Hyperlawhypertext legal databasebeta Martin v. Peters 27 N.Y. Super. Ct. 434

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Martin v. Peters

27 N.Y. Super. Ct. 434 4 Rob. 434 Court N.Y. Super. Ct. Decision date 1867-05-06 English

Delivered by Robertson, Oh. J.

Contents

Majority

p. 434
R. M. Martin et al. plaintiffs and respondents, vs. Edward J. Peters, defendant and appellant.

Headnote

1. An authority simply to buy stock, will not entitle the agent to make the principal responsible for the value of the stock to any one but the seller or himself. It will not authorize him to borrow money to pay for it, on the responsibility of the principal.
2. Some stronger evidence is necessary of an advance of money, at the request of the defendant, or for his benefit, or upon his personal responsibility, than proof in an action for money expended for his use, or at his request, by the plaintiffs, that they had paid to some one other than the defendant the jnarket
p. 435
price of certain shares of stock upon the delivery to them of such shares of stock, (but not by the defendant,) after they had agreed with a third person, who represented such shares óf stock to belong to the defendant, to advance such market price, upon being paid ten per cent thereof, and such third person had delivered to the plaintiffs the check of the defendant’s firm for $1000, although, the defendant had admitted that such third person had bought stocks on their joint account, and that he expected a portion of the profit upon the purchase of the stock in question, in case there was any, and in answer to a demand for the sum advanced, merely said that he knew nothing of that particular number of shares of stock. Such evidence tends to show credit given to the stock, rather than to the defendant’s responsibility.
(Before "Robertson, Ch. J., and Barbour and Garvin, JJ.)
Heard June 23,1866;
decided May 6, 1867.
. This was an action for money ($7700) alleged to have been paid by the plaintiffs for the defendant, and at his request. In the complaint, which set out such expenditure, the defendant was credited with a certain sum ($1000) paid, and a certain other sum ($5980.50) alleged therein to have been received by them on the sale by them of certain shares of stock (Milwaukie and Prairie du Chien Railway common stock) taken by them as security for the repayment of such advance. All the allegations in the complaint are controverted in the answer. The action was referred to a referee (Charles Price, Esq.) to hear and determine the issues therein. He found in favor of the plaintiffs upon all the matters alleged in the complaint, and exceptions were filed to his report, by the defendant.
On the trial, one of the plaintiffs (Bulen) being examined as a witness in his own behalf, testified that in April, 1864, a Mr. Lawrence called on him and desired “ his firm to lend on one hundred shares of the stock before mentioned, its market value. In reply he offered to do so, on receiving ten per cent “from the holder,” and “if he was a responsible man.” Lawrence said “ the stock belonged to ” the defendant, but that he had an interest in it. Whereupon he gave such plaintiff a check drawn by the defendant’s firm for a thousand dollars. A day or two afterwards a certificate of such stock was delivered to the plaintiffs either by Lawrence or some person whom he indicated, but not by the defendant. They advanced
p. 436
about seven thousand dollars to some person who was not the defendant, to pay for such stock.
In July following the plaintiff Bulen, called on the defendant and presented him an account in the following words and figures :
“E. J. Peters,
Milwaukie ac. with R. M. Martin & Co.
1864.
April 4. To 100 Mil. & P. Du. C. (Com. |) #8712 50
May 5. “ 31 do. interest . , . . 52 51
$8765 01
Or. ---
April 4. By his check......$1000 00
May 5. “ do. interest..... 6 02
“ Bal. card, down (on hand 100
Mil. & P. Du. C.) . . . 7758 99
$8765 04
May 5. To balance brought down (on hand
100 Milwaukie) 7758 99”
and. demanded its settlement. The defendant said he knew nothing about that particular one hundred shares. Such plaintiff then, as he testified, asked him if Lawrence did not buy stock for him on joint account; the defendant said in answer that he did. The former again asked him whether if there had been a profit on the one hundred shares of stock he would not have participated in it. The defendant again answered in the affirmative. The plaintiff then said that he ought “ to take the stock up as he had been carrying it some time,” This was all he could recollect respecting the conversation.
Another witness (Carroll) whom the plaintiff Bulen requested to accompany him and hear what the defendant said, testified that the plaintiff asked the latter “ if he and Mr. Law
p. 437
