
    JOHN P. BRANCH and others, Plaintiffs and Respondents, v. LAZARUS LEVY and SIMON BORG, Defendants and Appellants.
    I. Trial, Conduct of.
    1. JURY, RIGHT TO JUDGE OF CHARACTER OF TRANSACTION.
    
      (a) Fiction. The perception of a jury may ascertain from the character and make-up of a fiction, what real event the fiction was meant to hide.
    2. CHARGE CURING ERROR IN RECEPTION OF INCOMPETENT TESTIMONY; WHEN NOT.
    
      {a) Agent, letters by one claimed to be.
    1. An error in reception for the purpose of proving agency of such letters written after the close of the transaction in question will not, in a case where the evidence as to the fact of agency is nearly balanced, be cured by a charge that such letters were not evidence, for the reason that if the writer had in fact been an agent, his power to bind the defendants by his declaration ceased upon his making the agreement.
    1. This, although such letters were properly used on the cross-examination of the alleged agent, to affect his credibility or contradict him.
    H. Appeal.
    1. Error in reception of incompetent evidence not cause for reversal. (a) Buie, that when such error could not possibly have worked injury, there is no cause for reversal, not applicable to the case at bar.
    
    Before Sedgwick and Freedman, JJ.
    
      Decided March 3, 1879.
    Appeal from judgment entered on verdict for plaintiff and from order denying motion for new trial, made at special term upon the case and exceptions.
    The action was for damages from the breach by de-
    
      fenclants of a contract alleged to have been made between them, acting by one Harrison, as their agent or broker, and the plaintiffs, for the sale and delivery to the latter of coupons taken from bonds of a railroad company, to the amount of $4,950. The main defense was that Harrison was not defendants’ agent.
    Both Harrison and the defendants resided in New York. The plaintiffs did business in Richmond, Virginia. - The coupons were the property of defendants, and were at the Raleigh National Bank, in Raleigh, North Carolina. In a preliminary correspondence Harrison stated to plaintiffs that he had the coupons, and offered them to plaintiffs. In one letter he wrote, “They are all right, A No. 1 party guarantee. 80 is bid for them here. It is no use to bid less than 87. . . . If you want the coupons, or if you bid 87, I may get them and you will be satisfied.”
    Harrison telegraphed that he would sell the coupons at 87, delivered in New York. The plaintiffs telegraphed-in answer, they would buy the coupons delivered in Richmond. Harrison closed with this, April 19, 1877. On the same day Harrison wrote to plaintiffs that he had received the last telegram and accepted, and continued: “The coupons will be delivered to you, by the First National Bank, Richmond, in a day or two, you paying the amount as agreed. The coupons couldn’t have been had to-morrow, as I had written yesterday- by mail instructing my lawyer to put them in immediate train-for proof, &c. They are all right and you have a good bargain, only the party here didn’t want to be bothered with the form of suit," which was offered to be done promptly and cheaply.”
    On April 21, 1877, the plaintiffs wrote to Harrison. Among other things : “ We understand your seller is both responsible and reliable, and guarantees the .coupons.”
    
      On April 19, the defendants telegraphed the Raleigh Bank, that had the coupons, to send them to the First National Bank of Richmond, and also wrote to the First National Bank : “We have this day instructed the Raleigh National Bank to ship you §4,950 Coups., which you are to deliver to Messrs. Branch & Co. of your city, upon payment to you at 87 cents on the dollar ..... and remit us draft for proceeds upon this city.”
    The coupons were not at any time sent by the Raleigh Bank, or delivered to the plaintiffs.
    The plaintiffs offered in evidence letters of Harrison that were dated and sent after April 19, in which he declared that in the transaction he had not acted as principal but only as broker. He did not give the name of his alleged principal.
    To the admission of these last letters the defendants objected, on the ground that they formed a personal correspondence between Harrison and plaintiffs, subsequent to the contract, and were, therefore, not binding on defendants. The objection being overruled the defendants excepted.
    On this proof as to agency, the plaintiff rested.
    The defendants in their case examined Harrison as a witness. He testified that he did not act as broker for defendants, but bought the coupons of them at 83 cents, and requested the defendants to deliver them to the plaintiffs in Richmond, and to receive from them the amount agreed to be paid to Harrison. One of the defendants testified to the same effect. Both of the witnesses testified that on May 15, 1877, §150 was paid by defendants to Harrison, in settlement of Harrison’s claim as buyer against them as sellers of the coupons.
    The court, in charging the jury, instructed them to find for the plaintiffs if they were satisfied by the letters of the defendants that Harrison acted as broker, and asking them if these letters were consistent with the transaction between the defendants and Harrison being a sale and purchase of the coupons.
    At the end of the charge the defendants’ counsel requested the judge to instruct the jury to. disregard all of the letters of Mr. Harrison, written to the plaintiffs subsequent to the transactions of April 19, 1877, and the court so charged.
    The jury found a verdict for plaintiff. Judgment thereon has been entered. There was a motion for a new trial made on a case and exceptions, at special term. The motion was denied.
    
