Gruman v. Smith — 48 N.Y. Super. Ct. 513

Majority

p. 513

JEREMIAH B. GRUMAN, Assignee, &c., Respondent, v. ISAAC T. SMITH, Appellant.

Headnote

Action by brokers to recover for moneys advanced and services rendered in stock t/ransaetions—burden of proof—erroneous charge.—Counterclaim for moneys not accounted for advanced for purchase of certain bonds, not supported by proof that bonds were bought and delivered, but were not valid.

Before Sedgwick, Ch. J., Freedman and Truax., JJ.

Decided December 12, 1881.

Appeal by defendant from judgment entered on verdict in favor of plaintiff.

p. 514

The action was on the following pleading, viz.: That there was due and owing from, the above named defendant to a certain firm, of which the plaintiff was assignee in bankruptcy, $1,596.29, on account of moneys advanced and services rendered by them as stockbrokers to him, at his request, in “purchasing, carrying and selling” certain shares of stock. There was very little evidence that the stockbrokers had advanced money for the defendant in purchasing the stock in question, or of the terms of the contract, if there were one, between the parties. The judge, in charging the jury, said, “ The question is, whether the plaintiff has proved enough to make the defendant pay for the difference between the price paid for the stock and the price for which it was sold. The plaintiff undertook to discharge his duty, and there is nothing that appears here to the contrary.” The counsel for defendant, beside excepting to the remark last cited, requested the court to charge “ that the burden of proof is on the plaintiff to prove, the purchase, sale and amount of loss on this Rock Island stock transaction.” This request was refused.

The court at General Term, held: “ That this charge would have been a practical aid to the jury in determining what the fact was upon the testimony that was not explicit or full. It would have prevented the jury from thinking that it was enough if it did not appear that the brokers had failed in their duty. The plaintiff was bound affirmatively to prove what the contract was, and that the brokers had fulfilled their part of it.

“As the answer stood, it did not permit proof of the counter-claim as presented by defendant’s evidence. The breach alleged by the answer was, that the brokers did not account for the money of defendant, alleged to have been received by them. The proof was, that they expended the money on certain North Carolina bonds. The defendant had ordered the money to be expended

p. 515

on North Carolina bonds. He was informed that the brokers had bought the bonds, and they were delivered to him. His allegation was that the bonds were nob valid. The answer was not sustained.”

George Putnam Smith, for appellant.

Jacob S. Van Wyck, for respondent.

Opinion by Sedgwick, Oh. J.; Freedman, J., concurred.

For the error in refusing to charge as requested, the judgment was reversed, and a new trial ordered, with cost of appeal to appellant to abide event of the action.