author: By the Court—Robertson, J.

text:
    The New York Belting and Packing Company, Plaintiffs and Appellants, v. The Washington Fire Insurance Company, Defendants and Respondents.
    1. Ambiguous words in a policy of insurance may be construed by extrinsic evidence of accompanying circumstances and the usages of the business in which the property insured was employed.
    2. Thus where, in an action on a policy of insurance upon a two story factory, with attic and basement, which contained a provision in these words: “Water on each floor, with hose, and a watchman is to be kept on the premises at night;” the insured gave evidence that the factory was provided with a steam pump in an adjoining building and a force pump in the basement, connected with a water pipe passing through the two stories above to a tank in the attic, which was so constructed that its overflow would flood the attic floor, that hose was kept upon the premises, attached to couplings to 0such water pipe in the first and second stories, by means of which and the force pump, water could be thrown upon those floors and into the basement, by the steam pump, and that, according to the usage of the “ factory parlance,” neither the attic nor the basement were spoken of as “floors;”—Held, that it was error to dismiss the complaint on the"ground that the plaintiff had not shown a compliance with such provision in the policy.
    (Before Moncrief, Robertson and White, J. J.)
    Heard, November 11, 1862;
    decided, April 6, 1863.
    This was an appeal from a judgment entered in favor of the defendants upon a dismissal of the complaint at the trial.
    The action was brought on a policy'of insurance against fire, made by the defendants on the plaintiffs’ factory and contents, describing it as their “ two story and attic frame factory, situate atHewtown, Fairfield County, Connecticut, as per diagram filed in the office of the Metropolitan Eire Insurance Company of Hew York.”
    The policy, after designating the property insured, contained this clause: “ Said buildings are warmed by steam. Water on each floor with hose, and a watchman is to be kept on the premises at night,” as described in report Ho. —. Subsequently to the original policy, a privilege was granted t<* erect a frame building of one story and a half and basement in height, to adjoin and connect on the northerly side of the north wing of the main building, to be occupied as a rubber hose factory by steam heat. Injury by fire to such building having occurred during the time fixed by such policy, this action was brought to recover damages therefor. The defendants, among other defenses, denied that at the time of making such policy, or at any time since, “ there was ivater on each floor of such building with hose suitable and in a condition for use in case of fire”

    On the trial, which was had on the 8th day of March, 1861, before Mr. Justice Moítobiep and a Jury, the engineer and machinist of the plaintiffs (Glover) testified that there was a force pump driven by a belt on the west side of the building, which supplied water, and from which an iron three-inch pipe ran to the top of the building into a tank on the other floor. Two floors had hose attached. There was a safety valve in the tank in the attic story, and if the water was not let out by opening the hose below, it could be forced by the pump upon the attic floor. He called the two main floors and the attic the floors of the building. He also testified there was water on all the floors; the hose were attached to couplings on such perpendicular iron pipe.. He further testified that the building had four stories, including the basement; the first one above that was a calendar floor, then came the floor for making belting, then the attic floor, for drying materials; the hose remained screwed on the coupling pipe all the time; the water did not descend from the tank into the hose but was forced into the latter by such pump.; there was also another pump to throw water into the boilers.
    The superintendent of the plaintiffs (Gately) testified that there was a basement, two regular floors and an attic in the building; the first and second floors were designated as floors; there were buckets on the first and second floor and attic, and also hose on the first and second story. Being asked “what was understood in the common par- “ lance and general understanding of the factory as floors “of the building,” he answered, “we considered them the “main principal floors in the upright part of the building. “There were two.” He also testified, on cross-examination, there was a floor in the attic the entire length of the main building.
    A previous superintendent (Humphrey), introduced as a witness by the defendant, testified that there were two pumps in the building; one a “Worthington punip,” worked by steam, to be used in filling the boiler and in case of fire; the other a “Dodge” pump, operated by a water wheel, by which water was driven into the attic. There was no means of conducting water in a hose into the basement by that pump to put out fire; the only means of putting out fire there was by hose attached to the steam pump. The hose attached to the other pump could be taken out and directed into the basement; in order to r operate there the hose must be brought down from the floor above. There was hose attached to the pipe on the first and second floors above the basement, but none on the other floor; the attic was only lighted by end windows under the roof; there was a water tank in the attic and an upper valve to the pipe; there may have been means for attaching hose to the pipe, but there was none actually attached. He did not consider it expedient to use hose in the attic; he thought the hose in the lower rooms sufficient; any one in the attic could use the hose as effectually as in the lower room, being at the lower end of the building from the stairway.
    The Worthington pump was proved by an expert to be one of the best for extinguishing fires. There was no evidence to show what the report was referred to in the policy. Considerable evidence was taken as to increase of the risks by changes made in the boilers, flues, pumps, and otherwise.

