text:
    John R. Thomas, Resp’t, v. Louis P. Rogers, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887.)

    Partnership—Co-partners—When relation exists
    The parties hereto were co-partners, doing business as architects under an agreement by which each was to have a certain percentage of the net receipts of the business. They were to receive as pay for their services in relation to a certain building a percentage of its entire cost, which it was estimated would be $206,000, but it cost $44,000 more than that. A receipt in full for commissions was given by the plaintiff on the receipt of those due on $206,000, but the defendant afterward received $1,100 which was what the commissions on the $44,000 would amount to, the receipts being given as for money loaned, but it was never returned, and the owner of the building was not aware that defendant owed him any money. Held, that the evidence justified a finding that the $1,100 paid defendant was commissions belonging to the co-partnership, and that plaintiff was entitled to recover his percentage thereof.
    Appeal from judgment entered on report of a referee. The action was brought for an accounting between the parties as partners, in _ relation to the business and assets of the partnership, which had terminated. The referee found, a balance due the plaintiff, for which judgment was directed and entered. The defendant appeals.

      Donald McNaughton, for app’lt; James Breck Perkins, for resp’t.
   Bradley, J.

The purposes and term of the partnership beween the parties were designated in the articles of co-partnership executed by them. They were architects, and the business in view was that of their profession. The term of the partnership was three years from January 1, 1882. And the place of business, Rochester, N. Y

The defendant to give his whole time to the business. The plaintiff to beat liberty to have an office in New York, which should have no relation to the firm, and give as much time to it as he should see fit. Contracts for work on hand at the commencement of the term should be divided and arranged as the parties should agree. And the net proceeds of the new business of the Rochester office be so divided that the defendant should have sixty per cent and the plaintiff forty per cent of them. Books of accounts of the business to be kept, and all moneys divided when received, as far as possible. And at the expiration of the partnership if either one continue business at Rochester he should finish all contracts, and render to the other party forty per cent of the net proceeds. And if both continue business there the division should be equal.

The plaintiff had for several years been engaged in the business of his profession as an architect, at Rochester.

The defendant came there about the time the articles were made, with a view to the partnership. The plaintiff contemplated opening an office in New York city, and establishing a business for himself there, and giving his attention to it; and of having the firm take the good will of his business at Rochester, and conduct it under the management of the defendant. The plaintiff did go to New York early in the year 1882, and remained there most of the time thereafter.

The defendant carried on the business in the name of the firm, and in the office which had been rented by the plaintiff, until the 1st of August, 1883, when he rented another office and assumed to do the business ostensibly in his own name. The parties had a settlement of their accounts the 1st of January, 1883, and none thereafter. And upon the-trial of this action it was contended, on the part of the defendant, that there was nothing due the plaintiff, but, on the contrary, that the expenses by him incurred exceeded his receipts of the business, and that there was a balance due from the plaintiff to him on the accounting. The defendant’s account, as presented by him, tended to show such result in the view taken of it, and urged by his coun-. sel at the trial and here. There is a controversy about an item of $1,100, received by the defendant from H. H. Warner.

The question is whether that can be treated as a payment to him on account of the construction of a building for Warner, of which the firm had the architectural supervision. The firm, as such,-had the superintendence of a building for him, at the agreed commission of two and a half per cent of its cost

About the 1st of October, 1883; the defendant made out a written statement purporting to be an account of the estimated cost of the construction, and of the moneys received from Warner on account of such commissions, which left a balance of $151.52 unpaid.

This balance was then paid by Warner, and receipt given by the firm and in its name signed by the plaintiff, by its terms in full for architectural work on the building to its completion, and of all demands. In this statement the cost of the structure was estimated at $206,000. Afterwards the plaintiff called upon Warner, or the clerk naving charge of his business for money. The latter says he called on him and “said he would like to get a little money;” that he spoke to Warner about it and he told him to give the defendant “what he wanted.” And this clerk gave to the defendant the checks of H. H. Warner & Co., of November 5, 1883, $100; December 3, 1883, $200; January 3, 1884, $200; February, 1884, $200; April 1, 1884, $300; June 26, 1884, $100, making together $1,100.

And for the first four sums, amounting to $700, receipts made by the defendant to H. H. Warner & Co., corresponding in dates and amounts with those four checks, were produced in evidence, and they, by their terms, severally represent the moneys received as loans.

No receipts for the additional $400 appear. The plaintiff was proceeding to obtain and give evidence of the cost of the Warner building, when it was conceded by the defendant’s counsel for the purposes of the trial that its cost exceeded the sum of $250,000. This made the commissions of the architects at the stipulated rate of $1,100 more than the amount represented by the statement as made and receipted in October, 1883.

If the moneys amounting to that sum were paid to the defendant on account of that work, they properly belong in the partnership account, otherwise not..

Without reference to characterizing circumstances, this question presents an apparent difficulty arising out of the receipt given in full for the services of the firm attending the construction of the building, inasmuch as Warner is not a party here, and, therefore, not charged with the adjudication in that respect. But notwithstanding the settlement of October, 1883, and the form given the transactions of the furnishing and receipt of the money, there is evidence from which, and the inference derivable from it, that permitted the referee to conclude as he did, that the money was paid to and received by the defendant on account of the architectural services in the construction of the Warner building before mentioned.

Warner evidently had the means of ascertaining its cost, and it was in the line of the defendant’s duty, as a member of his firm, to be advised, or to have the requisite means of information (and he does not say he had not) of the cost of the building, as the compensation was measured by it; while the plaintiff had been absent, and given the matter no personal attention. He may at the time have assumed that the estimate in the defendant’s statement of the account of it was correctly and fairly made, when in fact it was $44,000 less than the actual cost.

The defendant had not been called upon to repay the money to Warner, and the latter says he did not know anything about the defendant’s having the money until his attention was called to it during the trial.

The plaintiff says that at or about the time the receipt of October, 1883, was made, he asked Warner if he intended to pay Rogers any more on account of the building, and he evaded the question, and that when asked if in case he did pay the defendant more he would pay the plaintiff his portion, he answered in the negative, and said he would pay the defendant what was necessary to have the building finished. This was to some extent contradicted by Warner.

A considerable portion of this money was received by the defendant before the structure was completed. It was finished in March, 1884. There are other circumstances bearing upon the question. The defendant became dissatisfied with his relation of partner as early as August, 1883, and evinced some purpose not to recognize its existence further. His relations with Warner were very friendly, while those of the latter were not remarkably so with the plaintiff. While these perhaps standing alone are not very important facts, they are given some significance by other circumstances appearing in the evidence from which as a whole, the referee may well have concluded that there was no purpose of Warner to require repayment, or of the defendant to repay the $1,100, and in view, also, of the fact that it made just the balance due upon the contract for the services of the firm, the inference was fairly justified that it was deemed a payment on that account. And this is strengthened somewhat by the failure of the defendant, when permitted to do so, to make a satisfactory explanation of the circumstances of his estimate of the costs, as per his October statement, and of the receipt of the money subsequently obtained from Warner.

The form given to the transaction by the receipts made by him is not conclusive upon the nature of the transaction.

The plaintiff had the right to share in compensation for the architectural services of the defendant through to the completion of the building. And Warner was required by the contract to pay the firm the stipulated compensation based upon its entire cost, which was- not done until the $1,100 were paid. We see no occasion ppon the conflicting evidence to interfere with the conclusion of the referee on this question of tact.

The defendant complains of the rejection by the referee, of some of the items of disbursements and expenses which he claims were legitimately made and incurred in the business of the firm.

The referee disallowed quite a number of sums claimed by the defendant and entered as such upon his account produced. It seems that the defendant kept no books in which he regularly made entries, after the 1st of August, 1883. And this may have arisen out of the purpose not to continue the partnership from and after that time.

Some of the entries made by him in the account embraced items which had no relation to the business of the firm. And when his attention was called to one of them he remarked, in effect, that at the time it was made he did not deem the plaintiff his partner. The most of the rejected items were indefinite, entered as sundries, or as short of cash, and he was unable to give any definite explanation of them other than that he kept the items on papers, and as pocket memoranda, until the end of the month, when he says he brought them together and entered them in his account. No vouchers or original memorandum entries were produced.

The referee was justified in rejecting those for indefiniteness and uncertainty as to character. Methodist Episcopal Church v. Jaques, 3 Johns. Ch., 77.

Also, charges entered for expenses of a trip to Buffalo, and a trip to New York, were so questionable upon the evidence, the conclusion of the referee was permitted, that they should be disallowed. And some were rejected because they were not proper charges against the firm. And for the reasons given by the referee, we think he was justified by the evidence in excluding the portion which he did disallow of the charges for,alleged payments to his son for services. These and the other matters of the defendant’s account which were not allowed, came within questions of fact presented by the evidence, mostly given by the defendant himself. And we cannot say that his conclusion in any of those respects was against the weight of the evidence as. it appears to have been presented. at the trial, and as he was at liberty to treat it. And we find no error in the conclusions reached by him, other than in stating the amount of the defendants receipts since January, 1885, which he finds were. $2,164.95. By a careful examination of the evidence we are not able to find.that after January 1, 1885, he received any money on account of the firm, other than from American Express Company, $1,164.95; from Tichnor & Jacobi, $500 and $12,0, making together $1,784.95, which is $380 less than that so found by .the referee, and conclude that he was in error to that extent. This reduces the defendant’s receipts, as found by the referee, to $9,209.89, and should reduce the recovery $152. No exception, other than that to the statement of the receipts of the defendant after January 1, 1885, seems to have been well taken. And we think with that exception the conclusion of the referee is supported by the evidence.