rence had not stock transactions together ?” which the defendant admitted. He then asked “ if there had been a profit on the shares of stock he did not expect a portion of it ?” To which the defendant assented. The plaintiff then asked whether Mr. Lawrence did not act for him and “as Ms agent in the purchase of that” stock, and he admitted that he did. The plaintiff after stating that they had received that stock on the defendant’s check and Lawrence’s representations that he was acting for him, said to the defendant: “ If you expected to receive a portion of the profits, I do not see how you can honorably refuse to receive the stock and settle the account.” The latter only said, “ I refuse to receive it.” Such witness also stated that the defendant seemed “ to be on his guard.” He had refreshed his memory by referring to a written memorandum made at the time of such interview, which was not produced on the trial. He merely looked at it to see if his memory coincided with it.
The defendant being examined as a witness on his own behalf, testified that at such interviews he told the plaintiff he did not own any such stock. And on the latter saying “ Mr. Lawrence had purchased it,” representing himself as “the defendants” agent, the defendant denied that he was their agent, and said “ they had never given any one direction to buy any such stock.” The plaintiff then asked him, “if there had been a profit if he would not have received a share. He then drew the plaintiff aside and told him he did not want him to call at their office on such matters, with which he (the defendant) had nothing to do; that Lawrence owed them money and if he made any, he (the defendant) hoped he would pay them. He denied having any thing to do with the account presented. The plaintiff had called on him before, in relation to the matter. The defendant also testified that Lawrence stood within a few feet of him and heard him deny his agency in purchasing that stock. This was denied by the plaintiff Bulen and his witness Carroll.
Lawrence was not examined as a witness, but it was proved
p. 438
on the trial that the defendant had received letters from him dated at Boston in the state of Massachusetts.
The plaintiff Bulen was asked in whose name the account was entered on his hooks, and why it was opened in the name of the defendant, to which exceptions were taken. A witness (Hicolay) was also introduced to prove the sale of such stock hy him and the amount for which it sold, as well as the details of such sale, against the defendant’s objection and exception. The plaintiff Bulen ivas also allowed, against the like exception, to testify that he sold such stock, in consequence of the refusal of the defendant to take it and pay the amount. A witness (Sawyer) was also introduced to prove the delivery by him to the defendant of a notice signed by the plaintiffs in the following words and figures :
“ Sir : You will please take notice that we shall sell by Albert H. Hicolay, auctioneer, at his salesrooms, Ho. 52 William street, in the city 'of Hew York on Wednesday, July 20th, 1864, at 12^ o’clock p. m., to the highest bidder, 100 shares of Milwaukie and Prairie du Chien railway common stock, same held by us on your account, and we shall hold you responsible to pay us all losses and expenses that has or may hereafter accrue upon the sale of said stock.
Yours, &c.
R. M. Martin & Co.
Dated Hew York, July 18, 1864.
E. J. Peters, Esq. Ho. 53 South street, Hew York.”
The proof was admitted contrary to the defendant’s objection and under his exception. The referee put the question to the plaintiff. Bulen, whether the defendant at any time denied that Lawrence was his agent, and (after the plaintiff Bulen had testified that the defendant had said he was, in answer to the question put by him whether he was not, and after the defendant had testified that,he had denied it) permitted Bulen and Carroll, against the defendant’s objection, to be recalled again to contradict him.
p. 439
Judgment was entered upon the report of the referee, from which the present appeal is taken.
A. J. Heath, for the appellant.
I. Verbal admissions are always received with the greatest caution, consisting, as they do, of oral statements subject to mistakes, the witness often giving his own interpretation, and changing the real meaning of the party making them. (1 Greenl. Ev. § 200, note 2 and cases cited.)
II. It is a well settled principle of law, both in England and the United States, that verbal admissions hastily made, without investigation, are not binding. (Salem Bank v. Gloucester Bank, 17 Mass. Rep. 27 . Barber v. Gingell, 2 Esp. 60. Smith v. Burnham, 9 John. 306 . Lench v. Lench, 10 Ves. 517, 518. 3 Sumner, 435, 438, 439, and cases cited.)