      After the testimony was closed, the defendants’ counsel moved to dismiss the complaint, on the ground that it appeared from the evidence that there was not water on each floor, with hose; which motion was granted; to which dismissal of the complaint an exception was taken on behalf of the plaintiff, and the exceptions were ordered to be heard in the first place at General Term.

      Edwards Pierrepont, for plaintiffs, appellants.
    I. The learned Judge erred in taking the case from the Jury.
    II. It was plainly a question for the Jury to decide upon the evidence, whether the provisions, “ water on each floor with hose,” had been substantially complied with as the parties understood its meaning; and whether there had or had not been a breach of that condition as fairly and reasonably, and in fact understood by all parties to the contract when made. The error was in refusing to allow the Jury to decide the very question which it was their especial province to decide. (Daniels v. Hudson R. Ins., 12 Cushing, 416; The Farmers’ Ins. Co. v. Snyder, 16 Wend., 482; Fowler v. Etna Ins. Co., 7 Wend., 271; The Jefferson Ins. Co. v. Cotheal, 7 Wend., 82; Gates v. The Madison County Ins. Co., 2 Comst., 43; Gates v. The Madison County Ins. Co., 1 Seld., 469; Murdock v. Chemung Ins. Co., 2 Comst., 224.)
    III. There was a full compliance with the spirit, and a strict compliance with the letter of the agreement. As to the proper construction of the policy see Gates v. Madison County Mut. Ins. Co., (1 Seld., 474,) Hovey v. American Mut. Ins. Co., (2 Duer, 569,) Kemble v. Rhinelander, (3 Johns. Cas., 130,) Hyde v. Bruce, (3 Doug., 213,) Bond v. Nutt, (Cowp., 601,) 1 Arnold on Ins., 588, § 215; Ripley v. Etna Ins. Co., (29 Barb., 552.)
    IV. If the agreement were indefinite or equivocal, it should have been left to the Jury to say how the parties to the contract understood it. (See the authorities above.)

      V. The substance of the thing, the true meaning and fair understanding of all the parties, is what justice and the law looks after. (Turley v. North American Ins. Co., 25 Wend., 374; Coffin v. Coffin, 23 N. Y. R., 16.)

      E. W. Stoughton, for defendants, respondents.
    I. This clause of the policy constituted an express warranty by the insured that there was, at the time said policy was executed, water on each floor of said building with hose. This warranty was of a material fact, on which the defendants would naturally rely in making the policy; for their risk depended essentially upon the means at hand for extinguishing fires, and with water and hose suitable for the purpose, placed upon each floor of a building, two hundred and thirty feet in length, very efficient instruments would be provided for flooding the floors with water, and thus arresting the progress of flames.
    Whether the warranty was of a material fact or not is, however, wholly unimportant, for in whatever form or for whatever purpose a warranty may be created in a policy, it is a condition precedent, and no contract exists unless it is strictly and literally fulfilled. (Angel on Fire and Life Ins., §§ 140-146, and cases there cited; Delonguemare v. Tradesmen's Fire Ins. Co., 2 Hall’s Sup’r Ct. R., 608; Duncan v. Sun Fire Ins. Co., 6 Wend., 494; Trench v. Chenango Co. Mutual Ins. Co., 7 Hill, 122.)
    II. It appeared by the proof on the trial that there was no hose upon the attic or upper floor of the building when the policy was executed, or at any time afterwards; by reason whereof the complaint was properly dismissed.
   By the Court—Robertson, J.

