
    William Clarke, Plaintiff and Respondent, v. Charles A. Meigs et al., Defendants and Appellants.
    1. The plaintiff employed the defendants, who were stock brokers, to buy certain stocks on time, malting, and agreeing to keep good, in the defendants’ hands, a deposit to indemnify them against depreciation in the market value. The stocks having fallen after their purchase, the defendants called on the plaintiff for a further deposit, and he replied that it was not convenient that day, but that he would make it the next day. At the same interview he gave them written authority to sell, in these terms: “Please sell, for my account, 200 111. Central R. R. at 51.” After receiving this written authority, the defendants sold the stocks the same day, at 52. Held, 
      that in an action against the defendants for so selling, evidence was competent, on the part of the plaintiffs, that it was agreed at the same interview and before giving the authority to sell, that the defendants should wait until the next day for a further deposit, and that if the stock went down to 51, meanwhile, (at which point the existing deposit would be exhausted,) the defendants might sell the stock. Such evidence does not contradict such a written power.
    2. Such an agreement to delay is not void as being without consideration.
    3. A general allegation in the complaint in such an action, that the defendants sold without authority from the plaintiff, and in violation of their agreement and duty as brokers, is sufficient to admit of evidence of such an agreement to delay.
    4. A principal is not necessarily to be deemed to have ratified a wrongful act of his agent so as to exempt the agent from liability to him, merely because he does not notify to the agent his dissent at the earliest possible opportunity after being informed of the wrongful act.
    5. The contract which the defendants made on behalf of the plaintiff, being for the delivery to him of the stocks, at any time at his election, within a certain period, an offer of the defendants, made after selling the stock without authority before the.expiration of such period, to replace the stock, does not bar the plaintiff’s right of action. He is entitled to be reinstated in the contract, not merely to have the stock replaced. (Robertson, J., dissented.)
    6. Where an agent has thus violated his instructions and duty, and made himself liable to an action for damages, nothing but payment of the damages, an accord and satisfaction, or a release, is a bar to an action. His offer to replace the stock, so long as it is unaccepted, affects neither the principal’s right to recover nor the measure of damages. (Per Bosworth, ■ Oh. J.)
    7. The Judge charged the Jury in this action that the rule of damages was the difference between the price at which the stock sold on the 19th, and the price at which the plaintiff could have purchased the same stock on the 20th.
    
      Held, that this rule was as favorable as the defendants could claim. They were not entitled to have the Jury instructed that if it appeared that by waiting until after the 20th they might have been entitled to sell the stock at a time when it was as low as it was on the 19th, the plaintiff would only be entitled to nominal damages. (Robertson, J., dissented.)
    8. It is not necessary for the plaintiff in such action to prove that the defendants were paid or to be paid anything for their services, for the law implies a promise to pay what their services were reasonably worth.
    9. Nor is it necessary for him to prove a demand upon the defendants for the stock and their refusal to deliver it; nor that the plaintiff had paid or offered to pay, or been ready and willing to pay, the balance due. (Robertson, J., dissented.)
    10. Where a motion for a new trial is granted unless the plaintiff stipulate to reduce the verdict, in which event the motion is denied, the plaintiff, by giving the stipulation and entering judgment thereon, waives his right to appeal from the judgment.
    11. The awarding costs is not in the discretion of the Court, on affirming, on appeal, an order denying a new trial, or affirming a judgment in whole. (Per Boswobth, Ch. J.)
    (Before Bosworth, Ch. J., and Robertson and Barbour, J. J.)
    Heard, December 11, 1862;
    decided, March 14, 1863.
    Appeal by both the plaintiff and the defendants from a judgment entered upon a verdict in favor of plaintiff.
    This action was brought against Charles A. Meigs, Augustus W. and E. B. Greenleaf, for an alleged violation of their duty in selling certain stocks.
    A decision upon a demurrer to the complaint is reported in 13 Abb. Pr., 467, S. O., 22 How. Pr., 340. The defendant having subsequently answered, the action came on for trial before Mr. Justice Mohell and a Jury, on the 19th day of February, 1862.
    It appeared that, on the 15th November, 1860, the plaintiff gave to the defendants, who are stock brokers at the City of New York, an order to purchase for him two hundred shares ($20,000) of the stock of the Illinois Central Eailroad, at sixty-five, buyers’ option, thirty days, upon which, for the defendant’s security, the plaintiff was to make with them, and keep good a deposit of five per cent.
    On the same day, the defendant, upon this order, bought for plaintiff’s account and risk, the two hundred shares, at sixty-one, buyer’s option, sixty days, which purchase was accepted by plaintiff.
    On the date of the purchase, and on account thereof, plaintiff deposited with defendants $1,000, “margin,” and on the 17th November, the stock having declined to fifty-eight, the defendants called for a further margin of $1,000, which the plaintiff deposited with them.
    On the 19th November, the stock having further declined, defendants called for a still further margin of $1,000. This call was made between two and three o’clock in the afternoon, and resulted, as the plaintiff claimed, in defendants agreeing to hold the stock until the next day, provided -.the price did not fall to fifty-one.
    
