Kratt v. Hopkins , 77 A.D. 634 ( 1902 )

O’BRIEN, J.

Upon the question of agency we think the court could not do otherwise than dismiss the complaint. The plaintiff’s own evidence shows that he signed the paper giving authority to Mr. Pronick to make such a purchase and sale of 200 shares, and he admits that he received the statement of the purchase, and replied, asking more particularly regarding it, but not expressly dis-affirming it; and thereafter, upon notice of sale, merely instructed the defendants to do the best they could for him. His own testimony thus shows clearly that he did give the necessary authority.

The more serious question presented upon this appeal is whether or not, at the close of the plaintiff’s case, the burden rested upon the defendants of proving the purchase and sale of the 200 shares of Chesapeake & Ohio stock in dispute between the parties. This, .we think, may be disposed of by a consideration of the issues as presented by the pleadings. It was, of course, competent for the plaintiff to have framed his complaint so as to recover as upon an account stated by setting forth merely the statement rendered him showing a balance in his favor, and this would have thrown upon the defendants the burden of pleading as an affirmative defense in their answer, and of proving upon the trial, that they had purchased and sold, by direction or by authority of the plaintiff, the 200 shares, the loss upon which wiped out the balance appearing in plaintiff’s favor in the account stated. The plaintiff, however, did not think proper to adopt this form of complaint, but, after setting forth the account rendered by the defendant, showing such balance, proceeded, as we construe the complaint, by admitting, in effect, the purchase and sale of the 200 shares of stock, and then alleging that the same were purchased and sold without his authority, and that, when notified of the transaction of the purchase and sale, he repudiated it, placing his repudiation expressly on the ground that the purchase and sale were without authority. The defendants, by their answer, proceeded to meet the issue thus tendered by expressly denying the allegations of the complaint that the transactions were without plaintiff’s authority, and by affirmatively alleging “that the plaintiff, by and through his agent, did give them authority to purchase and sell the 200 shares of stock of the Chesapeake & Ohio Railroad Company mentioned in the third paragraph of the complaint.” Upon the trial no contention arose upon the claim that the defendants had or had not bought and sold the 200 shares, it,being assumed throughout that they had; the evidence of the plaintiff being directed to showing, as alleged in the complaint, that “no authority was ever given by this plaintiff to the defendants for such purchase or sale.” In construing the pleadings, therefore, as to the issue tendered, we are confirmed in our view, first, that by the language employed it was not intended by the plaintiff to assert that the defendants had not bought and sold the 200 shares of stock, but merely that such transaction or transactions were without any authority from him. And we are further confirmed in this construction of the pleadings b-y the one which the parties themselves gave, as shown by their conduct at the trial, and the manner in which the testimony was adduced; the plaintiff being content to rest his case, after admitting the receipt of the notice of the purchase and sale of the disputed shares of stock, upon his denial that Pro nick, through whom the sales were ordered, had authority from him. We do not think, therefore, that the learned judge committed any error in refusing to submit the question of whether the 200 shares of stock were actually purchased and sold, because no such question was raised by the pleadings, and in no way did the plaintiff intimate during the trial or upon his motion to go to the jury that there was any such question in the case. It appearing conclusively by plaintiff’s own evidence that he had constituted Pronick his agent to give orders to purchase and sell stocks to the extent of the 200 shares, there was no other course open for the trial judge than to dismiss the complaint.

Upon such dismissal the plaintiff asked “leave to go to the jury upon the case as already presented, and particularly upon the question of agency of Pronick for defendant.” It has been suggested upon this appeal that in this blind way plaintiff sought to raise the question as to the actual purchase and sale of stock by defendants, and that, because of the attitude thus assumed, he placed upon the defendants, before they were entitled to a dismissal, the necessity of proving that they had really purchased and sold the stock. To this we do not assent, having, as we think, shown that the plaintiff never intended, either by his complaint or upon the trial, to raise any such question. In effect, he conceded that the transaction of the purchase and sale had occurred, and he restricted and limited the issue to an •assault upon the authority under which the defendants claimed to act. The suggestion, therefore, that it was error to dismiss the complaint until the defendants had shown that they had actually bought and sold the shares of stock in dispute, is clearly an afterthought; and the question, had it been raised upon the trial, or intimated to the court, could, without any injustice to the plaintiff, and without the necessity of a new trial, have been disposed of.

Thinking, as we do, that the motion to dismiss was properly granted, it follows that the judgment appealed from should be affirmed, with costs. All concur.