      Burton N. Harrison, attorney, and of counsel, for' appellants, among other things, urged:
    I. The appeal from the order brings the whole case before the general term, which must now examine the case at large and decide it on the law and the merits as shown by the pleadings, the testimony, and the charge ; and if it now appears that an injustice has been done, that the verdict is against the evidence, or is upon insufficient evidence, or is for excessive damages, or is otherwise objectionable, the verdict must be set aside and a, new trial ordered, even though there may have been no exceptions or request to charge which presented the objections to the court on the trial (Luddington v. Miller, 36 Super. Ct. 7; Macy v. Wheeler, 30 N. Y. 237; Lennox v. Hoppock, 1 Sweeny, 469). The whole charge is now open to examination by the general term on the appeal from the special term order; and whether any particular part of the charge was excepted to or not on the trial, the inquiry here is whether it satisfactorily appears that an injustice has been done to the defendant by what now appears to have been a misdirection of the court on the trial (Keyes v. Devlin, 3 E. D. Smith, 523). So far as the court charged the jury that the question was one of fact for them to determine, whether the defendants entered into the bargain, with the plaintiffs, and then failed to comply with it; that the vital question for their consideration was whether the defendants actually entered into the contract through the broker with the plaintiffs; that, if the jury deemed the coupons were sold by defendants to the plaintiffs, they must find for the plaintiffs. Here was a misdirection, which was calculated to mislead the jury, and for which a new trial should be granted (Castanos v. Ritter, 3 Duer, 370). This, under above cases, although there was no exception.
    II. The letters written by Harrison to plaintiffs after the transaction, were not evidence against these defendants, and should never have been admitted when defendants objected to them as they did. And after admitting them in evidence, and allowing counsel to use them before'the jury as the only material he had on which to sum up for the plaintiffs, the judge himself finally conceded that they had no relevancy in the case and directed the jury (but too late) to disregard all of them.
    
      Grimball & Tunstall, attorneys, and of counsel, for respondents, among other things, urged:
    I. As to the letters written by Harrison prior to, and also subsequent to April 19, 1877, they constituted the res gestee. “These surrounding circumstances, constituting parts of the res gestee, may always be shown to the jury, along with the principal fact” (1 Greenl. Ev. § 108 ; Laning v. N. Y. C. R. R. Co., 49 N. Y. 538 ; Roulston v. Roulston, 64 Id. 654). And the letters of the broker Harrison were made competent for the purpose of cross-examination, to -contradict him and to show he falsified. It is well settled that if in the course of the trial evidence becomes competent, a new trial will not be granted, because admitted prior to that time. Every one of these letters and telegrams had been called for by the defendant’s fourth cross-interrogatory to the witness Branch, who was required by the defendants “to produce and attach to his deposition aU the letters and telegrams” of the broker Harrison. They were, therefore, made evidence by the defendants, even if they were not competent themselves. By the Code (§ 911) objections may be made to testimony taken on commission which might be taken if the witness were personally examined, and those only. Now, if on cross-examination a witness is forced to produce papers by the adverse party, the cross-examiner cannot object to their admission. In the present casé, they were caused to • be attached to,, and thus made a part of, the deposition. They were not only identified but were made evidence. Depositions taken at the instance of, one party may be read on the trial by the other (Weber v. Kingsland, 8 Bosw. 415, 439 ; see Barry v. Galvin, 37 How. 313; Jordan v. Jordan, 3 Supm. Ct. (T. & C.) 269 ; Railway Passengers’ Assurance Co. v. Warner, 1 Id. 21; Commercial Bank v. Bank of State of N. Y., 4 Hill, 519). The cross-examiner could not even withdraw his cross-interrogatory without consent—a fortiori, when he did not desire to do so, must the evidence adduced by it be made evidence for both sides (Union Bank of Sandusky v. Torrey, 5 Duer, 627). Directly in point is Marshal v. Roberts (10 Hun, 463).
   By the Court.—Sedgwick,. J.