      Further details of the testimony, and of a motion to dismiss the complaint, are stated in the opinions of the Court.
    The plaintiff’s counsel requested the Court to charge the Jury that if they found in favor of the plaintiff, he was entitled to recover the difference between sixty-one and seventy-seven and a half, which had been shown to be the highest price obtained for Illinois Central during the running of the contract.
    The Judge refused so to charge, to which refusal the plaintiff’s counsel excepted.
    The defendants’ counsel, in substance, requested the Court to instruct the Jury:
    1. That if the defendants agreed to hold the stock until the 20th, such agreement, being without consideration, is void, and must be disregarded.
    ' 2. That there being in the complaint no allegation of a new agreement between the parties as to the defendants agreeing to hold the stock until the 20th, evidence of any such agreement should not have been admitted, and should be disregarded.
    3. That if the plaintiff had notice of the sale soon after it was made,, and did not notify the defendants of his dissent until the next day, his silence, under the circumstances, is a ratification of their acts.
    4. That if the defendants, soon after the sale, offered to replace the stock, the plaintiff cannot recover.
    
      5. That had plaintiff’s instructions to sell been obeyed, he would have sustained the' same loss which he now claims to have sustained, then the Jury are to give nominal damages only.
    The Judge refused each of these requests to charge, and the defendants’ counsel excepted.
    The defendants’ counsel further requested the Court to charge, that there being no evidence of any fraud or mistake in regard to the order to sell, any evidence of any past agreement between the parties tending to vary or control the order, is not to be regarded, which instruction the Courj; refused to give any further than he had charged on that subject; to which refusal the deféndants’ counsel excepted.
    The Judge, in charging the Jury, referred to the testimony, and proceeded:
    If you are satisfied that the defendant agreed to hold the stock to the 20th instant, without a further deposit, the plaintiff is entitled to your verdict. * * * *
    The rule of damages, in my judgment, is the difference between the price at which the stock sold on the 19th— 52 cents— and the price at which the plaintiff could have purchased the same stock on the 20th. You may take either the highest or lowest price on that day, which, according to the evidence, was 53f cents and 55 cents. To this difference, if you find for the plaintiff, you will add interest from the 20th November, and you must deduct interest on $8,200 for five days.
    Plaintiff’s counsel took exception to the charge in relation to the rule of damages.
    The Jury thereupon found a verdict for the plaintiff, and assessed the damages at $862.19.
    The defendants moved at Special Term for a new trial, on the ground, among others, that the verdict was against the weight of evidence and was excessive. The Court, on hearing the motion, granted a new trial, unless the plaintiff should stipulate to deduct from his recovery the sum of $50, being the amount of commissions on the purchase or sale.
    The plaintiff gave the stipulation required, and entered judgment for the amount of the verdict so reduced.
    The defendants now appealed from the judgment and from the order denying the new trial in case plaintiff* should stipulate; and the plaintiff appealed from the judgment which he had entered.
    
