No. 108—2222.

#### William H. Burt v. C. J. Warrington.

This was a suit growing out of certain transactions on the Board of Trade, in which appellant, plaintiff below, sues to recover damages for an alleged violation of duty on the part of the defendant in having sold, without notice to the plaintiff, certain grain purchased on the Board of Trade by the defendant as agent for the plaintiff, whereby the latter sustained a loss. There was a jury trial, resulting in a verdict for the defendant, and the plaintiff appealed to this court. It was contended on the part of the defendant, first, that the trades were rightly closed because of the failure of plaintiff to put up margins; and secondly, that even if not rightly closed, appellant’s payment without objection of the balance claimed against him for margins, with knowledge of all the circumstances, was a waiver of his right of action. Between the two theories of the parties the jury adopted the defendant’s, and in the conflicting state of the evidence this court can not say that their finding is not supported by the evidence.

Judge below, Joseph E. Gars-.

Attorneys, for appellant, Mr. Faelin Q. Bale ;

for appellee, Messrs. Fat & Griggs.

Opinion filed Jan. 27, 1886.

Opinion Per Curiam.