The judgment should be reversed and a new trial ordered, costs to abide the event; unless the plaintiff stipulate to deduct from the recovery $152, and in that event the judgment be so reduced, and as so modified, affirmed, without costs of this appeal to either party.

Haight and Lewis, JJ., concur.


source: Caselaw Access Project

author: Smith, P. J.

license: Public Domain

text:
    John M. Thorp, App’lt, v. George F. Stewart, Impleaded, etc., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1887.)

    1. Contract for service—What not within the statute of frauds.
    A verbal agreement, to provide for a person during his life, is valid, notwithstanding the statute of frauds, inasmuch as the service may terminate within a year and the statute only extends to such agreements as, by their terms, canot be performed within one year from the making thereof.
    2. Same—What sufficient consideration for contract to convey LANDS.
    Such an agreement, though made by a minor, is a good consideration for an agreement to convey lands when binding the minor to render the service after the attainment of his majority.
    3. Same—What will vest the equitable title to land.
    Where such a contract had been entered into and the service agreed upon fully performed, Held, that the equitable title vested in the party performing services under the contract.
    Appeal from a judgment entered on the report of a referee.

      George W. Daggett, for app’lt; E. W. Packard, for resp’t.
   Smith, P. J.

Action for partition of real estate, the legal title to which was in John W. Stewart, at the time of his death, intestate, and the parties hereto being his heirs-at-law. The respondent set up, as a defense to the action, that he was the equitable owner of the premises sought to be partitioned, under a parol agreement made by said intestate, to the effect that if the respondent, his son, would stay with his father and mother while they lived, and aid in taking care of them, he should have the title to the premises, on the death of the survivor of them. Fach of his parents are dead. The referee found that said agreement was made as alleged, and that it had been fully perfomed on the part of the respondent, and that the respondent is the equitable owner of the premises, and entitled to a conveyance thereof, and that as such he is entitled to the surplus of the proceeds of the sale thereof in this action, after the payment of certain costs specified in the referee’s report. It seems that a judgment of partition was previously entered by default, in pursuance of which a sale was had, and after such sale the respondent excused his default and was permitted to come in and defend.

It is contended by the appellant’s counsel that the finding of the agreement is unsupported by the evidence. A careful reading of it satisfies us that there is enough to support the finding. The declarations made by the intestate, some of them in the presence of the respondent, taken in'connection with the acts and conduct of the parties, for a long series of years, as stated by the witnesses, lead very satisfactorily to the conclusion, that an agreement was made substantially as alleged, in pursuance of which the respondent acted. Some expresssions used by the testator, as testified to, indicate that he may not have had a clear idea of what was technically necessary to vest the title in his son, but that he intended it should so vest, and had agreed with him that it should, on certain conditions, which were shown to have been performed, we think is sufficiently proved to warrant the finding.

The fact that the respondent was a minor when the agreement was made, does not affect its validity, since the agreement was ratified after he became of age. The agreement of the respondent was a good consideration for the agreement of his father, inasmuch as it bound the respondent to render service for his parents, after he should become of age, if they should live so long, as they did, in fact.

As the respondent is entitled to the entire premises, in fee, by force of the agreement, no question arises between him and the other heirs, in regard to the value of the improvements made by him upon the premises.

The appellant’s counsel contends that the agreement, being oral, is within that provision of the statute of frauds, which declares void every agreement that, by its terms, is not to be performed within one year from the making thereof. The point was decided adversely to that contention, in a similar case, by the general term of this court, in the fifth district. Dresser v. Dresser, 35 Barb., 573. It was there held that a verbal agreement to provide for a person during his fife, is valid, notwithstanding the statute, inasmuch as he might die within a year, and the statute only extends to agreements which cannot be performed within one year. Mr. Abbott, in his digest (vol. 2, p. 243), says, that on a subsequent appeal, the court of appeals were divided on the question, but as the case is unreversed, we feel bound to follow it.

The judgment should be affirmed with the costs of this appeal.

Haight, Bradley and Lewis, JJ., concur.


text:
    The People ex rel. Maggie Cartmill et al., Relators, v. The City of Rochester, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1887.)

    1. Municipal Corporation—Ordinance—Charter of city of Rochester —Laws 1880, chap. 14, § 40—What is not violation of.
    The charter of the city of Rochester (Laws 1880, cha¡). 14, § 40) confers upon the common council the power to make such ordinances as it may deem desirable within said city for the following purposes, among others, viz.: Subdivision 1. To prevent vice and immorality; to preserve public peace and good order; to prevent and quell riots, disturbances and disorderly assemblages. Subdivision 16. To prevent disturbing noises in the streets. Subdivision 5. They are authorized to abate or remove nuisances of any kind. An ordinance of said city, passed under the authority of the provisions of the charter before recited, provides that no person shall make, aid, countenance or assist in making any noise, disturbance, or improper diversion in any of the streets, etc., of the city, and that no assemblage or crowd of persons shall collect in such streets, etc., to the annoyance or disturbance of any of the citizens or others, under a penalty of ten dollars for each offense. Held, That forming in procession and singing religious songs upon the streets was not a violation of the ordinance, there being no disturbance proved or any immoral or indecent demonstration.
    2. Same—Commission of the acts on Sunday does not create offense— Scope of ordinance.

      Held, That the fact that these acts were committed upon Sunday created no offense, as the ordinance had relation to all days of the week.
    3. Same—What matters irrelevant to question.

      Held, That the expediency or propriety of the methods of the association to which the parties committing such acts belonged was not pertinent on the inquiry as to the violation of the ordinance.
    4. Same—Judgment—When unauthorized.
    The charter provides that where by its provisions the common council have authority to pass ordinances on any subject, they may prescribe any penalty not exceeding $150 (except when a penalty is therein otherwise provided for) for a violation thereof, and may provide that the offender, on failing to pay the penalty recovered, shall be imprisoned as therein provided, which penalties may be sued for and recovered in the name of the city • The ordinance before referred to provides that every execution issued upon a judgment recovered for a violation thereof, except as therein otherwise provided, shall command the amount to be made of the property of the defendant, if any such can be found, and if not, then to commit the defendant for a period not exceeding a term therein prescribed. Held, That a judgment decreeing a penalty or imprisonment in the alternative, and not imposing as a condition of the latter that no property could be found, was unauthorized.
    5. Judgment of police court—Reviewable by certiorari—Code Civ. Pro., §2120.
    As no appeal from the judgment of the police court is provided by the statute, the proper remedy for a review of the determination is by certiorari. Code Civ. Pro., § 2120.
    Certiorari to review a judgment of the police court of the city of Rochester convicting the relators of a violation of an ordinance of said city relating to nuisances.

      W. Henry Davis, for relators; Joan Powers, city attorney, for resp’t.
   Smith, P. J.

The relators were convicted of violating a penal ordinance of the city of Rochester relating to nuisances, by creating a noise and disturbance upon a public street of said city. The ordinance under which the conviction was had provides that no person shall make, aid, countenance or assist in making any noise, disturbance or improper diversion in any of the streets, public squares, lanes, alleys or other public places in the city of Rochester; nor shall any assemblage or crowd of persons collect in such streets, public squares, lanes or alleys, or on any of the bridges, to the annoyance or disturbance of any of the citizens or others, under a penalty of ten dollars for each offense. The charter of the city (Laws 1880, chap. 14, § 40) confers upon the common council power to make such ordinances as it may deem desirable within said city, for the following purposes, among others, viz.: (Subd. 1.) “To prevent vice and immorality; to preserve public peace and good order; to prevent and quell riots, disturbances and disorderly assemblages.” (Subd. 16.) To regulate the ringing of bells and the crying of goods and other commodities for sale at auction, and otherwise, and to prevent disturbing noises in the streets; and subdivision 5 of said section gives authority to “abate or remove nuisances of any kind.”

The relators were members of what is known as the “ Salvation Army. ” On the occasion in question (a Sunday afternoon) seven of the members of that organization, including the relators, were walking in single file on the sidewalk, on North avenue, towards and near their barracks. Three of them were singing the words of what one of the witnesses termed a religious song, “We will Walk in the Light of God,” and one of them was carrying a small flag. Their object, as some of them testified, was to draw into their barracks those who were on the streets and in the saloons, in order to convert them and persuade them to leave their evil ways. While they were thus engaged, they were arrested by a person who was not shown to have held any official position that authorized him to make the arrest, and who admitted on the stand that he had no warrant. They were then taken before the police justice, by whom they were tried. Larragy, the person who arrested them, testified that they were “ acting in a disorderly manner,” but it is obvious from his testimony, that what he regarded as disorderly, was that which he characterized by the double appellation of “singing and hollowing” on the streets, he not stating that there was any hollowing other than the singing. He did testify that he heard one of them say we will fight, but which of them said it he did not state.

