Hyperlawhypertext legal database Wicks v. Hatch 38 N.Y. Super. Ct. 95

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Wicks v. Hatch

38 N.Y. Super. Ct. 95 6 Jones & S. 95 Court N.Y. Super. Ct. Decision date 1874-10-31 English

Contents

Majority

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ANGELINA G. WICKS, Plaintiff v. WALTER J. HATCH and NATHANIEL W. T. HATCH, Defendants.

Headnote

A married woman who carries on a business for profit, and employs her husband as her agent," to manage it, is legally liable for the acts of such agent, the same as though the marital relation did not exist (Warner v, Warren, 46 W. T. 228 ).
In case at bar, the power was conferred by a married woman to her husband in a written instrument, bearing date July 31, 1869, appointing him as her attorney and authorizing him as such attorney “ to buy, sell, assign and transfer in his discretion, gold, stocks and bonds, and to draw, execute, sign and deliver for me and in my name, all orders, checks, or other instruments in writing whatsoever, which shall or may, in his discretion, be necessary in the conducting, ■carrying on and transacting the business of buying and selling gold, ■stocks and bonds on speculation or otherwise, giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be ■done in and about the premises, as fully, to all intents and purposes, as I might or could do if personally present, with full power ot substitution and revocation, hereby ratifying,” &c.
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Before Freedman, Van Vorst and Speir, JJ.
Decided October 31, 1874.
George A. Wicks, the husband and agent of the plaintiff, in the exercise of the powers conferred upon him by plaintiff, in this power of attorney, employed the defendants as brokers, in the business described in said power, and on September 18, 1869, authorized them in writing, to sell in their discretion at public or private sale, and without notice to plaintiff, the stocks, bonds or gold that defendants should be carrying for plaintiff, whenever the plaintiff’s margin should fall below five per cent.
Reid, that the acts of defendants within the line of this- authority in the sale of stocks, bonds or gold, should he sustained (See opinion of the court, Kebedmait. J.).
By the instrument of September 18, the plaintiff waived her right to notice of sale by the defendants, and the defendants acquired by such waiver the right to sell for their own protection, and all they ■ were hound to do was to act in good faith and in the exercise of their best judgment and discretion.
When authority is given to sell without notice, at public or private sale, a sale at the board of brokers is valid (Milliken i>. Dehon, 27 R. Y. 864.).
The case of a verdict for defendants, and the judgment suspended by the court, and plaintiff’s exceptions ordered to be heard in the first instance at general term.
The defendants were brokers and stock brokers in the city of New York, and the complaint charged them With the conversion to their own use of bonds and stocks, the property of the plaintiff, to plaintiff’s damage, ninety-live thousand dollars.
The defendants by their answer, first denied the allegations of the complaint, except as therein after stated and then alleged :
And for a further answer herein, the defendants allege that in the beginning of April, 1669, the
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plaintiff through her husband, Q-eorge A. Wicks, opened an account with these defendants as bankers and brokers, advancing to them two thousand dollars in cash, and the proceeds of fifty thousand dollars in United States bonds, which the defendants were authorized to and did sell and pass to plaintiff’s credit; and then and there employed these defendants as such brokers from time to time to buy and contract to buy for her, and as she through the said Greorge A. Wicks should direct, and with the moneys so advanced, and other moneys to be provided joy these defendants, bonds and stocks and gold coin, and the same again from time to time to sell and contract to sell as she should in like manner direct.
That in and by such arrangement it was understood and agreed that the purchases and sales, or contracts of purchase and sale, were to be made, not as investments or changes of investment, but with a view to profits that might be made by plaintiff' in buying or selling according to the fluctuations from time to time, of the market prices of the said bonds, stocks, and gold coin so dealt in ; that such purchases and sales, and contracts of purchase or sale, were to be made by the defendants as brokers, for a commission to be paid therefor, and according to the custom of brokers and in their own names, and that the defendants were to carry for plaintiff the securities so purchased, or, in other words, advance or provide the moneys necessary for purchasing and holding the same, the plaintiff to protect them by providing further moneys whenever the said stocks and bonds should, at their market price, prove an insufficient security, and that they might use the said stocks, bonds, and gold coin, or any proceeds thereof in their hands, in borrowing money to carry on the said operations, or retain the same on account of moneys by themselves advanced for the same purposes ; that balances of moneys in
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their hands were not to be considered as special deposits, but that plaintiff was to be allowed interest thereon.
