
    Julia A. Stevens, Resp’t, v. Spencer Trask et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed March 7, 1892.)
    
    Principal and agent—Evidence as to agency.
    Plaintiff brought an action to recover the proceeds of five bonds delivered by her to her husband, and by him delivered to defendants to be credited on his account, and on the trial testified that her husband had authority only to collect, and not to sell, and that defendants were aware of this fact; bpt, it was shown that several years before bringing the action, plaintiff had given an order for the dividend on certain stocks, held in her name, which were purchased by her husband for her with part of the proceeds of the bonds, and afterwards wrote, defendants a letter repudiating an attempted transfer of the stocks. Reid, that a judgment for plaintiff should be reversed, as her testimony was contradicted by her own writings.
    Appeal from a judgment of this court entered upon the ver■dict of a jury in favor of the plaintiff for $7,251, and from an order denying the motion for a new trial upon the judge’s minutes.
    • The action was brought to recover from the defendants the proceeds of five bonds of $1,000 each of the Delaware & Hudson Canal Company, payable July 1, 1884, which plaintiff ■claimed she caused to be delivered to the defendants for collection about said date. The defense was that the proceeds of the bonds were paid by the defendants to the husband of the •plaintiff from whom they were received for collection, he representing himself to be the owner of the same, and that such payment was made in good faith and without any notice of the plaintiff’s claim.
    
      
      Hasten & Nichols (.Arthur S. Hasten and O. P. Anderson, of counsel), for app’lts; C. C. & S. F. Prentiss (6r. W. Coiterill, of. counsel), for resp’t. . "
   Daly, Ch. J.

The evidence is undisputed that the bonds-were delivered to the defendants by the plaintiff’s husband, Thomas W. Stevens, together with the usual form of irrevocable stock power executed by the plaintiff in blank. The act of the plaintiff in entrusting these documents to her husband invested him with the indicia of ownership and conferred upon a purchaser in good faith for value a perfect title not affected by any equities between plaintiff and her husband. McNeil v. Tenth National Bank, 46 N. Y., 325.

The defendants were holders for value because they credited the proceeds of the bonds upon the account of Mr. Stevens with them, for stocks which they had just purchased for him. Were they purchasers in good faith without notice of plaintiff’s title t Mr. Stevens swears that he told Mr. Peabody, one of the defendants, that the bonds belonged to his wife and were to be collected for her. This is positively denied by Mr. Peabody, and if the case for the defendants rested there without corroboration it: would have been oath against oath, Losee v. Morey, 57 Barb., 561; Raines v. Totman, 64 How., 493; Griffiths v. Hardenbergh, 41 N. Y., 471, and they would not have sustained the burden of showing that they were purchasers*in good faith. C. N. Bank v. Diefendorf, 123 N. Y., 200; 33 St. Rep., 389.

But the preponderance of proof on this branch of the case is with the defendants, for it appears from the written evidence in the case that the bonds were delivered to the defendants by Mr. Stevens after a letter from them to him requesting margin, or security, upon his account with them ; and that when the bonds-were received by them from the New York State National Bank,, upon Mr. Stevens’ order, they wrote informing him of the fact, and stating that they placed them to his account. There was no-evidence that Mr. Stevens repudiated this disposition of the bonds, but on the contrary his wife’s counsel offered in evidence a. monthly statement received by him from defendants showing a credit upon his account of the proceeds of these bonds, which statement he had retained for years without objection. The letter demanding the margin bore date June 23, 1884; the letter-acknowledging the receipt of the bonds and crediting Mr. Stevens’’ account with the proceeds bore date June 24, 1884, and the statement bore date July 31, 1884. This action was commenced June-28, 1889.

If Mr. Stevens had placed these bonds in the hands of defendants to collect for his wife we should expect him to immediately object to the disposition which defendants had made of the proceeds and to demand that they be paid over or placed to the-account of his wife. Instead of doing so he acquiesced in a disposition of them which is consistent only with Mr. Peabody’s version of the transaction, that they were delivered to be collected and credited upon Mr. Stevens’ account, which at that time-showed an indebtedness of $6,012.50 on the purchase of a hundred shares of Western Union stock, and that Mr. Stevens assumed and exercised the right of ownership over them without any notice that they belonged to his wife.

But if the case is to turn upon the question whether the plaintiff had sustained the onus which rested upon her of proving that these bonds were originally delivered by her to her husband for the purpose of collection only, the clear preponderance of evidence is against her. From the time of the execution and delivery of the stock power to her husband in 1884, and for nearly five years, it is not shown that she made any inquiry concerning the disposition óf the proceeds of these bonds. It is shown that on July 23, 1884, the defendants delivered to her husband fifty shares <of Western Union stock registered in her name, which were part of the shares paid for by her bonds ; that on September 25,1884, .she signed an order upon the Western Union Telegraph Company for the payment to the defendants of a divideiid of $37.50 on said fifty shares of stock; that on December 24, 1884, she signed a similar order for a dividend of $75 ; that on July 7, 1887, she signed a communication to the defendants saying that the fifty shares of Western Union standing in her name and held by them were to be regarded as standing against the account of her husband to afford them additional protection, and that on December 5, 1887, she wrote to the defendants as follows: “I understand that fifty shares of the stock of the Western Union Telegraph ■Company, and one hundred shares of the American Cable Company, standing in my name, and which belong to me, are in your possession, with a transfer of power signed in my name by Mr. Stevens as my attorney. I neither know of nor authorized such signature, and have to request that you will return to me the ■certificates.” Mrs. Stevens is not positive whether she signed or did not sign the communication of July 7, 1887, authorizing the ■defendants to hold her Western Union stock against the account of her husband, but her husband admitted it, and it seemed to have been treated on the trial as genuine. There is, however, no -question about her signature to the other papers.

The admittedly genuine documents signed by the plaintiff in 1884 and 1887 show that she knew of and ratified the purchase .and transfer to her of fifty shares of the Western Union stock. They were part of the shares paid for out of the proceeds of her bonds. She does. not attempt to account for their acquisition in any other way. She not only knew of and claimed them as her property, but in 1884 turned over the dividends to her husband’s brokers. This written evidence furnished by her near the time •of the original transaction and her course of conduct for years, all •■showing that her husband had authority to make the disposition -of her bonds which he exercised in turning them over to the defendants for his own account, is inconsistent with her denials made upon the stand as a witness in her own behalf. A judgment which rests solely upon the weight to be attached to the credibility and recollection of a party who is of course interested in the result, and who is contradicted by the party’s own writings and conduct, should not be permitted to stand. Kehr v. Stauf, 12 Daly, 115, and cases cited.

The judgment and order must be reversed and a new trial ordered, with costs to abide the event.

Bischoff, J., concurs.  