He also testified that there was “a crowd following them, any place from twenty-five to fifty, or one hundred or one hundred and fifty,” a statement in which he was not corroborated by any other witness, while several witnesses for the defense testified that there were very few persons on 'the street before the arrest was made. If there was a crowd, there is no evidence that it was disorderly, or that it disturbed any one. There was no proof that there was anything indecent, or immoral, in the appearance or conduct of the relators, or in the words which they sang, nor that any person was disturbed or annoyed by their singing, unless it was the one who arrested them. It was not shown or claimed that there was any collision, tumult, or disturbance of any kind before the arrest, except that one of the witnesses testified that the horse he was driving was disturbed by the flag, but to what extent, or how the disturbance was manifested by the animal, did not appear. It is apparent, therefore, from all the testimony, that the relators were simply marching upon the sidewalk, carrying a flag and singing, according to their custom, to induce those who happened to see or hear them, to follow them to their barracks. And the question is presented, whether such conduct amounted to a nuisance within the meaning of the ordinance and the provisions of the charter above referred to.

The provision of the ordinance that no person shall make any noise in the public streets is not to be construed literally. • It was not intended to wrap the streets of a commercial city in unbroken silence, or to suppress or diminish the roar of travel and traffic with which they almost incessantly resound. Nor was it intended to interfere with individual liberty of action, m any respect, except so far as may be necessary to preserve the public peace and order, and to prevent public annoyance or disturbance. If the ordinance in question goes beyond that limit, it exceeds the authority given by the charter to the common council. The provisions of the charter, in pursuance of which the ordinance was enacted, are designed to prevent public disorder and disturbance. The same clause which gives power to the common council “to prevent disturbing noises in the streets,” impliedly withholds the power to prevent “ the ringing of bells and the crying of goods for sale at auction,” in the streets, by giving authority merely to “regulate” them. Unless the practice is permitted, there is nothing to regulate.

A procession in a public street is not necessarily a nuisance. It can hardly be supposed that a political procession like those which frequently march through the streets of our cities and villages, with banners and bands of music, in a presidential campaign, is within the purview of the provisions referred to. So, of like military and civic demonstrations. But if such processions are lawful, wherein did the relators offend?

_ Had they stopped and gathered a crowd, blocking the sidewalk an unreasonable length of time, and impeding' the progress of passengers, doubtless their conduct would have amounted to a nuisance, at common law. Rex v. Carlile, 6 Carr & P., 636. Had they made any indecent or immoral demonstration, or used abusive or insulting-language towards others, or sought a quarrel with passers by, they might well have been held guilty of making a “disturbance or improper diversion,” in a public street. But as we understand the testimony, it does not appear that anything of that kind occurred. Their singing and display of the flag, were simply the means they ordinarily used to attract attention, and procure followers to their quarters, and we do not think the use of those means can be said, under the circumstances, to have amounted to a disturbance of the public peace, within the meaning of the ordinance and the charter. Like means used by showmen, exhibitors and vendors of wares under ordinary circumstances, to attract public attention, would hardly be regarded as infractions of the ordinance.

The fact that the occurence was on Sunday, we think, does not affect the question. > The ordinance is not a Sunday regulation. It applies to all days alike, as the conviction is under the ordinance alone. The only question is whether the acts of the relators, were a violation of the ordinance, without reference to the day of the week on which they occurred.

Nor, in our judgment, is it pertinent to inquire into the sentiments or purposes of the organization of which the relators are members, or the expediency or propriety of their practices, in a religious or moral point of view, so long as there is nothing in their conduct which is unlawful, or which threatens some tangible public or private mischief. At the same time, to use the words of a distinquished jurist: “We cannot accede to the suggestion that religious liberty includes the right „ to introduce and carry out every scheme or purpose which persons see fit to claim as part of their religious system. There is no legal authority to constrain belief, but no one can lawfully stretch his own liberty of action so as to enterfere with that of his neighbors, or violate peace and good order. The whole criminal law might be practically superseded, if under pretext of liberty of conscience, the commission of crime is made a religious dogma. It is a fundamental condition of all liberty, and necessary to civil society, that all men' must exercise their rights in harmony, and must yield to such restrictions as are necessary to produce that result. It is not competent to make any exceptions, either for or against the body of which the relators are members, because of its theories concerning practical work. In law it .has the same right, and is subject to the same restrictions in its public demonstrations as any secular body or society which uses similar means for drawing attention or creating interest.” Per Campbell, C. J., Mich. Sup. Ct.; In the Matter of Frazee, 6 West. Rep., 140.

In one respect, it seems to us, that the police court erred in a matter of procedure. The record states that the defendants were found guilty of a violation of the ordinance, and judgment was taken against them “for ten dollars or be imprisoned in the Monroe County Penitentiary for twenty days.” It further stated that “ judgment was suspended against Mrs. Grieve, and the other defendants were sent to said penitentiary.” It seems to us that the judgment, so far as it subjected the relators to imprisonment was unauthorized. Our views upon this point are advanced with some hesitation, as the point has not been argued or suggested by counsel, and it is possible, there is some provision in the charter or ordinance of the city authorizing the judgment in this form, to which our attention has not been directed. But the case appears to us to stand thus : The charter provides that where, by its provisions, the common council have authority to pass ordinances on any subject, they may prescribe any penalty not exceeding $150 (except when a penalty is therein otherwise provided for), for a violation thereof, and may provide that the offender, on failing to pay the penalty recovered, shall be imprisoned in the Monroe County Penitentiary, or county jail, for any term not exceeding 150 days, which penalties may be sued for and recovered, with costs, in the name of the city of Rochester. We are informed by the brief of the counsel for the respondent, that it is provided by the forty-second section of the ordinance under which the judgment was rendered, that every execution issued upon a judgment recovered for a violation of said ordinance, except as therein otherwise provided, shall command the amount to be made of the property of the defendant, if any such can be found, and if not, then to commit the defendant to the Monroe County Penitentiary for a period not exceeding twenty days.

We have not been referred to, and are not aware of, any other provision of the charter or of the ordinances bearing on the subject, with the exception of the first section of the same ordinance, which imposes a penalty of ten dollars for each violation of said ordinance therein described.

Under these provisions, the only judgment authorized was for the penalty. The execution issued on the judgment was require., to direct the imprisonment of the defendants^ but only upon the condition that no property of the defendants could be found out of which to make the amount of the judgment. The judgment did not even follow the direction respecting the form of the execution, for it adjudged the penalty of imprisonment in the alternative, and did not impose as a condition of the latter that no property could be found. And for aught that appears the defendants, except Mrs. Grieve, were sent to the penitentiary without any attempt having been made to find property.

As no appeal is provided by statute from a judgment of the police court, the proper remedy for a review of the determination of that court is by certiorari. Code of Civ. Pro., § 2120.

For the reasons above stated, the judgment should be reversed, with disbursements and fifty dollars costs to the relators.

Haight and Bradley, JJ., concur; Barker, J., not voting.


text:
    William W. Weston et al., Resp’ts, v. Pamelia W. Turner, Impleaded with Others, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1887.)

    1. Pleading—Demurrer—What averments necessary in action for an EQUITABLE SET-OFF.
    In an action in equity to obtain a judgment directing that a claim held by the plaintiff against A. S. Turner, one of the defendants, be set-off against a judgment obtained by said Turner against the plaintiffs herein, and by him assigned to his wife, Pamelia, one of the defendants herein, the complaint set out the relation of the parties in the other suit, how that suit arose, in what manner and on what questions the said judgment was decided, when the judgment was assigned to Pamelia; that she took such assignment after the plaintiffs claim against said Turner became due and charged with said judgment; that said A. S. Turner was insolvent, and that the demand would be lost unless it was applied in reduction of said, judgment. On a demurrer to the complaint, on the ground that several causes of action were improperly united: Held, that the complaint states but one cause of action; the averments were necessary for the purpose of showing the validity of the claim and whether it was the subject of equitable set-off; that the demurrer was properly overruled.
    2. Same—When claim not barred by former judgment.
    The action in which the judgyient was rendered was brought to settle and adjust the partnership affairs. The claim which the plaintiff herein sought to set-off was not embraced in the partnership accounts. It belonged to the plaintiffs individually and not to the partnership. Held, that the judgment in the other action was not a bar to the claim sought to be set off.
    ■ 8. Same—When party entitled to 'judgment.
    It being admitted that Turner was insolvent, and that the claim would be lost unless it was allowed in reduction of the said judgment, and that when said Pamelia took the assignment of the judgment the claim was, due: Held, that the right to set-off the claim against the judgment in this action was made out.

      Appeal from an interlocutory judgment en ered upon an order of the Erie special term overruling a demurrer to the complaint.

      Roswell K. Moss, for app’lt; J. H. Waring, for resp’ts.
   Smith, P. J.

This is an action in equity to obtain a judgment directing that a claim held by the plaintiffs against Alexander S. Turner, the appellant’s co-defendant, be set off against a judgment obtained by said Alexander against the plaintiffs herein and by him assigned to the appellant.

