
    Carl F. Ackerman, Respondent, v. Evans R. Dick and Others, Doing Business under the Firm Name and Style of Dick Brothers & Company, Appellants.
    First Department,
    March 24, 1911.
    Principal and agent — stockbrokers — suit by customer after repudiation of sale made for him — proof not justifying recovery.
    The defendants, stockbrokers, being directed to sell securities at 87 sold them on the exchange to a broker who disclosed his principal. Thereafter the principal repudiated the transaction upon the ground that he had not given an order to buy at 87. The brokers’ principals, however, who made a specialty in that stock, offered the defendant brokers an unclosed transaction for a purchase at 83. Meanwhile the stock dropped to 23 and the broker with whom the defendants had dealt failed. The defendants accepted the offer and under the rules 0 of the exchange submitted the dispute to arbitration as to whether said principals were justified in repudiating the purchase at 87, the repudiation being sustained. The plaintiff accepted the avails of the sale at 83 and sued his brokers to recover the difference between 83 and 87, less brokerage. Held, that he was not entitled to recover.
    Appeal by the defendants, Evans B. Dick and others, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of said court on the 24th day of June, 1910, affirming a judgment of the Municipal Court of the city of Bew York in favor of the plaintiff entered upon the verdict of a jury.
    
      George S. Graham, for the appellants.
    
      George Young Bauchle, for the respondent.
   Miller, J.:

The defendants, stockbrokers, were carrying 100 shares of Columbus and Hocking Coal and Iron Company stock on margin for the plaintiff. He directed them to sell at 87. They sold on the floor of the exchange to a broker who made a specialty of that stock, the latter “ giving up ” the name of his principals. When notified, said principals repudiated the transaction on the ground that the broker’s authority was limited to written orders, and that they had not given him an order to buy at 87. However, they offered the defendants an unclosed transaction with said broker for a purchase of 100 shares at 83. Meanwhile the stock had dropped to 23 and said broker had failed. Naturally, the defendants promptly accepted the offer, and, under the rules of the exchange, submitted to arbitration the dispute as to whether the said principals were justified in repudiating the purchase at 87, with the result that the latter were sustained. The plaintiff accepted the avails of the sale at 83 and sues to recover the difference between 83 and 87, less brokerage.

We know of no theory upon which the recovery can be sustained and none has thus far been suggested. The Municipal Court jus» tice submitted to the jury the question whether the plaintiff ratified the sale at 83. If he does not want that price the defendants will doubtless be glad to replace his stock or to account for its value, either at the time of the sale at 83 or since.

The order of the Appellate Term and the judgment of the Municipal Court should be reversed and a new trial granted, with costs to appellants to abide the event.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Determination and judgment reversed, new trial ordered, costs to appellants to abide event.  