Mullen v. J.J. Quinlan & Co.

• Decision Date: 23 March 1909
• Citation: 195 N.Y. 109,87 N.E. 1078
• Court: New York Court of Appeals Court of Appeals
• Parties: MULLEN v. J. J. QUINLAN & CO.

195 N.Y. 109

87 N.E. 1078

MULLEN

v.J. J. QUINLAN & CO.

Court of Appeals of New York.

March 23, 1909.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Edward P. Mullen against J. J. Quinlan & Co. From a judgment of the Appellate Division (124 App. Div. 916,108 N. Y. Supp. 1141) affirming a judgment for plaintiff, defendant appeals. Affirmed.

The causes of action stated in the complaint arose out of the alleged wrongful conversion by the defendant of certain shares of stock and of a certain quantity of wheat, which the latter had purchased, acting as a broker, for certain customers and was carrying for them on margins of payments of a small percentage of their value. The complaint alleged that the defendant was a corporation, created under the laws of the state of Maine, and was conducting a stock brokerage business in the state of New York and elsewhere; that its main office was in Boston, Mass., and that it had leased a private telegraph wire running from its office to the village of Glens Falls, in this state. Transactions in the purchase of stocks and of wheat for the plaintiff and for certain other persons by the defendant, through one Smith, who was in charge of a branch office of the defendant at Glens Falls, were set forth. It was alleged that deposits of moneys were made by the plaintiff and by such other persons, by way of margins, of percentages upon the purchases; that all demands for further margins were complied with; that on May 5, 1906, the defendant, without their knowledge or consent, had wrongfully and fraudulently sold the stocks and the wheat, and had appropriated to its own use the moneys deposited with it, and that it had on that day announced over its private wire that it had discontinued its wire and branch office. Demands by the plaintiff and by the other persons referred to upon the defendant for the delivery to them of the stocks and wheat purchased and held for them, and for the delivery of the moneys deposited, and the refusals of the defendant to comply therewith were alleged. It was further alleged that after the sales by the defendant, as set forth, the stocks and the wheat had advanced in price, and that the plaintiff and the other persons referred to had suffered loss and damage through the defendant's wrongful acts. The plaintiff alleged that by assignments he had become the owner of the claims of the other persons mentioned, and he demanded a money judgment against the defendant. The defendant's answer admitted the allegations as to its corporate existence and business; that its main office was connected with Glens Falls by a private telegraph wire, and then denied all other allegations of the complaint. At the Trial Term the plaintiff gave evidence tending to show that the office in Glens Falls, through which the plaintiff and his assignors had conducted their transactions in stocks and grains, was managed by a person named Mel Smith, and that he was acting as the agent of the defendant. The evidence showed the details of these transactions, and that suddenly on May 5, 1906, without previous notice, and without the consent of the plaintiff, or of his assignors, the stocks and wheat, which had been bought for them, were sold out by defendant, and that the office was closed. Evidence was given as to the highest prices at which such stocks and grain had sold between May 1st and July 1st of the year. When the plaintiff had rested his case, the defendant moved for a nonsuit, and the motion was denied. The defendant then rested his case, without offering any evidence. The plaintiff thereupon moved for the direction of a verdict. This motion was granted, and the trial court directed a verdict for the plaintiff in the amount established by the evidence as the loss sustained. To this direction the defendant excepted. The judgment recovered by the plaintiff was affirmed by the Appellate Division, in the Third Department, and the defendant has further appealed to this court.

John G. Van Etten, for appellant.

Erskine C. Rogers, for respondent.

GRAY, J. (after stating the facts as above).

The principal question for our consideration upon this appeal is whether the evidence adduced by the plaintiff made out a case against the defendant and justified the direction of the verdict for the plaintiff. It is contended on behalf of the defendant that the evidence was insufficient to prove that Smith was the defendant's agent in the transaction of the brokerage business conducted at the Glens Falls office. Upon the conclusion of the plaintiff's case, the defendant's counsel moved for a nonsuit upon this and other grounds. The motion was denied and exception was taken. The defendant then rested, offering no evidence. Whereupon the plaintiff moved for the direction of a verdict in its favor, the trial court granted the motion, and the defendant excepted. As neither party had asked to go to the jury upon any question of fact, the court was authorized to determine the case, as one of law, upon the facts in evidence, and, if there was any evidence to sustain the determination made, it is conclusive upon the parties. The defendant, in effect, by requesting the court to determine the case upon his motion for a nonsuit, treated the questions as purely legal, and acquiesced in their disposal by the court. The exception to the direction of a verdict for the plaintiff avails only to bring up the question of the sufficiency of the evidence. Barnes v. Perine, 12 N. Y. 18;Dillon v. Cockcroft, 90 N. Y. 649. The appellant does not appear to question this rule, and relies upon the absence of ‘legal proof *...