The complaint alleges, in substance, that in 1863, a contract of partnership was made between the plaintiffs on the one hand, and the defendant, Alexander S. Turner, and one Ross, on the other, by which the plaintiffs agreed to cut, manufacture into lumber and shingles, and sell certain timber owned by the parties in common, and after deducting the expenses of the business, pay one-half of the net proceeds to Turner and Ross, and retain to themselves the other half; the plaintiffs also agreed to advance money of their own, from time to time, to and for the benefit of Turner and Ross, which, with interest, was to be repaid to them, either by Turner and Ross directly, or retained by the plaintiffs out of the share of Turner and Ross, in the net, proceeds of the business; and that such arrangement; was in course of performance until 1869, when Ross sold hie interest to Turner. That when Turner made that purchase the original arrangement was continued between him and the plaintiffs, Turner succeeding to the one-half interest of' himself and Ross, and it was also agreed between them that Turner might from time to time order lots of the lumber, or shingles, or both, for himself and others, and that, the plaintiffs should ship the lots so ordered, and charge themselves in the joint account with the value of such shipments, and that Turner should pay the value of shipments, either by direct remittance, orout of his share of the net proceeds of the business; that pursuant to said contracts, the plaintiffs proceeded with said business, and cut, manufactured and sold lumber and shingles in large quantities, and lent and advanced to Turner money of their own, and shipped to him and others, on his order, large quantities of lumber and shingles, down to 1878; and that for all the moneys so lent and advanced, and lumber so shipped, down to 1874, he paid them in money, or out of his share of the proceeds. That they rendered accounts to said Turner of the lumber and shingles so shipped by them from January, 1874, to January, 1878, in which he acquiesced, and that there was due to them from him on that account, on the first day of January, 1878, the sum of $18,899.42, including interest, which is still due.

The complaint further alleges that in April, 1878, Turner commenced an action against the plaintiffs herein, to wind up said partnership business, to compel his copartners, the plaintiffs herein, to account, and to establish and recover the amount due him by reason of the partnership transactions; that the plaintiffs, in their answer therein, denied the charges against them in the complaint, and alleged claims on their part against Turner, in and about the partnership business and property, claiming that on a fair accounting a balance would be found due them in the partnership transactions, but did not set up, or refer to, their claim against Turner before set forth in the complaint herein; that said action was tried by a referee who reported in favor of Turner against the plaintiffs therein, for over $60,000 and costs, and judgment was entered accordingly; that said referee declined to pass upon or consider said claim in favor of the plaintiffs herein against Turner, because it was not set forth in the answer, nor embraced in the issue, and was not a proper item or matter to be included in the accounting in that action, and as between the parties thereto as partners. The complaint further alleges that Turner assigned said judgment to the appellant, his wife; that she took such assignment after the plaintiff’s said claim, against Turner became due, and subject to and charged with the same; that Turner is insolvent, and the demand will be lost unless it is applied in reduction of said judgment.

The appellant demurred to the complaint on the grounds, "that several causes of action are improperly united; that it appears on the face of the complaint that there is another action pending between the same parties for the same cause; and that the complaint does not state facts sufficient to constitute a cause of action.

We think the demurrer is not well taken. As we read the complaint, it states but one cause of action, to wit, the facts upon which the plaintiffs claim to be entitled to the set off which they ask for. All that is alleged respecting the demand against Alexander Turner, is by way of description of the claim which they seek to set-off and of the facts attending its origin and character. These averments are necessary, for,the purpose of showing the validity of the claim, and whether it is of such a nature as that it is not barred by the judgment, and is the subject of equitable set-off. All this is pertinent to the one cause of action above stated. As the appellant is the sole owner of the judgment, she is the only party against whom relief is sought. Whether her husband is a proper party, is a question not raised by the demurrer, but if it were before us, we would say that the propriety of making him a party results from the facts that he was the assignor of the judgment; that the right of set-off, if it exists, accrued while the judgment was in his hands, and his assignment was necessarily made subject to that right, and that the claim asked to be set-off exists against him individually, and is sought to be liquidated in mis action for the purpose of the setoff.

It does not appear that there is another action pending for the same cause, certainly not between the same parties, to wit, the plaintiffs and the appellant. But the counsel on both sides have argued the question whether or not the judgment set out in the complaint is a bar to the claim sought to be set-off, and we, therefore, consider it.

The action in which the judgment was rendered was brought to settle and adjust the partnership affairs. The claim which the plaintiff seeks to set-off in this action was not embraced in the partnership accounts. It belonged to .the plaintiffs individually, and not to the partnership. It •was for lumber, etc., furnished by the plaintiffs to Turner. True, the lumber was originally partnership property, but by the terms of the agreement made with Turner after he bought out Boss, as alleged in the complaint, the plaintiffs were to charge themselves in the partnership accounts with the lumber so furnished, and on their doing so, the lumber was withdrawn from the partnership property and became their own. In other words, they bought it of the firm, paid the firm for it, and sold it to Turner. Their claim for it did not, and could not, enter into the partnership accounts, and consequently the judgment is not a bar. Whether or not it might have been interposed as an equitable counter-claim in that action, we need not inquire. It was not incumbent on the plaintiffs to do so, and it does not appear to have been done.

The right to set-off the claim against the judgment, in an action brought for that purpose, is clear upon the facts stated in the complaint. The demurrer admits that Turner is insolvent, and the demand will be lost unless it is allowed in reduction of the judgment, and that when the appellant took the assignment of the judgment, the demand was due. The cases are numerous in which an equitable set-off has been allowed in like circumstances. Among them are the cases cited by the respondent’s counsel, viz.: Gay v. Gay (10 Paige, 369); Ainslie v. Boynton (2 Barb., 258); Davidson v. Alfaro (80 N. Y., 660); and Littlefield v. Albany County Bank (97 N. Y., 581).

The judgment should be affirmed, with costs, with leave to the apellant to withdraw the demurrer and answer in twenty days on payment of the costs of the demurrer and. of this appeal.

. Haight, J., concurs; Barker, J., not voting; Bradley, J., not sitting.


author: Bradley, J.

text:
    The People of the State of New York, Resp’ts, v. Mary Nileman, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887.)

    1. Criminal laws—Burden of proof rests with the prosecution— Accused is presumed innocent until proved guilty—Strength of-PROOF REQUIRED.
    On a trial for the commission of the crime of murder in the first degree r Held, That the presumption of the defendant’s innocence existed until completely overcome by evidence. That the burden rested upon the people to prove every fact essential to the offense, and by evidence so conclusive as to exclude all reasonable doubt as to the guilt of the accused.
    2. Same—Evidence of facts furnishing motive for commission of crime charged is competent

      Held, That evidence of facts tending to furnish to the accused a motive, for the commission of the crime was competent.
    3. Same—New trial—In what cases granted—May be granted without exception taken—Code Grim. Pro, § 527.
    Upon an appeal taken to the supreme court from a judgment of conviction, the court, if satisfied that the verdict is against the weight of evidence, or against law, or that justice requires a new trial, may grant it, whether or not any exception has been taken in the trial court. Code Grim. Pro., § 527.
    4. Same—Grounds for granting a new trial.
    This does not require the reversal of a conviction and the ordering a new trial for every error committed which would be available upon exception duly taken, but for such only as it can be seen may have prejudiced, and in the judgment of the court, did prejudice, the defendant.
    5. Same—What evidence necessary for conviction—Reasonable doubt-—How it may arise.
    The reasonable doubt as to the defendant’s guilt, which must be excluded in order to justify a conviction, may arise from a failure of proof or its insufficiency to overcome the legal presumption of the defendant’s, innocence, and a charge which might be construed» to exclude the reasonable doubt, which might arise from want. of evidence, would be erroneous.
    6. Same—Evidence of previous good character—Entitled to what-consideration.
    On the trial of a person for the commission of a crime, evidence of the previous good character of the accused is competent, and is entitled to-consideration with the other evidence on the part of the defense, the force and bearing of it is with the jury. Held, That a charge that the evidence of the previous good character of the accused was only to be considered in event of the other evidence failing to satisfy the jury of the guilt of the accused was erroneous.
    Appeal from -judgment of Cattaraugus oyer and terminer, convicting the defendant of the crime of murder in the first degree and directing execution of the sentence.

      Hudson Ausley and Wm. G. Laidlaw, for app’lt; G. M. Rider, district attorney, for resp’ts.
   Bradley, J.

The indictment charges that the defendant with the deliberate and premeditated design to affect the death of Edward Nile man, administered to him a fatal quantity of a deadly poison called arsenic, and by that means feloniously did kill and murder him. He was the husband of the defendant. They had lived togethef as husband and wife for about twenty years. On Friday, the 18th day of September, 1885, he was suddenly taken sick, and died in the afternoon of the next day. He was of the age of fifty-four years at the time of his death. And the evidence tended to prove that up to the time of this illness he had usually been in good health; that on this Friday, a little after noon, he came from his work to his house to get dinner, and the defendant gave him a lunch, consisting of pumpkin pie and bread and milk, which he ate, and shortly after had a severe attack of pain and suffering in his stomach; that medical aid was called, which gave him no relief, and he continued in that condition until shortly before his death, which occured about four o’clock in the afternoon of the next day. The autopsy disclosed the presence of arsenic in his stomach and liver, and the conclusion was fairly justified from the evidence that his death was caused by arsenical poison. Whether it was' taken with the food given him by the defendant for his lunch, and whether it was purposely so furnished him by her, were the questions litigated at the trial, and they were fairly and properly submitted by the trial court to the jury.

The burthen was with the people to establish by evidence every fact essential to the offense, and to do it by such evidence and in such mamier as to exclude all reasonable doubt as to the guilt of the accused, to justify or permit her conviction. The presumption of the innocence of the defendant existed until it was completely overcome by evidence to the contrary. The means by which the poison was furnished to, or obtained by the deceased, and the purpose with which it was supplied to, and taken by him, rested somewhat on circumstantial evidence.