And these defendants further allege, that under the said agreement they did, in pursuance of instructions given by plaintiff through said G-eorge A. Wicks, in their own names, buy and sell, and make contracts to buy and sell, large amounts of the stocks of various incorporated companies, and also gold coin, and render accounts from time to time of such transactions jo the plaintiff ; that the stocks and bonds mentioned in the complaint were acquired by these defendants, and came to their possession as being purchased under the said arrangement, and not otherwise; and that a true account of such transaction, starting from the settlement oí a prior account as of the date of August 31, 1869, and brought down to September 30,1869, is hereunto annexed, marked “A,” showing that irrespective of the sale of certain stocks and bonds, made on September 38, 1869, and assuming them to be on hand on September 30, plaintiff stood debited with the sum of two hundred and seventy-seven thousand eight hundred and thirty-four dollars and seventy-four cents, on paj-ment of which she would have been entitled to receive certificates for six hundred shares of the stock of the New York Central Railroad Company, for four hundred -shares of the Toledo, Wabash & Western Railroad Company, for one hundred shares of the common stock of the Chicago & Northwest Railroad Company, for two hundred shares of the stock of the Hudson River Railroad Company, and one hundred thousand dollars in bonds of the United States, known as five-twenties, of the issue of 18(37,-all being stocks and bonds which these defendants liad pure lia sed in llieir own name, but for the account and benefit of plaintiff, under the arrangement aforesaid. That defendants had the said bonds and the certificates of the said shares in their pos
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session on September 28, 1869. That prior to said date, to wit: on September 18, 1869, defendants being apprehensive of the course of the stock market, and fearful of heavy and sudden depreciations in the market value of stocks and bonds, and of the embarrassment which might ensue thereby to themselves and other customers for whom they had similar dealings, and considering in reference to the plaintiff and her husband and agent, the said George A. Wicks, that they reside at Fort Washington, and had no place of business near that of defendants, and could not be easily communicated with, required of plaintiff, and she thereupon on the said September 18, 1869, through the said George A. Wicks, gave .to defendants express authority, in writing, to sell in their discretion at public or private sale, and without notice to her, or any notice whatever, the stocks, bonds, or gold, which they were or might be carrying for her, whenever her margin should fall below five per cent.
That on September 28, 1869, there occurred a sudden and heavy fall in the market price of all the securities above mentioned, so that according to such market price the said securities did not furnish a surplus or margin, a,bove the amount of said indebtedness above stated, of five per cent., or any margin whatever ; and apprehending, as defendants had reason to do, a still further decline, defendants, in the exercise of their best discretion, sold on behalf and for account of the plaintiff all the stocks and bonds above mentioned, except three hundred shares of the stock of the Toledo, Wabash & Western Bailroad Company, which they were unable to sell; that such sales were the same disposition of the stocks and bonds in the said amended complaint mentioned, therein untruly charged as a conversion thereof to defendants own use.
That defendants at once applied the proceeds of such sales to the credit of plaintiff’s account, and rendered a
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statement thereof to the plaintiff. That on the follow ing morning, September 29, the plaintiff having been fully advised of the said sales and informed, as was the fact, that since they had been made, the market prices had still further declined, so that the same stocks could be bought back if she desired it, at a much lower rate than that at which they had been sold, did not object to the said sales, but as these defendants allege, fully ratified the same. And they further allege that, though these defendants then offered plaintiff to purchase for her the same amount and description of stocks and bonds so sold as aforesaid, on being furnished a reasonable margin or security for the money required for such purpose beyond what the said stocks and bonds themselves, if repurchased, would furnish if retained by defendants, so as to protect defendents against loss upon such repurchase in case of a still further decline in the market, yet the plaintiff did not accept the said proposition, or tender or offer to furnish any such margin or security, nor did she claim to reject the sales so made as aforesaid, as having been made on her account, until after the prices of the securities so sold had again advanced in the market; nor has plaintiff ever tendered or offered to pay to the defendants the moneys advanced by them for the purchase of said stocks and bonds which the plaintiff in her said amended complaint claims to have been converted by these defendants, or any part thereof, or demanded from these defendants the san stocks and bonds or any of them.
Third. And for a further answer herein, by way of counter-claim, these defendants allege that in the month of April, 1869, the plaintiff, by and through her agent George A. Wicks, employed those defendants as bankers and brokers to buy and sell stocks and bonds and gold coin for her on commission, the said defendants to advance the moneys required for such purpose, over and above certain sums and amounts to be fur
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nished by the plaintiff herself, the property so purchased to be retained by these defendants until the plaintiff should pay the amounts due upon the same, and defendants to have power to sell the said securities for their own protection and reimbursement whenever the plaintiff might fail to furnish reasonable security, which agreement was subsequently, and on September 18, 1869, modified, so that the defendants might so sell, without any notice whatever to her, whenever the securities at their market price should fall below the amount of the plaintiff’s indebtedness to defendants with five per cent, added.
