Page:Federal Reporter, 1st Series, Volume 5.djvu/496

 4§e FEDERAL REPORTER. �HiLLYEE, D. I. This is an action to recover a balance al- legea to be due npon a mining-stock account. The complaint alleges the purchase upon defendant's request pf a large ,amount of mining stocks; the expenditure of money for tele- . grains in connection with the buying and selling of the stocks ; the advancing of money on purchases, and the agreement of defendant to pay interest thereon at the rate pf 2 per cent. per month. Ji, also cqntains a number of counts upon accpunts etated. The answer puis in issue the purchase of 500 sliares of Franklin stock, at three dollars per share ; denies the cor- rectness of the charges for telegrams, and any agreement to pay interest at the rate of 2 per cent, per month. These are the only issues raised. The f acts bearing upon each point eau be best stated as it is decided, both for convenience and to avoid repetition. The facts in regard to the purchase of the Franklin stock are that the defendant requested the plaintiff's assignors, Frankel & Block, stock brokers, to buy for him 500 shares of Franklin, at a limit of three dollars per share. Frankel & Block purchased in the San Francisco stock board next day, in the usual way, 125 shares of Franklin, that being ail that could be obtained at three dollars per share. At the same time Frankel, one of the members of the firm, being a large owner of Franklin stock, turned over to Frankel & Block, for the purpose of ûlling the defendant's order, 375 shares of Franklin at three dollars per share, wbich -Were then applied by the firm to that purpose, and wert cliarged to the defendant with the usual commissions and telegrams. The defendant never received the stock into possession, and ne ver assented to this mode of fiUing bis order; nor did he know it had been so fiUed until about the time of bringing this suit. �The rule of la-w applicable to this state of facts is settled. An agent employed to buy cannot become the seller, in the absence of his principal's assent, given upon fuU knowledge of the facts. Frankel & Block, as agents of Strouse to pur- chase, could not be the sellera. It is not claimed that there ■was any fraud in fact here, but evidence establishing the transfer of the stock to have been bona fide, and for a fair ����