Finney v. Gallaudet

The defendants are a firm of stock brokers, and the plaintiff was a customer of theirs, and in this action sues to recover an alleged balance in his favor, arising out of purchases and sales of stocks for his account. It was condededthat down to a given date plaintiff’s operations were successful and a profit resulted, but defendants set up an affirmative defense to the effect that, after the date of the last transaction referred to in the complaint, still other ventures were made on plaintiff’s account,which not only consumed the balance then standing in his favor, but brought him out largely in debt to his brokers. It is undisputed that the§e subsequent purchases and sales of stock were made, and that they have been charged to plaintiff upon defendants’ books. The question of fact upon which the whole controversy turned, and which has been decided in plaintiff’s favor by the jury, was whether any authority to identify him with the transactions in question ever existed.

The verdict is not so obviously against the weight of evidence as to call for interference with it on that ground. It was admitted that in the later transactions, the defendants did not follow the usual custom of business by immediately sending plaintiff written notice of each purchase and sale, and it also appears that such formalities were observed with him in the prior and more fortunate dealings. The explanation offered by defendants of their ceasing to treat plaintiff like an ordinary customer, and as they had formerly treated him, was that he had grown very intimate with their confidential clerk, Mr. Wykes, and by reason of such intimacy, and also because plaintiff wished the fact of his trading in the market to be kept secret, he was allowed to privately give his orders and receive information of their result through Mr. Wykes. Plaintiff’s denial of all the alleged circumstances necessary to

Nor do we think the criticisms of counsel upon some of the rulings at the trial are well founded. A strenuous objection was made to the showing of the method of business between the plaintiff and defendants daring the time of their undisputed dealings with each other, as well as the ordinary custom of the trade as to sending notices, etc., which custom had been observed with plaintiff during such undisputed period. In our judgment this evidence was properly admitted. Proof of custom xvas not introduced here, as is usually the case, to modify or supplement the positive provisions of law, but merely to throw light on the matter of probability in determining a question of fact. As such it xvas clearly relevant, and it would have been a great injustice to plaintiff if, when called upon to meet the defendants’ allegations, he had been deprived of the privilege of arguing inferentially as to their truth or falsity, from conceded facts in the business relations of the parties.

We are also of opinion that the trial judge correctly ruled at folios 141, 150, and 170. Conversations between one of the defendants and Mr. Wykes, defendants’ confidential clerk, sought to be proved on behalf of defendants, were properly excluded. It is elementary that a party may not prove, in 1ns own favor, declarations made by himself or his agent in the absence of the other party. But an alleged conversation between Mr. Wykes and plaintiff was rightly admitted on plaintiff’s behalf, because the declarations of an agent made in the course of business are competent against his principal. Counsel for appellant contends that these rulings were both erroneous because they assume that Wykes xvas defendants’