
    JOSEPH SPYER and BENJAMIN B. VALENTINE, Plaintiffs, v. C. J. FISHER, Defendant.
    I. Broker Acting for both Buyer and Seller.
    1. If there is no fraud or concealment, and each party is aware that the broker is acting for the other as well as for himself, the execution by the broker of bought and sold notes, and the delivery thereof to the respective parties, constitutes a valid contract between them.
    
      So also,
    3. Ratification.—If one of the parties, not knowing at the time he employed the broker, that the broker was employed by the other, receives the bought or sold note (as the case may be) showing that the broker was also employed by and acting for the other party, and he makes no objection on the ground of any want of authority on the part of the broker to bind Mm, but repudiates the contract for other and different reasons, he ratifies the act of the broker done in his behalf, and the contract is binding on him.
    3. Frauds, Statute of.
    
      a. The bought and sold notes signed by the broker under such circumstances satisfy the statute, and take the case out of its operation.
    DC. Objection.—Trial.
    1. An objection not talcen at the trial cannot be raised, on appeal.
    
    ]H. Superior Court,—Jurisdiction of, Under Chapter 339 of the Act of 1873.
    1. Under the decision of the court of appeals in Landers v. Staten Island R. R. Co., 14 Abb. If. S. 346,—Held, that said act, so far as it undertook to extend the territorial jurisdiction of the superior court, was unconstitutional; that is to say, the legislature had no power to extend the jurisdiction of the court to actions in which one or more of the defendants neither resided nor were served with summons in»the city of New York, beyond the jurisdiction which it possessed in that regard at 'the time of the adoption of the sixth article of the constitution at the election held on November 3, 1869. a. The various statutes conferring jurisdiction on the court considered, and the case of Landers v. Staten Island B. B. Co. discussed.
    
    BUT HELD,
    Waiver.—A voluntary appearance without raising the question of want of jurisdiction by either demurrer or answer waives the objection.
    
    Before Monell, Ch. J., and Freedman, J.
    
      Decided, February 28, 1874.
    Exceptions ordered to be heard at general term.
    The action was upon a sale of goods of which the defendant refused to accept delivery. The contract was evidenced by the following :
    “ March 5, 1873.
    
      “ Sold for account of Messrs. Joseph Spyer & Co,, to C. J. Fisher, Buffalo, N. Y., one hundred cases Vine Grower's’ Co’y, Cognac, black label, to arrive Ex. ‘ Greve Manderstrom,’ at $10gold, net cash, per case,' duties payable in advance by C. J. Fisher, on arrival of vessel. “ S. M. Saunders,
    “ Wine and Spirit Broker.”
    On the arrival of the merchandise, it was tendered to the defendant, and its' acceptance being refused, it was sold at auction, for a less sum than the contract price.
    The plaintiff claimed to recover the difference.
    The defendant answered, making first, a general 
      denial; and second, that the pretended sale was of more than fifty dollars, no part of which was paid, no part of the goods delivered, and no writing signed by the defendant. The sale was claimed to be void under the statute of frauds.
    
      The summons and complaint were served on the defendant in the city of Buffalo. He subsequently appeared and answered, without talcing the objection of want of jurisdiction in this court.
    
    The action was tried by a court and a jury. At the commencement of the trial, the defendant moved to dismiss the complaint, on the ground of the want of jurisdiction in this court, over the person of the defendant. The motion was denied, and the defendant excepted.
    On the trial it was proved, that Saunders was authorized to make the sale for the plaintiff, and that he signed the bought and sold note.
    Saunders testified that the defendant called upon and requested him to act as his broker, in purchasing goods for him ; that he gave him general authority to purchase certain brands for him; that he signed the bought and sold notes, and delivered one to the plaintiffs and the other to the defendant. On the arrival of the vessel he wrote to the defendant, informing him of the arrival of the goods, and received the following reply :—
    “ Buffalo, April 8, 1873.
    “ Bear Sir ; Please find inclosed a gold draft for $54.00 and $1.00 currency, payable to Joseph Spyer & Co., for which amount please have him acknowledge. In regard to the 1Ó0 cases of Vine Growers’ Brandy that I bought of Mr. Spyer, Thave since been informed by parties that Mr. Spyer bottles his own goods, and I prefer to deal with some other house that I have condence in. “ Yours respectfully,
    “C. J. Fisher.”
    
