
    William H. A. Fischer, Respondent, v. Maynard C. Eyre and Others, as Surviving Partners Comprising the Firm of Prince & Whitely, Appellants.
    Second Department,
    February 5, 1915.
    Evidence — suit against stockbrokers for failure to deliver pledged securities — partnership — agreement made by special partner — lack of authority — ratification — declarations of special partner since deceased — credibility of witness — questions for jury.
    Where stockbrokers sued as general partners for an alleged failure to return securities alleged to have been deposited with them pursuant to an agreement made by their special partner, since deceased, claim that the special partner had no authority to make the contract, which was never ratified by them, they are entitled to give evidence showing that the contract was made with them special partner personally and not with them as principals, and that they acted merely as the channel through which the stock passed into his hands. To that end the defendants may also show what the special partner told them, his general partners, as to his agreement with the plaintiff or his agent. There being no proof of any agreement with the general partners, ratification by them of a contract made by their special partner is to be ascertained from the entire transaction, including statements which the special partner made to the general partners.
    Where the special partner is dead, the credibility of the witness who acted for the plaintiff in making the contract is for the consideration of the jury and a direction of a verdict is error.
    So also it is for the jury to say whether the defendants ratified said contract.
    Appeal by the defendants, Maynard 0. Eyre and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of May, 1913, and also from an order entered in said clerk’s office on the 23d day of May, 1913, denying defendants’ motion for a new trial made upon the minutes.
    
      Eliot Norton, for the appellants.
    
      Frederick H. Sanborn, for the respondent.
   Stapleton, J.:

The plaintiff obtained a judgment against the defendants in the sum of $35,768.51, entered upon a verdict directed by the-court. The defendants appeal from the judgment and from an order denying a motion to set aside the verdict and for a new trial on the minutes.

The plaintiff is a stockbroker, dealing in unlisted securities. The defendants are general partners in the firm of Prince & Whitely, engaged in the buying and selling of stocks and bonds on commission. One Albert J. Campbell was a special partner in the firm.

The plaintiff, his brother, George E. Fischer, who was a curb broker, and several of their friends were large holders of stock in a mining corporation known as the Barnes-King Development Company. Of that company Campbell, the defendants’ special partner, was president. The plaintiff, his brother, their friends and Campbell were interested in upholding the market for that company’s stock.

By this action the plaintiff sought to hold the defendants liable for failing to return moneys alleged to have" been deposited with them pursuant to an agreement between him and the firm of Prince & Whitely, through Campbell, the special partner. The agreement is thus alleged hi the complaint:

“ In or about the latter part of April, 1907, plaintiff entered into an agreement with the said firm of Prince & Whitely, whereby it was among other things agreed that the said Prince & Whitely should deliver to plaintiff between eight and nine thousand shares of the capital stock of Barnes-King Development Company, and that the plaintiff should endeavor to sell the same at private sale upon commission as a stockbroker, on behalf of the said firm of Prince & Whitely, at such prices as said firm should designate, and should return to said Prince & Whitely any shares which he should be unable to sell.
“And it was further agreed that the said plaintiff should deposit with said firm of Prince & Whitely, security for the said stock so to be delivered to him, to wit: money, or other stocks of equal value, which was a usual custom among brokers; which money or stock, so deposited, it was agreed should be repaid, with interest, to plaintiff as the said stock or its proceeds should be returned to said Prince & Whitely.”

The plaintiff alleges that in pursuance of the agreement, and from May 3 to May 7, 1907, inclusive, Prince & Whitely delivered to him 8,600 shares of the Barnes-King stock, the par value of which was $5, to be sold, 3,100 shares at four and one-quarter, and 5,500 shares at four and three-eighths, against which the plaintiff deposited with Prince & Whitely, as security pending sale, sums aggregating $37,237.50.

Of the shares alleged to have been consigned to him the plaintiff was able to sell but 2,500, for which he received $11,093.75. He tendered the remaining 6,100 shares and demanded the difference between his deposit of $37,237.50 and the sum of $11,093.75 that he received for the sale of the 2,500 shares, to wit, $26,143.75. The plaintiff first made tenderte and demand upon Campbell. After Campbell’s death, which occurred during the summer of 1907, the plaintiff made tender to and demand upon the defendants. The tender was not accepted, and the demand for repayments was refused.

The plaintiff adduced no evidence of any personal transaction with any of the defendants. His evidence of the contract alleged was the testimony of his brother, between whom and Campbell the essential dealings were had. That evidence tended to prove that the brother, as plaintiff’s agent, made the contract with the defendants through Campbell, who, as has been stated, occupied the dual role of president of the Barnes-King Development Company and special partner in defendants’ firm. There was no proof that Campbell was actually authorized by the defendants to make the contract for them. There was no conclusive proof that the defendants ratified their special partner’s act. The plaintiff sought to spell ratification out of the delivery of the stock by the defendants and the receipt by them of the moneys deposited as security. But the defendants proffered evidence tending to prove that the stock came from Campbell and others; that their firm was simply the channel through which the stock passed from Campbell and others into the hands of Fischer; that the transaction was between Campbell and Fischer personally, and that the acts of the defendants were performed, not as principals, but merely in the capacity of stockbrokers. This evidence was excluded.

Defendants also proffered evidence tending to show what the special partner told the general partners he had agreed upon with the plaintiff or his agent. This evidence was erroneously excluded. Where there is no proof of any agreement with any general partner ratification by the general partners of a contract made by a special partner is to be ascertained from the entire transaction, including the statements which the special partner made to the general partners. (See Meserole v. Archer, 3 Bosw. 376.)

We are of opinion that it was error to direct a verdict. The credibility of the witness, plaintiff’s brother, is a proper subject for the jury’s consideration. (Kavanagh v. Wilson, 70 N. Y. 177.) It is the province of the jury to determine whether or not the transaction between plaintiff’s brother and the special partner, as testified to by the brother, was actual. If found to be an actual transaction, it is for the jury to say whether or not the defendants ratified it. (Partnership Law [Gen. Laws, chap. 51; Laws of 1897, chap. 420] § 37, then in force; now Partnership Law [Consol. Laws, chap. 39; Laws of 1909, chap. 44], §37; Baldwin v. Burrows, 47 N. Y. 199; Ritch v. Smith, 82 id. 627.)

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

Jerks, P. J., Thomas, Rich and Putkam, JJ., concurred.

Judgment and order reversed and new trial granted, costs jo abide the event.  