That in pursuance of said arrangement, these defendants did, from time to time, proceed to buy and sell, in pursuance of plaintiff’s directions and for her account, stocks, bonds, and gold coin, and report such transactions to the plaintiff.
That on September 28, 1869, the defendants being largely in advance to the plaintiff for moneys furnished by them in the purchase of stocks and bonds and gold coin on her account, and the market price of all the securities in their hands having declined below the amount of such advances, under the power and authority aforesaid, and in the exercise of their best discretion, sold all the securities in their hands, held for and on account of the plaintiff, at the highest market price obtainable therefor, except three hundred shares of the Toledo, Wabash & Western Railroad Company, which they were unable to sell; and upon making such sales, credited the proceeds to the account of the plaintiff; and afterwards, in like manner, on October 28, 1869, these defendants sold the said three hundred shares of the Toledo, Wabash & Western Railroad Company, and credited the proceeds to the plaintiff’s account. That after crediting all the proceeds of such sales, which these defendants allege were duly made in pursuance of authority conferred by the plaintiff, there is due to
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these defendants the sum of one thousand five hundred and twenty-one dollars and sixty-five cents, with interest from October 23, 1869. That the schedules hereto annexed, marked A and B, show the said transactions : the said schedule A commencing with a balance, according to previous accounts rendered to plaintiff, and being made up for convenience to September 30, as though the said stocks and bonds, sold on September 28, were still on hand ; that schedule B shows the actual sale thereof on the said September 28, and the subsequent sale on October 23, 1869, of the said three hundred shares of the stock of the Toledo, Wabash & Western Railroad Company.
The said accounts, with the above explanations, are just and true, and contain, as these defendants allege on information and belief, all credits by way of interest, dividends, or otherwise to which plaintiff is entitled, and they make them part of this their counterclaim.
And the defendants further allege that the said sale, made on September 28, 1869, is the same disposition of. the stocks and bonds in the said amended complaint described, therein wrongly alleged to have been converted and disposed of by these defendants to their-own use, and these defendants accordingly claim judgment against the plaintiff for the balance due to them by reason of the transactions aforesaid, to wit: for the said sum of one thousand five hundred and twenty-one dollars and sixty-five cents, with interest from October 23, 1869, and the costs of this action.
The plaintiff, by her reply, put in issue the new matter, and the counter-claim contained in the answer.
Upon the trial both parties gave evidence, and the case was submitted to the jury. They rendered a verdict for the defendants, and the court ordered the . plaintiffs’ exceptions to be heard in the first instance, • at the general term.
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George S. Stitt, attorney, and Aug. F. Smith, of counsel for plaintiff.
I. The power of attorney did not give Mr. Wicks authority to make the paper of September 18, 1869.—1. The power of attorney gave to Wicks authority to manage the speculation. This secured to Mrs. Wicks the benefit of the attorney’s judgment. The attorney could not delegate this exercise of judgment without express authority to do so (Berger v. Icard, 4 Johns. Ch. 368 ; 2 Kent, 633; Story Agency, § 13 ; Commercial Bank v. Norton, 1 .Hill 501). 2. The power of attorney authorized Wicks to “ sign all orders, checks or other instruments which may, in his discretion, be necessary in transacting the business.” This did not, in terms, nor by implication, give Wicks the right to delegate the exercise of a discretion as to whether the stock should be sold or not. Under this power, no doubt Wicks could order stocks bought or sold, but he could not give a discretion to buy or sell. What he did was to give a discretion to sell, if the stock so fell that there was not a margin of five per cent. left. And the parting with this discretion brought the ruin, for it is certain that had Wicks been consulted, he would not have ordered the stock sold. The principle governing the case wmuld be the same if the paper of September 18 had been a simple authority to sell at discretion, with no mention of a fall, so as to consume the margin. 3. The w'ords in the power of attorney, “all orders, checks or other instruments,” are certainly to be read, all orders, checks or other instruments of a similar nature. Surely it can not mean that the attorney could sign a mortgage as a security, or in the place of a margin. And can it any more be said that the attorney could sign a cut-throat agreement (so called in Wall-street) ? Powers of attorney are construed strictly, and all the attorney could do was to “ sign orders, checks and other instruments,” necessary in transacting the business—not