      T. M. Wheeler, for defendants.
    I. The Judge erred in allowing parol testimony to be given, altering and contradicting the written order to sell, and in refusing to charge the Jury as requested by the defendants’ counsel.
    The order to sell beiftg in writing, parol evidence, altering and contradicting it, should not have been admitted. (Durgin v. Ireland, 14 N. Y. R., [4 Kern.,] 325 ; Story on Agency, § 79, 6th ed.; Wolfe v. Myers, 3 Sandf., 7; Norton v. Woodruff, 2 N. Y. R., [2 Comst.,] 153; Armstrong v. Munday, 5 Denio, 166; Thompson v. Ketcham, 8 Johns., 189; Norton v. Coons, 6 N. Y. R., [2 Seld.,] 41; Van Allen v. Allen, 1 Hilt., 524; Fitzhugh v. Runyon, 8 Johns., 375; Payne v. Ladue, 1 Hill, 116; Ely v. Killborn, 5 Denio, 514; Erwin v. Saunders, 1 Cow., 249; Gridley v. Dole, 4 N. Y., [4 Comst.,] 486; Brown v. Hull, 1 Denio, 400; Dunlop v. Munroe, 7 Cranch, 242; S. C., 2 Curtis, Dec., 522; Barrett v. Union Mutual Fire Insurance Company, 7 Cush., [Mass.,] 180.)
    An agent is bound to obey the instruction of his principal. (1 Parsons on Contracts, 69, 3d edition; Story on Agency, §§ 172, 189, 6th edition; Blot v. Boiceau, 3 N. Y. R., [3 Comst.,] 78; Marfield v. Goodhue, 3 N. Y. R., [3 Comst.,] 62.)
    II. The Judge erred in refusing to charge that, if they found that defendants agreed to hold the stock until the 20th of November, such agreement, being without consideration, was void, and must be disregarded.
    A promise for which there is no consideration cannot be enforced at law. (1 Parsons on Contracts, 353; Burnett v. Bisco, 4 Johns., 235; Geer v. Archer, 2 Barb., 420; Van Derveer v. Wright, 6 Barb., 547; Smith v. Ware, 13 Johns., 257; Crosby v. Wood, 6 N. Y. R., [2 Seld.,] 369.)
    A consideration consists either in some right, interest, profit, or benefit, accruing to the party who makes the contract, or some forbearance, detriment, loss, responsibility, or act, or labor, or service on the other side. (Story on Prom. Notes, § 186; 1 Parsons on Contracts, 358.)
    Part payment by a debtor of a debt actually due is no consideration for an agreement by the creditor to forbear and give time for the payment of the residue. (Hunt v. 
      Bloomer, 5 Duer, 202 ; Patchin v. Pierce, 12 Wend., 61, 63; Miller v. Holbrook, 1 Wend., 317; Gibson v. Renne, 19 Wend., 389; Pabodie v. King, 12 Johns., 426.)
    III. The Judge erred in refusing to charge that, there being in the complaint no allegation of such a new agreement to hold the stock, evidence of such agreement should not have been admitted, and should be disregarded.
    IV. The offer of the defendants to prove, in mitigation of damages, that they had the day after the sale, and several times thereafter, offered to the plaintiff to replace the stock for him, without charge, was improperly rejected. The judge also erred in refusing to charge that if the defendants, soon after the sale, offered to replace the stock for the plaintiff, then the plaintiff could not recover.
    If, the day after the sale, the defendants offered to put the plaintiff in exactly the same situation in which he would have been had the sale not taken place, then any loss which occurred to the plaintiff was occasioned, not by the wrongful acts of the defendants, but by the fault of the plaintiff himself. (Gainsfred v. Carroll, 2 Barn. & Cres., 624; Cited in Clark v. Pinney, 7 Cowen, 691; Gray v. Portland Bank, 3 Mass. R., 382.)
    It is a good defense to an action by the principal that the misconduct of the agent has been followed by no loss or damage whatsoever. (Story on Agency, § 236; Blot v. Boiceau, 3 N. Y. R., [3 Comst.,] 85.)
    There must be a real loss or actual damage, and not merely a possible or probable one. (Story on Agency, § 222.)
    The plaintiff had paid no money upon the purchase of the stock. In conversion, the general rule in regard to personal property is that its return is no bar to an action, but is admissible in mitigation of damages. (Sedg. on Dam., 548, 578; Vosburg v. Welch, 11 Johns., 175.)
    After conversion, the restoration to or repossession of goods by the plaintiff before suit brought, will go in mitigation of damages. (Sedg. on Dam., *492; Reynolds v. Shuler, 5 Cow., 323; Hallett v. Novion, 14 Johns., 273; 
      Wheelock v. Wheelwright, 5 Mass. R., 106; Hanmer v. Wilsey, 17 Wend., 91.)
    V. The Judge erred in refusing to charge that if, had the instructions of the plaintiff to sell been obeyed, the plaintiff would have sustained the same loss which he now claims to have sustained, then the Jury are to give the plaintiff nominal damages only. It was proved that, on the 7th of December, before the expiration of the sixty days the contract was to run, the stock sold at fifty-one.
    VI. The Judge erred in refusing to dismiss the complaint on each of the grounds specified in the motion, to dismiss.
    VII. As to the rule of damages, if the agreement of the defendants with the plaintiff to hold the stock until the next day was valid, then the plaintiff was entitled to the whole of the next day in which to pay the $1,000, and the defendants were bound to hold the stock for that time-, and, in default of the plaintiff making the payment, they could not have sold the stock until the 21st of November. The plaintiff is, therefore, entitled to recover* as damages, the difference between the price at which the stock was sold, and the price at which he could have purchased the stock on the 21st of November.
    
      H. M. Hyde, for the plaintiff.
    I. It was not necessary to prove a demand before suit.
    1. Plaintiff’s option, under the contract, had been once exercised, and the seller had responded; a demand of him would have been idle.
    2. Equally useless would have been a demand of defendants. The plaintiff had no contract with them for the delivery of stock at his option; and the position practically assumed by them on the 19 th of November, closed their connection with the contract. If they were right, it only remained to apply the deposits to the difference between 52 and 61, and to their charges, and to pay over the balance to plaintiff. If they were wrong, a cause of action accrued that day to the plaintiff, which no act of his .could strengthen—which no act of theirs,.short of satisfaction, could impair.
    3. The case is entirely unlike that of a broker who, having purchased and taken a delivery of stock in his own name, is not bound to hold the identical stock for his principal, but fulfills his duty by keeping a like number of shares on hand at all times when a demand could be made. (Horton v. Morgan, 19 N. Y. R., 170.)
    4. The transaction' of November 19th, amounted to a declaration that defendants would not fulfill the contract of purchase for themselves, nor for the seller, and excused a demand and readiness on plaintiff’s part. (Traver v. Halsted, 23 Wend., 66; Franchot v. Leach, 5 Cowen, 506; Cort v. Ambergate R. R. Co., 6 Eng. L. and Eq., 230; Hochster v. De Latour, 20 Id., 157; Lovelock v. Franklyn, 8 Q. B., 371; S. C., 55 Eng. Com. L., 376.)
    5. The question was decided by the General Term of this Court, upon .the demurrer in this action. (See 13 Abbotts’ Pr., 467.)
    II. The offer to prove that defendants offered to “replace the stock,” was properly rejected. It was not an offer to, make good plaintiff1's. loss, but to buy for him other 200 shares without charge for commissions. And there was no plea of tender, nor offer to prove tender.
    TIT. The Court properly declined to instruct the Jury as requested by defendant.
    1. The right to call for additional margin, was one which defendant could waive. The Jury found that they did waive it.
    Beside, the margin was not exhausted by the lowest price- (52) of November 19.
    2. The plaintiff repudiated the sale as soon after he learned of it as was practicable.
    ■ The principle of ratification does not apply. The controversy is directly between the parties, and not involving a third person. >
    3. The fifth proposition ignores the fact that the order to sell at 51 was a part of the agreement to hold, provided the stock on the 19th did not decline to that figure.
    IV. The plaintiff insists that the Court erred in determining the rule of damages. Plaintiff is entitled to recover of defendants what, but for this act of November 19th,. he could have recovered of the seller of the stock had he made default, in fact precisely what, by way of profits, would otherwise have accrued to plaintiff, viz.:
    The difference between 61 and 77J on the stock.
    The amount paid on the purchase, (the “margin” retained by defendants,) $2,000.
    Interest on the latter sum from November 19th.
    Interest on the former from January 14, 1861, (the end of 60 days from the purchase.)
    Less $50, commissions, and the interest on $8,200 from November 15th to January 14th, 1860.
    V. There is no need of a new trial. The facts are found by the verdict, and it only remains for a computation of damages to be made by the Court, and the judgment to be in that respect reformed.
   Bosworth, Ch. J.

