Shoninger v. Peabody. 35 id., 123; Vail's Appeal, 37 id., 185; Hewitt's Appeal, 53 id., 24; Chase's Appeal, 57 id., 236. There is no error in the judgment appealed from. In this opinion the other judges concurred. SIMEON B. SHONINGER AND ANOTHER vs. FREDERICK A. PEABODY. New Haven and Fairfield Cos., Oct T., 1890. ANDREWS, C. J., CARPENTER, LOOMIS, SEYMOUR and TORRANCE, Js. The agent of the plaintiffs sold the defendant a piano, and the plaintiffs brought suit to recover the price. While the suit was pending the agent, who had left the state, gave a deposition in which he stated that he agreed to take payment for the piano in commissions for services to be rendered to him personally by the defendant as a stock broker. The defendant denied this and claimed to have paid all of the price but forty dollars in cash and pleaded a tender of the forty dollars. The plaintiffs had no knowledge of the terms on which the agent claimed to have sold the piano until his deposition was given. Held that, in the uncertainty in which the matter stood, the plaintiffs were not to be charged with such knowledge that the piano was sold on the terms stated by the agent, that their continuing to prosecute the suit was a ratification of the sale upon those terms. In any view of the case the plaintiffs were entitled to recover the forty dollars tendered. [Argued October 28th-decided December 15th, 1890.] SUIT for the correction of the finding and judgment in the case of Shoninger v. Peabody, reported in 57 Conn. R., p. 42, and for a new trial of the case; brought to the District Court of Waterbury. The material part of the complaint was as follows: 1. Said Shoninger & Co. brought a civil action in assumpsit to this court, returnable on the first Monday of February, 1887, and at the January term of this court, 1888, a trial Shoninger v. Peabody. was had of said cause upon issue joined on the answer of the defendant before the court, and a judgment was rendered for the plaintiffs to recover the sum of $225 and costs. 2. In making up the judgment in said case, and the finding therein, a mistake was made by inserting in the finding the following words: "The plaintiffs were informed of the terms of the sale after Day had left their employ, and before the bringing of this suit." There was no evidence on the trial of said case of any such fact, and the above statement was untrue, and was inserted therein by inadvertence or mistake. 3. In consequence of said mistake, and of the above clause in said finding and judgment, by the advice of the Supreme Court of Errors the judgment of this court in favor of the plaintiffs has been reversed, and a judgment in said case rendered for the defendant. 4. It was a material question whether the plaintiffs had knowledge of the terms of the sale before the bringing of said suit, and by reason of said mistaken and untrue statement in the finding and judgment in said case a judgment has been rendered against the plaintiffs for costs, which is unjust. 7. The defendant refuses to allow the tender of $40 mentioned in his answer in the original action and refuses to pay the same to the plaintiffs, or to allow the plaintiffs the benefit of the same in said action or in the judgment therein. The plaintiffs claim that said former finding and judgment be corrected by amending the finding, and making the same correspond to the evidence in the case, striking out therefrom the said untrue statement; and that said judgment against the plaintiffs be set aside, and they be allowed a new trial of said cause, and that execution for costs against the plaintiffs be stayed. The court made the following finding:-The court finds that the finding of facts in the original case should be amended as follows: The plaintiffs had no knowledge of the terms of the sale before the bringing of the suit, but were informed that Mr. Day, the agent, claimed that the Shoninger v. Peabody. piano was to be paid for in commissions, as stated in the former finding, at the time Day gave his deposition, which was in October, 1887, while the suit was pending. The defendant denied that there was any agreement by him with Day that the piano should be paid for in commissions on his stock transactions with Day, and testified on the trial that all the items in the defendant's bill of particulars on the former trial were paid by him in cash. The defendant now refuses to allow the tender of $40 allowed in his answer in the original complaint, or to pay or allow the plaintiffs the benefit of the same in said action or in the judgment thereon. Upon these facts the case was reserved for the advice of this court. S. W. Kellogg, with whom was J. P. Kellogg, for the plaintiffs. 