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those necessary to secure the broker—but orders.necessary in the usual current of the business. A. gave to B. a power of attorney to grant, bargain, sell, release &c., certain lands, and on such sale to “ execute, seal and deliver in the name of A. such conveyances and assurances in the law of the premises from the purchaser in- fee as should be needful or necessary, according to the judgment of B. his attorney.” It was held that B. had no power to execute a deed with the usual covenants of seizin, &c., so as to bind his principal. The case says, “a conveyance or assurance is good and perfect without warranty or personal covenants, an authority must be strictly pursued, and any act substantially foreign to it is void.” (Nixon v. Hyserott, 5 Johns 58 ; Rossiter v. Rossiter, 8 Wend. 494 ; Mills v. Carnly, 1 Bosw. 159 , 164; Parson Mercantile Law, 142). The settled rule of construction, noscitur a sociis, is in aid of our view of the construction of the power. The rule laid down by Lord Bacon was, that ‘ ‘ copulaiio nerborum indicat acceptationem in eodem sensu,” (the coupling of words together shows that they are to be understood in the same sense, Broom Legal Maxims, 294). 4. Nor can this paper signed by Wicks be said to be a substitution of attorney, (a.) If it can, then Wicks’ power was altogether gone, and the substituted attorneys stood in his place for all purposes, which will not be claimed, (b.) If Hatch & Son were thereby made the substituted attorneys of Mrs. Wicks, their liability would be very different from that now resting upon them. They would then be liable in a proper case, for a negligent exercise of their discretion ; but while they are mere brokers, they incur no liability, if they follow the letter of their employ ment.
II. It was error to charge the jury, “ that the instrument of September 18, executed by Wicks to the
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defendants, conferred the same power and authority which he possessed, on them, and authorized them, in the exercise of their discretion, to deal with the stocks precisely as he might do himself.” 1. Doubtless this is, in substance, what the court meant to hold when they admitted the paper of the 18th in evidence, when the court said, “There was ample authority in the power of attorney granted to George A. Wicks by the plaintiff, not only to buy and sell stocks, but to delegate whatever discretionary power he possessed to the defendants in this action.” 2. But can it be claimed for a moment that the paper of the 18th was a substitution of attorney, and as it was not, is it possible to say that there is any principle on which it can be claimed, that Mr. Wicks could delegate his discretion conferred by the power of attorney to these defendants, or anybody else ?
III. If the theory of the learned court, referred to in the second point, was right, it was error to charge the jury, “that whenever the state of the stock and money market rendered it prudent, either for the benefit or protection of their principal, the plaintiff, or for their own protection, to sell the stocks and bonds which the defendants were carrying for the plaintiff, they had a right to do so under the power which had been conferred upon them.” 1. The plaintiff had requested the learned court to charge as follows: “(5.) The defendants were bound, under the authority which they held, to exercise that authority in the interest of the plaintiff, and not in their own interest. (6.) If the jury find that the defendants sold the stocks in question in their own interest and to save themselves, the plaintiff is entitled to a verdict. (7.) If the jury find, from the evidence, that the defendants did not exercise, in good faith towards the plaintiff, the discretionary power with which they claim to have been clothed, they are liable to her in damages, for their breach of
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duty.” The court had refused, and the plaintiff had excepted to each refusal. 2. There was abundant evidence in the cause to show that the fall in the price of the government bonds, the,New York Central and the Hudson River was the result of mere panic, and not because they had stood above their value—that they were first class stocks—and that it was to be expected they would very soon recover. It was also in evidence that the defendants were engaged in large business, that the money market was very tight on the day of the sale, and it was certainly competent for the jury to draw the inference that the sale of these bonds and stocks was made to relieve the defendants from a money pressure growing out of other transactions than those of the plaintiff. Under this state of the proofs, could it be said that the defendants, agents in that behalf of the plaintiff, cpuld sell her stocks and bonds to protect themselves %
IY. It is submitted that a sale at the beard of brokers was not within the scope of the authority to sell “at public or private sale,” given by the writing dated September 18, 1869.
Y. It was error to admit the question put to Chittenden, an impeaching witness, as follows : “Q. Would you believe him under oath, where he was pecuniarily interested. ” 1. Upon authority in this State it is competent to ask an impeaching witness, “ would you believe him (the witness sought to be impeached) on oath,” but it is opposed to general principle to suffer such a witness to give an opinion upon such a subject, and in some of the States it is not allowed (See Phillips v. Kingfield, 1 App. (Me.), 375; 2 Taylor on Ev., 1274). But to suffer the question to be extended, and to add, “where he was pecuniarily interested,” is without the sanction of any authority (1 Phill. Ev., 292, old edition; see page 955 of vol. 2 of the 3 volume edition ; 1 Starkie Ev., 182 ; 2 Taylor on Ev., 1274 ;
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People v. Rector, 19 Wend. 569 -579 ; Wright v. Paige, 3 Keyes, 581-588; 2 Greeleaf Ev. § 461). 2. In this case the witness sought to be impeached was George A. Wicks, and it was not pretended that he had any pecuniary interest in the case, so that in our judgment there is nothing to sustain the question in the form in which it was put.
Rodman & Adams, attorneys, and S. P. Nash, of counsel, for defendants.
