
    Henry P. Hall, Plaintiff and Respondent, v. Edward Morrison, Defendant and Appellant.
    1. On appeal from a judgment in an action tried before a referee although on an examination of the testimony as it appears reduced to writing and printed, the Court may think that on the proofs they should form an opposite conclusion on the facts, the judgment is not therefore to be reversed, when the testimony is conflicting and the preponderance on either side is not such as to warrant a belief that the finding of the referee is not the conviction of an upright mind uninfluenced by any consideration foreign to the case, or that his finding was the result of any error or mistake in the application of the rules of law to the evidence.
    2. Whether the proofs in this case showed a stated account betwéen the parties considered. •
    3. Where a plaintiff alleged in his complaint that he left with the defendant 20 shares of stock on the 27th September, 1854, for sale at not less than 46 per cent and that the plaintiff sold the stock at that rate and refused to pay over the proceeds and the plaintiff prays judgment - therefor; and it appeared by the proofs that the proceeds of such sale were by the plaintiff’s direction invested in other 20 shares of stock, which by like direction were sold and the proceeds invested in other 20 shares, which by the .plaintiff’s authority were sold and the proceeds received on the 20th of March, 1855. . Held,.that the plaintiff is entitled to recover such last named proceeds.
    That the discrepancy between the allegations and the proofs is not a failure to prove the allegations of the complaint in their entire scope and meaning and therefore not a variance which is fatal to a recovery.' ''
    (Before Bosworth, Oh. J., Slosson and Woodruff, J. J.) ';
    Heard, October 12th;
    decided, December 4th, 1858.
    
      This action was tried before Michael Ulshpeffer, Esq., as referee. He reported in favor of the plaintiff the sum of $1,060. Upon that report judgment was entered for the plaintiff, and from the judgment the defendant appealed to the General Term.
    The complaint alleged, that on or about the 27th day of September, 1854, the plaintiff left twenty shares of. the capital stock-of. the Hew York and Erie Railroad Company, with the defendant, (who was then doing business as stock broker,) to be held by the defendant on account .of the plaintiff, and, sold for bim at not less than 46 per cent of the par value. That the defendant has sold the. stock at not less than that sum, but refuses to pay to the plaintiff the proceeds. That there is due to the plaintiff by the defendant $920, for and on account of said stock, and for moneys thereon and therefor had-and received-, as the proceeds thereof, at the rate of 46. per cent upon the par value, together with interest from the 14th of May, 1856, for which the plaintiff prays judgment. ' ", ...
    (There were other names inserted in .the complaint as defendants, under a belief that the defendant had partners, but by consent those names were struck, out Or disregarded, and the defendant Morrison, treated as sole- defendant. Ho question arises out of this circumstance.)
    The defendant’s answer admitted the receipt of the stock and the sale thereof, at the time and at the.price.in the complaint stated, and that when it was.so left it was to be sold for the price and at the rate so alleged. .. .
    But averred, that after the sale of the twenty shares so left, the plaintiff directed him to repurchase other shares of the;same.stoek with the proceeds, in the discretion, of the defendant, as a stock broker, ■ for and on account of. the plaintiff; .and .from time to time the plaintiff directed him to. continue the operation of purchase, sale and reinvestment,, in such stock.. The result .being sometimes a profit, at others a loss to the -plaintiff, and the final result being that the defendant has and holds for and. on account of the plaintiff the sum of $500rW, .with interest from “ October 16th, 1857,” [1856] “the day on which the last transaction for the plaintiff, and at his request was effected.” " Which sum; then and ever since has remained on deposit with him,, at the call of the plaintiff, and which hé has been willing and offered to pay the plaintiff, but which the plaintiff has refused and rejected.
    On the trial the defendant testified in his own behalf, and his testimony tended to prove that the stock was sold by him on the 12th of October, 1854, at the rate limited, 46 per cent producing after deducting his commission (of \ of one per cent), the sum of $915.00. That the plaintiff' directed him to purchase other twenty shares, which he did October 31st, 1854, for the price of $885.00, and on the 25th of November, 1854, paid to him the profit, $30. That on the 7th of February, 1855, the defendant sold the twenty shares so purchased for the sum of $955.00, and on the 17th February again purchased twenty shares for $920.00, and on the 20th March sold the twenty shares last purchased for $965.00, and the next day paid to the plaintiff the sum of $35, which was the profit on the second sale and purchase.
    That thereupon, as the result of a consultation between the plaintiff and defendant, in relation to the expediency of enlarging the scale of operations, the plaintiff authorized the defendant “to'follow out his own ideas in the matter.” That with the assent of the plaintiff, the defendant continued to buy and sell fifty shares at one time,. (and how many at others he did not state) charging the plaintiff the defendant’s advances and losses on sales, and crediting him the profits and differences, through a long series of operations, down to October 6th, 1856, when there remained in the defendant’s hands a balance to the credit of the plaintiff, of $520.86, and no more.
    That on the 16th October, 1856, the plaintiff called on the defendant; was informed of the balance; that such balance was offered to him but he refused to receive it. That subsequently he rendered to the plaintiff an account, and after that the plaintiff demanded of him “ twenty shares at 46,” which defendant refused. When the account was rendered the defendant did not state, but he adds that this suit was afterwards commenced. That the defendant acted in good faith according to his best discretion, for the plaintiff’s interest, under his consent as above stated; and that the plaintiff was constantly in the habit of visiting the defendant’s office during these operations, and being told thé transactions and the results, made no objection or further request, but would say “very well.”
    