      Another witness testified, that the defendant had said to him, that he had received a draft from the plaintiffs, for duties due on some brandies ; that there was no question as to his having bought them, but he said he had heard the plaintiffs were bogus bottlers, and therefore, he did not accept the brandies, and was not going to take them.
    At the close of the evidence, the defendant moved to dismiss the complaint, on the ground, that as the broker had general authority from the plaintiffs to sell, and from the defendant to buy, he acted for buyer and seller.
    The motion was denied, and the defendant excepted. A verdict for the plaintiff was directed.
    The exceptions were ordered to be heard in the first instance at the general term; and judgment was in the meantime suspended.
    
      Field é Minor, attorneys, and of counsel for plaintiff urged :—I.
    In the case of Landers v. Staten Island R. R. Co., 14 Abb. Pr. N. S., 046, the answer of the defendant clearly and distinctly set forth the unconstitutionality of said act, and objected to the jurisdiction of the court; and in the opinion it states tnat the objection being taken by answer was not waived. '
    II. So far as the objection goes to the service of process on the person, it is waived by appearing and pleading to the issue without objecting. It must be set up by answer. McCormick v. Penn. Cen. R. R. Co., 49 N. Y. 303; Hones n. Hope Ins. Co., 8 Barb. 541; Baxter v. Arnold, 9 How. Pr. 445 ; Dale v. Manly, 11 Id. 138; Sullivan v. Fraser, 4 Robt. 616 ; 27 Barb. 337. The answer in this case did not set up that defense.
    III. The rule is, that for the purposes of the statute of frauds, the broker is the agent of both parties, where nothing is concealed, and where he is instructed by both (Story on Agency, 1869, 26, 27 and 28, and notes ; Story on Cont. § 346 ; 2 Parsons on Cont. 5th ed. 541 ; Davis v. Shields, 26 Wend. 341; Merritt v. Clason, 12 Johns. 102; S. C., affirmed, 14 Id. 484 (in. point) ; Parnell v. Pitch, 8 Cow. 215; 17 Ad. & E. N. S. 103).
    It is necessary that the broker should be authorized by both parties (Diluth v. Bostwick, 1 Sweeny, 581).
    In this case the broker did not receive instructions from both parties.
    The defendant knew and fixed the price himself, and knew that the broker was acting for the plaintiffs as well as for himself, and also knew the plaintiffs, and had other dealings with them.
    
      John T. Gardner, attorney, and E. D. McCarthy, of counsel for defendant, argued
    The term agent is of very extensive signification, and includes every class of persons who are employed by a principal to do some act for him.- The term includes factors and brokers.' S. M. Saunders was in fact the agent or broker of Joseph Spyer & Co., the plaintiffs, at and previous to the time he claims to have acted as agent for' defendant Pisher in making the pretended purchase and sale. An agent must faithfully serve his principal.. He is bound to the exercise of all his skill, ability and industry in favor of his principal. As an agent to-sell, it is his duty to get the highest fair price, and no-agent or trustee can deal with the. subject matter of.' his trust except for the benefit of his principal (McDonald v. Lord, 26 N. Y. 404-407). And the defendant was as much entitled to all the skill, ability, &c., of Saunders, as were the plaintiffs, and his duties to each were inconsistent one with the other. A person cannot act as the agent of both parties in the making of a contract, &c., when each is entitled to the benefit of his judgment, &c. (Utica Ins. Co. v. Toledo Ins. Co., IT 
      Bar. 133 ; N. Y. Central Ins. Co. v. National Protection Ins. Co., 14 N. Y. (4 Kern.) 85 ; Moore v. Moore, 1 field., 6 N. Y. 256 ; Terwilliger v. Brown, 59 Bar. 9 ; Same case affirmed, 44 N. Y. 237; Reed v. Warner, 5 Paige, 650; Claflin v. Farmers’ & Citizens’ Bank, 24 How. Pr. 1 ; Capard v. Heriman, 6 Bosw. 8). The pretended sale being for upwards of fifty dollars, and no part having been delivered, and no part of the purchase price paid, and no note or memorandum of such pretended contrsct made in writing and subscribed by the party to be charged thereby, was void under the statute, &c. (3 R. S. 5th ed. 221, 222). The statute of frauds requires an actual manual subscription at the end of the agreement or memorandum by the party by whom the same is to be' made, and a printed name is not. a sufficient subscription within the statute of frauds (Viele v. Osgood, 8 Bar. 180; James v. Patten, 6 N. Y. [2 field.] 9 ; Justice v. Lang, 42 N. Y. 493 ; Same Case, 52 N. Y. 323). The pretended memorandum or bill of sale and purchase is not signed by the defendant, either individually, nor is his name signed or appear thereto signed by any person who claims or might even had authority to do so. To bind the defendant his name must be either subscribed by himself or by his authorized agent for that purpose. Said memorandum is in fact signed individually by S. M. Saunders, and the additional words,wine and spirit broker,” adds nothing—is of no binding character—is a descriptio persona (Sheldon v. Hoy, 11 How. Pr. 12). Where, upon the face of the broker’s note of sale, delivered to the defendant, were indorsed, “I agree to this contract,” and signed by him, and on the one delivered to the plaintiff were indorsed, “ we agree to accept of the draft for this .contract,” and signed by them, held a sufficient subscription (Dana v. Fiedler, 1 E. D. Smith, 463; Same Case, 12 N. Y. [2 Kern.) 40).
    