1. The alleged admissions relied upon by the plaintiffs were made to Bulen, one of the plaintiffs, and he testified that Peters stated to him that he (Peters) knew nothing about that particular 100 shares of stock, and refused to receive the same and account. The witness Carroll's testimonyis to the same interview, and he testifies that the defendant simply answered the questions put to him by Bulen, and appeared to be on Ms guard. The defendant testifies, with regard to the interview, that he told Bulen that he did not own any stock, and that Lawrence was no agent of his ; that Lawrence was owing the defendant’s firm, and if Lawrence made any money, he (Peters) hoped that Lawrence would pay them.
2. The testimony above referred to shows no intention of the defendant to adopt the acts of Lawrence as his own.
III. Admissions, to be binding, must be shown to have been made with full knowledge of all the facts. It was not so in this case.
IY. Even if it should be believed that Peters admitted that Lawrence was his agent to buy the stock, there is no pretense or proof of any kind that the defendant gave Lawrence authority to pledge any stock or obtain a loan thereon. The defendant owned no such stock, and no money was ever advanced to him
p. 440
by the plaintiffs. The failure to sustain the allegations of the complaint on this point is fatal.
Y. The law of principal and agent does not apply in this case. There was no agency.
The referee erred, (1.) In admitting the testimony of Bulen as to the declarations of Lawrence. The plaintiffs were bound to put him on the stand. (2.) In not dismissing the complaint when the motion was made. (3.) In allowing the witness to testify that Peters did not deny that Lawrence was his agent. (4.) In allowing witnesses Bulen and Carroll to be re-called to contradict Peters, their testimony having been before given to the same facts, and the subject having been exhausted.
The whole case shows an attempt, on the part of the plaintiffs, stock brokers, to swindle the defendant out of the sum herein claimed.
The referee erred in all his conclusions of fact and law, and the report should be set aside.
B. F. Sawyer, for the respondents.
It is contended, that in the early part of the dealings had. between the plaintiffs and defendant, one 0. Lawrence represented the defendant, acting as his agent. If said Lawrence was the agent of the defendant, or if he acted in the matter as his agent, though no authority had been given to him at the time, and his acts and doings were subsequently communicated to the defendant, and he did not disaffirm them, but remained silent upon the subject, the law will presume, or hold such conduct on the part of the supposed principal, to he tantamount to a ratification. If the agent reports what he has done, though in excess of his instructions to his principal, by letter, and the principal does not, within a reasonable time notify his disapproval, he will be deemed to have ratified the agent’s act. (Sage v. Sherman, 2 N. Y. Rep. 417 . Cairnes v. Bleecker, 12 John. 300 . Viauna v. Barclay, 3 Cowen, 281. Johnson v. Jones, 4 Barb. 369 . Armstrong v. Gilchrist,
p. 441
2 John. Cases, 424.) To make an unauthorized act of an agent binding on the principal, on the ground of a subsequent ratification, such ratification must have been made by the principal with a full knowledge of the facts affecting his rights. (Seymour v. Wyckoff, 10 N. Y. Rep. 218 . Nixon v. Palmer, 8 id. 398. Gorham v. Gale, 7 Cowen, 739. Davenport v. Buckland, Hill & D. Supp. 75.) The ratification by a principal of the act previously unauthorized of one assuming to be his agent, operates as an adoption of the act, and not merely as presumptive evidence that it was previously done by authority. (Brisbane v. Adams, 3 N. Y. Rep. 129 . Commercial Bank of Buffalo v. Warren, 15 id. 577.) A wife may act as the agent of her husband, and a subsequent acknowledgment or ratification by the husband of acts of the wife, is, in this, as in other cases of agency, equivalent to an driginal authority. (Hopkins v. Mollinieux, 4 Wend. 465 .) The law does not permit a principal to adopt an unauthorized act of an agent so far as it is beneficial, and reject the residue. By adopting a part of the act he becomes bound by the whole. (Farmers’ Loan & Trust Co. v. Walworth, 1 N. Y. Rep. 433 ; reversing, S. C. 4 Sandf Ch. 51 . Dexter v. Adams, 1 How. Appeal Cases, 771, 793. Cobb v. Dows, 10 N. Y. Rep. 335 .) A ratification, being equivalent to an original authority, is available to a person, who had notice, at the time of his dealing with the agent, of the want of such authority. (Commercial Bank of Buffalo v. Warren, 15 N. Y. Rep. 577 .)
' The dealings commenced in April, 1864. At that time O. Lawrence made the application to the plaintiffs for the loan on the railroad stock, stating that he acted for the defendant, and soon after the first interview with the plaintiffs, brought the check of the defendant’s firm for §1000, payable to the order of plaintiffs. This fact, taken in connection with the declarations of Lawrence that he acted as the agent, or in behalf of the defendant, must have readily satisfied the plaintiffs of the truth of his statement. The defendant swears that he gave Lawrence that check drawn to the plaintiffs’ order, without knowing or even asking said Lawrence what he was going to