      The plaintiff being examined, testified that the first sale of twenty shares was made by his direction at 46 per cent. That he consented to a reinvestment of the proceeds in twenty other shares at 44 per cent, and this was done, he receiving the profits, $30. That he also consented to the sale of the said twenty other shares at 46, and the sale was made. That he directed a further purchase at $45f per cent, which was made by the defendant, and after the sale of those shares at 48 per cent, he called and received $35.
    He denied that he ever gave any such instructions or consent as was testified to by the defendant, and stated that the only instructions he gave were to buy at less than 46 per cent, and sell at not less than that rate, “ keep the twenty shares intact,” and operate in that way; the number bought and sold to be twenty shares only. That he received the profits of the first sale and repurchase, $30, of the second, $35, and also of a third, $12.26, and that he had no information at any time of any operations of the defendant with the plaintiff’s stock, except the three transactions which he mentioned, resulting in the said three items of profit so mentioned, until he received the defendant’s account showing the balance of $520.86 to his credit.
    The receipt given by the defendant when the stock was left with him was given in evidence, limiting the price at which the stock was to be sold to 46 per cent.
    Notices by the defendant of one sale, on the 27th September, 1854, at 46; and of one purchase, on the 31st October, 1854; at 44, were also read.
    The defendant’s counsel moved for a dismissal of the complaint on the same grounds upon which he claimed a judgment for the defendant.
    The grounds of this motion were chiefly these:
    That the complaint is unproved in its whole scope and meaning; the action being for the proceeds of the sale of the twenty shares on or about the 27th September, 1854, and the evidence showing a reinvestment of those moneys by the plaintiff’s direction, and subsequent sales having been made at a different time and rate per cent, the defendant has not in his hands the money sued for.
    That the plaintiff should not be permitted to amend his complaint and proceed for damages for the defendant’s embarking in other stock operations without the plaintiff’s authority.
    And that, upon the evidence, the plaintiff has not been prejudiced by those operations, because, non constat, that if the defendant had followed his instructions, the plaintiff would not have been a loser, instead of having $520.86 to his credit.
    And also on the evidence the defendant insisted that he was liable only for the balance of the account he had testified to, $520.86.
    The referee found “that the plaintiff’s case, and claim to $920, as stated in his complaint, are proved by the weight of the testimony and are substantially admitted in the answer.
    “That the defendant proved his allegations as to subsequent sales and purchases for reinvestment; and payments to the plaintiff of small profits in cases where the sales exceeded in amount the rates of repurchase.
    
      “ That the defendant did not prove by the weight of the evidence, authorization of recognition by the plaintiff of purchases or sales beyond twenty shares at one time or any revocation of the limit of 46 per cent on sales, and not higher on purchases.
    “ That the reduction of plaintiff’s claim below the amount stated in his complaint, depended upon the defendant’s speculations on fifty shares and his departure from the limit of 46 per cent, which the plaintiff disclaims having authorized, and which the weight of the evidence does not sustain as having been authorized on the plaintiff’s account.”
    Humerous conclusions of law, by the referee, are stated in the case, terminating, however, in. the final result, viz., judgment for the plaintiff for “the proceeds or value, as limited, of the twenty shares of stock” at the limited price, 46 per cent, i. e., $920, with interest thereon from May 1st, 1856, to the date of the report, amounting .to $1,060, for which, with costs, the judgment was entered.
    The defendant appealed.
    
