The plaintiff obtained a judgment against the defendants in the sum of $35,768.51, entered upon a verdict directed by the-court. The defendants appeal from the judgment and from an
The plaintiff is a stockbroker, dealing in unlisted securities. The defendants are general partners in the firm of Prince & Whitely, engaged in the buying and selling of stocks and bonds on commission. One Albert J. Campbell was a special partner in the firm.
The plaintiff, his brother, George E. Fischer, who was a curb broker, and several of their friends were large holders of stock in a mining corporation known as the Barnes-King Development Company. Of that company Campbell, the defendants’ special partner, was president. The plaintiff, his brother, their friends and Campbell were interested in upholding the market for that company’s stock.
By this action the plaintiff sought to hold the defendants liable for failing to return moneys alleged to have" been deposited with them pursuant to an agreement between him and the firm of Prince & Whitely, through Campbell, the special partner. The agreement is thus alleged hi the complaint:
“ In or about the latter part of April, 1907, plaintiff entered into an agreement with the said firm of Prince & Whitely, whereby it was among other things agreed that the said Prince & Whitely should deliver to plaintiff between eight and nine thousand shares of the capital stock of Barnes-King Development Company, and that the plaintiff should endeavor to sell the same at private sale upon commission as a stockbroker, on behalf of the said firm of Prince & Whitely, at such prices as said firm should designate, and should return to said Prince & Whitely any shares which he should be unable to sell.
“And it was further agreed that the said plaintiff should deposit with said firm of Prince & Whitely, security for the said stock so to be delivered to him, to wit: money, or other stocks of equal value, which was a usual custom among brokers; which money or stock, so deposited, it was agreed should be repaid, with interest, to plaintiff as the said stock or its proceeds should be returned to said Prince & Whitely.”
The plaintiff alleges that in pursuance of the agreement, and from May 3 to May 7, 1907, inclusive, Prince & Whitely delivered to him 8,600 shares of the Barnes-King stock, the par
Of the shares alleged to have been consigned to him the plaintiff was able to sell but 2,500, for which he received $11,093.75. He tendered the remaining 6,100 shares and demanded the difference between his deposit of $37,237.50 and the sum of $11,093.75 that he received for the sale of the 2,500 shares, to wit, $26,143.75. The plaintiff first made tenderte and demand upon Campbell. After Campbell’s death, which occurred during the summer of 1907, the plaintiff made tender to and demand upon the defendants. The tender was not accepted, and the demand for repayments was refused.
The plaintiff adduced no evidence of any personal transaction with any of the defendants. His evidence of the contract alleged was the testimony of his brother, between whom and Campbell the essential dealings were had. That evidence tended to prove that the brother, as plaintiff’s agent, made the contract with the defendants through Campbell, who, as has been stated, occupied the dual role of president of the Barnes-King Development Company and special partner in defendants’ firm. There was no proof that Campbell was actually authorized by the defendants to make the contract for them. There was no conclusive proof that the defendants ratified their special partner’s act. The plaintiff sought to spell ratification out of the delivery of the stock by the defendants and the receipt by them of the moneys deposited as security. But the defendants proffered evidence tending to prove that the stock came from Campbell and others; that their firm was simply the channel through which the stock passed from Campbell and others into the hands of Fischer; that the transaction was between Campbell and Fischer personally, and that the acts of the defendants were performed, not as principals, but merely in the capacity of stockbrokers. This evidence was excluded.
Defendants also proffered evidence tending to show what the special partner told the general partners he had agreed upon with the plaintiff or his agent. This evidence was erroneously excluded. Where there is no proof of any agreement with any
We are of opinion that it was error to direct a verdict. The credibility of the witness, plaintiff’s brother, is a proper subject for the jury’s consideration. (Kavanagh v. Wilson, 70 N. Y. 177.) It is the province of the jury to determine whether or not the transaction between plaintiff’s brother and the special partner, as testified to by the brother, was actual. If found to be an actual transaction, it is for the jury to say whether or not the defendants ratified it. (Partnership Law [Gen. Laws, chap. 51; Laws of 1897, chap. 420] § 37, then in force; now Partnership Law [Consol. Laws, chap. 39; Laws of 1909, chap. 44], §37; Baldwin v. Burrows, 47 N. Y. 199; Ritch v. Smith, 82 id. 627.)
The judgment and order must be reversed and a new trial granted, costs to abide'the event.
Jerks, P. J., Thomas, Rich and Putkam, JJ., concurred.
Judgment and order reversed and new trial granted, costs jo abide the event.