I. The stocks, for the sale of which this action is brought, were purchased by the defendants, by the directions of George A. Wicks, acting under the power of attorney given to him by the plaintiff. She can make title only through his acts, as she never personally had any dealings with the defendants before these stocks were sold. They had cost some three hundred thousand dollars, and the transactions, after she executed the power of attorney, involve millions. The purchases and sales were made according to the custom of brokers, the defendants advancing the entire cost beyond sixty thousand dollars, and retaining the securities as margin. They were bought by defendants in their own name and on their own credit. When plaintiff, after learning of the sale of them, made claim to them as her property, she adopted all the instrumentalities by which they had been purchased, that is, the entire series of speculative transactions of which they were a part (Meehan v. Forrester, 52 N. Y. 277 ; Henry v. Root, 33 N. Y. 526 , 552-3; Elwell v. Chamberlain, 31 N. Y., 611 , 619). That she was a married woman and her husband her agent did not enlarge her rights or privileges. If married women carry on business for profit, and employ their husbands as their agents, “ they become legally liable for the acts of such agents, the same as though the marital relation did not exist” (Warner v. Warren, 46 N. Y. 228 , 233).
II. The power that plaintiff gave lo her husband
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must, therefore, be construed in reference to the usages of the business to which it related (Horton v. Morgan, 19 N. Y. 170 ). It authorized him to buy when and what he chose, to sell in his discretion and to give all orders, checks and other instruments in writing which might, in his discretion be necessary, in transacting the business of buying and selling on speculation. If this involved the employment of brokers,' it authorized such employment; if it involved the pledge of. the securities bought with the broker’s funds, it authorized such pledge ; if the pledge gave the broker stringent powers of protection proportioned to the magnitude of the risks and the precariousness of the speculation,' she can not complain that he gave such powers. On the faith of the authority to sell, given on September 18, defendants had “carried” plaintiff’s large line of stocks for ten days, and the six hundred shares of N. Y. Central, of the sale of which she complains, would appear to have been bought the day the paper was given and the day after, involving an outlay of over one hundred and twenty thousand dollars.
III. If the authority of September 18 had not been given, the defendants, in order to close the account would have been obliged to make demand and give notice of the time and place of sale. But it would have been entirely sufficient to have made such demand of George A. Wicks, and to have given the notice to him, as he was the agent charged with the management of the entire transaction (Milliken v. Dehon, 27 N. Y. 364 ). If notice to the agent would have been a proper notice, he had a right to waive such notice. He was constantly watching the market, from the newspapers and “indicators,” which he testified were located all about the city, and he had a right to say, “ I shall know when the margin is exhausted ; you may not be able to find me ; sell without notice whenever from the decline in stocks the margin declines below five per cent.” The
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ruling of the court in admitting the paper of September 18, was therefore correct, and none of the exceptions based upon the effect given to it were well taken.
IV. The power of attorney gave to Wicks full power to substitute another person in his place, and the substitute had all the powers, discretionary and otherwise, of the first agent. Wicks did not confer on the detenían ts all the powers conferred on him—the powers to buy and to sell generally at discretion—but having in the hands of defendants certain securities bought by his order, he authorized them to sell these securities, not absolutely, but in case the margin should “fall below five per cent.” This was a power which imposed also a certain duty. The margin did fall below five per cent, and the defendants exercised the power. If they had failed to exercise it and a still greater decline followed, the question might have arisen whether they were liable for not selling. The point, therefore, presented by plaintiff s fifth and sixth requests did not arise. The power to sell on the margin’s declining, was absolute; the discretion was to refrain from selling, if that seemed best. But the charge that the defendants had a right to sell whenever, “either for the benefit or protection of their principal, or for their own protection .......a prudent and careful man would have deemed it expedient to sell,” was all that the plaintiff had a right to ask. After a pledgee has acquired the right to sell for his own. protection, either by a demand and notice, or by a waiver of such demand, and notice, “all he need do is to act in good faith” (Marfield v. Goodhue, 3 Comst. 62, 73).
V. There was no reason why the defendants should not have been made the substitutes of Wicks in his agency. He was not restricted in the selection of substitutes. He had full power of delegation, and it is only in the absence of such power that the rule delegatus non •potest delegare governs (Story on Ag. §§ 13, 14).
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YI. The authority being to sell at public or private sale, a sale at the board of brokers was valid., and the exceptions at fols. 56 and 390 were not well taken. The whole dealing had been according to the custom of brokers, and a sale in any other way would have been in violation of duty (Milliken v. Dehon, 27 N. Y. 364 ).

