PURCHASE AND SALE. 45 1 ing an order in the regular form is assumed to be to vest the stock- broker, if he takes the order, with such an authority as is to be found in the order when interpreted by the customs which have been stated, and consequently with an authority to contract to buy or to sell securities of the kind and in the amount and at the price stated in the order according to the rules and customs of the Stock Exchange of which the stockbroker is a member, and with an authority to perform in the regular way the contract or con- tracts made to carry out the order. This authority to perform does not come into existence unless and until the authority to contract is executed. With regard to the execution of the authority to contract, only a few words need be devoted. The stockbroker must act in good faith ^ and with due care^ and unless given discretion ^ cannot vary ^ from the terms of the order even where he benefits* the customer by so doing. With regard to the manner^ in which the stockbroker should contract, 1 See ante, p. 449, notes 3, 4, and 5. 2 Allen V. McConihe, 12 N. Y. Supp. 232. As to what phrase will give him a dis- cretionary power: "Do the best you can for me," see Covell v. Loud, 135 Mass. 41, s. c. 46 Am. Rep. 446; " You must take care of yourselves," see Cameron v. Durkheim, 55 N. Y. 425 ; cf. also Billingslea v. Smith, 77 Md. 504. Good intentions on the stock- broker's part are no excuse in law for failure to carry out orders. Allen v. McConihe, 12 N. Y. Supp. 232. 8 If any part of the transaction is not carried out according to the customer's inten- tion he is not bound by it. Allen v. McConihe, 124 N. Y. 342; Campbell v. Wright, 118 N. Y. 594; Scott V. Rogers, 31 N. Y. 676; Gruman v. Smith, 81 N. Y. 25. He need not in law take any steps to assert this. Allen v. McConihe, 124 N. Y. 342; Gregory v. Wendell, 40 Mich. 432. But if it does occur he should at once on learning of it give notice to the stockbroker that he repudiates what has been done contrary to his intention. Baker v. Drake, 53 N. Y. 211 ; Hanks v. Drake, 49 Barb. (N. Y.) 186. The reason for the customer's repudiating anything done contrary to his intention is as follows. The customer has the right to ratify anything done contrary to his intention. Gillette v. Whiting, 120 N. Y. 402 ; Harris v. Tumbridge, 83 N. Y. 92 ; Taussig v. Hart, 49 N. Y. 301 ; Brass v. Worth, 40 Barb. (N. Y.) 648 ; Dos Passos, 212. And his ratifi- cation makes the matter ratified as if it had been originally authorized. Mechem on Agency, §§ no, 167. Silence on the customer's part after notice of an act done con- trary to his intention is evidence of ratification, and hence, to prevent a " ratification by silence," he should repudiate any act done contrary to his intention as soon as brought to his notice.
- Unless the customer ratifies and accepts it. Thus the stockbroker has no right to
buy or to sell, where the price is fixed, at a better price. Nesbitt v. Helser, 49 Mo. 383; Smith V. Bouvier, 70 Pa. St. 325; Borham v. Godfrey, i Knapp, 381; Dos Passos, 167. ^ In spite of the maxim Delegata potestas non potest delegari, custom permits a stock- broker to delegate the execution of an order to some other stockbroker. Dos Passos, etc., 104, 230, 231 ; Green v. Johnson, 90 Pa. St. 38 ; Gregory v. Wendell, 40 Mich. 432 ; VOL. VIII. — 8 60