      John Graham, for the defendant (appellant).
    I. The finding of the referee, that the weight of evidence did not show that the plaintiff authorized, on his account, the defendant’s operations or speculations in fifty shares of stock, and a departure, in selling, from the original limit of 46 per cent, is erroneous.
    H. The account which the plaintiff admitted having received from the defendant, became a settled account, and conclusive upon the plaintiff; and, under the circumstances, the referee should have so treated it.
    There is not the least pretence that the plaintiff spoke out against the account, or in any way disputed it. (Lockwood v. Thorne, 1 Kern., 170.)
    III. The plaintiff failed to sustain the action in its entire scope and meaning. After the defendant had been examined, the plaintiff acquiesced in the truth of his testimony, so far as it overthrew or disproved the allegations of the complaint, and claimed to and did recover, upon a state of facts directly hostile to the complaint. (Hall v. Gould, 3 Kern., 127; McComber v. The Granite Ins. Co., 1 Smith Court of Appeals R., 495; Walter v. Bennett, 2 id., 250; McKyring v. Bull, 2 id., 297, 303, 304, 307.)
    IV. In deciding upon the credibility of the plaintiff, the referee should have considered him as having sworn to an untrue complaint. If a party can be impeached, the plaintiff' was impeached by himself.
    Fro, H. Van Boren, for the plaintiff and respondent.*
    I. All the allegations in plaintiff’s complaint contained, are admitted by the defendant’s answer.
    II. The additional allegations (in defendant’s answer by way of defense in avoidance of the plaintiff’s claim) as to subsequent sales and purchases for reinvestment by authority of the plaintiff, and the assumption of profit or loss on those transactions coupled with a departure from and revocation of the limit of 46 per cent on sales, and not higher on purchases, or with a revocation of the limit of purchases or sales beyond twenty shares at one time, were not sustained or proved by the weight of evidence before the referee.
    ITT. The plaintiff’s stock having been sold and converted into money by the defendant before suit brought, the plaintiff may recover the proceeds as limited and sold, although the purchase and sale of such twenty shares may have been frequently repeated by mutual agreement before the commencement of this suit, and for such recovery this is the proper action.
   By the Court.

Woodruff, J.

—1. If this case were submitted to us upon the testimony reduced to writing, and we were to determine the facts, in the first instance, according to the impressions produced upon our minds by that testimony in connection with the undisputed facts, we should hesitate before arriving at the conclusion that the plaintiff in this action suffered a year and seven months to elapse (from March 20th, 1855, till after October, 1856,) without knowing what had been done with his twenty shares of stock. And that he was frequently in the defendant’s office, as testified without denial, without learning something of the operations which the defendant was making for his benefit, or on the other hand, if he was denied such information as he had a right to require, that he would have waited, quietly, nearly two years without taking measures to assert his right to his stock or its proceeds. And we might, perhaps, infer that he was aware of the transactions of the defendant and acquiesced therein in expectation of profits, and that his present claim is rather the consequence of his disappointment at the result than a sense of what he is justly entitled to receive from the defendant.

But even if it seemed to us upon the reading of the testimony that the account given by the defendant of his transactions and of the plaintiff’s authority and assent thereto would have obtained credence with us, and in connection with other facts have led our minds to a result other than the referee has reached, it does not follow that we can reverse the judgment upon this ground. The testimony of the plaintiff and that given by the defendant were in direct conflict, and the preponderance of the testimony on either side is not such as to warrant a presumption that the finding of the referee is not the conviction of an upright mind, uninfluenced by any consideration that is foreign to the case, or that his findings were the result of any mistake, or qf any error in the application of the rules of law to the evidence. In such case it is settled that the report of a referee cannot be set aside. He has the witnesses before him. He not only hears their words, but observes their manner of testifying. He may have been conscious of reasons for doubting the accuracy of the defendant’s testimony, which do not and cannot appear upon the printed case. Under such circumstances his report upon the facts must conclude us; it stands as the verdict of a jury. What are now urged upon our minds, as the “probabilities of the case ” were the proper subjects of consideration by him, but we are not in a situation to say that he ought not, nevertheless, to have credited the plaintiff, and been guided by the conviction which the whole testimony produced in his mind.

2. It is next insisted that the account, which the defendant rendered and which the plaintiff admitted he received from the defendant, became a settled account and conclusive upon the plaintiff and that the referee should have so treated it.

The imperfection in this claim on the part of the defendant is two-fold.

First. It does not appear by the evidence when the account was rendered and received. The defendant testifies that it was subsequent to the 16th of October, 1856, and before this suit was commenced. It does not appear that it was received and acquiesced in, in such wise, or for so long a time as to raise a presumption of assent to its correctness.

