Opinion of the Court, per ALLEN, J. D. Pratt for the respondents. Defendant, having adopted and ratified Sampson's acts, was liable to plaintiffs. (Gage v. Shearman, 2 Com., 417; Hanks v. Drake, 49 Barb., 186; Hope v. Lawrence, 50 id., 258; Brisbane v. Adams, 3 Com., 129; Commercial Bank of Buffalo v. Warren, 15 N. Y., 577; Colvin v. Holbrook, 3 Com., 126.) For neglect of duty by an agent, his principal alone is liable to third persons. (Colvin v. Holbrook, supra; Cameron v. Reynolds, Comp., 406; Tuttle v. Love, 7 J. R., 469; Denny v. Manhattan Co., 2 Denio, 115.) ALLEN, J. The verdict was given for the plaintiffs, subject to the opinion of the Court at General Term, without objec tion by either party. It was virtually assented to by both that there were no controverted facts to be passed upon by the jury. But as no specific facts were found by the jury or expressly conceded by the parties, it was necessary for the purpose of an appeal to this court that a concise statement of facts should be prepared under the direction of the Supreme Court, with the questions or conclusions of law thereon. (Code, § 333.) Such statement was prepared and made a part of the record, and the facts presented in that statement are the only facts that can be considered upon this appeal. The decision of the court below was based upon such facts, and their judgment can only be reversed upon the same state of facts. This court cannot by resorting to the evidence correct, reform or vary that statement. If it is defective in any respect, it must be sent back to the Supreme Court for correction, as was done in Smith v. Grant, reported upon an application for a resettlement of the statement. (17 How. P. R., 381.) But upon a careful examination of the evidence, it is palpable that the statement is full and accurate, and that no material fact which was either proved or conceded upon the trial has been omitted. The fact that the defendant, from some time in December, 1867, had no actual personal interest in the stock account SICKELS-VOL. IV. 82 Opinion of the Court, per ALLEN, J. which had been carried on in his name for the joint account of himself and Sampson, is not material. As Sampson's interest before was latent, so the transfer of the whole interest by the defendant to Sampson was a private transaction between the two, and the ostensible ownership, liability and interest was the same as before. The defendant quoad Travers and the plaintiffs occupied the same positions and was subject to the same liabilities as before the transfer to Sampson. So far as Travers was concerned, the purchases and sales were by and for account of the defendant. He was the responsible dealer, liable for the purchases, and entitled to the proceeds of the sales. Moneys paid to the broker went to his credit, and subject to the claims of the broker were subject to his draft. The plaintiffs' money and stocks went into the same general account with his assent, and while the plaintiffs were bound to indemnify him against loss, the money paid in as a margin by the plaintiffs or received upon the sale of stocks bought for them, was passed to the credit of the defendant on his account with Travers, and was so much money had and received by him. The defendant has had the benefit of it, and it is immaterial whether it is still to his credit with his banker or broker, subject to his draft, or has been actually withdrawn by him, or whether it is held by the broker in satisfaction of a balance due upon other dealings entering into the same general account, that is, for a general balance upon the whole account. The liability of the defendant to Travers, for the result of Sampson's operations in his name and upon credit, is indisputable. As between Sampson and the defendant, it may well be the former is the responsible party in respect to the stocks purchased and sold on his order, but as between the defendant and third persons, the defendant is a principal, and liable as such. The defendant loses nothing by his agency for the plaintiffs. On the contrary, a balance is due the latter on account, and for that balance they have no claim on Travers, for by the assent of all, the defendant is the client and dealer with him, Opinion of the Court, per ALLEN, J. the party in the transactions and account. Sampson is not liable, for he acted as the agent of the defendant, and plaintiffs dealt with the defendant through him. If it should be held that when the true relation between Sampson and the defendant became known to the plaintiffs, they might have sought relief against him, they were not bound to do so. The money of the plaintiffs has gone to relieve the defendant from his liability to Travers incurred through the agency of Sampson. If commercial gentlemen, who are supposed to know the perils of the stock exchange, encourage their confidential clerks to enter upon a course of speculations upon their credit and in their name, they have no right to complain of the result or shirk the responsibilities of the transactions. So far as appears, there is nothing to impeach the integrity of Sampson. He has acted with the full knowledge and assent of his principal, and he has only done as others have done before him, erred in judgment. The defendant, upon the uncontroverted facts, having the money of the plaintiffs in his hands and under his control as much as if it had gone into his general bank account and been used in his business as occasion required, in answer to the request of the plaintiffs that they should be paid, says in substance: It is true I had your money, but I was in form and name a principal, but in fact a surety for a friend in the purchase and sale of other stocks, and upon those transactions there was a loss, and I have taken your money to indemnify myself against that loss." This is the substance of the defence set up, concisely stated. It is simply an attempt to transfer his suretyship for Sampson, at a time when it has become onerous and expensive, to the plaintiffs. I know of no legal process by which it can be accomplished without their consent. The judgment must be affirmed. MEMORANDA OF CAUSES DECIDED DURING THE PERIOD EMBRACED IN THIS VOLUME AND NOT REPORTED IN FULL. DANIEL S. READ et al. v. THE PRESIDENT, ETC., Of the DelaWARE AND HUDSON CANAL COMPANY. (Argued February 22, 1872; decided March 26, 1872.) ACTION on a contract by which defendants agreed to deliver a quantity of coal to plaintiffs at Rondout in October, 1868, on board of boats to be furnished by plaintiffs. On account of the crowd of boats waiting for coal, plaintiffs' boats were unable to get up to the places of delivery in October. October 27th plaintiffs wrote, asking as a great favor “for further time to get the coal away." This was refused unless they paid the increased price for the next month. October 29th or 30th plaintiffs went to Rondout and demanded the coal, which demand defendants refused. Plaintiffs' boats were not then at the places of delivery. Plaintiffs claim damages for breach of contract and demurrage for the detention of their boats, which occurred substantially in November. Defendants offered evidence to show that it was the usage for vessels to take their turn in order of arrival, "first come first served," which the referee rejected. Held, that the contract necessarily implied that plaintiffs should have their boats at the usual places where coal was shipped or delivered by defendants, and that the failure to do so was a good defence unless defendants in some manner prevented plaintiffs from performing on their part; that such interference was not shown by the fact that other boats were there in the ordinary course of business to receive coal, which prevented plaintiffs' boats from going directly to the place of delivery. The bur den of showing a right to or preference of access to the place of delivery rested upon plaintiffs. But if the contract was broken by defendants' refusal to deliver, plaintiffs could only recover the difference between the price agreed upon and the actual value of the coal. They could not recover demurrage. S. P. Nash for the appellants. D. S. Morrell for the respondents. PECKHAM, J., reads for reversal and new trial. All concur. Judgment reversed and new trial ordered, costs to abide event. IN THE MATTER OF THE APPLICATION OF EDWARD SCHELL, Trustee, etc. (Argued February 27, 1872; decided March 26, 1872.) Samuel Hand for the appellant. R. H. Smith & Sanford for the respondent. Order reversed on authority of In re Livingston (34 N. Y., 555). JOSEPH PHILLIPS, Respondent, v. ALBERT SPEYERS, Appellant. (Argued February 27, 1872; decided March 26, 1872.) ACTION for conversion of $500 in gold. The judgment below was for the value of the gold in currency at time of demand. Held, that the verdict should have been in gold dollars, not currency, on authority of Kellogg v. Sweeney (46 N. Y., 291). William A. Beach for the appellant. Samuel Hand for the respondent. |