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Opinion of the Court, per ALLEN, J.

assent as a security for the debts of her brother, could, in no just sense, be regarded as a stock transaction with the defendants for the brother's account, the fact exists that the pledge was perfect, and the contract, under which it was made, was complete by the deposit of the stock with, and the delivery of the certificate to the defendants upon the terms and conditions agreed upon by the parties in person.

Nothing was left to be done in respect to it in the future, and there was no occasion for the intervention of a third person, or for any agency of any kind. The defendants had actual possession of the stock as bailees for a special purpose, and the rights of the parties were as definitely settled as if the contract had been reduced to writing, and every legal incident of a contract of pledge had been incorporated in the instrument. The one had parted with his property, and the other had accepted it as a security for the engagements of the pledgor, and upon terms and conditions well defined in the law and understood by the parties. The defendants had the right at any time to close the dealings and call for a payment of any balance that might be due them, and, upon default in the payment, to sell the stock at public auction upon reasonable notice. (Wilson v. Little, 2 Comst., 443; Stearns v. Marsh, 4 Den., 227.)

Both parties had deliberately assented without the intervention of an agent to the terms of the pledge, and had agreed to enter into certain transactions in which the pledgor would be the debtor of the defendants, and while the pledge was to secure the payment of such indebtedness, the transactions contemplated were the purchase and sale of stocks with a view to a profit. The purchases and sales were to be made, not at the discretion of the defendants, the brokers, but at the discretion and under the direction of the dealer; and as he was a resident of Albany, while the dealings were to be in New York, he could not in person assume the direction of specific purchases and sales to advantage, and hence the occasion for designating a third person to represent him and act for him in those transactions; and one was selected, who was

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Opinion of the Court, per ALLEN, J.

to share in the venture, although his interest was not disclosed to the defendants. The contract of pledge had been completed, and it needed not the assent of any one to enable the defendants to assert their rights as pledgees; but in the “stock transactions" contemplated, the intervention of the dealer, Porter, or some one in his behalf, was necessary to control and direct them, to direct what stocks should be bought and when, and at what price, and to direct the sales of such as should be bought. The authorization was legitimate and necessary for this purpose, and the words employed to confer the precise authority required were apt and proper, and were entirely inapt to authorize the remodeling and reformation of a contract already concluded between the principals for another purpose. It would be an unwarrantable perversion of the office of interpretation and a disregard of the well expressed intent of the parties to construe this note of authorization as a warrant to the agent to undo what the principal had well done, and make an entire new contract for him in a matter not touching the “stock transactions” contemplated, but properly pledged, for a special purpose.

My individual opinion is that if Porter, the principal, had been the owner of the stock, the result would be the same, and the only rights the defendants would have had would have been as pledgees, and that Stanton under the terms of his power would have had no authority over it. He could only direct the purchase and sale of stocks for speculative purposes. But pledged, as we must assume it was, upon the evidence, and the request and refusal to submit the question to the jury as the property of Miss Porter, it is quite clear that it could only be treated as a pledge. It was, therefore, a conversion of the stock to sell, it without notice to the pledgor. (Cortelyou v. Lansing, 2 C. C. in E., 199; Wheeler v. Newbould, 16 N. Y., 392; Wilson v. Little, 2 Comst., 443.) There is no claim or pretence that this is anything but a naked pledge, without any special contract or provision for a sale of the pledge or a waiver of demand and notice; and in view of the testimony of the defendants on the last trial, they

Statement of case.

can hardly claim with any semblance of truth that there was any special agreement taking this pledge out of the ordinary rules of law applicable to pledges in giving them as pledgees any extraordinary or unusual powers over the stock.

They did not exercise any such power if it was given, but they transferred it by direction of Stanton without any authority. This leads to a reversal of the judgment.

Assuming that the case will not be changed upon a retrial, the defendants may establish their rights as pledgees as against the plaintiff, and in such case will be entitled to be allowed any balance that may be due them upon the dealings of Porter, for whose debt the stock was pledged, and the plaintiff will be only entitled to the difference between the value of the stock at the time of the conversion, which was either at the time of the sale or of the demand of the stock and refusal to deliver the same, and such indebtedness.

Whether the defendants shall be allowed the charges in excess of the legal rate of interest for the money advanced to Porter, cannot be determined here. The judgment must be reversed and a new trial granted.

Church, Ch. J., FOLGER and RAPALLO, JJ., concur.
GROVER, J., dissents.
PECKHAM, J., does not vote.
Judgment reversed.

Louisa KONITZKY et al., Respondents, v. HENRY J. MEYER,

Appellant.