The most important question which presents itself at the very threshold of this case, relates to the extent of the power possessed by George A. Wicks, as the agent of the plaintiff. The fact that he was, and is, the husband of the plaintiff, is immaterial. A married woman who carries on a business for profit, and employs her husband as her agent, to manage it, is legally liable for the acts of such agent, the same as though the marital relation did not exist (Warner v. Warren, 46 N. Y., 228 ).

The power was conferred by a written instrument, appointing him as her attorney “to buy, sell, assign and transfer in his discretion, gold, stocks and bonds, and to draw, execute, sign and deliver for me and in my name, all orders, checks, or other instruments in writing whatsoever, which shall or may in his discretion be necessary in the conducting, carrying on and transacting the business of buying and selling gold, stocks and bonds, on speculation or otherwise, giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying,” &c.

It bears date July 31, 1869, and consequently was executed by the plaintiff after an experience of nearly three months in the hazardous business in which she had embarked. For the evidence shows that the first

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account of the plaintiff with the defendants was opened on April 2, 1869, and closed on May 26 following, by defendants’ giving to Mr. Wicks a check to the order of the plaintiff for about forty-five thousand dollars, and that a second account was opened by her on June 12, 1869, by a deposit of sixty thousand dollars, as security for such orders as she might thereafter give.