Whatever was the meaning of the phrase in the policy in this case, “ said buildings are warmed by steam. Water on each floor with hose, and a watchman is to be kept on the premises at night, as described in report Fo. —,” it is a warranty of something already existing or an undertaking that something shall be done. And therefore its influence on the risk is wholly immaterial. (Angel on Life and Fire Ins., Co., §§ 144, 146, and cases cited.) As such warranties are wholly independent of any inquiry into their materiality, they must be literally construed, and nothing more than a literal fulfillment can be required, (Hovey v. Am. Mut. Ins. Co., 2 Duer, 570, and cases cited,) and no intendment can be made from them against the assured. (1 Arn. on Ins., § 215, p. 585.)

The first part of such clause is a warranty of an existing fact, (Wall v. East River Mut. Ins. Co., 7 N. Y. R., 370,) that the building insured was “ warmed by steam.” It would be doubtful whether the part relating to “ water” and “hose,” was a warranty of an existing fact or an undertaking for the future, unless the words, “is to be kept,” applies to them as well as to “the watchman.” Coming after the warranty as to the mode of warming, it may fairly be implied to relate to the future. “ Water on each floor,” .is ambiguous. Literally interpreted it would imply that the floors were to be kept wet. Accompanied by a reference to the mode of warming, to hose, and keeping a watchman at night on the premises, in a policy of insurance against fire, it may fairly be construed to refer to some means of protection against such risk. It was testified in this case that there were but two floors in the building insured, known as such in factory language, the first and second; neither the basement nor attic being considered such. The building itself was described in the policy as a two story frame one, and permission was given to erect a building one and a half stories high, with a basement; showing that the parties did not consider the basement or attic any of the stories of the building. These considerations are admissible in interpreting the word “ floor.” (Daniels v. Hudson River Ins. Co., 12 Cush., 416; Dana v. Fiedler, 12 N. Y. R., 40.) Accompanying circumstances are always admissible to construe a contract, (Moore v. Meacham, 10 N. Y. R., 207 ; Blossom v. Griffin, 13 Id., 569,) particularly a commercial one. (Agawam Bank v. Strever, 18 N. Y. R., 502.) Even declarations and acts of the parties as to what they understood by an indefinite phrase, at the time of making the contract, have been admitted. (Almgren v. Dutilh, 5 N. Y. R., 28.) Houses have been shown thus to come within the term “ brick buildings,” although they had wooden partitions merely filled in with brick. (Mead v. N. W. Ins. Co., 7 N. Y. R., 530.) The capture of sea elephants has been established to be part of a “whaling voyage,” (Child v. Sun Mut. Ins. Co., 3 Sandf. S. C., 26,) and glass in tight casks has been shown- not to be intended by glassware in casks. (Bend v. Georgia Ins. Co., 1 N. Y. Leg. Obs., 12.) So that there was fair ground for interpreting the policy in this case as not requiring water or -hose to be kept on any story except the two above the basement, if it was to be kept continually there at all. ' If there was any conflict of evidence as to the meaning’of the word floor, in “ factory parlance,” it should have gone to the Jury. (Daniels v. Hudson River Ins. Co., ubi sup.)

“Water on each floor, with hose,” is not a very clear description of what the plaintiffs meant to undertake; The parties differ materially in their construction of those words. At the time of executing the policy there were no reservoirs of or for water on any floor except the attic. There would be water in every floor, except the basement, or not, according as the perpendicular iron pipe was filled or not; and “hose” was attached to such pipe on every such floor. It is to be remarked that the policy does not call for hose on every floor as well as water, and there was evidence that the hose attached to the apparatus in the building could be used on every floor to extinguish a fire in it. There is nothing said in the policy of the attachment of the hose to anything, and, therefore, “with hose” can only be construed to mean having hose in the building or on the premises, in a condition to be used on every floor in connection with the means of supplying water for that floor.