Where an order is sent to a merchant or manufacturer of goods in which

he deals, silent as to price, and the order is accepted, the law fixes the price at the current rate at which the goods are sold, and the party ordering is equally bound as if the price had been stated in the order. So where an order is given for two articles mixed, to a manufacturer of such a mixture, without specifying the proportion of each article, the manufacturer is empowered to compound the same in the usual manner .. which the mixture is prepared for market, and an acceptance of the

ordur makes a valid contract to that effect. Where one party, at the request of another, enters into a contract as

Statement of case.

surety for the latter, the law implies a promise of indemnity, and the indemnitor is bound by a judgment in a suit brought against such party upon the contract, of which suit the indemnitor has notice, although there is no provision to that effect in his contract, and a foreign judg. ment has the same effect in this respect as one of our own courts.

(Argued May 30, 1872; decided June 4, 1872.)

1

APPEAL from judgment of the Superior Court of the city of New York, affirming a judgment in favor of plaintiff, entered upon the report of a referee.

This action was brought to recover the amount of a judgment obtained against plaintiffs in the upper or superior Court of Appeals of the four free cities of Germany, in an action brought against them by the firm of J. C. Grundmun & Co., upon a contract made with that firm by plaintiffs, by which they agreed to accept and pay, as sureties for defendants, bills for the purchase price of a quantity of chickory, and chickory mixed with acorns, and which contract was broken by plaintiffs under direction of defendant.

The facts pertinent to the questions presented appear sufficiently in the opinion.

Erastus Cooke for the appellant. The terms of an agreement to indemnify must be strictly pursued. (Stewart v. Ranny, 26 How. P. R., 279; Walrath v. Thompson, 6 Hill, 540; Leeds v. Dunn, 10 N. Y. Rep., 469.) A judgment against the party indemnified does not bind the indemnitor, unless the contracts so stipulate. (B. F. & M. Ins. Co. v. Wilson, 7 Bosw., 435.)

John H. Reynolds for the respondents. Defendant's contract with plaintiffs was one of indemnity, and the recovery against plaintiffs is conclusive upon defendant. (Douglas v. Howland, 24 Wend., 45; 2 R. S., 453; 15 N. Y., 407; 10 Gray, 499; City of Boston v. Northington et al., 10 Gray, 449; Aberdeen v. Blackman, 6 Hill, 324; Beers v. Pinney, 12 Wend., 309; Trustees of Newburgh v. Gallatin, 4 Con., 340; Given v. Driggs, 1 Caine, 350 ; Stone v. Hooker, 9 Cow.,

Opinion of the Court, per GROVER, J.

154; Lee v. Clark, 1 Hill, 56; Holmes v. Weed, 19 Barb., 128; Cowen & Hill's Phillips on Ev., notes, vol. 3, p. 891; Barney v. Patterson's Lessee, 6 Har. & Johns., 182, 202, 203; Smith v. Lewis, 3 Johns., 168, 169, per KENT, Ch. J.; James v. Allen, 1 Dalls., 188; note to Andrews v. Herriott, 4 Cow., 520, 521; 3 Dall., 372, note; Barney v. Patterson's Lessees, 6 Har. & Johns, 182, 202, 203; Grant v. McLaughlin, 341; see Thompson v. Tolime, 2 Peters, 157; Smith v. Lewis, 3 J. R., 157, 168, 169; Griswold v. Pitcairn, 2 Conn., 85, 92; Taylor v. Phelps, Harr. & Gill, 492; Holmes v. Remsen, 4 J. Ch., 406; 20 J.R., 229; Embree v. Hanna, 5 J. R., 101; Bissell v. Briggs, 9 Mass., 462, 468; Howe v. Parker, 3 Mason, 247, 251; Wheeler v. Raymond, 8 Cow., 311; Perkins v. Parker, 1 Mass., 117, note; Andrews v. Spuckman, 12 G. & R., 286; Lazier v. Westcott, 26 N. Y., 146; Crowson v. Leonard, 4 Cranch, 434, 441, 442 (see ante, note 626, as to the States in which this doctrine has been recognized]; Bissell v. Briggs, 9 Mass., 462; Rapelye v. Emery, 2 Dall., 231; S. C., id., 51; Hoxie v. Wright, 2 Vt., 269.)

GROVER, J. The grounds of the objection to the admissibility of the judgment in Grundmun & Co. against plaintiffs, rendered by the Superior Court of Appeals of the four free cities of Germany, stated, were : 1st. That the record was not properly authenticated. 2d. That it was irrelevant. The first ground was too general to raise any question for the consideration of an appellate court. It failed to call attention to any defect whatever in the authentication. If there was any defect, the counsel should have specified it so as to call the attention of the court and opposite party directly to it. The second ground was sufficient to raise the question whether the record was admissible for any purpose.

The defendant was not a party to the action. Prima facie, he was not bound by the judgment, and to make it evidence against him in favor of the plaintiffs, they were bound to show aliunde that it was rendered against them in favor of Grundmun & Co. upon a transaction against which the defendant was bound

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