p. 442
do with it. And this large check the defendant says was given to Lawrence because he asked it, without asking a question, though the defendant, in his cross-examination, admits that Lawrence was, at the time of giving the check of §1000, then indebted to the defendant or his firm, and had been so indebted for some time previously, and was still indebted to his (defendant’s) firm at the time of his examination as a witness. The defendant also admits, in his cross-examination, that no part of said §1000 check had ever been paid by Lawrence ; that, notwithstanding his indebtedness at the time, no security whatever was taken from Lawrence. It is also in proof that the plaintiffs presented their account to the defendant on three several occasions, once in May, and on the 1st and 14th of July, 1864, and at neither of those interviews did the defendant deny that Lawrence acted for him, and as his agent, and in the last interview had, July 14th, 1865, he expressly admitted it, as will be seen by the testimony of George D. Bulen, one of the plaintiff's, and George D.-Carroll, called by the plaintiffs. It was also in proof, that at the interview of the 14th of- July, 1864, Lawrence was present, and within twenty-five feet of the defendant Bulen and Carroll, and although the question of that stock and the plaintiffs’ account .was under consideration, yet, the defendant did not make any inquiries of Lawrence, or demand to know of him in their presence, why he, {Lawrence,) had represented himself as the agent of the defendant. And we contend that acts of the agent Lawrence were the acts of the principal, (defendant,) and bound him as fully as if personally done.
It also appears by the printed case, that the issues in this action were pending before said referee some five months, and it must have been apparent to the defendant and his attorney, in the examination of the first witness, that the plaintiff would rely upon the establishing the agency of O. Lawrence, yet, the defendant lets the case be closed on both sides without producing Lawrence, although it is in proof that he was in correspondence with him.
It will be found that the defendant is positively contradicted
p. 443
in reference to what was done at the interview of July 14, 1864, by George D. Bulen and George D. Carroll; that the defendant’s testimony is inconsistent in itself, improbable and unsupported by any other witness or any of the facts in the 'case, and we therefore say that it is not entitled to belief or any weight.
The amount of the actual loss upon that stock taken for account of the defendant, is proved most clearly, and the defendant has not caEed the first witness to disprove the same. That the sale of said stock by auction after' notice to the defendant, was a fair and honorable transaction, was clearly proved, and no testimony was offered on the defendant’s part in opposition. The introduction of no part of the testimony upon the part of the plaintiffs can.be said to be any surprise upon the defendant, for the case was open and pending some five months before the referee, and closed by his consent. The good faith of the plaintiffs is apparent upon the whole proceedings, and that the balance of their account is a just claim and ought to have been paid, without a resort to the present expensive mode of litigation.
The defendant in his defense, presents no equities ; his defense is not attempted to be established by any proof other than his own unsupported testimony—that of a very questionable character, besides being contradicted by two witnesses.
The referee had a right to judge of the credibility of the witnesses and decide upon all controverted matters, the same as a jury, and his findings are conclusive upon both parties, made so at the time of the reference, by their written stipulation. To disturb his findings would be to involve the plaintiffs in further litigation and great expense. In Spencer v. The Utica and Schy. R. R. Co., ( 5 Barb. 337 ,) it is said: “ When evidence is introduced on a hearing before referees, upon a question of fact, and the referees come to a conclusion thereon, a new trial will not be granted on account of the incorrectness of their conclusion, whatever may be the opinion of the court upon that point.” (See also Camp v. Pulver, 5 Barb. 91 ; Quackenbush v. Ehle, Id. 469; Burhans v.
p. 444
Van Zandt, 7 Barb. 91 ; Allen v. Way, Id. 585; Leach v. Kelsey, Id. 466; Durkee v. Mott, 8 id. 423; Grant v. Morse, 22 N. Y. Rep. 323 ; Woodruff v. McGrath, 32 id 255.)