      This court has no jurisdiction. The summons was served upon the defendant at the city of Buffalo. Since the commencement of the action and the appearance of defendant, the act of 1873, conferring jurisdiction, has been declared by the court of appeals to be unconstitutional.
   By the Court.—Mouele, Oh.

If this case presented the single question, whether a broker can act on behalf of both seller and purchaser of merchandise, so as to make a valid contract binding upon both, where the dual agency was unknown to one at least of the parties, and there was no subsequent recognition or ratification of the act, the verdict probably could not be upheld.

The general rule is, that, except for some purposes (i. e., signing a contract within the statute of frauds), a broker is forbidden to act for both parties, concealing his agency for one from the other. But the rule is confined to cases where the mutual agency is concealed. Under such circumstances, it is deemed to be incompatible with the duties of a broker to act for both. In the interest of the seller he would be bound to get the highest and best price; and in the interest of the buyer, to obtain the lowest price.

But, as has been said, the rule is restricted to cases of'concealment or fraud.

I had occasion to collect and review the cases on this subject, quite recently, in Rowe v. Stevens, decided at the January term, 1873, 35 Supr. Ct. Rep. 139, which has since been affirmed by the court of appeals, and it is not necessary to repeat them here.

The deduction from the cases is, that- if there is no concealment or fraud, and the parties are made aware that the broker is acting for both buyer and seller, the act is not incompatible with the broker’s duty.

If, therefore, the defendant, knowing of Saunders’ authority to act for the plaintiffs, recognized and adopted the purchase, which had been made for him, by the same agent, such purchase was binding on the defendant

The uncontradicted evidence established that the broker was acting on behalf of the plaintiff. The bought and sold notes contained that statement. It was communicated to the defendant, by the delivery of the sold note to him ; and he afterwards, by letter and in conversation, admitted the purchase, and with such knowledge of the broker’s agency of the plaintiffs, ratified the act as that of his, the'defendants’ agent, in making the purchase.

He made no objection to the purchase on the ground of any want of authority on the part of the broker to bind him, but repudiated the sale for other and different reasons.

Under these circumstances, the purchase or the contract of purchase, was binding upon the defendant; and the motion to dismiss the complaint was properly denied.

The objection that the contract was void under the statute of frauds, set up in the defendant’s answer, was not taken at the trial, and, if it was important to consider it, it is too late to raise the question now.

But Saunders had sufficient authority to bind the defendant; and his signing the contract as the defendant’ s broker, took it out of the operation of the statute. To save a contract from the statute a broker may be the agent and may sign for both parties (Allan v. Aguira, 5 N. Y. Leg. Obs. 380; Dilworth v. Bostwick, 1 Sweeny, 581).

Another objection taken at the trial, was, that this court has not jurisdiction of the person of the defendant.

The summons had been served in the city of Buffalo, and it was claimed that a summons to commence an action in this court could not be served out of the city and county of New York.

The act of 1828, organizing this court (§ 5), gave it power to hear, try and determine all local actions arising within the city and county of New York, and all transitory actions, although the same may not have arisen therein ; and the only restriction to its jurisdiction over such actions, was, that it should have no power to send any process into any other county, except writs of subpoena, and attachments to enforce their obedience.

The act conferred no equity jurisdiction whatever; it ha d merely common law powers.

By section 33 of the Code, equity powers were conferred on the court (Forrest v. Forrest, 25 N. Y. 501) ; and its common law; jurisdiction extended to all actions, where all the defendants resided or were served in this city. In 1852, it was' further extended to cases where one or more of several defendants, jointly liable on contract, resided or were served therein. Under that amendment this court held, that in actions of joint liability upon contract, if one of the defendants resided in this city the summons might be served in any other place (Porter v. Lord, 13 How. Pr. 254). And in actions enumerated in sections 123 and 124, this court was given co-equal jurisdiction with the supreme court, and the summons may be served in any part of the State (Kerr v. Mount, 28 N. Y. 659). In that case Judge Dentó says (p. 664), in the actions enumerated in these sections the superior court has jurisdiction without regard to the defendant's residence. And hence it has not, I believe, been doubted, that in these actions, not only may the process of this court be served in any county in the State, but it may be served by publication, or any of the other modes of substituted service (see also, Varian v. Stevens, 2 Duer, 635.)

