
    John J. Finney, Resp’t, v. Peter W. Gallaudet and Henry Fitch, Jr., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 3, 1888.)
    
    1. Stock brokers—Action against—Evidence—When custom of trade ADMISSIBLE.
    Where, in. an action against stockbrokers to recover an alleged balance due on an account, the defendants concede that a profit resulted from their operations for plaintiff to a gi en date, but set up that after that time other ventures were made on plaintiff’s account which left him in debt to them, and it is admitted that they did not follow the usual custom of sending notices during the latter transactions, although they were observed in the former dealings, Held, that evidence of the method of business between them and the plaintiff, during the time of the former dealings, and the custom of trade as to sending notices was admissible as bearing on the question whether the later transactions were for plaintiff.
    2. Same—Competency of conversations with confidential clerk.
    Evidence of conversations between one of the defendants and a confidential clerk of theirs is inadmissible on their behalf, but evidence of a conversation between plaintiff and such clerk is competent in behalf of plaintiff; the whole gist of defendants’ defense being that the clerk was their employee, and, as such, received confidential orders from plaintiff.
    3. Verdict—Sufficiency of evidence.
    The mere fact that upon some points the uncorroborated word of one man was believed as against the contradiction of two or more witnesses is no ground for impugning the verdict where the record discloses nothing tending to show that the jury was influenced by passion or prejudice.
    Appeal from a judgment entered at trial term upon a verdict of a jury.
    Thi& action was brought to recover of defendants, stockbrokers, profits on stock transactions alleged to have been made between April 15, 1886, and October 4, 1886, while plaintiff was dealing in stocks through defendants, and amount to the sum of $1,688.33 and interest.
    The defendants defended the action solely on the ground that after said 4th day of October, 1886, and down to January, 1887, the plaintiff continued his stock operations until finally in January, 1887, his profits were not only used up, but he owed the defendants on said account $5,427.65. The jury found for plaintiff.
    Folios 141, 150 and 170 (referred to in opinion) were objections to evidence. At folio 141 the defendant, Henry Fitch, Jr., being sworn as a witness, was asked in regard to a conversation held with one Wykes, defendants’ confidential clerk. An objection to such question was made- and sustained. At folios 150 and 170 evidence of conversations between plaintiff, who was being examined as a witness on his own behalf, and said Wykes was objected to and admitted over objection.
    
      Francis & Merion, for app’lts; Edwin M. Felt, for resp’t.
   Larremore, C. J.

The defendants are a firm of stock brokers, and the plaintiff was a customer.of theirs, and in this action sues to recover an alleged balance in his favor, arising out of purchases and sales of stock for his account. It was conceded that down to a given date plaintiff’s, operations were successful, and a profit resulted, but defendants set up an affirmative defense to the effect that, after the date of the last transaction referred to in the complaint, still other ventures were made on plaintiff’s account, which not only consumed the balance then standing in his favor, but brought him out largely in debt to his brokers. It is undisputed that these subsequent purchases and sales of stock were made, and that they have been charged to plaintiff upon defendants’ books. The question of fact upon which the whole controversy turned, and which has been decided in plaintiff’s favor by the jury, was whether any authority to identify him with the transactions in question ever existed.

The verdict is not so obviously against the "weight of evidence as to call for interference with it on that ground. It was admitted that in the latter transactions the defendants, did not follow the usual custom of business by immediately-sending plaintiff written notice of each purchase and sale, and it also appears that such formalities were observed with him in the prior and more fortunate dealings. The explanation offered by defendants of their ceasing to treat, plaintiff like an ordinary customer, and as they had formerly treated him, was that he had grown very intimate with”their confidential clerk, Mr. Wykes, and by reason'of such intimacy, and also because plaintiff wished the fact of his trading in the market to be kept secret, he was allowed to privately give his orders and receive information of their result through Mr. Wykes. Plaintiff’s denial of all the alleged circumstances necessary to make out this-theory of defense is absolute and unqualified.

He even denies that he was on terms of intimacy with Wykes, and asserts that the latter never had the slightest authority to bind or represent him. The mere fact -that upon some points the uncorroborated word of one man was believed as against the contradiction of two or more witnesses, is no ground for impugning the verdict. The record discloses nothing tending to show that the jury was influenced by passion or prejudice.

Nor do we think the criticisms of counsel upon some of the rulings at the trial are well founded. A strenuous objection was made to the showing of the method of business between the plaintiff and defendants during the time of their undisputed dealings with each other, as well as the ordinary custom of the trade as to sending notices, etc., which custom had been observed with plaintiff during such undisputed period. In our judgment this evidence was properly admitted.

Proof of custom was not introduced here, as is usually the case, to modify or supplement the positive provisions of law, but merely to throw light on the matter of probability in determining a question of fact. As such it was clearly relevant, and it would have been a great injustice to plaintiff, if,-when called upon to meet defendants’ allegations, he had been deprived of the privilege of arguing inferentially as to their truth or falsity, from conceded facts in the business relations of two parties.

We are also of opinion that the trial judge correctly ruled at folios 141, 150 and 170.

Conversations between one of the defendants and Mr. Wykes, defendants’ confidential clerk, sought to be proved on behalf of defendants, were properly excluded.

It is elementary that a party may not prove, in his own favor, declarations made by himself or his agent, in the absence of the other party. But an alleged conversation between Mr. Wykes and plaintiff was rightly admitted on plaintiff’s behalf, because the declarations of an agent made in the course of business, are competent against his principal. Counsel for appellant contends that these rulings were both erroneous, because they assume that Wykes was defendant’s agent. But what other supposition could the court have possibly entertained?

The whole gist of defendant’s affirmative defense is, that Wykes was their employe, and as such received confidential orders from their customer, the plaintiff.

Unless this was conceded, the facts alleged by way of affirmative defense were utterly irrelevant, and that part of the answer which contained them, was frivolous. The claim that Wykes was plaintiff’s agent, will not bear the most simple analysis. Mr. Wykes was in the employ of the defendants, and frequently assisted them in their business. If all his statements were taken as true, they would establish nothing further than that, having become intimately acquainted with one of defendant’s customers, some of the rigid formalities of business were, through his influence, relaxed as to that particular customer.

This state of affairs would not, in any way, alter the original legal status of the parties.

The judgment and order appealed from should be affirmed with costs.

Van Hoesen, J., concurs.  