By the Court,

Hone of the testimony introduced before the referee on the trial in this case, either as to the entries made by the plaintiffs in their books, Lawrence’s statements to them as to the ownership of the stock in question, the notice of its sale, or even the fact of its sale, have the- slightest bearing on the defendant’s legal responsibility for the advance made by the plaintiffs. Although the latter might choose to abate their claim in this action by a certain sum, which the defendant did not claim, the reason why they did so, or the source from whence such sum arose, was immaterial upon such issue. It is doubtful even whether the explanation given in this action of the reason of such deduction, although accompanied by evidence, would be of any consequence in an action brought by the defendant for the value of such stock, either as being illegally appropriated by the plaintiffs, or as a subject of a cross claim. The whole of such evidence may, therefore, be entirely disregarded on determining such liability.

The first question that presents itself on the material evidence is, what- the nature of the cause of action is. The money advanced by the plaintiffs never went into the defendant’s possession, and the plaintiff Bulen could not remember to whom he advanced it, except that it was not to the defendant. He merely stated'that “ about seven thousand dollars was advanced ; ” c; the amount paid for the stock was about eighty-seven hundred dollars ; ” that sum “ went for the purpose of paying for the * stock upon which they had agreed to loan.” From this it does not appear very clear that such sum was paid by the plaintiffs to any one at the request of the defendant or even of any one for him. Hor is the evidence more distinct, whether the defendant ever owned the stock, or when it was bought and paid for, and by whom, and how ; and when, and by whom it was transferred to the plaintiffs.

p. 445
Such facts, certainly, must be material in determining whether the plaintiffs are entitled to recover for money expended at the defendant’s request, or for a loan to him. Such nature of the cause of action will be found very material in applying the evidence so as to determine whether any cause of action is made out.

The plaintiff Bulen, the only witness examined as to the original transaction, testified that Lawrence wanted his firm 11 to lend ” the market value of a hundred shares of stock upon it, but nothing seems to have been said about paying it out. To this the plaintiff replied that he would “ lend ” on that stock, such market value, on an additional deposit of ten per cent on such value by the holder, “provided he were a responsible person,” but he does not appear to have made any other condition as to the person to whom the loan was to be made. Lawrence then informed him simply that the stock belonged to the defendant, which seems to have satisfied him, as he made the advance. Nothing seems to have been said about buying the stock. The defendant was talked of as already the holder ; the stock as belonging to him at the time of the application and the advance, as being a loan. According to the evidence, nothing passed authorizing the plaintiffs to buy and pay for the stock, taking it in their own names as security for the sum advanced, and holding any one liable for a deficiency in case of its fall in value. There is a singular lack of evidence in showing what was done by the plaintiffs, even after such conversation with Lawrence, except that they paid a certain sum to some unknown person, and received the certificates of stock from a person equally unknown. The defendant, Who is alleged to have been the borrower, advanced $1000 to the plaintiffs, the supposed lenders, by his check, before they had advanced any thing, and this it is said was as security for a loan not yet made. The account which the plaintiffs presented, says nothing of a loan to the defendant, or advance for him of any money. It is headed- “ Milwaukee ac.” and the first item in it is a charge of a certain sum, ($8712.50,) being the advance now claimed for the stock in question, with

p. 446
a commission of one eighth per cent, which would have made a loan of money usurious. Twice in it such stock is said to be “ on hand,” and it resembles in every respect more a bill rendered for stock sold to, or bought on account of the defendant, than a claim for money advanced. Even the subsequent written notice of the sale of such stock, neither requires the payment of money, nor points out any mode by which such sale can be prevented, and only speaks of it as “held on account of” the defendant. In the conversation in July, the plaintiff only demanded the amount mentioned in his account, and talked only of “ taking up the stock,” saying nothing about either a loan or advance of money. He subsequently spoke of the money paid by the defendant as being “ an additional deposit for a loan.” The leaning of the evidence is undoubtedly decidedly in favor of the transaction having been, if any thing, a mere loan on the credit of the stock and the deposit, and not an expenditure on the request and responsibility of the defendant. A loan generally on the stock was all that was applied for, and the plaintiffs offered to make it, if ten per cent of the market value of the stock was paid to them, so as, in fact, to reduce the loan to nine tenths of the value, provided the owner was a responsible person. Nothing was said as to the person to whom the loan was considered, made, or as to any person’s becoming responsible. It was not until three months after such transaction, and after the stock had fallen below the advance, that the defendant was thought of as being the borrower, and it was for the first time deemed necessary to secure evidence of his liability by admissions in the presence of a witness brought for the purpose. Although the plaintiff Bulen had twice previously called on the defendant in relation to a settlement, he does not appear to have pressed his claim against the defendant, or to have secured any necessary admission. The probability, therefore, is very great that such loan was made solely on the security of the stock itself, and not on any individual responsibility. No evidence was produced by Lawrence to the plaintiffs, nor was he asked for it, that he was the agent of the defendant in pro
p. 447
curing the loan, unless the possession of the check of the latter be so considered. But that was for considerably more than the ten per cent required. There is no evidence when or by whom it was filled up with the names of the plaintiffs. At all events it seems to have been forthwith delivered, before the defendant had any notice of a demand of ten per cent in advance. . Its immediate delivery, and its excess beyond the amount required by the plaintiffs, ought to have wakened some suspicions as to the defendant’s intention to become personally liable, if they intended to look to him, and consequently of Lawrence’s authority.

