p. 431Andrew McKinney et al., Resp’ts, v. Edward Campion, App’lt.(Supreme Court, General Term, First Department,Headnote
Appeal — Conflicting .evidence.In the absence of exceptions to the admission or exclusion of evidence and to the charge, á verdict on conflicting evidence will not be disturbed on appeal.
Appeal from a judgment, entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, made on the minutes.
J. Woolsey Shepard, for app’lt; William G. Chittick, Jr., for resp’ts.
— The plaintiffs are partners under the firm name of A. McKinney & Co., are cotton brokers, and members of the New York Cotton Exchange. It is alleged in the complaint that in July and August, 1891, the defendant employed the plaintiffs tó buy 400 bales of cotton, and also to sell 400 bales at prices specified, and that they executed the orders, the commissions for which amount to $40, and also advanced on the defendant’s account $155.15, inclusive of interest. This action was brought to recover these sums. As a sole defense, it is alleged that the defendant was not a dealer in cotton, never owned or had any ; that he never employed the plaintiffs to buy cotton from others, or to sell to others; but that the transactions stated in the complaint and in the plaintiff’s bill of particulars were wagering contracts between the litigants, and void. One of the plaintiffs testified that the defendant directed them to buy 400 bales of cotton of others, and to sell 400 bales on the cotton exchange. This the defendant denied, but the issue was submitted to the jury, under a charge not excepted to, and found
p. 432for the plaintiffs. The defendant utterly failed to maintain the defense alleged, that the transactions were not between himself and third persons, but were with the plaintiffs. It is apparent that the plaintiffs did not contract with the defendant, but they were merely acting as his agents in buying and selling cotton on the exchange. The court further instructed the jury that if the defendant did not intend to purchase the cotton ordered, or to deliver that which he sold, but merely to speculate on the rise and fall of the article, and this intention was communicated to the plaintiffs, they could not recover their commissions or the money which they had advanced; but in case they found that the plaintiffs had no knowledge of the defendant’s purpose, but executed the orders in good faith, believing that the purchases and sales were real, they were entitled to recover their commissions and advances, though the defendant intended to engage in wagering transactions. No exception was taken to this instruction. This issue was also found for the plaintiffs on evidence sufficient to raise the question, and the verdict is decisive of the rights of the parties. No exceptions to the admission or exclusion of evidence were taken, nor were any exceptions taken to the charge.
The judgment and order should be affirmed, with costs.