There is a peculiar- fitness in applying the term “at night,” to the hose as. well as the watchman. During the day, there were probably enough persons present to attach the hose and apply the steam engine and water wheel to forcing water through the building to extinguish a fire. At night it was necessary to have the tank full, the hose attached to the pipe, and a person specially charged to guard against fires and use the water and hose. The word described seems more appropriate to the hose than the watchman.

There can be no doubt, I think, if the report referred to ■had been produced, it would have cleared up considerable confusion in the terms of such warranty. As the defendants claimed the benefit of it, they were bound to show clearly what it meant. In the absence of such report, such warranty is only susceptible of an interpretation to be derived from its apparent object, its terms and the connection in which it is found. And as the object of a policy is indemnity, it is the business of the insurers to see that if they hamper the insured with the performance of conditions, these conditions are expressed in their policy in the clearest terms.

No evidence was offered of the meaning, in the language of factories or insurers and insured, of “water on each floor, with hose.” Possibly they may have some technical meaning. I think, however, there was error in not submitting to the Jury the meaning of the word “floor” in the contract, which, if they had found in favor of the plaintiffs, would have rendered the contract to mean facilities for throwing water upon each floor, by means of hose to be kept on the premises.

The dismissal of the complaint was therefore erroneous, and the judgment upon it should therefore be reversed, and a new trial had, with costs to abide the event.


source: Caselaw Access Project

license: Public Domain

text:
    James Stuart, Plaintiff and Respondent, v. John Binsse et al., Defendants and Appellants.
    1. In an action to recover for work done, and materials furnished, in various parts of a building, under a special contract requiring the plaintiff to conform to plans and specifications which formed part of the contract, other plans, as well as maps and drawings, exhibiting the various parts of the building and premises on which the work was to be done, are admissible in evidence, as introductory to testimony; and a question to a witness whether such a plan is correct, though leading, is still proper, as mere, inducement.
    2. The fact that work alleged to have been done by the plaintiff is delineated on the plan exhibited, does not render such evidence improper where no objection is taken to a general question as to the correctness of the plan, and a witness had testified that he could supply the lines representing the plaintiff’s work, in Court, if they were not laid down on the plan.
    3. It seems that upon default in the performance of an agreement in the alternative to pay in cash, or in notes at three or four months, interest runs from the time that notes or cash should have been given.
    4. An allegation in a pleading, of an amount of. unliquidated damages or a value, is not to be taken as true by an omission to deny it, except to sustain jurisdiction or show the performance of a contract requiring such value, .or the like.
    (Before Robertson, White and Barbour, J. J.)
    Heard, June 2, 1862;
    decided, April 6, 1863.
    This was an appeal by the defendants from a judgment entered on the report of John M. Barbour, Esq., as Eeferee, in favor of the plaintiff.
    This action was brought against John Binsse and Louisa La Farge, executor and executrix of the will of John La Farge, deceased, to recover for plumbing work done by the plaintiff for the" deceased in and upon an extensive building, to be used as a hotel, in the City of Hew York, while in the course of construction. The building was déstroyed by fire just as it was completed. The issues in the case were tried before a Eeferee. Upon a former trial nine plans of different parts of the building were proved and admitted in evidence, and a written statement, made by a witness, shortly before his examination, to the correctness of which he testified, was produced, which gave a detail of all the plumbing work done and materials furnished in each room and every part of the house, referring to such plans by their numbers, with great minuteness as to dimensions, weight, materials and apparatus. The judgment, which the plaintiff recovered, was reversed, and a new trial ordered before the present Beferee, because of error in admitting such statement. (7 Bosw., 195.)
    The evidence given dn the part of the plaintiff, on the present trial, is stated in the opinion of the Oourt. The contract, under which the work was done, provided that the balance of the price of the plumbing work and materials was “to be paid in cash or notes at three and four months.”
    The defendants’ answer set up, among other defenses, that the plaintiff agreed to guaranty the said plumbing work in the La Barge Hotel for one year after the same should be completed; that the same never was completed; that the said guaranty was an important consideration in the contract for the said plumbing; that it was worth to the plaintiff, as this defendant is informed and believes, two thousand dollars to be released from the said guaranty; that the plaintiff was released from the said guaranty by reason of a tire, which totally destroyed the said plumbing before it was completed; and this defendant will insist that the said sum of two thousand dollars should be deducted from any amount which the plaintiff may prove on the trial of this action.
    The principal objection to any evidence introduced on the present trial was to nine plans or drawings, on which were delineated the plan and subdivisions of each story or floor of the large building, on which the plaintiff’s work was done, with the dimensions of every part, and also the plumber’s work and apparatus put into such building by the plaintiff.

