
    Henry C. Hopkins, Respondent, v. James F. A. Clark et al., Appellants.
    (New York Common Pleas
    General Term,
    December, 1895.)
    If a principal wishes to disavow a purchase of stocks' on his account he must give prompt notice thereof to the broker. Hesitation, to-await the result of the market, is enough to constitute a ratification of the broker’s act. .
    Where the evidence consists solely of the testimony of the parties, who are men of fair character and unimpeached, which is wholly irreconcilable, the burden of proof is not sustained, and the complaint should be dismissed.
    
      On app.eal from an order of the same -court denying a 'motion for a neW trial, the appellant need not show an exception to a denial of a motion for a nonsuit at the close of the case, or for the direction of . a verdict.
    Though the evidence may have been sufficient to require submission to the i jury, it is the duty of the General Term to grant a new trial if the verdict is against the apparent weight of evidence.
    Appeal by defendants from a judgment of this court in favor of plaintiff, entered upon the verdict of a jury for $3,075, and from an order denying a motion for a new trial on the judge’s minutes.
    The action wras to recover a balance of $2,911.41, with interest from March 6, 1893, alleged to be due plaintiff from defendants as plaintiff’s brokers. The defense was that under authority conferred by plaintiff defendants had purchased for the account of plaintiff the bonds, known as “ Reading thirds; ” that this purchase was acquiesced in by plaintiff, and that a sudden decline of the bonds resulted in a loss which more than absorbed the balance due plaintiff prior to the purchase. The plaintiff denied that the purchase was authorized by him, and claimed that he repudiated it promptly upon being notified.
    
      Paul P. Ormath, for appellants.
    
      Michael II. Cardoso and Edga/r J. Nathan, for respondent.
   Daly, Ch. J.

Whether the plaintiff did or did not authorize the defendant Campbell, in his discretion, to purchase stocks for his 'account, he was bound, on receiving advice of the purchase of the Reading bonds, to promptly give notice to the defendants, his brokers, that he disavowed their act. Unless he did so he would .be. held to ratify it. Gold Mining Co. v. Nat. Bank, 96 U. S. 640. Hesitation, to await the result of the market, would be enough to constitute ratification. Johnson v. Jones, 4 Barb. 369. He was bound to disavow in a reasonable time. Law v. Cross, 1 Black (U. S.), 533-539; Hoyt v. Thompson, 19 N. Y. 218.

It is undisputed that on February eighteenth, in Philadelphia, plaintiff received by mail from defendants in Boston

. tile regular slip notifying him of the purchase. It was too late that day to communicate, but on Monday morning he had a conversation with Campbell, one of the defendants, by* telephone. What' that conversation was rests in the conflict of testimony of those two-witnesses, who were equally interested in the action. Plaintiff’s testimony is: “1 asked Mr. ■Campbell what lie had been doing; if he had been buying ;Some Reading % He said, Why % I said he had no authority; we had never talked Reading, or anything else except Lam-¡son Cash Carrier, which he told me would be guarded. I ■said, I don’t want anything to do with this; I want nothing to do with Reading; I want no speculation; you have no .authority- to do that; what are you going to do % He said, .Buy some more for you and hold it. I said, I want nothing whatever to do with Reading; I will have nothing to do with Reading or any other speculation. That was the absolute .sum of our conversation •—I will have nothing to do with it.” The defendant’s testimony as to the conversation over the telephone is: “ He discussed the situation or condition of the Reading Co. and the prospect, or the current rumors in Phila■delphia, and his disturbances over the' situation; his fear that the security, might go still lower, and finally he said he should want to rely upon me to look after the thing for him. He ' did not repudiate the transaction in any way. Q. Did he say -anything about repudiating the transaction ? A. He did not.” In this state of the testimony it was merely oath against •oath of two interested, witnesses, and as the affirmative of proving disaffirmance rested on plaintiff he failed to establish it. Griffiths v. Hardenbergh, 41 N. Y. 471; Stevens v. Trask, 44 N. Y. St. Repr. 649; • Where the plaintiff and •defendant, who were both men of fair character and stand -alike unimpeached and áre of equal credibility, are examined -as witnesses and contradict each other directly upon a question of fact, and their testimony is totally irreconcilable, in the .absence of other testimony, the case will stand evenly balanced .and the complaint will be dismissed. Losee v. Morey, 57 Barb. 561. Where the plaintiff swears unqualifiedly to a warranty, and the defendant as unqualifiedly and explicitly swears -there was none, and there is no evidence -in the case corroborating the plaintiff, he fails to make out a case and the defendant is entitled to judgment. Raines v. Totman, 64 How. 493. Where the burden of proof rests upon the plaintiff, he testifying to a state of facts constituting a cause of action against the defendant, and the defendant giving testimony which if true proves that an entirely different state of facts existed, showing the plaintiff has no cause of action, neither party being corroborated by circumstances, or by other witnesses, the plaintiff fails to establish his demand and' cannot recover. Syms v. Vyse, 2 N. Y. St. Repr. 106. What corroboration of plaintiff’s testimony is to be found' in the case to sustain this verdict ? On the evening of the day of the telephone communication he wrote to the defendant as follows:

