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Norden v. Duke

Supreme Court of New York, Appellate Division

December 11, 1908

NORDEN et al.

[113 N.Y.S. 495] Max D. Steuer (D. L. Poddell, of counsel), for appellant.

Blandy, Mooney & Shipman (Edmund L. Mooney and Frederick A. Card, on the brief), for respondents.



This action was brought by plaintiffs, conducting business as brokers in the city of New York, under the firm name of A. Norden & Co., to recover an alleged balance of account claimed to be owing by the defendant as a result of certain transactions in the purchase and sale of cotton which they claimed to have conducted for him. The case was before this court on an appeal from an order vacating a warrant of attachment, which order was reversed ( 106 A.D. 514, 94 N.Y.Supp. 878); on appeal from a judgment entered upon a dismissal of the complaint upon the trial, which judgment was reversed and a new trial granted ( 113 A.D. 99, 99 N.Y.Supp. 30); and from a judgment entered upon a verdict in favor of the plaintiffs which was reversed and a new trial granted for an error upon the trial ( 120 A.D. 1, 104 N.Y.Supp. 854).

The facts are sufficiently stated upon the former appeal. The transactions out of which this suit grew were conducted by one Bramham, an employéof the defendant, Duke, who resided in Durham, N. C. The main question litigated was that of agency. On the motion to vacate the attachment, this court said:

" Facts are disclosed in the proof upon which the attachment was granted from which a jury would be authorized to find that Bramham did have authority to transact the defendant's business and to give the order in question." 106 A.D. 514, 94 N.Y.Supp. 878.

On reversing the judgment of dismissal we said:

" We think the facts thus proven by the plaintiffs establish prima facie authority on the part of Bramham to deal with the plaintiffs in defendant's name." 113 A.D. 99, 99 N.Y.Supp. 30.

On the appeal from the judgment in plaintiffs' favor we said:

" Upon the last trial the plaintiffs presented practically the same evidence, tending to show that the defendant authorized the transactions by general authority conferred upon Bramham. The defendant testified in his own behalf, and Bramham was examined in his behalf by commission. Their evidence does not as matter of law at least overcome the prima facie case presented by plaintiffs, and the question as to whether the defendant was liable upon the ground that Bramham was his authorized agent was a question of fact which has been determined by the jury in favor of the plaintiffs. We do not regard their verdict on that question as against the weight of evidence, but are of the opinion that there must be a new trial for errors in the charge." 120 A.D. 1, 104 N.Y.Supp. 854.

Upon this trial Bramham was called as a witness and examined in open court. We have carefully examined the record, and are of the opinion that a pure question of fact upon the question of agency was presented for the determination of the jury. The jury having resolved that question in favor of the plaintiffs, we cannot say that their verdict was against the evidence or the weight thereof.

Regarding the controversy as to the liability of the defendant to the plaintiffs as settled by the verdict, a serious question is presented upon this record as to the amount of the recovery. The transactions were [113 N.Y.S. 496] conducted by telegraph on the 22d of December, 1903. Defendant telegraphed, " Sell 2,000 March 96," which meant an order to his brokers to sell 2,000 bales of cotton to be delivered in March at 12.96 cents per pound. The plaintiffs wired back, " Sold 2,000 March 96." Shortly thereafter they wired defendant, " Please remit $2,000," to which defendant answered, " What do you think of position. Don't care to protect March" --to which they answered, " Bulls buying wildly. Confident as ever. No faith in it ourselves." And shortly thereafter, " Please make remittance $4,000 instead of 2,000. Answer" --to which they received the reply, " You were advised did not desire to protect trade." Mr. Norden testified: That they bought 2,000 bales of cotton for defendant's account immediately after the receipt of the telegram that he did not care to protect the trade, which, in conjunction with the other telegrams, was considered as an order to close out his cotton--to buy him in. That the time this telegram was received was 2:42. " I would say that we bought that cotton at 2:43 or 2:44, within a few minutes after that, maybe five or ten minutes." That the cotton was bought through another broker in Norden's presence. That he stood right behind this broker and saw him doing it. That Mr. Allen bought the cotton, 500 bales at 13.40 and 1,500 bales at 13.44. That the loss on the transaction, including brokerage, was $4,900, to which was credited $400 gain on a previous transaction, leaving the amount due $4,500.

Mr. Allen was called as a witness by the plaintiff, and testified: That the order which he received to buy was a stop order at 40, and that he could not and did not buy until somebody else had sold at 40, meaning by that 13.40 cents a pound.

" He gave me a stop order. That means that, as soon as the market sells at 40 for March, I have got to buy these 2,000 bales, and, if I cannot get them at 40, I have got to buy them at the market. That is a stop order. * * * The March I bought on the stop order. While I had the stop order, as a matter of fact I bought at the market. I had to. There isn't anything to indicate what my stop was on that. But I recall it to my mind distinctly because I have been up here three or four times, and it has come back to me, the execution of that one order. Well, what brings it more to my mind than the other matters would be this order, for instance, was to be 2,000 March, stop at 40. And it was one of the days when we had a wild market. * * * The order was not executed by me immediately, without regard to the stop. No; I could not execute it until the market had touched the stop order price. I could not execute that order until somebody else ...

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