While on the part of the prosecution it was contended that it was purposely by the defendant placed in his food with a view to take his life, it was insisted on the part of the defense, that it was obtained and taken by the deceased voluntarily, without any instrumentality of the defendant, and evidence was given on her part going-in support of that view of the defense.

The question of motive, and whether any existed on the part of the prisoner to take the life of the husband, therefore was treated as an essential element in the case; and with a view to that fact evidence was given to the effect that the husband had taken on his life a policy for $l,600>e in a co-operative aid insurance society, in which she was named as the beneficiary. And some evidence was given tending to prove that some relations had grown up, and existed, between her and a man referred to, not consistent with her marital relations and duties.

The evidence tending to prove those facts was competent and proper to go the jury for their consideration, and whether, if established, they constituted a motive on the part of the accused for the crime charged, or were sufficient for that purpose, was wholly for their determination.

There was no exception taken to the charge of the court to the jury, or to any refusal to charge. But if the court is “satisfied that the verdict is against the weight of - evidence, or against law, or that justice requires a new trial,” it may grant it, whether any exception has been taken or not in the trial court. Code Grim. Pro., § 527. This was the rule applicable to afi appellate courts of the state in capital cases at one time. Laws of 1855, chap. 337, § 3. The statute does not require the reversal of conviction and the ordering a new trial fpr every error committed, which would be available upon exception duly taken, but for such errors only as it can be seen may have prejudiced, and in the judgment of the court did prejudice the defendant. People v. McCann, 16 N. Y., 58; O’Brien v. People, 36 id., 276; People v. Newton, 3 N. Y. Cr. R., 406; People v. Sullivan, 4 id., 193; People v. Sweeney, 41 Hun, 343.

It is contended by the defendant’s counsel that the court erred in the charge defining the reasonable doubt applicable to the trial of criminal cases, and took from the jury the force in an essential degree to which it was entitled in their consideration of the case presented by the evidence and the inferences legitimately derivable from it. The definition and explanation given by the court did not in terms embrace all the elements out of which a reasonable doubt may spring, or all the views which might enter into the consideration to produce it.

It may arise out of-a failure of proof, or its insufficiency to exclude or overcome the legal presumption of innocence of the accused, “for it is not enough that the evidence goes to show his guilt, it must be inconsistent with the reasonable supposition of his innocence.” 3 Greenl. Ev., § 29.

To confine the definition of the terms to such doubt as arises from the testimony given upon the trial, would be too restricted in its application, and might be construed to exclude the reasonable doubt which might arise from a want of evidence. Densmore v. State, 67 Ind., 306; 33 Am. Rep., 96.

There was no error in the charge in this respect, taken as a whole, unless it may be construed as an unqualified restriction of the term reasonable doubt, to the definition and explanation there given of it. Commonwealth v. Webster, 5 Cush., 320; 52 Am. Dec., 711; Peoples. Guidici, 100 N. Y., 503.

We do not think it fairly entitled to such construction for the purposes of this review. The court so far as it proceeded to charge on the subject was substantially correct. And there was evidently no purpose to exclude the presumption of innocence, and the force to which it was entitled in support of a reasonable doubt founded upon the inquiry, whether the evidence as a whole was such as to overcome it, and in the judgment of the jury to require the conclusion that the facts established by the evidence were inconsistent with any hypothesis other than that of the guilt of the accused. The same degree of criticism will not necessarily be given to a proposition charged when there is no exception as might seem to be required if a specific exception had been taken. It evidently would have needed only a remark from counsel at the trial to have removed the ground upon which it is now sought to predicate error.

The more serious question arises upon the charge in respect to the effect which might be given to the evidence of the good character of the defendent, which was given on the trial. The court charged the jury on that subject as follows: “Good character is sometimes the turning point in the investigation of a criminal charge. When the evidence is vague, shadowy, and unsatisfactory, then it is that the evidence of good character stands the defendant in hand, then it is that it is to be considered by the jury as almost amounting to a defense. But when the evidence in the case satisfies the jury that the crime has been committed, and that the accused has committed the crime, then the evidence of good character of no avail.”

The further charge upon the subject does not materially modify that quoted. There having been evidence given on the part of the defendant that her character was good up to the time of the charge in question against her, the effect of that fact as evidence was unduly qualified by the charge of the court. The practical effect of which was that the consideration of the evidence of good character was dependent upon the effect which the other evidence exclusive of it, had upon the minds of the jury, and to be considered only in the event the other evidence failed to satisfy them that the defendant committed the crime. In other words the jury were permitted to understand from the instructions given that the evidence was first to be considered, without the aid of that of the good character of the defendant, and if that satisfied them of . her guilt, the evidence of her good character was of no avail. The court may not have so intended to instruct them, but we think they were at liberty to so understand the court. The evidence of good character of a defendant in the trial of a criminal case is to take its place with other evidence on the part of the defense, and it is entitled to consideration with it. The force and bearing of it are wholly with the jury. Its consideration by them is not confined to cases of doubt arising upon the evidence, but it may have the effect to aid .in producing or supporting a doubt, which might not otherwise arise, if, in the judgment of the jury, it was entitled to such effect.

In Remsen v. The People (57 Barb., 324), the court charged the jury that “where the evidence is positive, leading you to a conviction logically and fairly derived of .guilt from all the testimony, the simple fact that a person possesses previous good character will be' of no avail. It is only in cases where you have a well reasoned doubt, a doubt logically arrived at, arising out of all the testimony, •that evidence of good character steps in, and then it becomes your duty under your oath te give a" verdict in favor of the prisoner.” The prisoner was convicted.

When that case came into the court of appeals for review (43 N. Y., 6), the court held that such charge to the jury was erroneous and reversed the conviction; and in the opinion, the court, by Allen, J., said, “There is no case in which the jury may not, in the exercise of sound judgment, give the prisoner the benefit of a previous good character. No matter how conclusive the other testimony may appear to be, the character of the accused may be such as to create a •doubt in the minds of the jury and lead them to believe in view of the improbabilities that a person of such character would be guilty of the offense charged * * * An individual accused of crime is entitled to have it left to the jury "to form their conclusion upon all the evidence whether he, if his character was previously unblemished, has or has not ■committed the particular crime alleged against him. The weight of the evidence is for the jury alone to determine.” And the court in that case adds, that evidence of good character “will sometimes of itself create a doubt when, without it, none could exist.”

See also People v. Lamb (2 Keyes, 360, 377-8); Stover v. People (56 N. Y., 315); People v. Clements (42 Hun, 353).

It can be seen that the defendant may have been prejudiced by the instruction given to the jury so limiting the consideration and effect to be given to the evidence, and to the fact, if so found, of her previous good character, which ■should have been left to the jury like the other evidence in the case for them to determine whether it was entitled to any, and what importance and bearing upon the questions presented, and upon the result to be given by their verdict. Upon this ground we think justice requires that a new trial should be granted. It, therefore, becomes unnecessary to consider any other question presented.

The judgment and conviction should be reversed and a new trial ordered. And for that purpose the proceedings here remitted to the court of oyer arid terminer of Cattaraugus county.

Smith, P. J., and Haight, J., concur.


author: Haight, J.

text:
    Harriet S. Chamberlain, App’lt, v. William Hamilton, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887.)

    Principal and agent—What constitutes an agent—Principal—When BOUND BY ACTS OP.
    In an action for the recovery of money loaned, it was shown that drafts payable to the order of plaintiff’s husband were endorsed payable to the order of their son, who effected the loan to defendant, making no mention of his mother in connection therewith. Defendant credited the amount he borrowed on the account of the son, and had no knowledge of the interest of the plaintiff in the funds. The son, with the knowledge of plaintiff, drew against the fund from time to time for various purposes. The plaintiff never drew on the account and never had any conversation with the defendant upon the subject of the money. Plaintiff, though aware her son was using the money in various ways for years before this action was commenced, said nothing. All the money having been drawn by the son of plaintiff. Held, the complaint was properly dismissed; that the son was agent of the plaintiff, clothed with the indicia of title, and she was bound by his acts; that the defendant was entitled to believe he was dealing with the son as a principal and was protected.
    Appeal from a judgment entered in Livingston county upon the report of a referee.

      James Wood, for app’lt; Lucius N. Bangs, for resp’t.
   Haight, J.

This action was brought to recover for money loaned. The defense was payment. The referee in substance found that the plaintiff was the wife of Jonathan Chamberlain and step-mother of ■ David W. Chamberlain. That she, through her husband and step-son, deposited four drafts with the defendant amounting in the aggregate to $4,800. The drafts were payable to the order of Jonathan Chamberlain, endorsed by Jonathan Chamberlain to the order of David W. Chamberlain, and by David W. Chamberlain to the order, of the defendant. The drafts were received by the defendant and credited to the account of David W. Chamberlain. The referee further found in substance that David W. had purchased a lot in the village of Caledonia, and that it was understood between the plaintiff, her husband and David W., that a house should be built upon the lot and that David W. should pay for the same from time to time out of the money so loaned to the defendant, and for that purpose, and for the purpose of family supplies he was authorized to draw the money; that David W. did, from time to time, draw money upon such account to pay for the building erected on such lot, and also other sums which were paid over to the plaintiff or her husband for family supplies, amounting in the aggregate to about $3,800; that he also drew the balance of the account, amounting to about the sum of $1,000, which he converted to his own use. As a conclusion of law the referee found that the complaint should be dismissed.

