Stewart v. Harris

101 A.D. 181, 91 N.Y.S. 438

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1905
• Status: Published

Opinion

Per Curiam :

The defendants, who áre stockbrokers, reported to the plaintiff, their customer, a sale of his stock for deficient margin, by a printed and written- statement that it had'been sold at fifty-five’ dollars and twenty-five cents per share- to' De Agüero. Thereupon the plaintiff ratified" the sale'and'demanded the amount due- him as shown by such statement. The'defendañts sent "a second statement, dated like the first statement;, marked “ Duplicate' account error,” that the sale was at- fifty-three dollars and twenty-five cents per share. The plaintiff, insisting that he received this statement subsequent to the mailing of his letter in answer to the first statement, repudiated the second statement and reiterated his demand. He now sues for the balance due as shown by the price realized by, the first statement. The defendants answer /that the price named- in - the first statement was due to a Clerical error of an employee, and that the second statement is true. .

This actibn is based upon a ratification by the plaintiff of the sale-by his agent of this stock. If the plaintiff'assented, misled ,by the first statement and in ignorance of the facts, he was' free to disaffirm (Nixon v. Palmer, 8 N. Y. 398; Rowan v. Hyatt, 45 id. 138) and to pursue another remedy. But if he still elect to affirm the sale,-, he is only entitled to the actual proceeds thereof, and cam not hold the agent for a greater sum stated in his report, if it be shown that such sum was written in by mistake. " In other words, we think that the agent is not estopped from showing the facts, of the sale. . If the plaintiff can hold the .agent for a greater sum than that received, he does "not recover the proceeds of the sale, burather he penalizes, the agent for a mistake in his statement to the sum named therein. We cannot see that there is any hardship worked on the plaintiff. Ratification was not his sole remedy. As we have said, he was not bound by his .ratification after he learned of the alleged mistake. If, therefore,, he chose to continue his ratification he took the risk that the second statement was the truth.

The learned Municipal Court justice refused-to permit a witness in the employ of the defendants, who testified that lie was the “ order clerk,” to state whether it was part of his duties to give orders for sales or whether lie gave any order for this sale-or whether he received notice of sale or whether he knew to whom the stock was sold, thus shutting ■ out. all preliminary questions as to the alleged sale by the defendants although such sale . may have been made under and by the direction of this employee, and although he may have had personal knowledge thereof. The-justice also refused to permit an employee-of the reputed purchaser to testify whether he had any knowledge whether the purchaser bought any stock of' the defendants on the day named as that of the sale. Even if. these questions were in a sense preliminary of introductory and, so did not reach at once the identical transaction, they certainly led up to it, and if answered they might have been followed by questions to these witnesses which bore directly upon the sale in question. We cannot but think that this general • exclusion was harmful to the defendants, and, without specifically approving of each question excluded, we think that the general course of exclusion was error.

The judgment should be reversed and a new trial ordered, costs to abide the event.

Present — Hirschberg, P. J., Bartlett, Woodward, Jerks and Hooker, JJ.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.