I am, inclined to think that there was sufficient testimony to take the case to the jury, on the issue of whether Harrison was defendants’ agent, in making the agreement with plaintiffs. The examining of Harrison and one of the defendants, as to the alleged sale and purchase^ of the coupons between them, would prevent the case being taken from the jury. The jury’s scrutiny of the testimony of these witnesses, and finding that the partióular account given by them was not correct, would lead not only to a discrediting of the witnesses and a rejection of their testimony, but as against the defendants, one of them being examined, to a possible conclusion that there was nothing to be opposed to the claim that Harrison did act as broker. The perception of a jury may ascertain from the character and make-up of a fiction, what real event the fiction was meant to hide.

In other respects, the case was not a strong one for the plaintiffs. There were, if any, but two considerations that threw the balance in plaintiffs’ favor. The first grew out of defendants’ letters to the Raleigh bank, instructing them to send the coupons to the Richmond bank, and instructing the latter to deliver them up to the plaintiffs on payment of an amount at 87 cents on the dollar. Harrison had in a letter to the plaintiffs named the Richmond bank as the place of delivery. The second grew out of Harrison’s receiving §150 from defendants in settlement of what they alleged to be the purchase of the coupons by him of them. Neither of these was conclusive against the defendants. The coupons were in Raleigh. If Harrison had bought them in New York of the defendants and sold them to the plaintiffs to be delivered in Richmond, it was not unusual or improbable that, to avoid a formal delivery to Harrison and by his verbal request, the defendants should deliver to the plaintiffs and write the letters in evidence to accomplish that delivery, agreeing with Harrison to pay him the difference, less expenses.

As to the settlement for $150, though there was some testimony that if Harrison were entitled to the coupons, as buying them from defendants, his damages would have amounted to a greater sum, on the other band, there was no evidence that his brokerage would have been that sum. The amount does not of itself appear to be equivalent to a brokerage. And the suggestion that the settlement was upon the basis of the profits that Harrison would have made by a sale to plaintiff at 87 is not without weight.

Down to Harrison’s letters after April 19, the negotiations and agreement had not clearly disclosed that Harrison was acting for somebody else. The third person referred to by him was, on the face of the letters, a seller to him, and the guarantee referred to was such as had been made by the seller, on the sale to him. At least, such a construction is not entirely inadmissible.

Therefore, when the letters of Harrison, written after the agreement of April 19 was then consummated, were received as competent evidence against the defendants, it must have had some effect upon the jury, that Harrison declared that he was only a broker. In a case so nearly balanced this effect may have been decisive. Although these letters were properly used upon Harrison’s cross-examination, they were then admissible only in respect of Harrison’s credibility, or to contradict him by his own declarations. This does not reach the further use made of them as evidence in themselves against the defendants. And I think it appears that the instruction at the end of the charge that the letters were not evidence, for the reason that if Harrison had, in fact, been an agent, his power to bind the defendants by his declaration ceased upon his making the agreement, may not have led the jury to undo what had been done in their minds, upon the testimony contained in the letters.

For the reason given, I am of opinion there should be a new trial. The other exceptions were not valid, but need not be stated in particular.

The judgment, and the order denying the motion for a new trial made at special term on the case as settled, are reversed, and a new trial ordered, with costs of the appeals to appellant to abide the event of the action. On the appeals from the orders denying motion for new trial, one bill of costs with disbursements, if any, are to be taxed, as there has been but one argument.

Freedman, J., concurred.  