
    Allen v. McConihe.
    
      (Supreme Court, General Term, Third Department.
    
    December 12,1890.)
    1. Factors and Brokers—Dealing in Stock—Statement or Account.
    Orders to brokers for purchase and sale of stocks were transmitted by them for execution to their agents in another city. This was understood by the principal, but neither he nor the brokers had any actual knowledge that such stocks were in fact so bought and sold, but both parties relied on the brokers’ agents. The principal could have obtained any of the stocks from the brokers at any time, by paying what was due to them thereon. Held, that statements of such transactions, rendered to the principal by his brokers from time to time, and retained by him without objection, were to be taken as true, and were binding upon him as to the charges therein for interest, as well as principal.
    3. Same—Failure to Sell—Decline in Price—Measure or Damages.
    An order by a principal to his brokers to sell at a certain price stock held by them for him, for which they had not been fully paid by him, was not executed by them, because they expected the stock would reach a higher price; but it declined, and remained below the price fixed in the order, until it was sold by the brokers’ agents at a much lower price. Held, that the brokers were liable for failing to obey the order; and the measure of damages was the difference between the price named in the order and that for which the stock was sold.
    Appeal from judgment entered on report of referee.
    Action by Frederick P. Allen, as assignee of Ogden, Calder & Co., against Isaac McGonihe, for a balance of an account, running through several years, of purchases and sales by said Ogden, Calder & Co. for defendant as his brokers on margins. Plaintiff appeals from so much of a judgment in his favor as allowed a counter-claim of defendant. The following opinion was rendered upon the trial of the action, by Matthew Hale, R.r “In the absence of any proof of fraud or mistake, I think that the statements rendered to defendant by the assignors of the plaintiff, and retained by defendant without objection, are to be taken as true. Defendant’s testimony shows clearly that he understood in a general way the manner in which Ogden, Calder & Co. transacted their business. He understood that the stocks which he ordered were not purchased directly by them, but through their agents, Work, Strong ■& Co., in Hew York. Heither he nor Ogden, Calder & Co. had any actual knowledge that the stocks reported to be bought and sold by Work, Strong & Do. were actually so bought and sold. Both understood that for the truth of these statements reliance was placed upon Work, Strong & Co. This acquiescence on the part of the defendant covers, I think, the charges for interest, as well as those for principal. Knickerbocker v. Gould, 115 N. Y. 533, 22 N. E. Rep. 573. It fairly appears, I think, from the evidence that defendant could have obtained any of the stocks from Ogden, Calder & Co. at any time before their assignment, by paying up what was due thereon. I hold therefore that the plaintiff has established the full amount of his claim, and that he would be entitled to recover the entire amount claimed in the complaint, but for the matters which have been proved by way of counter-claim. I do not see, however, that the defendant has proved that he was damaged by any unlawful or unauthorized sale of stock, if there was any such unlawful or unauthorized sale. The only item as to which defendant is entitled to recover upon his counter-claim is, in my judgment, the failure of Ogden, Calder & •Co. to sell the Manhattan stock at 111. The order to sell was peremptory. If Ogden, Calder & Co. chose to disobey it, in the hope that the stock would .go to a higher figure, this was at their own risk. They were not requested to exercise any such discretion by defendant. Conceding that their intention in failing to obey defendant’s order was to benefit defendant, still it was a voluntary act on their part, and their good intentions cannot protect them from liability for the effect of their failure to obey the orders of their principal. It was part of their implied contract to obey such orders. Markham, v. Jaudon, 41 N. Y. 235, 239. The only question under this head is as to the measure of damages. The stock did not again reach 111 after defendant learned of his brokers’ failure to obey orders, until it was sold by the plaintiff, Work, Strong &Co., at 97. I do not think the ruleof damages laid down in Baker v. Brake, 53 N. Y. 211, has any application to this case. That rule related solely to the case of an unlawful conversion of the stock by sale. In that case it was held that where the customer was advised of an unauthorized sale of stocks that, if be desired further to prosecute the adventure, he had ■the right to disaffirm the sale, and require the broker to replace the stock, and, upon a failure or refusal to do this, his remedy was to replace it himself; and that the advance in the market price from the time of the sale up to a reasonable time to replace it after notice of sale afforded a complete indemnity, and was the proper measure of damages. But this is a very different case. Defendant had not fully paid for his stock. Ogden, Oalder & Co. held it not only as his agents, but as pledgees. If they had sold as they were ordered to sell, defendant would have at once had the benefit of his order, and would have been entitled to credit in his account with Ogden, Calder & Co., with the proceeds of the sale. When he learned that his brokers had failed to obey orders, I do not think he was obliged to take any further step to secure his rights. He told his brokers, in substance, that he was dissatisfied, and that he did not acquiesce in their omission to obey his order. The stock was then below 111, and continued falling until it was sold without his consent at 97. If he had requested them to sell at a lower figure, that might be construed as a waiver of his previous order, which he had never rescinded. Ogden, Calder & Co. knew that they had violated the orders of their principal. They must be presumed to have known that they had incurred a liability thereby. They were bound to credit their principal with the value of the-stock at the price at which they were ordered to sell, as of the time when they could have sold it at that price. The stock after that was, in my judgment, carried by them at their own risk. Defendant had neither possession nor control of it. Perhaps they thought the stock would go up again, and that they could make themselves good; but, whatever they may have thought or expected, the order to them not having been rescinded, and their omission to-obey the principal’s orders not having been ratified or condoned by him, any loss that resulted was their loss, and not defendant’s. The amount of defendant’s actual damage was the difference between the stock at 111, and the-price for which the stock was afterwards sold, (97,) and which defendant has-received by credit in his account. This difference is $4,200, for which, with interest from August 16, 1887, the day on which Ogden, Oalder & Co. could have sold the stock at 111, defendant is entitled to be credited in this action. I have therefore decided that plaintiff is entitled to recover the amount of his claim, $8,841.76, with interest from January 31, 1888, after deducting therefrom the said sum of $4,200, with interest from August 16,1887, making the amount of the recovery at this date, (June 27, 1890,) $5,193.79.”
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      Albert Smith, for appellant. Long & Maxwell, (J. K. Long, of counsel,) for respondent.
   Per Curiam.

Judgment affirmed on opinion of referee.  