Several exceptions were taken to the referee’s report, the chief of which is that David W. Chamberlain was the agent of the plaintiff to disburse or pay out the moneys loaned by him to the defendant. But it appears to us that the evidence upon this branch is ample. He was not only her agent in paying out and disbursing the moneys, but he effected the loan for her and did the business connected therewith.

David W. Chamberlain was sworn as a witness for the plaintiff, and on his cross-examination testified that the money came to his hands in the way it did with the knowledge of his mother; that she knew of the general method of expenditure, and the fact that he drew against the fund from time to time for various purposes; that she never drew against it at all, except as it was done through the witness; that she was aware of the fact that the witness was using the fund in respect to the building and in various other ways, and she knew it all along for years before this action was pending. The plaintiff herself testified upon a former trial, and the same was proved as an admission on this trial, that she knew of the fact that David W. was so drawing upon this account; and that she herself never drew any money on the account; and that she had never had any conversation with the defendant upon the subject of the "money; that all payments upon the account were made directly to David W. Chamberlain. It appears to us that this evidence shows an authority for David W. to draw and expend the money, and that such authority protects the defendant as to the payments made to him on that account. It being substantially undisputed that the account had been drawn in full, it follows that the referee properly dismissed the complaint.

We are of the opinion that the report may properly be sustained for the reasons given by the referee in his opinion: that David W. had authority to draw money upon the account for certain purposes; and that the defendant was not informed of the purposes for which David W. had authority to draw money, except to pay on the contract for building the house; that all the defendant knew or had reason to believe was that David W. took the credit and drew and expended the money, with the approval of his father and mother.

But there is another view upon which we think this judgment should properly be sustained. Our reading of the testimony taken upon the trial has failed to disclose any evidence showing that the defendant ever knew or understood that the plaintiff had ever deposited with or loaned any money to him. On the contrary the defendant testified that there was nothing said about its being a loan from either Jonathan or Harriet Chamberlain until about the time that David W. left his employ. Jonathan Chamberlain testified that nothing was said between him and the defendant on the subject of the matter of the loan, the time of the loan or the amount. The evidence of Jonathan Chamberlain, David W. and the defendant substantially agree that David W. first spoke to the defendant about taking the money that his father and mother had derived from the sale of the farm; that the defendant consented to take it on deposit and allow the cnstomary interest; that the plaintiff and her husband, Jonathan Chamberlain, and David W. lived together, and David W. Chamberlain and his father came to the office of the defendant, and David W. asked his father for the drafts; that the father thereupon took the drafts from an inside pocket; that the drafts were payable to the order of Jonathan Chamberlain, and were by him endorsed over to the order of David W. Chamberlain; that David W. Chamberlain thereupon took the drafts and endorsed them over to the defendant, who took them and put them in his pocket; that David W. Chamberlain was in the employ of the defendant, acting as bookkeeper, cashier and clerk; that David W. Chamberlain took the books and entered thereon a credit of the drafts to himself in his individual account with the defendant. David W. did all of the talk with the defendant with reference to the making of the loan. When the drafts were endorsed payable to the order of David W. Chamberlain and delivered to him he was invested with the indicia of title, having the possession, and, as such, transferred the drafts to the defendant and credited himself with the amount thereof upon the defendant’s books. It is but reasonable that the defendant should have understood from this transaction that he was dealing with David W. Chamberlain as a principal and not as an agent; if so then the defendant would be protected in the payments made to David W. in good faith without knowledge of his agency, even though he in fact was the agent of the plaintiff. See Laing v. Butler (37 Hun, 144), and authorities there cited. The judgment should be affirmed.

Bradley and Lewis, JJ., concur.


text:
    Clark V. Graves, Resp’t, v. Elizabeth Hunt, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887.)

    1. Contract—What is such part performance as-will take a contract OUT OF THE STATUTE OF FRAUDS.
    In an action for breach of contract in" not allowing the plaintiff to build a barn for the defendant: Held, that the staking out of the land upon which the barn was to be constructed, was such a part performance as took the contract out of the statute of frauds.
    2. Same—When rule as to reduction of damages does not apply.
    This plaintiff was a building contractor and the work to be done under the contract was not to be performed by him personally, but by his employees under his superintendence. Held, that the rule requiring a party upon a breach of contract of employment to seek other employment to reduce the damages, did not here apply.
    3. Same—Damages under—Waiver—Inconsistent demand. .
    The objection having been made that the complaint demanded pay for services performed under the contract and damages for the breach of contract. Held, that the plaintiff having waived the former demand, was entitled to recover on the latter.
    4. Pleading—Amendment of, to conform with verdict.
    After examination of authorities it was decided obiter, that the granting of an amendment of a complaint so as to make the demand for damages as great as the verdict rendered, should be granted only upon condition of granting a new trial.
    5. Evidence—Competency of.
    Claim being made for compensation for drawing plans of the work proposed: Held, that a question was competent as to whether the plans submitted for the inspection of the jury were more elaborate than those originally made.
    Appeal from a judgment entered upon a verdict rendered at the Monroe county court and from an order denying motion for new trial.

      J. D. Decker, for app’lt; John D. Burns, for resp’t.
   Haight, J.

The complaint alleged a breach of contract by the defendant in refusing to let the plaintiff build a barn for her, in which , he suffered damages to the amount of $100; also for services rendered under the contract of the value of twenty-five dollars; also for drawing plans and specifications of the value of twenty-five dollars, and demanded judgment for the sum of $150, being the exact amount for the three several items stated in the complaint. The answer denied the allegations of the complaint. The jury rendered a verdict for $145. The evidence upon the subject as to whether or not a contract was ever made between the parties is conflicting, and it consequently became a question of fact for the jury. A careful reading of the case leaves some doubt in our minds .as to whether exact justice has been done, but we are unable to say that the verdict is so against the weight of evidence as would justify a reversal upon that ground.

It appeared upon the trial that the plaintiff had staked out the land upon which the barn was to be constructed, and, if as the jury has found, the contract was in fact made, this act may be deemed a part performance of the contract and therefore takes it out of the statute of frauds.

Upon the trial the defendant sought to show that the plaintiff had other jobs on hand at the time he entered into the contract to build the barn for her. This evidence was offered in mitigation of damages. It was excluded and exception taken. The appellant invokes the rule that where a person has contracted his own services or that of his team, carriage, boat, etc., and is denied the privilege of performing the services contracted for, that he is not justified in lying idle for the whole length of time within which the services were to be rendered, but that it was his duty to accept other service and thus mitigate the damages suffered by the breach of the contract. But in this case the plaintiff was a building contractor. We do not understand that the work was to be done personally by himself, but was to be done by his employees, under his superintendance. In this way he could carry on the construction of several buildings at the same time and be entitled to the profits that he could make upon each. The rule invoked consequently has no application to the case here presented.

Upon the trial the plaintiff testified that the contract was. that he should be paid $850 for building the barn and furnishing the material; that he could have done the work for $125, thus leaving a profit of $125. The defendant gave no evidence upon the question of damages. The court charged the jury that if the contract was made and there was a breach thereof by the defendant that then the plaintiff was entitled to recover the sum of $125. It is possible that this charge was erroneous, for the jury might not have believed that the damages were as great as the plaintiff claimed or stated But the difficulty is, this portion of the charge does not appear to have been excepted to. The defendant’s counsel did except to that portion of the charge of the court, in which the court stated the amount of damages the plaintiff is entitled to recover upon the contract as being the difference between the contract price and what it would have cost him to construct the building. But this exception only has reference to the rule or measure of damages and does not cover the amount.

It is also contended that there could be no recovery for a. breach of the contract for the reason that the complaint demanded pay for the services rendered under it, and that pay for such services afforded the only relief to which he was entitled; that there could not be a recovery for both the damages for breach of the contract and the services rendered under it. But it appears that the plaintiff waived the right to recover for such services and consented that that claim be stricken from the complaint. This doubtless entitled him to recover as damages the difference between the contract price and what the work and material would actually cost.

The verdict,_ as we have seen, was for $145. The only counts remaining in the complaint upon which the plaintiff was entitled to recover, were for the damages resulting by reason of not permitting him to perform the contract which he testified was $125, and the pay for preparing the plans, which he testified was worth twenty dollars, which added to the $125, made the $145, the amount of the verdict. It is thus apparent that the verdict must have been made up in that way. The allegations of the complaint are that the damages upon the breach of the contract were $100, and the value of the services for preparing the plans, twenty-five dollars, which added together would make the sum of $125. The plaintiff having struck from the complaint, the count for services rendered under the contract of the value of twenty-five dollars must be deemed to have reduced his demand for relief in that sum as that demand was, the amount of the three several items claimed in the complaint. It will thus be seen that the recovery was greater than the, amount demanded.

The inquiry is made as to whether the plaintiff has the right to enter and maintain a judgment for a sum greater than the amount demanded by him. This question was recently considered by this court in the case of Pharis v. Gere (31 Hun, 443), in which it was held that the judgment cannot be main-1 tained for the excess and that the motion to amend the complaint so as to demand damages for the amount of thé verdict would not be allowed except upon terms, and the granting of a new trial. This decision was based on a long fine of authorities commencing at an early day and adhered to after the adoption of the Code. It was upon the theory that a defendant had the right to rest his case upon the demand made in the complaint and not anticipate that an award would be made greater than the amount asked for. Curtis v. Lawrence, 17 Johns., 110; Dox v. Dey, 3 Wend., 356; Fish v. Dodge, 4 Denio, 311; Corning v. Corning, 6 N. Y., 97; Coulter v. Express Co., 5 Lans., 67; Decker v. Parsons, 11 Hun, 295; Knapp v. Roche, 5 J & S., 395, 406.