The defendants did not except to the charge as made, but took several exceptions to refusals to charge as requested.

The defendants sold the stock on the 19th of November, 1860. The main question of fact submitted to the Jury was, whether the defendants agreed on the 19th, to hold the stock until the 20th, without a further deposit being made on the 19th. On the 19th, at the lowest price of the stock, the defendants were indemnified by the deposits in their hands, against all the depreciation that had. occurred after they made the contract to purchase, up to that time, and had a surplus of $200. This question was properly submitted, if it was competent to receive evidence of such an agreement. The evidence was received without objection. If incompetent, it could only be so because of plaintiff’s written order of November 19th, 1860, which is in these words, viz.:

“Hew York, Nov. 19th, 1860.

Messrs. Meigs & Greeíjxeaf :

Please sell for my account 200 111. Central R. R. at 51.

W. CLARKE.”

The plaintiff testified that on the 19 th, Mr. Greenl’eaf, (one of the defendants,) called on him; said the stock had declined to 52; “asked for another margin of $1,000; I said * * it was not convenient that day, and I asked him if he could not wait until the next day; he first thought he could not conveniently, but after some little Conversation, he agreed to wait until the next, for another $1,000.”

* * “After making the arrangement to wait until the next day, I said to him voluntarily, if the stock ran down to 51, so that all the margin ran out, he had the privilege of selling.” * * * *

“ Q. At the interview you had with Mr. Greenleaf, on the 19th, you say it was agreed between you that if it went down to 51 that day, they might sell?

“Objected to, as conversation prior to the written instructions. Allowed. To which defendants’ counsel duly excepted.

“A. Yes, sir.

“ Q. Was this order given in pursuance of that arrangement?

“A. It was entirely so; it was called for by Mr. Green-leaf himself.”

The above is the only exception taken to the admission of any part of this evidence.

I think it was competent. It does not contradict the written order. That could not be construed, in the light of the facts present to the minds of both., parties at the time it was made, as requiring or authorizing a sale at 51, if the defendants were offered more, or knew they could get more. The stock had only fallen to 52, when it was written. That was the lowest price at which it was sold that day. The plaintiff wished until the 20th to make a further deposit of $1,000, and take his chánces of a rise. Even though "the defendants may have had a right to demaud a deposit of $1,000 on the 19th, and on the plaintiff’s refusing to make it, to sell the, stock, yet they could waive it, and give the plaintiff until the next day. Non constat, if they had refused to waive it, that the plaintiff would not have made a deposit that day. Having agreed to wait until the next day, and thus made it unnecessary for him to deposit that day, it would he a fraud- on him to allow them to recede; and especially so, without notice to the plaintiff.

It is consistent with the terms of the written order, that it was given to be acted on, on that day, only in case the stock fell to 51 that day. It is not a case where the rights of third parties intervene; but a case between principal and agent, between the parties to the transaction.

It is not a forced construction of the power of attorney, to hold that it authorized a sale only in the event of the stock.falling to 51. But without attaching any importance to that suggestion, I think the evidence was competent and admissible, even if all of it had been objected to. (Crane v. Maynard, 12 Wend., 408; Flynn v. McKeon, 6 Duer, 203.)

A verdict in favor of the plaintiff on this point is not against evidence. The testimony of E. H. Shaw as to the agreement of the defendants to wait until the 20th, is direct and pointed.

The request to charge that this agreement to wait was without consideration and void was properly overruled.

It was'for the defendants to insist on having the deposit on the 19th, or else they were precluded from objecting. After agreeing to wait until the 20th, the position of the parties was the same as if no deposit had been asked for on the 19th;_ at least, the defendants’ position was no better, and the plaintiff’s not worse. If the plaintiff had said, I will make the deposit to-day, if you insist on it, but it will be more convenient to do it to-morrow; and the defendants had said, you need not make it till tomorrow, and they had then sold on the 19th without notifying’the plaintiff of their intention to do so, the act would be a fraud on the plaintiff. The actual fact as the jury has found it, is the same in legal effect.

