. I remember the interview with Mr. Howard, the last witness, on the 9th day of December. Mr. Howard called at my office,—I was confined at home by sickness on that date,—and said they were very anxious to be relieved from carrying those bonds, as the money market was very active, and they were maturing. He requested that I give them permission to sell these bonds, as money was very active, and they did not care to carry them any longer. I asked him what the market price was. He said ‘ 105.’ He said the bonds, at that rate, there would be a loss. He did not know how much,—whether $500, more or less,—or it would be thereabout; and he wanted to know if I would make a deposit of that amount with Hallgarten & Company, to cover the loss. I told him I had no means at home, as I was confined at home, to know what the loss was, and that when I was able I would make the deposit. He said that he had an order from some lady customer—I understood him a lady customer—for the amount of twelve hundred and odd dollars of bonds. That they would not force the balance of the bonds on the market, but would sell them at 105, or as near as they could get on it, but would not make any more loss for me than they could help. I therefore gave him an order to sell the bonds, without specifying any limit, as my relations with them had always been of the pleasantest, and I put no restrictions in it. Question. What, if anything, was said on the subject of price at which they were to be sold? (Plaintiffs’ counsel obj'ects. The Court. I will sustain the objection, because the proposed evidence tends to vary the written instructions of the defendant. Q. What, if anything, was said at this interview between you and Mr. Howard as to the price at which those securities were to be sold? Plaintiffs’ counsel objects, on the ground that the interview has resulted in a written order, which speaks for itself. Objection sustained. Defendant excepts. Defendant rests. Plaintiffs' Counsel. I ask your honor to direct a verdict for the plaintiffs for the full amount. Defendant's Counsel. I ask your honor to submit the question to the jury. By direction of the court the jury rendered a verdict in favor of the plaintiffs for $893.56. Defendant’s counsel excepts to the direction, and to the refusal of the court to allow the case to go to the jury.)”
The witness Howard testified as to what took place at his interview with defendant on December 9th; and stated that he had not given the entire conversation, and that defendant at that interview limited plaintiffs’ right to sell to a price equal to 105, or a fraction of that amount. The defendant aíso testified as to what was said at that interview, and that a price was .mentioned at that time. It does not appear that either of the witnesses testified as to the whole of the conversation at the two interviews.
Considering the testimony above referred to, and the fact that the authority to sell, (Exhibit B,) hereinbefore referred to, was silent as to the price at which said bonds should be sold, we think it wuis error on the part of the trial justice in refusing to allow the evidence sought to be obtained by the two questions above referred to. Such evidence, if admitted, would not have had a tendency to vary or contradict the written instrument, (Exhibit B,) but might have assisted the jury in determining wiiat was the real intention of the defendant in authorizing the sale. The law is well settled that, where part only of a verbal contract is reduced to writing, paroi proof of the rest of the contract is competent. In Routledge v. Worthington Co., 119 N. Y. 592, 596, 23 N. E. Rep. 1111, Gray, J., in his opinion, says: “In the exclusion of evi
The evidence on behalf of plaintiffs, given by the witness who had personal charge of the transaction, is as follows: “I told Mr. Moller (the defendant) I knew I could get an order for a small portion of the bonds at 105. Question. Did you not tell him that you could sell some at 105? Answer. I told him that a small lot, mentioning the actual amount. Q. What was said by Mr. Moller in regard to selling the rest? A. Simply gave me a letter; nothing more was said. Q. Did he not limit your right to sell to a price equal to 105, or a fraction of that amount? A. Most certainly he did.” This testimony, we think, shows that plaintiffs had no right to sell the bonds at about 102§, when they were limited to 105, or a fraction of that amount; for if he lost $880 the average selling price obtained by him was only about 102-|. Thus the conclusion must be reached that a verdict for $880 should not have been directed for plaintiffs against the defendant’s objection, and that a judgment entered upon such a verdict, so directed, should be reversed, and a new trial granted. For the reasons hereinbefore stated the judgment and order appealed from must be reversed, and a new trial ordered, with costs to appellant to abide the event.