But it is urged that the final demand for judgment for the sum of $150, cures this defect. As we have already seen, the $150 was made up of the three items embraced in the complaint, one of which was by the request of the plaintiff stricken out.

In the case of McIntyre v. Clark (7 Wend., 330), the complaint contained two counts. The first count alleged damages in the sum of $4,817.84, and the second count demanded a like sum. The final relief demanded was for the sum of $9,635.68. The verdict was for $7,000. It was held that there could be recovery upon but one count, and that it was for a greater sum than demanded in that count and consequently that the verdict should be set aside and a new trial granted. This case is in point and should be followed, unless it has been overruled or the law changed.

Our attention has been called to the case of Schultz v. The Third Avenue Railroad Co., 89 N. Y., 242. The complaint in that case contains three counts for a personal injury. The damages in each count was stated to be $10,000. The complaint concluded with a prayed. for judgment for $20,000. The three counts were for one and the same injury alleged in different forms. Upon the trial the court charged the jury that the plaintiff could recover only by satisfying the jury that he was pushed or thrown from the car. The first count in the complaint contained the allegation that he was violently pushed or thrown from the car. The jury rendered a verdict for $15,000. Earl, J., in delivering the opinion of the court, says: “That the general prayer for damages at the conclusion of the complaint must control, in the case. It is clear on the face of the complaint that all the counts have referred to the same accident and the same injury and the different counts really allege the same cause of action in different forms.

The action was commenced to recover on account of thó one injury caused by the defendant at the time and place named in the complaint, and in such a case the allegation at the end of each comit, of the damage which the plaintiff sustained may be disregarded, the general payer for judgment being sufficient to authorize and uphold the verdict.” He further proceeds to state that the complaint could be amended, but is silent upon the terms upon which' an amendment could be granted. The judgment was reversed upon other grounds, and it consequently was not necessary for the court to pass upon this question, and it must consequently be regarded as obiter.

This case cannot be regarded as ha harmony with the previous cases upon this subject, and it is not easy to determine how far it was intended to change the rule. But inasmuch as it is silent upon the discretion vested in this court as to the terms that should be imposed upon granting .'the-amendment, we think the old rule should be adhered to, and the amendment, after verdict, only granted upon . condition of granting a new trial. But the case at bar is clearly distinguishable. The damages demanded arise out of contract and are for separate and.distinct transactions; whilst in the case to which we have alluded, the three counts were for the same injury, and the three counts allege but . one cause of action, and the opinion appears to have been based upon these facts. But this question is not raised by any exception appearing upon the record, and it does not appear to- have been embraced in the motion for new trial made in the court below, and inasmuch as we are now reviewing the case upon an appeal from the judgment and order denying motion for new trial, we fail to see how the question is before us or how we can grant the appellant the relief he asks for.

Again, the plaintiff claimed pay, as we have seen, for drawing plans. He testified that he drew a plan for the barn and presented it to the defendant, and that it was not accepted; that he then drew another plan, and that was accepted; that the plans were worth ten dollars each. The second plan was presented in court and inspected by the jury. The first plan was not there.

Upon the cross-examination of the plaintiff he was asked if the plans presented in court were more elaborate than the first plans drawn. This was objected to; objection sustained and exception taken by the. defendant. It appears to us that this evidence was competent. The plaintiff was claiming pay for services rendered in drawing these plans. The plans presented in court, he testified, were worth ten dollars. The jury, by inspecting them, could determine something as to the amount of work performed upon them. The defendant had the right to show that the first plans were not worth as- much as those in court. The jury awarded twenty dollars for these plans, and consequently must have allowed ten dollars for the first plans. This error can only be cured by striking out the amount allowed.

■ The judgment and order should be reversed, and a new trial granted, with. costs to abide the event, unless the plaintiff, within twenty days, stipulates to reduce the judgment to $135, being damages on contract $125, services in preparing the plan accepted $10, in which case the judgment be so modified, and as so modified affirmed, without costs of this appeal to either party.

Smith, P. J., and Bradley, J., concur.


text:
    Levy Goldsmith et al., Resp’ts, v. Philip Levin, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1887.)

    1. Conditional sale—What does not amount to.
    The plaintiffs, under what they claimed to be an executory agreement to sell, delivered to Dessau & Co. a stock of goods to be retailed by them, they being retail merchants. Said Dessau & Co. were not to act as agents of plaintiffs, nor to account to them for the proceeds, nor to dispose of the g iods in any other manner than in the usual way of merchants retailing their own goods on their own account. Dessau & Co., before said goods had been paid for, made an assignment for the benefit of creditors to the defendant. The defendant took possession of said goods and refused to surrender them to plaintiSs. In a suit for conversion: Held, that the sale was an absolute present sale vesting the title to the goods in Dessau & Co.; that the title passed to the defendant; that the transaction could not be upheld as a conditional sale.
    2. Contract for sale of goods—Construction of.
    In written agreements for the sale of goods, the intention of the parties is to be collected from the whole instrument, and to that end the literal import of particular words used may be disregarded.
    3. Assignee for benefit of creditors—Rights of assignee.
    The general assignee for the benefit of creditors represents the whole body of his assignor’s creditors, and as such may defend against a claim which is fraudulent as to them.
    Appeal from a judgment entered on the report of a referee.
    Action for an alleged conversion of part of a stock of goods, consisting of ready-made clothing, in a retail store in the city of Buffalo. The plaintiffs, who were co-partners as wholesale clothiers, doing business at Philadelphia, in the state of Pennsylvania, were also the proprietors and owners of the Buffalo store, the same being conducted by Isaac Dessau, as their business manager, prior to the 7th March, 1884. Shortly before that date, Isaac Dessau, as agent for the firm of Dessau & Co., which was composed of Barnett Dessau and Jeannette Dessau, negotiated with the plaintiffs at Philadelphia for the purchase by Dessau & Co. of the plaintiffs’ business and stock of goods in Buffalo. As a result of such negotiations, on or about the day aforesaid, the plaintiffs executed and delivered to Dessau & Co. a writing, of which the following is a copy: “Received, Philadelphia, March 7, 1884, of Dessau & Co., doing business at Buffalo, state of Hew York, their judgment note, signed individually, Barnett Dessau, Jeannette Dessau and Isaac Dessau, and dated Buffalo, H. Y., March 3, 1884, one day after date, for §7,463.25. In consideration thereof, we hereby sell, assign, transfer and make over to the said Dessau & Co., all of our rights, titles and interests in the Buffalo store, known as the Misfit Parlors, 367 Washington street, Buffalo, H. Y., all the goods, wares and merchandize contained therein, and also all and every book account and outstandings contracted at Buffalo, N. Y., for their own use and benefit, provided, however, that the said Dessau & Co., will promptly pay their checks as follows, respectively dated: March 5, 1884, payable April 1, $500; April 10, $500; April 20, $500; May 1, $500; May 10, $1,000; May 20, $1,000; June 1, $1,000; June 10, $1,000; June 20, $500; July 10, $463.25, which have been issued in payment of the said judgment note, and in default of such prompt payment of each and every check, that we may proceed and issue execution, by virtue of their judgment note to us; and it is hereby further agreed and understood pending the sale of our interest in the above store, that notwithstanding we are the holders of the above-named checks, we reserve the right to demand payment upon the said judgment note whenever we deem it our interest to do so, and have execution thereupon to protect our own interest. It is hereby further agreed and understood that the said Dessau & Co. assume all and every other debts contracted by Isaac Dessau, agent, and will hold us harmless from all such debts and contracts entered into by the said Isaac Dessau, agent, and will assume the lease of the premises now occupied by him or the said Dessau & Co.” Signed “ Goldsmith Bros.” Dessau & Co. executed and delivered to the plaintiffs the eleven checks described in said writing, drawn by Dessau & Co. on the Third National Bank, in Buffalo, and also the judgment note referred to in said writting, executed by them and Isaac Dessau, whereby they promised to pay to the plaintiffs the sum above mentioned, one day after date, and authorized any attorney of any court of record in Pennsylvania or any other state, to appear- for them and 'confess judgment, etc. Upon the receipt of said note and checks the plaintiffs delivered said writing, and at the same time delivered to Dessau & Co. the possession of said stock of goods and property therein described. The referee found that such delivery was made under said written agreement and upon the conditions therein expressed. Thereafter Dessau & Co._ carried on business at the Buffalo store as retail dealers in ready made clothing, purchasing and selling goods in the ordinary course of trade, from the time of such delivery to the 13th day of May, 1884, retailing from the stock so delivered to them by the plaintiffs, as well as from goods subsequently purchased by them from others. On the day last named, they executed to the defendant, in trust, for the benefit of their creditors, a general assignment of all their property, and. the defendant, as such assignee, took immediate possession of the Buffalo store and of all the goods therein, including such of the goods delivered to them by the plaintiffs as then remained there. On the 29th of May, 1884, while the goods, last mentioned, were in the possession of the defendant, the plaintiffs notified the defendant that such goods belonged to them, and demanded possession of them, which the defendant refused, and thereupon they brought that suit.
    ■ The referee found, among other things, at the request of the defendant, that when the plaintiffs delivered said stock of goods to Dessau & Co., as above stated, they knew that Dessau & Co. intended to conduct a retail clothing business at the Buffalo store and to sell said stock at retail; that there was no declaration or agreement between the parties, cotemporaneous or otherwise, accompanying or qualifying such delivery, except the written agreement above set out; and that at or about the time of the execution of said agreement, the plaintiffs directed Isaac Dessau to have the insurance against loss or damage by fire theretofore taken out by them on said stock of goods transferred to Dessau & Co., and thereupon Isaac Dessau, in pursuance of such direction, procured such insurance to be transferred, or made payable, to Dessau & Co., and that about the same time Dessau & Co. took out additional insurance on the same stock of goodsin their own name. The referee found that Dessau & Co. paid none of their said checks, except the one for $500, payable 1st April, 1884. He held, as matter of law, that on the twenty-ninth of May, when the demand was made, the plaintiffs were the owners, and entitled to the possession of the goods described in the complaint; and that the defendant’s refusal was a conversion, by which the plaintiffs suffered damage to the amount of the value of such goods, for which amount he ordered judgment. From that judgment this appeal is taken. ,

      George U. Loveridge, for app’lt; Baker & Schwartz, for resp’ts.
   Smith, P. J.