“Fbiend Campbell.— You can perhaps imagine my state of mind this p. m. I arrived home (in Phila.) Friday night. . Saturday' morning when I went into town I found the air literally alive with rumors of the Reading fiasco.’ It was-absolutely known here that they were in trouble & probably more serious than they could pull out of. I did not rec. your letter until after banking hours Saturday, & you can imagine my surprise when I found you had bought Reading 3ds., when, as I say, it was known that the ‘ Drexels ’ had thrown them over, & there seemed no probable way that they could escape bankruptcy. Nothing to borrow on. Nd money, debts that were known to be falling due & they in the position of having antagonized their best friends. ' I got the telephone as soon as > I could to' you this morning, & although I told you of the £ receivership,’ it was then too late for you to save anything. It seems to he the opinion here that the Lehigh Yalley pulled McLeod down, with debts falling due & no money to pay, & that he has placed the Reading voluntarily in the hands of a receiver to protect the property, & that he will get help & pull out. Philadelphians have bagged lots of money, for they have all sold everything in Reading right & left, &, in fact, anything in Beading securities here have been considered the wildest Jcind of a speculation for the last six months. • Could you expect me to buy into á ‘law suit? ’ You know my position — absolutely no ■ income & my future income dependent on the small ■ sum I may have to put into' some business. Please let me hear from you by return mail. • I’ve got a fair amount of nerve, but I’ll allow I have sensations to-night which I hope you may never experience. I am,' ■. •

“Very truly yours,

££ H. 0. Hopkius.”

In this letter, there is no word of repudiation. In referring to the telephonic communication of the morning he does not state that it was a disapproval of the purchase. The whole letter, on the contrary, is merely an argument against the prm dence of buying Beading, and confirms the defendant’s version of the telephone conversation, in which, as he says, plaintiff discussed the situation and condition of the company, the prospects and the current rumors and his disturbances over ■ the situation; his fear that the security might go still lower. What need was there to ask defendants to let him hear from them by return mail if the transaction had been already repudiated ? ,

On the twenty-third, three (lays afterwards, the plaintiff telegraphs and writes to defendants that he positively declines to accept the purchases. ’ If this had been already done on the twentieth it was needless to do so again on the twenty-third; if it had been done on the twentieth why was not that fact referred to in the letter of the twenty-third ? ' On the other hand, that letter begins : £< I wired you this morning-that I positively declined to accept purchase of Beading bonds.” 'That letter is consistent only with defendants’ testimony that there was no previous repudiation. ' .

As the stock had declined steadily by the twenty-third, and the Beading road had passed into the hands of a receiver, this repudiation came too late. In the state of the market, disclosed in plaintiff’s own letter of the twentieth, it was his duty at that time to disaffirm the purchase, and it will be seen that the correspondence between the parties does not corroborate the testimony of the plaintiff-that it was then repudiated, but rather confirms that of the defendant, that there was no repudiation until the twenty-third. There being no preponderance of evidence, on plaintiff’s part, and the weight of evidence being rather' that he did not disapprove the purchase, of which he received timely notice, he was not entitled to recover. Upon this state' of facts, it is our duty to reverse the judgment and order a new trial. On appeal from .the order denying the motion for a new trial, made upon the ground that the verdict is contrary to the evidence, the order may be reversed-if the verdict be against the weight of evidence. Code, § 999; Beyer v. Clark, 8 Misc. Rep. 416. See, also, Clark v. Mech. Nat. Bank, 8 Daly, 481; Cheney v. N. Y. C. & H. R. R. R. Co., 16 Hun, 415; Wright v. Lecour, 9 Wkly. Dig. 6. On appeal from an order of our own court denying a motion for a new trial, the appellant need not show an exception to the denial of a motion for a nonsuit at the close of the case, or for a direction of a verdict. McCarthy v. Christopher & Tenth St. R. R. Co., 10 Daly, 540. Though the evidence might have been sufficient to -require submission to. the jury, it is nevertheless the duty of the General Term to grant a ■ new trial if the verdict be against the apparent weight of evidence (Colt v. Sixth Ave. R. R. Co., 49 N. Y. 671); and, under more recent decisions, it is the duty of the trial judge to nonsuit or direct the verdict, as the case may require, not only where there is no evidence upon an issue, before the jury, but also where the weight of the evidence is so decidedly preponderating in favor of one side, that a verdict contrary to it would be set aside. Linkauf v. Lombard, 137 N. Y. 417, 426; Hemmens v. Nelson, 138 id. 517, 529.

Judgment reversed, new trial ordered, with costs to appellant to abide the event.

Bischoit and Pbyoe, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  