The defendants may well insist, therefore, that the power thus given should be construed, as against them, with reference to the nature and usages of the business to which it related. These usually involved the employment of brokers. The defendants were employed as such, and the power of attorney executed by the plaintiff was placed into their hands. As such brokers the defendants, pursuant to directions from plaintiffs’ agent, made according to the custom of brokers, purchases and sales for account of the plaintiff, which involved millions. In the case of the purchases they advanced the entire cost beyond the sixty thousand dollars on deposit with them, and retained the securities as margin. This a broker, who is employed as such to purchase and carry stock or other securities, has a right to do (Horton v. Morgan, 19 N. Y. 170 ). The stocks and bonds for the conversion of which this action is brought, were purchased in precisely the same way, namely in defendant’s own name, and on their own-credit, and at the time of their alleged conversion the plaintiff was indebted to the defendants thereon in a sum exceeding two hundred and fifty thousand dollars, over and above the sum of sixty thousand dollars deposited. And as the plaintiff never had any personal dealings with the defendants before the alleged conversion, she can make title only through the acts of her husband, and to that end she must adopt all the instrumentalities by which the stocks and bonds were purchased, that is to say, the entire series

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of speculative transactions of which they were a part. Accounts had been rendered covering the transactions during the months of June, July and August, and moneys had occasionally been paid to the plaintiff, by checks to her order, on account of profits made ; when the change in the market occurred. In September, the stock-market became excited, and the defendants being apprehensive of it.s course, and fearful of heavy and. sudden depreciations in the market value of stocks and bonds, and of the embarrassment which might ensue therefrom to themselves and their customers, and considering in reference to the plaintiff and her agent the said George A. Wicks, that they resided at Fort Washington, and had no place of business near that of defendants, and could not be easily communicated with, required of the said George A. Wicks, and, on September, 18, received from him as the agent of the plaintiff, authority in writing to sell in their discretion, at public or private sale, and without notice to the plaintiff or any notice whatever, the stocks, bonds, or gold, which they were or might be carrying for the plaintiff, whenever her margin shall fall below five per cent.

By this instrument George A. Wicks did not confer on the defendants all the powers possessed by him as the agent of the plaintiff,—the power to bay and sell generally at discretion,—but merely the power to sell such securities as by the exercise of his own discretion had come to their hands. And even this power was not conferred upon the defendants absolutely, but their right to exercise it was made to depend on a proper exercise of discretion and upon a fall of the margin below five per cent. As thus interpreted the delegation of authority that was made to the defendants, was, under the circumstances, clearly within the scope of the general powers of George A. Wicks, and the plaintiff is bound by it, for, as already stated, the powers con

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ferrecL by her upon her husband must be construed with reference to the usages of the speculative business to which they related. When they are thus construed it is, in view of all the circumstances, and especially in view of the magnitude of the risks involved and the amount of watching required in consequence thereof, not at all astonishing that the defendants were intrusted with a limited discretion to sell. The instrument was, therefore, not objectionable on this ground. Mor could it be rejected on the ground that thereby George A. Wicks waived plaintiff’s right to a demand, and to notice of the time and place of sale. As it would have been entirely sufficient to have made such demand of George A. Wicks, and to have given the notice to him, as the agent charged with the management of the entire transaction (Millikin v. Dehon, 27 N. Y. 364 ), he had a right to waive them. The paper of September 18 was therefore properly received in evidence, and none of the exceptions based upon the effect given to it are well taken.

The question therefore remains: Did the defendants make a proper exercise of the authority delegated ? There is no dispute in regard to the statement of the accounts between the parties. The action is not predicated upon any balance claimed to be due from the defendants to the plaintiff, but it is for the conversion of a specific lot of stocks and bonds which had been carried for the plaintiff on the faith of the authority to sell delegated by the paper of September 18, on which the plaintiff was indebted to the defendants in a sura exceeding two hundred and fifty thousand dollars, over and above the amount of her deposit, and which, with the exception of three hundred shares of Wabash, for which no bids could be obtained and which were subsequently sold, but as to which sale no question arises, in consequence of the entire exhausion of the margin by a panic, the defendants on