In giving a construction of the several acts regulating the jurisdiction of the court, we determined in a recent case (Van Pelt v. United States Metallic Spring Co., 13 Abb. Pr. N. S. 325), that under these statutes, this court, except in respect to the person of the defendant, had co-equal jurisdiction with the supreme court, in all cases, where an “ action ” could be maintained in either court.

Such was the jurisdiction of the superior court, when article 6 of the constitution was agreed to in convention, and adopted by the people. The court was u continued^ with the powers and jurisdiction it then had, “ and such further civil and criminal jurisdiction as might be conferred bylaw.”

.Under the power thus granted, the act of April, 1873, was passed, giving to this court, ^original jurisdiction, at law and in equity, concurrent and co-extensive with the supreme court, of all civil actions.”

In Landers v. Staten Island R. R. Co. (14 Abb. Pr. N. S. 346), the court of appeals has held, that an act passed in 1871 (Sess. Laws 1871, p. 555), extending the territorial jurisdiction of the city court of Brooklyn, was unauthorized by the constitution, and in deciding that case, they have incidentally held that the act of 1873 was open to the same objection.

The argument of the court of appeals, is, that these city courts having been created local courts, were merely continued as such by the judiciary article, and could not have power given to them, to send their process into eve'ry part of the State.

That the superior court was created a local court, with limited territorial jurisdiction, is not denied. But the legislature which created it, has assumed from time to time to exercise, and has exercised, the power of adding- to and enlarging its jurisdiction in respect and to the extent enumerated in- sections 33, 123, and 124, of the Code, and has authorized the court, in the enumerated actions, to send its process into any county in the State, and, as construed in Kerr v. Mount (supra), without regard to the defendants' residence.

It is to be presumed that the framers of the judiciary article understood the nature and extent of the then existing jurisdiction of the courts ; and that the power of the legislature over them had not been deemed inflexible. There had been added to them equity powers, and they had brought within their common law jurisdiction, a large class of cases and persons, other than such as were embraced within the original statutes.

The legislature having exercised these powers when those courts remained legislative courts, the intention of the makers of the judiciary article may reasonably have been, to leave subsequent legislation as untrammeled as it had theretofore been ; and when they gave the power to add such “further" jurisdiction, they intended to authorize some other jurisdiction than such as it already possessed, which was then, except in the person of the defendant in some actions, co-extensive with the jurisdiction of the supreme court.

Indeed, except in enlarging its territorial jurisdiction, in the exceptional actions, it is difficult to see, what “further" jurisdiction can be given to it. It already had jurisdiction over both local and transitory actions, and over all equity proceedings, with a limitation as to residence or service in the city only as to such actions as were not embraced in sections. 123 and 124 of the Code.

The court, however, in the Landers case has, by its decision, limited the term “jurisdiction" to the object, and denied its application to territory or persons of suitors ; and, therefore, that “further civil jurisdiction,” has respect to the subject matter and cause of action only. This may be so, but much of the previous legislation would seem to indicate, that jurisdiction over the person, and the cases in which it could be acquired, and the mode of acquiring it, entered largely into the views of the legislature. The argumentum ab inconvenienti, of “hauling men and women, from distant parts of the State, who had never been within the limits of the city, within its power, and subjecting them to its jurisdiction,” can have but little force in view of the same result ensuing, if the action was in the supreme court, with the same city designated as the place of trial.

Nevertheless, the Landers case is authoritative upon this court, and following it, we must hold that the summons in this case was not so served as to give this court jurisdiction over the person of the defendant, and unless the objection has been waived, it must be held to have been well taken.

The defendant appeared generally, and answered without alleging want of jurisdiction as a defense.

A voluntary appearance of a defendant was long since held to be equivalent to a personal service of the summons (Mahaney v. Penman, 1 Abb. Pr. 34), And section 139 of the Code, as amended in 1857, was probably suggested by the decision of the court of appeals in Burcle v. Eckhardt (3 N. Y. 132), that there could be no waiver.

In the recent case of McCormick v. Penn. Cent. R. R. Co. (49 N. Y. 303), it was held, that where the court has jurisdiction of the cause of action, consent may confer jurisdiction of the person ; and that such consent may be expressed by (a foreign corporation in that case) appearing by attorney, and answering generally in the action. See also, Sullivan v. Frazee, 4 Robt. 616.

In the Landers case, the objection was distinctly taken by answer, and the court say it was not waived.

The exceptions should be overruled, and judgment ordered for the plaintiffs upon the verdict.

Freed max, J., concurred.  