Peck v. Doran Wright Co.

Landon, J. The dealings between the parties were in form genuine contracts, evidenced in writing made at the time, for the purchase and sale by the defendant, as a broker, upon margins, and for a commission, of wheat at the market prices ruling at the time. The losses sustained by the plaintiff were apparently caused because he bought wheat at a higher price than he subsequently sold it. The burden was upon the plaintiff to prove that the apparent contract was not the real contract, and that the real understanding between the parties was, when the contracts were made, that the wheat •should not be delivered, and that only the difference in the market price should 402 be paid or received; in other words, that the parties did not deal in wheat, but agreed to gain from or lose to each other as the price varied between the day the purchase was ordered and the day the sale was ordered. Kingsbury v. Kirwan, 77 N. Y. 612; Story v Salomon, 71 N. Y. 420; Bigelow v. Benedict, 70 N. Y. 207. The jury have found, upon the evidence, that the plaintiff made good the burden resting upon him. We think the verdict supported by the evidence. True, the written contracts were against him; but the statute against wager contracts would be of small value if the truth could not be shown by extrinsic evidence, and it was competent to give such evidence. - The plaintiff testified that at the commencement of his dealings with Fuller, who represented the defendant, and through whom the same were made, he asked him how the defendants executed their orders, and Fuller replied “that they assumed their orders, and booked them themselves; that they had no wheat to deliver; that they did not expect their customers to want any wheat; that it was merely to adjust the difference as between the market price and the prices marked on the slip, [contract.]” Fuller testified that nothing of the kind was said, and thus it was for the jury to settle the fáct. The plaintiff also testified that he did not intend to buy any wheat, but only to deal with respect to its fluctuations in price. The absence of any testimony that wheat was purchased upon any of the orders, and the accounts given of the various transactions, tended to indicate that they dealt with reference to the price of wheat, and not in wheat. The defendant objects that it is a corporation, authorized to do a legitimate business, and that, as it could not lawfully authorize Fuller to do an illegitimate business, it cannot be bound by his acts in the prosecution of it; that the attempt to confer such authority would be ultra vires, and the attempted ratification of the agent’s acts equally so. The position is untenable. A person, equally with a corporation, has no lawful power to do wrong; but both have the capacity to act, and the capacity to act amiss inheres in the capacity to act at all. Given the power and capacity to do right, the actor may nevertheless do wrong. Unless the actor is wholly irresponsible, he must answer for his wrong action, partly in justice to those injured thereby, and partly as a deterrent to its like repetition by himself and others. If theagents of a railroad corporation take my timber or iron against my consent, and convert it into a bridge, to the use of the corporation, the corporation must either restore my property, or pay me for it. Here the defendant corporation has obtained the plaintiff’s money. It was obtained by means of wager contracts. Confessing that it has the money, the defendant practically argues that, because it could not thus obtain it within its lawful powers, it does not really have it. Pretending to disclaim the transactions by which it obtained, the money, it practically argues that its pretended disclaimer gives it title to keep the money. But, in truth, it cannot perfect its disclaimer of the transaction without surrendering its fruits; it cannot retain the money without adopting its agent’s method of obtaining it; it cannot insist upon a defense so long as it refuses to qualify itself to interpose it. The doctrine of ultra vires is in no wise applicable to the case. We have examined the various other exceptions to the admission of evidence, and to the rulings of the court, and find none which require a reversal. Judgment affirmed, with costs.