
    Frank M. Gillet et al., Resp’ts, v. William J. Whiting, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed January 3, 1888.)
    
    1. Broker — Sale of stock purchased on a margin without notice to THE PRINCIPAL—EFFECT ON RIGHT OF BROKER TO RECOVER LOSS.
    The plaintiffs bought certain stock on a margin for the defendant, on his alleged request, and afterward sold it at a loss. In an action brought to recover the amount of such loss, one of the defenses was that the stock was converted by plaintiffs because it was sold without notice being given to the defendant. Held, that the sale, without notice, would only have entitled the defendant to a reduction of the plaintiffs’ damages by the amount proven to have been suffered by defendant from the sale at the particular time when it took place.
    2 Same—Ratification of contract—Consideration.
    The defendant testified that the stock purchased for him was not the kind ordered by him. It appeared that after the sale of the stock, the plaintiffs made up the account and presented it to the defendant, and that he accepted it and promised to pay the balance stated in it. Meld, that the promise to pay was a ratification of the purchase, and that it did not. need a consideration to sustain it.
    Appeal by defendant from judgment entered upon verdict, for plaintiffs.
    
      Hill, Wing & Shoudy, for app’lt; Ira D. Warren, for resp’t.
   Sedgwick, J.

This action was by plaintiffs for recovery of money expended by them,_ at the alleged request of defendant, in purchase of certain stocks, as his brokers, upon. margins furnished by him, less those margins and the amount realized from a sale of the stock.

On the trial, the counsel for defendant claimed that there was no evidence that the plaintiffs gave to the defendant notice of the time and place of sale, and asked the court to charge the jury that if no notice was given the sale was a conversion by the plaintiffs, and excepted to the refusal of the court to charge as requested.

The refusal was not error, for the fact of conversion did not go to the whole damages asked by plaintiffs, but entitled the defendant to a reduction of the plaintiffs’ damages by the amount proven to have been suffered by defendant from the sale, at the particular time when it took place. Ho such amount was proven. Baker v. Drake, 53 N. Y., 211, and the cases that follow it.

The defendant testified, in substance, that the stock bought for him by the plaintiffs was not of the kind ordered by him. The plaintiffs testified that, after the sale of the stock, they made up the account and presented it to the defendant, and that he accepted it and promised to pay the balance stated in it. The court charged that the acceptance of the account, and the promise to pay, was a ratification of the transaction. This was correct. The promise needed no new consideration. Commercial Bank of Buffalo v. Warren, 15 N. Y., 577

Of the acceptance, as claimed, of the purchase, the court said of the defendant: “It was his duty either to accept or refuse to accept it. He had a right to say I will not accept that stock. If he did not say that, then he did accept it.” The counsel for the defendant supposed that the validity of this charge can be questioned upon this appeal. It was, in fact, followed by several propositions which were correct, and the exception that was taken applied rather to these propositions than to those that had preceded them.

The judgment should be affirmed, with costs.

Ingraham. J. concurs.  