The substance of the transaction was the same as if the defendants had called on the 19th, and demanded that a further deposit of $1,000 should be made on the 20th, and the plaintiff had said he would make it, and also agreed on his part, if the stock fell to 51 on the 19th, it might be sold that day, at that price. That put it in defendants’ power to protect themselves from loss, and gave the plaintiff the chances of the next day’s market, if the stock did not fall to 51 on the 19th. The defendants concluded, by their agent, to wait till the 20th for a further deposit.

The second request to charge was properly refused. The averment in the complaint is that defendants sold on the 19th, without authority from the plaintiff, “ and in violation of their agreement and duty as such brokers.” This allegation is broad enough to admit under it the evidence received. (Crane v. Maynard, supra.)

The third request was properly refused. There is no such rule of law as that, where an agent does an illegal act, on a certain day, and his principal receives notice in the afternoon of that day, he will be deemed, as a matter of law, to have ratified it, if he does not look up the agent and express his dissent before the next day.

The fourth request is untenable. Where an agent has violated his instructions and duty, and made himself liable to an action in damages, nothing but payment of the damages, an accord and satisfaction, or a release, is a bar to the action. And whatever offers or tenders have been made, so long as they are unaccepted, .they neither affect the right to recover, nor the measure of damages. Where a tender authorized by common law or statute has been duly-made, and is properly pleaded, an action to recover more than the sum tendered may be barred. But even in such cases a tender of anything less than the full sum due is not matter in mitigation. (Clark v. Halleck, 16 Wend., 607; Gould v. Banks, 8 Id., 562.) And a tender of the exact sum due, and keeping it good, even when pleaded, only precludes the recovery of subsequent interest. (Raymond v. Bearnard, 12 Johns., 274.)

The fifth request was properly refused, if the Court, in its instructions as to the rules of damages, was as favorable to the defendants as consists with the rules of law. If the defendants had agreed not to sell until the 20th, and sold wrongfully on the 19th, the plaintiff was, at the least, entitled to the difference between 52 and the price at which it sold on the 20 th.

But there was no evidence on which the matter of that request could be submitted. The lowest sales on the 20th were at 53f. So that, had the plaintiff’s instructions been obeyed, and a sale been made on the 20th, he would not have sustained the same, or as much loss as by a sale on the 19th. If the request meant to include the contingency of the plaintiff’s holding beyond the 20th, and to refer to a time when, after that, he might possibly have authorized a sale, then it involved no rule of law which a Jury or a Court could apply, and was properly disregarded.

The rule of damages stated to the Jury was favorable to the defendants. It virtually assumes that the plaintiff would not have made a deposit of $1,000 on the 20th, and that the defendants would rightfully have sold the stock that day. It was easier to deposit $1,000 than to purchase 200 shares at 55, or even 53|, and pay for it. If the deposit of $1,000 had been made on the 20th, the plaintiff would have been entitled to the benefit of his contract, and to have the stock held during the whole of the 60 days. The stock is not shown to have so depreciated during the 60 days, as that a further deposit could have been required. On the 21st Oct., fell to 51g; on the 22d, ranged from 55 to 59; on Dec. 7, 300 shares were sold at 51, and during the 60 days it rose to 77£. If, under this request, the defendants wished it left to the Jury to find whether the plaintiff would not have sold on the 7th of December, the request was properly refused.

I think the rule was stated as favorably as the defendants could claim. (Andrews v. Clerke, 3 Bosw., 585.) They cannot complain, and did not except to it.

The last request to charge has been sufficiently considered in the review made of the first request, and of the charge actually given in respect to the matter of those two requests.

These remarks dispose of all questions, except those arising on defendants’ motion to dismiss the complaint.

It was asked on three grounds, viz.:

1st. “ Because it had not been proved that the defendants were paid, or were to be paid anything for services.

2d. “Because it had not been proved that the plaintiff had ever exercised his option, nor that a demand was made upon the defendants for the stock, and their refusal to deliver it; nor that the plaintiff had paid or offered to pay, or been ready and willing to pay the balance due for said stocks, under the agreement for the purchase thereof.

3d. “Because it had been proved that the defendants had offered to replace the stock for the plaintiff.”

The third ground has already been considered. It is a sufficient answer to the first, that the law implies a promise by the plaintiff to pay to the defendants what their services were reasonably worth. %

The answer to the second is, that it is untenable. The defendants procured a contract for 200 shares. It may be conceded that the delivery of any 200 shares would satisfy the contract of their vendors. But, assuming the transaction to be a real one, and not a gambling operation, it follows that, when the defendants received 200 shares, under their contract of purchase, they received stock, which, as between them and the plaintiff, was received for him, and on account of which he had paid them, by the deposits made with them, $2,000. They sold stock, when they sold it, which he had bought through them, and sold it as being, as between him and them, his stock, the losses on the sale of which he was to bear, and the profits on which would be his.

By the act of selling, the defendants had put it out of their power to deliver it, if demanded, and no demand was necessary. This is not a suit to recover possession of the stock, or to compel a delivery of it, in which case a request to deliver and offer to pay might be necessary, but is an action for damages for unlawfully selling stock which the defendants purchased for the plaintiff, and received under such purchase, and which it was their duty to hold and deliver to him, unless by reason of some subsequent default they could lawfully sell it, in which event, they would sell it, as being, as between him and them, his stock, and at his risk.

