
    GORHAM F. BAKER, Plaintiff and Appellant, v. WILLIAM G. CUTTING and Others, Defendants and Respondents.
    
      [Decided June 4, 1870.]
    The finding of a referee, upon conflicting testimony, that purchases and sales of stocks were made by defendants by the direction and authority, or the subsequent approval of the plaintiff, will not be disturbed on appeal. In matters of fact the finding of a referee upon conflicting evidence is conclusive.
    Before Barbour, C.J., Monell and Freedman, JJ.
    Appeal from a judgment entered upon the report of a referee.
    The action was brought to recover margins deposited with defendants, as brokers.
    In April, 1865, the plaintiff employed the defendants, who were commission stock brokers, to conduct certain transactions in stocks for him, and paid them during that month and the following one, in the aggregate, the sum of $2,000 as margins, as security for any loss in his operations. He employed them in the usual way, except that they agreed to carry such stocks for him as he might purchase or sell, as long .as he desired. The defendants allege that he also told them to operate for him generally on thevr own judgment, and that he would be bound by whatever they did, but this is denied by the plaintiff. The defendants went on and made many sales and purchases, sometimes giving notice to plaintiff of what they had done, and sometimes not, until the month of August, when the defendants rendered an account to the plaintiff, showing him in debt to them in the sum of $1,331.59. Hp to this time the plaintiff had supposed the defendants were largely indebted to him, and he repudiated the larger number of transactions, as not in any way authorized by him, and commenced this action to recover back his margin and moneys he had in their hands. The defense set up the alleged general authority to buy and sell as they deemed best, and a counter-claim for the balance they claimed as due. The action was referred, and the referee rendered judgment in favor of the defendants, dismissing the complaint, and for the sum of $702.27 and costs. From this judgment the plaintiff appealed.
    
      Mr. George R. Thompson for appellant.
    The referee erred in finding that all the purchases were made by the “direction, authority, or subsequent approval of the plaintiff.”
    This finding is based upon the affirmative defense that the plaintiff gave the defendants general authority to buy and sell stocks on their own judgment for his account, and is supported by the evidence of one witness only. The plaintiff denies any such intention or arrangement.
    • The whole tenor of defendants’ testimony shows that no such arrangement was made, as the defendants were receiving express instructions from the plaintiff all the time, in relation to other transactions, and were concealing from him what they had done where no express instructions had been given.
    The plaintiff is not responsible for these unauthorized purchases and sales, because there was no notice given to him of them until long after they were consummated, as sworn to by both parties.
    Even if the defendants had power to bind the plaintiff under their alleged general authority to operate by purchasing, they had no right to sell without any notice. When they purchased, they became mere pledgees of the plaintiff of the stock, and had no control over it in any other way. They took no measures to ascertain the plaintiff’s wishes, but sold as they pleased. The plaintiff would have had a right to the stock at any time by paying for it, and the defendants were guilty of great negligence and disregard of his interests in not asking his direction, and in selling to his loss (Brass v. Worth, 40 Barb., 649).
    
      
      Mr. W. Britton for respondents.
    There were only two questions in controversy—wholly of fact—and the referee has found one with the plaintiff and the other with the defendants, and there is abundance of evidence to sustain the findings as to both.
    Plaintiff denied the authority to make the purchase or sales not marked authorized.” The evidence of such authority sustains conclusively the finding of the referee.
    Plaintiff claimed that the defendants sold one hundred shares of N. Y. Central stock without sufficient authority, which the referee has found in his favor and has allowed him as damage the highest price, before the trial; of this only defendants can complain.
   By the Court:

Barbour, C.J.

There can be no doubt that the referee’s legal conclusion, that the defendants were entitled to recover the sum awarded to them in the report, was correct, if the purchases and sales, found by the referee to have been made by the defendants, were really made by the direction and authority or the subsequent approval of the plaintiff,” as he has found the fact to be. The only question for the court to determine upon this appeal, therefore, is, whether the testimony given upon the trial was sufficient to justify that finding of fact touching the authority conferred upon the defendants by the plaintiff, or his ratification of their acts.

