By the court, Bockes, J.
The defendants were brokers in the city of New York, and at the request and under the direction of Greorge Caldwell, junior, they made purchases and sales of stocks, on some of which transactions profits accrued and others resulted in losses. All orders for purchases and all directions to sell were by Caldwell, and the account was kept in defendants’ books in Caldwell’s name. The defendants had no notice that any other person than Caldwell had or claimed to have any interest in the transactions, until the account was closed. How it then stood, whether the balance was in favor of Caldwell or the defendants, the referee has omitted to find.
The action is brought to recover the profits on three sales; which profits in the aggregate amounted to $493.74, ignoring all other purchases and sales by the defendants on Caldwell’s account. The right of action was made to depend on the averment, that the purchases and sale of these particular stocks, were on the joint account of Caldwell and the plaintiff. The referee finds and certifies the fact that the evidence fails to establish or show, that the purchases and sales of these particular stocks were for the plaintiff, and the said Greorge Caldwell, junior, jointly or on their joint account, and he adds, “ I find as conclusion of law, that the plaintiff is not entitled to recover in this action without showing that the purchases of the stock in question, were made by the defendants on the account of the plaintiff and Greorge Caldwell, junior, jointly”; and further, that “this not having [309] been shown, I find and adjudge, that the complaint of the plaintiff in this action, be dismissed,” &c.
There is no dispute but that the profits on these three sales amounted to $492.74, as was claimed. But the defendants insisted that the purchase and sales were for Caldwell, and on his individual account, and not on joint account of CaldweE & Bead. The referee so found. But was that a defense of itself? Suppose it was so, it would present no insuperable difficulty to a recovery, aE other difficulties being out of the way, inasmuch as CaldweE had assigned the claim to Bead, the plaintiff; and such transfer was averred in the pleading. The objection then to a recovery would have been simply and only that the claim assigned to the plaintiff, was a claim of CaldweE alone, instead of a joint claim of CaldweE and the plaintiff. This would not afford a defense. At most it could be deemed a mere variance between the pleading and proof in no way affecting the merits, and which variance should be disregarded in every state of the case. If, therefore, it be conceded that there was. in fact $492.74 due from the defendants on the claim assigned by CaldweE to the plaintiff, as to which there was no dispute, the mere fact, that it was CaldweE’s individual claim, instead of a joint claim belonging to himself and the plaintiff, should not put the latter to a new suit. It could make no difference to the defendants in case the demand was a valid and just one, to whom they made payment, and the transfer to the plaintiff would protect them against any future claim by CaldweE. It was therefore erroneous in this case to hold, as did the referee, that the plaintiff could not recover, simply because the demand assigned to him was originally the demand of assignor alone instead' of one belonging to his assignor and himself jointly. If necessary an amendment of the complaint should have been made to meet the objection, which on the supposition that there was no other defense, was purely technical and without merit. There was not, [310] however, any objection raised to a recovery on the ground of variance.
But the referee clearly erred in finding that the evidence faded to establish the fact that the purchases and sales, as regards the three transactions mentioned in the complaint, were made on the joint account of the plaintiff and Caldwell.
I think it clearly and indisputably appears that Caldwell and Bead were jointly interested in «the profits on the sales, to recover which profits this action is brought. • I understand both of them to so' testify, and their testimony stands uncontradicted, except by the fact that all orders and directions in regard to these transactions, were made by Caldwell alone, without disclosing Bead’s connection with them. But his silence in regard to Bead, and the fact that all orders and . directions eame from Caldwell alone, are not in conflict with the undisputed evidence that Bead was actually interested in the transactions. As to them he occupied the position of a silent partner, having in point of fact an interest of which, however, the defendants were ignorant. Indeed the referee . so finds in substance, if not in direct terms. In his tenth finding' he says: “ I find that Daniel S. Bead and George Caldwell, Jr., agreed between themselves to purchase and sell together, said two hundred shares of Cumberland Coal stock and said one hundred shares of Hew York' Central Bailroad stock, and that George Caldwell, Jr. was to have half of the profits on such purchase and sale for transacting the businéss, and Daniel S. Bead the other half; but that defendants had no knowledge of such agreement” (fol. 100). This finding of the referee is abundantly sustained by the evidence, and the case therefore shows that Caldwell & Bead were jointly interested in the profits resulting from the sales of the stocks alluded to, the same having been purchased and sold in fact, for their joint benefit, the purchases and sales were none the less on their joint account, because the orders [311] were by Caldwell alone, without any disclosure of Read’s interest.