The we view the case, the only question presented by the appeal, is whether the transaction between the parties amounted to an absolute, present sale, or whether, as the plaintiffs contend, it was a mere executory agreement to sell, or at most, a conditional sale and delivery, which did not pass the title, the condition not having been performed. It is not a case where a sale absolute in form is sought to be avoided by the vendor on the gromid that it was procured by fraud on the part of the vendee. Nor is it the case of a sale followed by a conditional delivery, for according to the finding of the referee, the delivery was of the same character as the sale, whether conditional or absolute. The question thus presented depends upon the intent of the parties; and their intent is to be learned from the written agreement, primarily, and if that leaves it in doubt, light may be sought' from the extrinsic circumstances established by the evidence. Smith v. Lynes, 1 Seld., 41; Furniss v. Hone, 8 Wend., 356.

The agreement alone does not make the intent entirely clear. It starts out with words which, of themselves, import an absolute sale. They are restricted, however, by the subsequent proviso, which requires prompt payment of the checks. The proviso in turn, is modified by the succeeding clause which specifies, as the consequence of a default in making payment as the proviso requires that the property of the makers of the judgment note shall be subject, immediately, to the lien of the judgment authorized thereby as security for the payment of the debt. The clause is broad enough to embrace the goods in question, and to authorize the creating óf a lien thereon by judgment and execution against Dessau & Co. If that was the intent, the title of course passed, as otherwise,- the lien stipulated for could not have existed.

That construction satisfies the.. language of the entire agreement, except, possibly, the words, “pending the sale of our interest in the above store,” which are contained in the clause last above referred to. Those words, if read alone and literally, might repel the inference of a sale that was to take effect immediately. But, in agreements of this nature, the intention of the parties is to be collected from the whole instrument. And to that end the literal import of particular words used may be. disregarded. Kelley v. Upton, 5 Duer., 336.

We consider the whole effect of the clause of which those words are a part, as being, that while the debt contracted in the sale was pending, i. e., so long as any part of it remained unpaid, the plaintiffs, although holding the twin checks, might resort to judgment and execution whenever they deemed it to their interest, to do so. By the next preceding clause they had the right to enforce the stipulated remedies whenever default was made in the payment of either of the checks; the clause in question gave them the like right (whether either of the checks was due or not) whenever they deemed themselves insecure, so long as any part of the debt remained unpaid.

This construction of the agreement is aided by certain attendant circumstances. The fact that at the time of the transaction Dessau & Co. intended to sell the goods in their business as retail merchants, the plaintiffs knowing that-such was their intention, has an important bearing. Indeed there is authority for saying that such purpose was so-inconsistent with the continued ownership of the plaintiffs, that the transaction cannot be upheld as a conditional sale. (Ludden v. Hazen, 31 Barb., 650), was the case of a purchase of a quantity of liquors to stock a retail grocery. A writing was executed, stating that the liquor was to be the property of the seller until paid for, and the transaction was found by the trial court to be a conditional sale. But it was held on appeal that it could not be upheld as such, and that by the contract of sale and delivery of the liquors to the purchaser to make a part of his stock in trade, and to be retailed to his customers, the property vested in him and became liable for his debts. To the like effect is Devlin v. O’Neill, decided by the New York common pleas, and reported in 6 Daly, 305. That case was affirmed by the court of appeals, but upon what ground does not appear by the report in 68 N. Y., 622, all that is stated being, that the court concurred in the result.

A distinction is to be observed between cases where the party to whom the property is delivered is to retail it as his own, and those where he is to deal with it as the agent or bailee of the vendor. Of the latter class, are Strong v. Taylor (2 Hill, 326), and Cole v. Mann (62 N. Y., 1). In the former a canal boat was agreed to be sold for a stipulated sum, provided the vendee should pay the amount in freighting on the canal under the direction of the vendor. The boat was regarded by the court as the property of the vendor, while in the possession of the vendee for the purpose of paying for it in the manner stipulated. In Cole v. Mann (supra), a piano was consigned to a person who was a dealer in pianos to be his when paid for. - He was authorized to sell it, provided he remitted the proceeds immediately to the consignor, or made the sale conditioned," and took from the purchaser a note similar to the one he had given, recognizing the ownership of the consignor. Held, that title did not pass till the condition was complied with. The same distinction was recognized in Herring v. Willard (2 Sandf. S. C. R., 418). There was a sale and delivery of an iron safe, on condition that title should not pass, till paid for. Held, that the title remained in the vendor, the condition not having been performed. Oakley, Oh. J., in delivering the opinion of the court, said: “It is not like the case of property placed in the hands of one who keeps similar articles for sale; as goods deposited with a merchant or trader.” P. 420.

In the present case, there is no.finding or proof, that Dessau & Oo. were to retail the goods as the agents of the plaintiffs, or to account to them for the proceeds, or to dispose of the goods in any other manner, than in the usual way of merchants retailing their own goods on their own account. And, as the evidence shows in that controversy, that is what they proceeded to do. This view of the facts is decisive of the case. That there are adjudications recognizing the doctrine, that on a sale of personal property, there can be a delivery, and yet the vendor retain the title, cannot be denied. But to extend that doctrine to the case of a purchase of a stock of goods to be retailed by the vendee, as a merchant, on his own account, would be contrary to good principle and sound policy. Since the transaction in question took place contracts for the conditional sale of personal property, on credit, are required by statute to be filed in order to be valid as against subsequent purchasers, and in that respect are put upon the same footing as chattel mortgages. Laws 1884, chap. 315, as amended by Laws 1885, chap. 488; Laws 1886, chap. 495. But even a chattel mortgage upon a stock of merchandise, executed with the understanding between the parties that the mortgagor may go on and sell the stock and use the proceeds as his own, such understanding being carried out, has frequently been held to be void as against the creditors of the mortgagor. Edgell v. Hart, 5 Seld., 213; Southard v. Benner, 72 N. Y., 424. Those cases proceed upon the ground that such a transaction is necessarily fraudulent as against creditors, as it hinders and delays them, without securing the application of the property or its proceeds to the payment of the mortgage debt. The case of Ludden v. Hazen (supra) rests upon the same principle. For the same reason, the transaction in the case before us, if the title was intended to remain in the vendors, cannot be upheld as against the creditors of the vendees, although the act of 1884 does not apply to it. The defendant, as the general assignee of the vendees, represents the whole body of their creditors, and as such may defend against a claim which is fraudulent as to them. Southard v. Benner (supra).

Another circumstance that indicates very strongly an intent to pass the title is the transfer of the benefits of the insurance policies from the plaintiffs to Dessau & Co. by the direction of the former. It is difficult to account for the action of the plaintiffs in that respect, if they intended to retain the title to the insured property. On the other hand, it is difficult to see what insurable interest Dessau & Co. had in the property, or what motive for insuring it in their own name and at their own expense, if they had no title to it, and their possession was simply that of agents or bailees of the plaintiffs. But upon the assumption that the title was intended to pass, the conduct of the parties accords with their respective interests.

In Dresser Manufacturing Co. v. Waterston, (3 Metc., 9), one of the circumstances mentioned by the court as tending to show that the title was not intended to pass was the fact that by the agreement the goods were to be insured for the vendor’s account.

The question of title may be tested by inquiring upon which party would the loss have fallen in case the goods had been burned after their delivery to Dessau & Co. Ballard v. Burgett, 40 N. Y., 317. It seems very clear that it would have been the loss of the vendees, and the transfer of the insurance shows conclusively that both parties so understood.

As the question of intent depends, to a considerable extent, on testimony outside of the written agreement, it is one of fact, in respect to which the findings of the trial tribunal are ordinarily conclusive, but in this case the conclusion of the referee seems to us clearly against the evidence, or the decided weight of it, and we are of the opinion that upon the whole case it appears that the parties intended that the title should pass, and that it did pass to the vendees on delivery, subject, of course, to the right of the vendors to rescind in case of fraud.

For these reasons, we think the judgment should be reversed and a new trial ordered before another referee, costs to abide event.

Haight, Bradley and Lewis, JJ., concur.