I think the motion to dismiss the complaint was properly denied. The defendants wrongfully terminated a contract which they had made for the plaintiff, and to the advantages of which he was entitled, and rendered it impossible for the plaintiff to obtain an execution of it by the delivery under it by the original vendors of any stock to him.' And for the damages resulting from this wrongful act they are liable.

This .disposes of all questions raised by the defendants’ appeal, and they are not entitled to a reversal of the judgment.

The remaining question is, can the plaintiff’s appeal be considered ?

The defendants moved at Special Term for a new trial, and the Court ordered that a new ¿rial be granted, unless the plaintiff stipulated to deduct $50 from the verdict, in which event the motion should be denied.

The stipulation was given to comply with that condition, and the plaintiff then entered a judgment (reciting such stipulation) for the amount of the verdict, less the sum so deducted.

This is a waiver of the plaintiff’s right to appeal.

It is, in effect, a stipulation to deduct $50, and waive all exceptions taken by him, in the event that the Court will refuse a new trial by reason of the supposed error of the Jury in rendering a verdict too large by the suni of $50. The Court did refuse to grant a nqw trial on that condition, and the stipulation was given to comply with such condition. Such a stipulation should be enforced by the appellate Court. (Townsend v. The Marsterson, &c., Stone Dressing Co., 15 N. Y. R., 587.) But a reversal of the judgment and a new trial is not the form in which the plaintiff seeks relief by his appeal. He insists that he is entitled to the difference between 61 and 77|-, and that this may be awarded to him without a new trial. His fifth point is that “there is no need of a new trial;” that the Court can compute the damages and reform the judgment in respect to its amount.

A new trial would be necessary to reach the result of a recovery of greater damages. A new trial is not a result sought by the plaintiff, and if it is, he has already prevented the granting of one, and the granting of which was refused, merely because he gave a stipulation, which the Court, at Special Term, thought would produce a final result, just to both parties.

The judgment should be affirmed. I do not understand that the giving or awarding of costs is in the discretion of the Court. That kind of discretion cannot be exercised, on appeal, except in two cases, viz.: (1.) Where a new trial shall be ordered;' or, (2.) The judgment shall be affirmed in part and reversed in part.

If affirmed in toto, the law disposes of the question of the right to costs.

Barbour, J.

The case made by the pleadings and proofs upon the trial below, was this:

On the 15th of November, 1860, the plaintiff directed the defendants, as stock brokers, to enter into a cdhtract to purchase for him 200 shares Illinois Central Railroad stock, at a price not exceeding 65 per cent of its par value, the plaintiff to have the right to call for and take the same at his option, upon payment of the purchase price, at any time within thirty days, upon giving one day’s notice of his intention to take such delivery, or, in case no such notice should be given, then it was to be obligatory on the vendor to deliver, and on the purchaser to take and pay for such stock at the expiration of the thirty days.

The defendants, in pursuance of this direction, on the sáme day, made such contract to purchase the 200 shares at 61 per cent, deliverable, however, at buyer’s option, within 60 days.

To this contract the plaintiff assented; and on the same day, in accordance with the custom in regard to such agreements, placed in the hands of the deféndants the sum ■of $1,000 in money, to stand as security to the vendor against any loss or hazard that might accrue to him by a fall in the market price of the,stocks, prior to their delivery to the plaintiff.

On the 17th of November, stock of that description having fallen in the market to 58, the defendants called upon the plaintiff and received a further deposit of $1,000, (among dealers'in stocks, technically termed a margin,) by way of security.

Although there is no direct testimony upon the point, it may, I think, be inferred from the nature of the transaction, and the manner in which the business seems to have been done by the defendants, including a sale by them, that the defendants made the contract in their own names, but for account and risk of the plaintiff. Upon that theory, the deposits were intended as well for the security of the defendants as of the vendor; and the defendants had the power (not to say a legal right) to pay for and take the stock covered by the contract, and sell them in the market, without the assent of the plaintiff.

On the 19th of November, Illinois Central stock having declined to 52, the defendants made a call upon the plaintiff for a further margin of $1,000. The plaintiff was not ready to meet the call, but promised to do so the next day; and it was thereupon agreed between the parties that the call should be filled the next day, and that the defendants should be at liberty to sell the stock immediately, if it should fall as low as 51; and the plaintiff then gave to the defendants an authority in writing to sell such stock at 51, without expressing any condition or limitation in the instrument.

Immediately upon receiving that written authority, and on the same day, the defendants sold 200 shares of Illinois Central stock, deliverable and payable the next day, Cor account and risk of the plaintiff, and sent him a statement in writing of such sale.

There is no direct proof in the case that the defendants called for and received the stock which they had contracted to purchase, at 60 days, buyer’s option, on account of the plaintiff. But neither is there any evidence that the defendants held any other stock for him; and both parties to the action admit and assume that the stock sold by the defendants on the 19th belonged to the plaintiff, and was, in fact, the 200 shares covered by the contract. It must therefore be assumed that the defendants called upon the vendor, paid for and took the 200 shares of stock, and sold them at 52.

On the 20th, stock of this description rose to 53| and 55; and at one period during the 60 days covered by the contract, it was sold at 77-?,-.

Evidence was offered upon the trial to prove that the defendants, within a short time after their sale, offered to the plaintiff to replace the stock, and was excluded by the Court; but there was no proof that an offer was made to reinstate the time contract, or to procure another of the same character.