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By the court, Bockes, J.
The defendants were brokers in the city of New York, and at the request and under the direction of Greorge Caldwell, junior, they made purchases and sales of stocks, on some of which transactions profits accrued and others resulted in losses. All orders for purchases and all directions to sell were by Caldwell, and the account was kept in defendants’ books in Caldwell’s name. The defendants had no notice that any other person than Caldwell had or claimed to have any interest in the transactions, until the account was closed. How it then stood, whether the balance was in favor of Caldwell or the defendants, the referee has omitted to find.
The action is brought to recover the profits on three sales; which profits in the aggregate amounted to $493.74, ignoring all other purchases and sales by the defendants on Caldwell’s account. The right of action was made to depend on the averment, that the purchases and sale of these particular stocks, were on the joint account of Caldwell and the plaintiff. The referee finds and certifies the fact that the evidence fails to establish or show, that the purchases and sales of these particular stocks were for the plaintiff, and the said Greorge Caldwell, junior, jointly or on their joint account, and he adds, “ I find as conclusion of law, that the plaintiff is not entitled to recover in this action without showing that the purchases of the stock in question, were made by the defendants on the account of the plaintiff and Greorge Caldwell, junior, jointly”; and further, that “this not having [309] been shown, I find and adjudge, that the complaint of the plaintiff in this action, be dismissed,” &c.
There is no dispute but that the profits on these three sales amounted to $492.74, as was claimed. But the defendants insisted that the purchase and sales were for Caldwell, and on his individual account, and not on joint account of CaldweE & Bead. The referee so found. But was that a defense of itself? Suppose it was so, it would present no insuperable difficulty to a recovery, aE other difficulties being out of the way, inasmuch as CaldweE had assigned the claim to Bead, the plaintiff; and such transfer was averred in the pleading. The objection then to a recovery would have been simply and only that the claim assigned to the plaintiff, was a claim of CaldweE alone, instead of a joint claim of CaldweE and the plaintiff. This would not afford a defense. At most it could be deemed a mere variance between the pleading and proof in no way affecting the merits, and which variance should be disregarded in every state of the case. If, therefore, it be conceded that there was. in fact $492.74 due from the defendants on the claim assigned by CaldweE to the plaintiff, as to which there was no dispute, the mere fact, that it was CaldweE’s individual claim, instead of a joint claim belonging to himself and the plaintiff, should not put the latter to a new suit. It could make no difference to the defendants in case the demand was a valid and just one, to whom they made payment, and the transfer to the plaintiff would protect them against any future claim by CaldweE. It was therefore erroneous in this case to hold, as did the referee, that the plaintiff could not recover, simply because the demand assigned to him was originally the demand of assignor alone instead' of one belonging to his assignor and himself jointly. If necessary an amendment of the complaint should have been made to meet the objection, which on the supposition that there was no other defense, was purely technical and without merit. There was not, [310] however, any objection raised to a recovery on the ground of variance.
But the referee clearly erred in finding that the evidence faded to establish the fact that the purchases and sales, as regards the three transactions mentioned in the complaint, were made on the joint account of the plaintiff and Caldwell.