1. At the former hearing of this case (52 Conn., 42,) the record was that the piano was to be paid for in commissions upon stock transactions between Day, the agent, and the defendant; and that "the plaintiffs were informed of the terms of the sale after Day left their employ, and before the bringing of this suit." Upon that finding this court, to its own strongly expressed regret, reversed the judgment upon the ground that the plaintiffs had ratified the contract by bringing suit upon it with full knowledge of the terms of the sale. The finding now is "that the plaintiffs had no knowledge of the terms of the sale before the bringing of the suit." The first they heard of it was nearly a year afterwards, when they "were informed that Mr. Day, the agent, claimed that the piano was to be paid for in commissions." This was in a deposition given in Canada, where Day had absconded. The plaintiffs had never seen him from the hour he absconded. But when they heard of this claim they went to the defendant, and he denied that there was any such agreement. He denied it down to the time of the trial, and testified that all the items in his bill of particulars were paid in cash. All this appears in the record as now before Shoninger v. Peabody. the court; and we submit that it takes the case entirely out of the reasons for the former decision against the plaintiffs. 2. As to the tender of $40. The defendant certainly waived his right to have that sum paid in the manner specified in the contract, if he had ever assented to or made the contract. He tendered so much money as the balance due on the piano; he pleaded that tender in the case, and the fact of the tender is found. Having done that, the plaintiff's are entitled to that sum at any time. He cannot withdraw that tender, as he has done, and take the benefit of it at the same time. No final judgment has yet been rendered in the case. The defendant having withdrawn the tender, judgment should be rendered against him for at least that amount. 1 Rev. Swift's Dig., 292. A plea of tender admits the cause of action to the amount tendered. Eddy v. O'Hara, 14 Wend., 221; Eaton v. Wells, 82 N. York, 576. J. O'Neill, for the defendant. 1. The case as now presented is, that the plaintiffs continued to prosecute a suit for the agreed price of a piano, after they had knowledge of a wrongful sale thereof by their agent. Shoninger v. Peabody, 57 Conn., 42, settles the doctrine that, having commenced the suit with knowledge of the wrongful act of their agent, they thereby affirmed his contract. The fact that they elected to continue their action for the agreed price of the piano, after knowledge of the wrongful sale by their agent, will have just the same effect on the plaintiffs as if they made their election before the suit was begun. Sanger v. Wood, 3 Johns Ch., 416; Peters v. Ballister, 3 Pick., 495; Butler v. Hildreth, 5 Met., 49; Sears v. Carrier, 4 Allen, 339. 2. The plaintiffs do not offer to rescind; they insist on having a new trial. What better off will they be if a new trial shall be granted? A new trial will not be granted unless it appears that a different result will probably be reached. If a new trial were granted, the plaintiffs would be obliged to discontinue their present action, restore to the defendant the money actually paid by him to the agent Day, Shoninger v. Peabody. on account of the piano, and then bring an action of trover or replevin. Shoninger v. Peabody, supra. Even then it is not clear that they have not already elected irrevocably to stand on the contract. Grymes v. Sanders, 93 U. S. R., 55; Beetem's Admrs. v. Burkholder, 69 Penn. St., 249; Bulkley v. Morgan, 46 Conn., 393; Disbrow v. Secor, 58 id., 35. 3. The plaintiffs claim that the court ought to have rendered a judgment for them to recover the $40 tendered by the defendant. In reply we say that the plaintiffs could only have recovered on the contract set forth in their complaint. They were not entitled to recover on the allegations of the defendant. The fact that the defendant in his answer admitted that he made a contract by the terms of which the plaintiffs might have been entitled to recover something, would not authorize a judgment in their favor. Zacarino v. Pallotti, 49 Conn. 36. CARPENTER, J. When the original case was before this court, (57 Conn., 42,) the question was not, whether the piano was sold to the defendant, but what were the terms of the sale? The sale was admitted. The pleadings raised no question as to the terms of sale. That question arose upon the evidence. The plaintiffs' agent, who sold the piano, testified that payment was to be made in commissions. to be earned by the defendant as a broker in the business of the agent. It appeared that the defendant paid $75 in cash, that he earned commissions on the agent's account amounting to $185, and that there was $40 of the purchase price still due. The defendant testified that the commissions were not applied in payment, but that the payments were in fact made in money. If the defendant was right, then he should have been credited with the further sum of $185. If the testimony of the agent was true, and that sum was not paid in cash, but in commissions, the plaintiffs would not be bound by such payments unless they had ratified the contract as to the mode of payment. The trial court disallowed said sum of $185. In doing so the judge must have believed the testimony of the agent, |