There can be no doubt that the sale of the stock by the defendants was unauthorized by the plaintiff, and was a violation of their duty to him. The written authority to sell at 51 did not necessarily empower the,defendants to sell at 52. Besides, that written authority was a mere power and wholly without consideration, and was modified and controlled by the verbal agreement that it should not be acted upon until the market price fell to 51. It follows that the defendants are liable to the plaintiff for such damages as he has sustained by their wrongful act.

What, then, is the true measure of the damages to which the plaintiff is entitled ?

The injury to the plaintiff, it seems to ¿ne, consists not merely in the' difference between the value of his stock when sold, and the price it would have brought on the next day, as suggested to the Jury by the learned Justice before whom the cause was tried. Kor, even if the defendants had been permitted to establish their theory that they offered to return the stock immediately, would the damages have been merely nominal. The return of that stock, or a like amount of a similar description, would not have placed him where he stood before the sale. The offer was not to replace the contract, nor to return the stock without the payment to the defendants by the plaintiff of its value as fixed by the sale, or its rate in the market. On the contrary, it appears quite evident that all the offers for a settlement included a condition that the plaintiff should take the stock, or a like amount, and, simultaneously, pay for it. That was not enough. The plaintiff was entitled to be reinstated in the contract, which had wrongfully been abrogated by the defendants, so that he might, in accordance with his intention and that of the defendants, when such contract was entered into, call for the stock at any time within the sixty days when the market should be the highest, and sell it at that rate; and he was also entitled to require the defendants to retain the $2,000 which he had advanced to them as margin, and apply it in part payment for the stock under the contract, when the plaintiff should call for it.

I think, therefore, that the plaintiff was entitled to recover, upon the pleadings and proofs, as they stood when the case was submitted, the'difference between 61 per cent, the contract price of the stock, and 77 i per cent, being the highest price it bore in the market within the sixty days, together with $200 of the deposit left in the defendants’ hands, with the interest, from which should be deducted commissions to the defendants upon the purchase, but not the sale of the stock; and that the charge of the Judge upon the question of damages, to wit, that the damages to which the plaintiff was entitled, if any, was the difference between the price (52) at which the stock was sold on the 19th, and the price at which he could have replaced it on the 20th (from 531 to 55), was, consequently, erroneous.

But the error of the Court in this regard did not work any injury to the defendants; and, of course, they are not entitled to any relief, upon their- appeal, because of such misdirection. And, as to the counter appeal of the plaintiff, I concur with Mr. Justice Robebtsost in the opinion that the release by the plaintiff of a portion of the verdict, as a condition for refusing the defendant’s motion for a new trial, is a bar to his obtaining any relief upon this appeal.

As I am unable to find, upon careful examination, any error in the rulings or charge of the Judge, except as above mentioned, I am of opinion that the judgment should be affirmed.

Robertson, J.,

(dissenting.) On a motion for a new trial by the defendants, this Court at Special Term determined not to grant one, if the plaintiff would consent to reduce the verdict by a certain sum. He did so: The refusal of a new trial was therefore a benefit obtained by the plaintiff, and an injury wrought to the defendants by his stipulation. It has been held, in many cases, that a benefit obtained by one party, in judicial proceedings, by admissions or stipulations made by him, precludes him from seeking to get rid of the effect of such admissions or stipulations. A party proceeding on an order, or accepting a benefit under it, is precluded from asking its review. (Radway v. Graham, 4 Abbotts’ Pr., 468.) A party alleging, in proceedings in partition, that others were co-tenants with him, is precluded, while such proceedings are pending, from bringing an action of trespass against them. (Van Norman v. Phelps, 9 Barb., 500.) A party availing himself of an execution against his person, to procure the benefit of an imprisoned debtor act, is debarred from suing for false imprisonment under such execution, as irregularly issued. (Reynolds v. Church, 3 Cai., 274.) An affidavit of another, used by a party on a motion, may be used against him as evidence on another occasion. (Bruhle v. Hulse, 7 A. & E., 457.) Under the principle of these cases, an agreement to accept a certain verdict to deprive a party of a new trial, if the Court will refuse it, must bind the party who reduces his verdict in order to procure the favor. If he could immediately afterwards, by an appeal, render his consent of no avail, and thereby deprive the defendant of the benefit of the new trial, (when the Court has decided there were errors to entitle him to one,) or else of the costs of endeavoring to procure one, it would certainly work an injustice. Possibly the new trial might not benefit the defendant, but he is still entitled to what he worked for, and which must, therefore, on the question of estoppel, be considered beneficial to him, because he was deprived of it by the act of the Court and the consent of the plaintiff. The plaintiff’s appeal, therefore, should be dismissed, with costs.