I think it clearly and indisputably appears that Caldwell and Bead were jointly interested in «the profits on the sales, to recover which profits this action is brought. • I understand both of them to so' testify, and their testimony stands uncontradicted, except by the fact that all orders and directions in regard to these transactions, were made by Caldwell alone, without disclosing Bead’s connection with them. But his silence in regard to Bead, and the fact that all orders and . directions eame from Caldwell alone, are not in conflict with the undisputed evidence that Bead was actually interested in the transactions. As to them he occupied the position of a silent partner, having in point of fact an interest of which, however, the defendants were ignorant. Indeed the referee . so finds in substance, if not in direct terms. In his tenth finding' he says: “ I find that Daniel S. Bead and George Caldwell, Jr., agreed between themselves to purchase and sell together, said two hundred shares of Cumberland Coal stock and said one hundred shares of Hew York' Central Bailroad stock, and that George Caldwell, Jr. was to have half of the profits on such purchase and sale for transacting the businéss, and Daniel S. Bead the other half; but that defendants had no knowledge of such agreement” (fol. 100). This finding of the referee is abundantly sustained by the evidence, and the case therefore shows that Caldwell & Bead were jointly interested in the profits resulting from the sales of the stocks alluded to, the same having been purchased and sold in fact, for their joint benefit, the purchases and sales were none the less on their joint account, because the orders [311] were by Caldwell alone, without any disclosure of Read’s interest.
My conclusion then is, that the tenth finding of fact by the referee is correct, and that the seventh and ninth, wherein he finds that Caldwell & Read were not jointly interested in the profits resulting from the purchase and sale of these stocks are erroneous. But it does not follow that the plaintiff is entitled to recover the $492.74 profits, because it turns out in point of fact, that he had an interest in such profits jointly with Caldwell. He cannot isolate these items of profits from Caldwell’s general account and recover them, simply for the reason that he had no interest in the other transactions going to make up the whole account from which losses resulted., The defendants, having been permitted and induced to act and deal with Caldwell in ignorance of Read’s interest or rights in the transactions, may insist that the enthe dealings shall be closed as if Caldwell only had been interested. They may insist upon all equities existing between them and Caldwell alone, as regards the entire dealings, and the plaintiff can recover only such' sum as shall appear to be due Caldwell on balancing the account. Read put Caldwell forward to act, or had permitted him to act for and in behalf of both, but in his individual name, without disclosing his true position. Those with whom he thus dealt had, and still have the right to hold him to the position he was permitted to assume, as regards any claim made by Read having its origin in these transactions. The case in this regard is like that of principal and agent where the agent is permitted to act and does act in his" own name without disclosing his agency. In such case he may be treated as principal and the right of set-off and all other equities attach as if he were in fact the principal and alone interested in the transactions, and although the principal may step in and assert his rights he will be held to take the place of his agent, and to have no other rights than those which his agent could have enforced had he been principal instead of agent. (24 [312] Wend. 458; 2 Kent, 632; 26 How. 522—3.) In this case, therefore, the plaintiff should have been regarded as occupying Caldwell’s place, and the examination of the dealings between him and the defendants should have been pursued further than seems to have been done on the trial, for the purpose of determining what sum, if any, remained due him on his account with the defendants. If the balance was against Caldwell on the entire account, the plaintiff could not recover. If'in his favor a recovery could be had for such balance, not exceeding in any event, the profits on the three sales specified in the complaint. It seems that evidence was offered showing how the account stood, which was excluded on plaintiff’s objection. In the view I take of this case, this evidence should have been admitted. But without it the plaintiff was clearly entitled to recover. So the plaintiff objected to itsadmission, and it wasnot considered in deciding the case, yet, notwithstanding it was ignored, the plaintiff was defeated whereas, such evidence being excluded or ignored, he should have recovered.
Perhaps it may be said that no set-off or equities in defendants’ favor were set up in the answer. I am not prepared to hold that it was necessary to state in the answer in this case, that the claim in suit was part of a running account between the defendants and the plaintiff’s assignor. If the evidence showed such fact, the plaintiff could not recovei without showing a balance on the whole account, as I think. But however this might be, if objection should be made on that ground, an ¡amendment would meet the difficulty, and it would be at once allowed with a view to the attainment of substantial justice between the parties. It is plain, I think, that the case was disposed of on a wrong theory.
The findings of fact so far as the referee has gone, seems well supported by the evidence, except the seventh and ninth, which, however, are corrected by the tenth. But the referee should have gone one step further and stated how the whole account stood between Oaldwell and the defend[313] ants. This was necessary to the proper disposition of the case, and when seen what the judgment should be, would be very plain.
Judgment reversed; new trial ordered; costs to abide the event; reference discharged.