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September 28, 1869, sold for account of the plaintiff. They possessed no arbitrary discretion to sell, but a discretion to be exercised upon sufficient cause. Upon this point there was abundant evidence to the effect, that the defendants acted not only within the scope of their authority", but honestly and in good faith, and in the exercise of their best judgment and discretion. They are not guarantors of their infallibility, nor of the soundness of their judgment, and all that could be expected of them was that upon the occurrence of the event contemplated in the paper of September 18, they should do what from their experience they deemed best under the circumstances. And that their judgment on September 28 was sound, has been attested by the fact that on the following day the market went still lower, and that the stocks and bonds in question could have been repurchased at a profit of fifteen thousand dollars, provided the plaintiff had, as she was requested to do, provided the necessary funds or put up a sufficient margin. If, therefore, the question was fairly submitted to the jury, their finding upon this point should not be disturbed. The difficulty which here presents itself, arises upon the language used by the learned judge below in his charge to the jury. After telling them that the discretion conferred upon the defendants by the instrument of September 18, was not an arbitrary one, but a discretion to be exercised upon sufficient cause, and that without the existence of sufficient cause on September 28, the sales made on that day could not be justified under it, he continued to charge as follows :
"It has also been determined by the court, as matter of law, that the discretionary power which was thus vested in the defendants was as well for their own protection as for the benefit and interest of their principal; and the proposition, therefore, may be stated thus:
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That-, whenever the state of the stocks and money market rendered it prudent, either for the benefit or protection of their principal (the plaintiff) or for their own protection, to sell the stocks and bonds which the defendants were carrying for the plaintiff, they had a right to do so under the power which had been conferred upon them.

If, therefore, you believe that on September 28, the state of the market was such that a prudent and careful man would have deemed it expedient to sell, either for the benefit and protection of his principal or for the protection of himself, then the sale was justifiable.

But if you believe that there was no sufficient reason existing at the time, to make it expedient to sell, either for the benefit of the plaintiff or for the protection of themselves, then the sale was not justifiable, and the defendants are liable to the plaintiff for her damages.’*

Plaintiff’s counsel duly excepted to this portion of the charge, and requested the court to charge:

“ 5. The defendants were bound, under the authority which they held, to exercise that authority in the interest of the plaintiff, and not in their own interest.
6. If the jury find that the defendants sold the stocks in question in their own interest, and to save themselves, the plaintiff is entitled to a verdict.”

The request was denied, and plaintiff excepted. At first blush these rulings may seem indefensible, but reflection has convinced me that under the peculiar circumstances of this case they were not erroneous. The fair import of the language used, when considered with the other facts In the case, was that the def mdants, in the exercise of a proper discretion, had the right to sell to protect themselves against a loss that might possibly ensue if they carried the stocks and bonds in question too long. These were not deposited with them for purposes of permanent investment, but had been purchased on their own credit for the account of the plaintiff, on a

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margin, and the plaintiff was largely indebted to the defendants for advances thereon. Upon a fall of the margin below five per cent, the interests of the plaintiff and of the defendants became in fact identical with regard to such stocks and bonds. So, independently of the instrument of September 18, the defendants possessed the right of a pledgee to sell on demand and reasonable notice, for the purpose of reimbursing themselves for their advances, and if such demand had been made, and the notice given, the defendants would have had an absolute right to sell. By that instrument the plaintiff waived her right to such demand or notice. Having acquired by such waiver, the right to sell for their own protection, all the defendants were bound to do, was to act in good faith.

The question whether or not the defendants, on September 28, waived their discretionary .right to sell for the period of twenty-four hours, was also submitted to the jury under instructions quite favorable to the plaintiff', and under such instructions and the evidence in the case, the jury must be presumed to have found either that no such waiver took place, or, if it did, that the plaintiff subsequently ratified the sale.

As the authority given to the defendants enabled them to sell without notice at public or private sale, a sale at the board of brokers was valid (Milliken v. Dehon, 27 N. Y. 364 ).

The exception taken at folio 351 relates merely to the form of the question, and is quite unimportant when considered either in connection with the other evidence upon the same point, or the merits of the case.

Plaintiff's exceptions should be overruled, and the defendants should have judgment on the verdict, with costs.

Vah Yokst and Speik, JJ., concurred.

Cases cited