In regard to the defendants’ appeal a great deal of embarrassment arises from the absence of evidence in the case of matters essential to show the nature of the contract made between the parties, their consequent obligations to each other, and their mutual relation. This is evidently not an action by a purchaser against a seller for not delivering what he had agreed to sell, nor is it an action for the conversion of choses in action belonging to the plaintiff; it is much nearer an action by a cestui que trust against a trustee, for breach of trust. This Court held, when this case was formerly before it at General Term, on a demurrer, (13 Abb., 467,) that the allegation in the complaint that the defendants “purchased ” the stock in question for the plaintiff, included an allegation of delivery, or at least admitted proof of it; also, that the allegation “sold,” included a parting with the possession of the stock so bought and delivered to the plaintiff for the defendants and rendered thereby their property. This rendered the whole action simply one for conversion of the property belonging to the defendants. No such case was made on the trial. The only evidence on the trial, of a purchase, was an order to do so, the agreement of purchase by the defendants, and its ratification by the plaintiff; there was not a particle of evidence of the delivery of the stock, at all events until the sale by the defendants of the same number of shares. Nor was there anything to show any obligation by the defendants besides making the agreement to purchase the stock, to pay for it and hold it for sixty days, or until, within that time, the plaintiff was ready to take and pay for it. That would have compelled them, instead of merely becoming responsible to the vendor at the end of sixty days, in case the plaintiff did not pay, to have advanced the purchase-money, and waited for reimbursement until the plaintiff elected to take the stock. They were, however, only bound to' procure a responsible vendor, leaving the plaintiff to his remedy against him, when he should elect to take the stock. That being the contract, the plaintiff’s damage, if any, in this case, would arise only from the defendants anticipating him and procuring a delivery of the stock to themselves before he had made his election, thus debarring him of his remedy against the vendor. Of course, if they had procured the stock and not sold it, the jfiaintiff would have become entitled to it on ratifying the transfer as if it were his own election. The stock would become virtually his, held by them in trust for him, and they would be responsible for any unauthorized sale by them as any other trustee. (Hart v. Ten Eyck, 2 Johns. Ch., 62.) But in this case, besides there being no evidence of any delivery of stock to the defendants, there is also none of any notice by the plaintiff to them of considering the transfer to them as determining his election. The case rests entirely upon an agreement for a purchase of stock made by the defendants as the plaintiff’s agents, and their anticipation of his rights under the contract by procuring its transfer to themselves, and getting rid of it without the consent of the plaintiff. The kind of injury is the same as if done by making the contract originally in such manner as to be invalid, so as to deprive the plaintiff of the benefit which he would have derived from it had it been valid. If the defendants actually took a delivery of the stock on the 19th of November, there was no evidence of any ratification of it by the plaintiff, so as to adopt it as his election, and in consequence no change in the market price was at his risk. Evidence of am offer to give him the stock the next day after the sale by the defendants, was excluded, and yet he claims the stock delivered to them to have been his without any adoption of the act. Under such a state of facts, the only action which could be maintained against the defendants would be to consider them as unfaithful agents, who, although they made the contract directed, with a responsible vendor, made it in such a form as to enable them to deprive the plaintiff of the right of enforcing it, and then deprived him of it' by first taking the stock to themselves and then putting it out of his reach. The damages to him, therefore, could only be such as would arise from the loss of the benefit of the contract if faithfully executed; this, however, required some intimation from him that he desired the stock. The vendors might have transferred to and received back from the defendants the same number of shares of the same stock repeatedly, without injuring the plaintiff, until he desired and demanded the stock, or notified the defendants or vendors of his election, or ratified a transfer to them, of none of which is there any evidence in this case.

The plaintiff might have disregarded the transfer, if any, to the defendants, and called upon them to procure and deliver the stock to him at any time during the sixty days or after, on paying.the purchase-money; and if they did not deliver or procure it, might have held them liable for any loss occasioned thereby, to the extent of the highest market rate. I have not been able to see any reason for any right of the plaintiff to recover the difference of the value of •the stock on the 19th and on the 20th of November; because it does not appear by any demand, ratification, or notice of election, that he wanted the stock in the meantime, in other words, that he made his election to take it. On the contrary, the excluded evidence might have proved that it was offered to him as soon as he needed it.

In the absence of proof, therefore, of any delivery of the " stock to the defendants on the sale, so as to render them mere holders of it for the plaintiff’s benefit, subject to their lien for the purchase-money, and of proof of demand or notice, so as to determine the plaintiff’s election, I think the evidence of an offer to give the plaintiff the stock when he complained of the sale, at least, was material, even if proof of demand was unnecessary. But such demand or notice of an election to take the stock seems imperatively necessary to make it the plaintiff’s in any sense. If it did become his without such notice or demand, he would have had the advantage of owning the stock without making any election to take it, or paying, or tendering the purchase-money, and would have had' the benefit of a rise in the market without any risk, as he might have waited the whole sixty days to watch its fluctuations before he brought his action. Until the plaintiff needed his stock, and gave notice of it to the vendors or the defend-ants, no injury ensued to him by transferring or retransferring the same amount between them indefinitely, particularly if he actually refused it. Surely, by such a contract and such a sale by the defendants, the plaintiff cannot be relieved of all obligations to tender the purchase-money and demand the stock, leaving the defendants perpetually liable, without any responsibility on his part for all changes in the stock market as to the value of such stock.

I think, therefore, that the evidence of the defendants’ offer to replace the stock was improperly excluded, and if made before an election by the plaintiff to take the stock and pay the contract price, unless some specific injury to the plaintiff is proved, he ought not to recover more than nominal damages at most.

The judgment should therefore be reversed, and a new trial awarded, with costs of the defendants’ appeal to abide the event.

Judgment affirmed.  