The evidence upon the subject is contained, substantially, in the testimony of L. W. Badger, one of the defendants, on the one side, and that of the plaintiff himself upon the other. Mr. Badger, after stating in detail several transactions in stocks by his firm, as brokers for the plaintiff, and conversations with the latter, testified as follows: The account was rendered, and a check given for the difference. He made this remark once to me in the office, ‘ That he would have done better to have taken my advice.’ I told him Tes, the bears make most in the long run.’ He said he did not know as he could be a bear. He said his business was such he could not come up every day, a/nd told me when I sa/w a chance to make anything, to do it. I told him 1 would do the best I could, and that I was as lAable to make a mistake as any one. The next transaction I made for him was to sell short one hundred shares of Horth-western preferred stock. * * He knew nothing of the transaction last named until after it was sold. He said he knew nothing about that stock. I told him I was in hopes to make something on it, and he told me whenever I thought it best to take it in; that is, to buy it and return it. * * The next time I saw Mr. Baker, soon after, I told him I had made him fifty dollars or more. He wanted to know if I was going to do anything more. I told him I would if he wished, and that I thought stocks were better sale than purchase. ‘Well] he says, ‘you may do as you think best about it.’ I told him perhaps if I made him some losses, then he would not feel so well about it. He said it would not be the first time, if he did lose / that he could not come up very often, and would rather I would go on ami do the best I could. * * About the 5 th or 6 th of June, I sold for him another hundred of Erie, at 72-J-, and bought it in at 75f. I told him about the transaction, and he asked me what I was going to do next, and if it would not do to buy something. I told him it would be Mariposa, if anything. He said I might do as I pleased, and that he would rather leave it with me. I bought him one hundred shares,” etc. Although the plaintiff admitted upon the trial that he authorized or sanctioned all of these purchases and sales, and they are, therefore, not in controversy, I have thus stated the testimony of Mr. Badger touching the transactions, for the purpose of exhibiting the mode in which the .parties dealt with each other. The Erie stock, next spoken of by the witness, was the very subject of the controversy so far as concerns this appeal. In regard to that Mr. Badger testified, in continuation of what is above set forth, The next transaction was in Erie. I told him perhaps he had better put the Erie out again; that is, sell short. He told me to do as 1 pleased, a/nd that he would rather lea/ue it with me; that he couldn’t give it his attention every day. I sold a hundred shares for him at 75, about June 21st. I told him what I had done. * * The next time I saw him, he asked me if it was a good way to buy in a hundred shares of Erie. I told him it was, for the time being. I did buy a hundred Erie, at 91i. * * The market advanced rapidly, and, the next day or two, I met him. I told him there was quite an excitement in Erie, and he asked me what I had done. I told him I had bought a hundred shares at 91-1, and they were now bidding ninety-six for it, which would give him a profit of four or five hundred dollars. I ashed him if 1 had not better sell it, and he said, 1 By all means? I went and sold it at 96J. This was July 27. * * I told himbeforeheleft what I had sold it for, and he then went away, telling me to manage the best I could. He said, ‘ When you thinh best to buy, buy; andwhen to sell, sell, but don’t lose any money if you can help it? ”

The same witness further testified that after all the purchases of stocks had been made, and all except the hundred shares of Central sold, the defendants sent their account to the plaintiff, after which the witness asked him for money, and that when he told the plaintiff how the account stood, the latter “ took no exceptions to it, except to regret it, and promised to pay in a few days; ” and that as the witness went out at the door the plaintiff slapped him on the shoulder and said, Badger, you will not lose a cent of this money. You will have it, but you will have to wait a few days.”

Mr. Cook, who was in the employ of the defendants during the transactions, testified that he had heard conversations between the plaintiff and Badger, and that the former said he would leave it to Mr. Badger to act on his own judgment; ” that they were talking about stocks, but the witness did not know what stocks. Another witness (Mr. St. George) also stated that he had heard the plaintiff say to Badger, Do the best you can for me.”

That testimony, uncontradicted, would certainly be sufficient to establish not only the fact that the defendants were authorized to buy and sell stocks for the plaintiff in their discretion, and without waiting for specific instructions, but that aftel’the stocks had all been sold except the Central, the plaintiff was informed, by a statement of the defendant’s account, of what they had done, and did not make any objection thereto, but, on the contrary, promised to pay the balance due them. It is true most of the material statements of the defendants’ witnesses, touching their dealings with the plaintiff, were denied by the latter upon the stand ; but the referee evidently came to the conclusion that the statement of Hr. Badger, corroborated as it was to some extent by two other witnesses, was true, as he well might.

The judgment should be affirmed, with costs.  