Second. The conduct of the plaintiff excludes any idea of acquiescence which could give the account the force of an account stated between the parties. When, before the account was rendered, the amount of the alleged balance was stated to him, he refused to accept it. After the account was rendered, he called and demanded the “ 20 shares of stock at $46.00,” which we must understand to mean the proceeds of 20 shares at that rate. The precise dates of these transactions are none of them stated, but surely here is nothing that imports assent by the plaintiff to the correctness of the account.

3. It is claimed that the plaintiff has failed to prove his cause of action, in its entire scope and meaning. That the discrepancy between the case made by his complaint, is therefore not a case of variance, but a failure of proof. (Code, § 171.)

The case stands thus, the plaintiff alleges that on the 27th day of September, 1854, he left 20 shares of stock with the defendant to be sold at not less than 46 per cent of its par value. That the defendant sold it at not less .than 46 per cent, and refuses to pay the proceeds to the plaintiff.

The proofs established to the satisfaction of the referee, that on the 27th September, 1854, the plaintiff did leave the 20 shares with the defendant, to be sold at not less' than 46 per. cent. ; That they were sold at not less than that price. That the proceeds were invested in 20 shares of. stock, and they were sold at not less than 46, per cent. That the proceeds were, again invested in'20 shares of stock, and they were then sold^at not less than 46 per cent. The" proof showed-that this last sale was at 48 per cent,. or; .according, to the defendant’s account, 48£, and was made and its proceeds received on the 20th .of March, 1855, at which rate the. sale yielded the sum of $965, after deducting the defendant’s brokerage.

That the subsequent reinvestment of those proceeds .was without the authority or sanction of the plaintiff.

■ It. is .therefore literally true that the defendant sold 20’ shares of stock belonging to the plaintiff, and received therefor a sum even larger than the referee has allowed to the plaintiff." They were left by the plaintiff in his hands to be sold. The discrepancy between the plaintiff’s complaint and the proofs, is in assigning a wrong date to the receipt of the particular stock, the proceeds of which remained in the defendant’s hands. This we think is clearly,, at the most, a variance, and one which'could and ought to.be disregarded. Before the Code, -the time at which-it was alleged-, in a declaration, moneys were had and .received, or a trespass was committed, were not in general material. • And we have, made small advance in our endeavor to. make-rules for the administration of justice, that shall secure what is right without being hindered by mere errors of form, if this judgment must be reversed because the plaintiff alleged that the .defendant received the 20 shares on the 27th of September, instead of alleging that he received them on the. 17th of February; when in fact it, was purchased for .the ..plaintiff The discrepancy did not mislead the defendant. His answer disclosed the fact of the reinvestment of the proceeds of-the first 20 shares; and his own testimony gave the dates of the successive sales.

Besides there is a sense in which it is literally true, that the moneys received on the sale of the 20th of March, were the proceeds of the stock left with the defendant for sale at not less than 46 per cent on the 27th of the previous September. The proceeds had been through several transactions of buying and selling, but they were the ultimate proceeds of the original 20 shares. Not literally and technically the immediate proceeds; but in substance the growth or produce of those twenty shares.

We do not perceive that there is any occasion to regard the plaintiff’s claim under the proofs, as a title to recover for a wrongful appropriation of the plaintiff’s stock. The sale of the 20th of March was, as both parties agree, with the authority and consent of the plaintiff, and the proceeds were received by the defendant. It is the employment of the money in transactions not authorized by the plaintiff, and the refhsal to pay the money to the plaintiff, in which alone the defendant violated the plaintiff’s rights.

We feel constrained to say that the variance, if any, was not material, since it could not have misled the defendant to his prejudice. (Code, § 169.) And that it was not a failure by the plaintiff .to prove his allegations in their entire scope and meaning. He sued to recover the proceeds of 20 shares of stock in the New York & Erie Railroad Company, left in his hands by the plaintiff to be sold at a price not less than 46 per cent. And he has recovered for just such proceeds, and on those grounds. The other details seem to us plainly to be particulars only, and particulars which do not affect the cause of action in its essential character nor alter the entire scope and meaning of the plaintiff’s allegations.

We do not discover why the referee selected the first day of • May, 1856, as the day from which to compute and allow interest to the plaintiff, but no point is made by either party on that subject nor has it been claimed that the referee erred in that particular.

Our conclusion is that the judgment must be affirmed. We do not think it necessary to consider in detail the conclusions of law or reasons which are stated as such conclusions, by which the referee arrived at his ultimate legal conclusion, it is sufficient to say that his final report by which judgment was awarded to the plaintiff, and therefore the judgment itself must be affirmed.

Judgment affirmed, with costs.  