
    HUMPHREY P. THOMPSON and HENRY H. THOMPSON, Plaintiffs and Respondents, v. LEMUEL BROWN and HIRAM BENNER, Defendants and Appellants.
    There was an agreement between the parties, that the plaintiffs should purchase and sell-three hundred shares of stock on the joint account of the plaintiffs and defendants.
    Plaintiffs purchased the stock, in June, 1868, in accordance with this agreement, and with the approval of the defendants, the plaintiffs furnishing the money. It was also agreed that plaintiffs, as a firm, might sell this stock for the joint account of the parties whenever they should think best or see fit, and the certificates of the shares were deposited in plaintiffs’ safe, and there remained until May or June, 1869, when Henry H. Thompson, one of the plaintiffs, without the knowledge or consent of his partner, and co-plaintiff, or of the defendants, took this stock from the safe and sold the same for his own account at a less rate or sum than the original cost of the same, and applied the proceeds to his own personal use and account.
    This sale was not known to the plaintiff, Humphrey Thompson, nor to the defendants, for some weeks or a month after it occurred.
    
      Meld, that this act of one of the plaintiffs, in taking and selling the stock on his own account, and applying the proceeds thereof to his own account, was not a sale of the said stock pursuant to the agreement between plaintiffs and defendants. If considered as the personal act of that plaintiff, who did the same, it was an unlawful conversion of the property of others. If considered as the act of the plaintiffs, it was a breach of the agreement, for the defendants were entitled to the best judgment and action of the plaintiffs as a firm and of each member thereof in the sale of that stock, and they cannot be held to an account upon such a sale.
    The subsequent acts of the plaintiffs in' purchasing stock and tendering the same to the defendants, and on their refusal to accept it, selling the same on notice, &c., could not, and did not, affect the result, &c., nor heal this breach of the original agreement. Defendants held not liable for any loss that the plaintiffs sustained in the transaction.
    Before Barbour, Ch. J., and Freedman and Spencer, JJ.
    
      Decided December 31, 1871.
    Appeal from a judgment entered upon the verdict of a jury in favor of plaintiffs, and also from an order denying a motion for a new trial.
    This action was brought to recover five hundred and ten dollars, claimed to be due to the plaintiffs from defendants on account of an alleged agreement between the parties, that plaintiffs should purchase and sell three hundred shares of consolidated Gregory stock on the joint account of plaintiffs and defendants. Plaintiffs claim that there was a loss in the transaction to the amount of five hundred and ten dollars.
    The answer was a general denial.
    The evidence establishes the following facts :
    On June 18, 19 and 30, 1868, plaintiffs purchased two’ hundred shares of the stock at one thousand and ninety dollars, and ten days afterwards an additional one hundred shares at five hundred and twenty-two dollars. These shares were purchased on joint account, the plaintiffs furnishing the money, and were fully approved by the defendants.
    
      The evidence that the agreement was that plaintiffs might sell this stock at their option and as they saw fit, without consulting the defendants, is slightly conflicting, but the jury having passed upon this question in favor of plaintiffs views, it maybe considered settled that way for the purposes of a review.
    In May or June, 1869, Henry H. Thompson, one of the plaintiffs, without the knowledge of his partner and co-plaintiff, or of the defendants, took this stock from the safe of the plaintiffs and sold the same for Ms' own account for the sum of seven hundred and ninety-seven dollars and forty-one cents. This action of Henry H. Thompson became known to all the parties some time afterwards. When the plaintiff, Humphrey P. Thompson, and the defendants, had about settled matters of difference between them, and defendants were to take the stock in question from plaintiffs, this discovery broke up all the negotiations and the proposed settlement between the parties. Afterwards, and in July, 1869, the plaintiff, Humphrey P. Thompson, bought one hundred and fifty shares of this stock for the purpose of tendering the same to defendants as. their half of the shares of stock purchased. They paid for these one hundred and fifty shares, about two hundred and ninety-six dollars, and tendered them to the defendants, demanding payment at the same time of the cost of one-half of the original three hundred shares purchased on joint account, with interest. Defendants refused the payrhent and the stock. Plaintiffs then gave notice to defendants that they would sell one hundred and fifty shares of this stock on August 9, 1869, being the same tendered, &c., and hold them for any deficit or loss, &c., and plaintiffs did sell the same for two hundred and ninety-six dollars, being the same amount previously paid for the shares. The charge of the judge shows that the sale of the stock by the plaintiff, Henry Thompson, was the sale, (that determined the amount of recovery by plaintiffs) for the consideration of the jury, and that the last sale was not a matter for their consideration.
    Defendant’s counsel requested the court to direct a verdict for the defendants, ■ also to charge the jury, “that if the evidence satisfied the jury that Henry Thompson sold the stock, purchased on joint account with the defendants, on his own individual account, and not on joint account with defendants, the plaintiffs are not entitled to recover.” The judge refused both of these requests, and exception was taken, and after-wards the judge charged the jury, among other things, that, “ if the agreement entered into was that the plaintiffs should purchase the stock and deal with it by selling at discretion at such periods as they thought it would be most advantageous for the parties, your verdict will be for the plaintiffs for four hundred and ninety-eight dollars and twenty-seven cents.”
    As the above amount is the loss on one half of the stock, based upon the cost of purchase, and the amount obtained by Henry Thompson, the judge considered, no doubt, the latter sale as a sale by the plaintiffs under the agreement.
    
      Hawkins & Cothren, for plaintiffs.
    Beebe, Donohue & Cooke, for defendants.
   By the Court.—Spencer, J.

The only question before this court, arises upon the refusal of this court to direct a verdict for the defendants, and to charge as requested. Assuming the agreement between the parties to have been as claimed by plaintiffs, that plaintiffs should hold and sell the stock at discretion, I think plaintiffs could not recover in this action, because they did not fulfill their agreement. The action of one of the plaintiffs, Henry Thompson, in taking that stock from the safe of the plaintiffs, and selling the same, and applying the proceeds thereof to his own. individual account, without, the consent or knowledge of his partner and co-plaintiff, was not a sale pursuant to this agreement. If considered as the personal act of him who did it, it was an unlawful conversion of the property of others. If considered as the acts of plaintiffs, it was a breach of the agreement between them and the defendants to sell on joint account. The plaintiffs, by their subsequent action in the premises, ignored this sale as their partnership act under the agreement, "and sought to replace this stock that had been clandestinely taken and sold on the personal account of one of them. '

The defendants were entitled, under the agreement, to the judgment and action of the firm and each member thereof in the sale of that stock, and cannot be held to an account upon such a sale as made by Henry Thompson. The exceptions to the refusal of the judge to direct a verdict for the defendants, and to charge the jury as requested, in regard to the effect of this sale by Henry Thompson, were well taken, and there was error in those refusals.

I think there is nothing of merit to be considered in the facts attending the subsequent purchase and sale of one hundred and fifty shares of this kind of stock by the plaintiffs, for that display of .broker’s craft could not, and did not, change the situation nor effect the result sought for by plaintiffs.

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