Assuming, however, that the personal liability of some one was looked to, what was the evidence that the defendant made himself so P It is said Lawrence was his agent for the purpose. If so, what was the evidence of his authority ? There is no direct evidence either of the conferring of such authority expressly, or of any other authority involving its exercise. The admission, even, of the agency of, and authority to, Lawrence to buy the stock for the defendant, would not include, an admission of authority to borrow money to pay for it on .the responsibility of the principal, and yet it will he found that any liability of the defendant rests on such an admission alone. The interviews, at which such admission is supposed to have been made, took place between the defendant and the plaintiff Bulen, in the presence of a witness brought by the latter, (Carroll,) to overhear the conversation and note the defendant’s admissions, and within twenty feet of where Lawrence was standing, if not within his hearing. No appeal appears to have been made t^him during the conversation which then ensued, and, as Ca^flE testified, the defendant was on Ms guard. Under such circumstances the admissions made were, as might be expected, vague, and the evidence as to them conflicting. The first thing done was that the defendant declined to settle the account presented. To a question then put by such plaintiff, according to the testimony of the latter, “ whether Lawrence did not buy stock for the defendant on joint account,” and, according to the testimony of his witness

p. 448
Carroll, whether they “had not stock transactions together,” the defendant answered in the affirmative. This was followed up by the plaintiff’s asking, according to his testimony, whether, if there had been a profit, the defendant “ would not partici pate” in it, and, according to that of Carroll, whether, in such case, “ he did not expect a portion ” of such profit, and the defendant a part. According to Carroll’s testimony alone, and not that of the plaintiff, the latter put the direct question to the defendant, “ whether Lawrence did not act as his agent in the purchase of such stock ?” and the defendant, in answer, said “ he did.” Whereupon the plaintiffs, after stating “ that they had received the stock on the defendant’s check and Lawrence’s representations, addressed this argument to him, that,, if he expected to receive a portion of the profits, he did not see how he “ could honorably refuse to receive the stock and settle the accountto which the defendant made no answer, except to decline to take the stock.

If the defendant, although on his guard, and having just declared his knowing about such stock, made the admission in such conversation (which even the plaintiff Bulen did not recollect) of Lawrence being his agent in the purchase of it, it seems not a little singular that the plaintiff .should have made an appeal, rather to the sense of honor of the defendant, of whom he knew but little, than to his sense of honesty, and to have rested it rather on a participation in'profits, than on a contract authorized by him. The plaintiff evidently understood .such admission of authority to purchase as not amounting to one of authority to borrow the purchase money, so as to make the defendant legally liable. Even if such an admission, so obtained, were at all reliable, (1 (Grlfc Ev. 200, n. 2, and cases cited,) it was not sufficient to x^M the defendant liable. An authority simply to buy stock adlnever entitle the agent to make the principal responsible ror the value of the article to any one but the seller or himself.

There was no corroboration of even the supposed- admission that Lawrence was the defendant’s agent in buying the stock. It was not proved that it ever stood in the name of the latter,

p. 449
or was in his possession, or that he had any other interest in it, except in its profits, which he explains to mean payment of a debt due by Lawrence to him. And there were circumstances of suspicion tending to throw doubt upon the fact that such admission was ever made. Indeed the referee, as well as the plaintiffs’ counsel, seem, from questions put, to have supposed that an omission to deny the agency of Lawrence was available to prove it, even if there was no testimony of a positive admission. No appeal was made to Lawrence, although standing close by, in the interview with the defendant, when the latter denied all knowledge of the stock, and no demand was made of him.

Upon the merits, I think the judgment should he reversed, with costs to abide the event, and the order of reference discharged.

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