      John A. Bryan, for defendants, appellants.
    I. The nine drawings or pláns were inadmissible, and should have been excluded by the Beferee.

      1. They were intended to show a building and its plumbing, after both have been destroyed by. fire, and were prepared three years afterwards, out of Court, partly from memory, but chiefly from original plans still in existentie, which should have been produced, as the best evidence.
    2. The quantity, and value, and localities of the various lines of pipes cannot be thus prepared and put in evidence. It is a species of wholesale testimony of the same character as the written statement admitted on the former trial, and comes within the cases of Russell v. The Hudson River Railroad Co., (17 N. Y. R., 134,) Halsey v. Sinsebaugh, (15 Id., 487, 488,) Young v. Catlett, (6 Duer, 442,) Cole v. Jessup, (10 How. Pr., 520,) Merrill v. The Ithaca & Owego R. R. Co., (16 Wend., 586,) Bank of Monroe v. Culver, (2 Hill, 531,) Stuart v. Binsse, (7 Bosw., 195.)
    II. The Referee erred when he allowed the witness, William Stuart, to testify from the written statement prepared by him, recently, out of Court.
    III. The other exceptions, on the part of the defendants, were well taken.
    IV. The Referee erred in allowing interest.
    1. By the contract, certain materials were to be furnished at stipulated prices. For extra materials no price was named. The quantity to be used was not fixed, and the value could not be ascertained from the contract. The action was, therefore, substantially on a quantum meruit, upoma simple unliquidated account, upon which interest could.not be recovered. (Renss. Glass Factory v. Reid, 5 Cow., 587; Van Beuren v. Van Gasbeck, 4 Id., 496; Tucker v. Ives, 6 Id., 193; McKnight v. Dunlop, 4 Barb., 36; Wood v. Hickok, 2 Wend., 501; Esterly v. Cole, 1 Barb., 235; affirmed, 3 Comst., 502; Silliman v. La Farge, this Court, not rep.)
    2. Although the contract stipulates for the interest on the balance of the price after three'and four months from, its completion, it is still necessary that the balance, which was to draw interest, should be liquidated and ascertained. This has never been done, and the account was not liquidated even down to the day of trial.
    V. The Referee erred in not making a deduction of $2,000 as claimed in the fourth defense set up in the answer. (See McAllister v. Real), 4 Wend., 483.)

      Edward P. Cowles, for plaintiff, respondent.
    I. The drawings were competent and properly admitted, and their correctness was established.
    II. The various exceptions taken by the defendants are untenable.
    III. The allowance of interest was correct. (Williams v. Sherman, 7 Wend., 109; Still v. Hall, 20 Wend., 51; Tan Rensselaer v. Jewett, 2 Comst., 144; Livingston v. Miller, l Kern., 80; Van Rensselaer v. Jones, 2 Barb., 643; Lush v. Druse, 4 Wend., 313; Van Rensselaer v. Roberts, 5 Denio, 470; Feeter v. Heath, 11 Wend., 477.)
    IV. The alleged guaranty is not proved, and if it were, it is not available to the defendants in this action. .
   It was proved that the architect who drew the original plans for the building in question, and under whose superintendence it was erected, made the plans received in evidence from some of such original plans, and copies of others, and his own recollections. Being examined as a witness, he was asked to look at each plan separately, and state if it correctly represented the compartments on each floor; to the admission of which questions a general objection and exception was taken. He was also asked, in reference to each floor separately, to state what the plumber’s work done on it by the plaintiff was; and objection was made to his answering as to three plans, Hos. 4, 7 and 8. In answering such last questions, he neither had anything to guide or assist his memory, nor did he appear to have looked at any plans while testifying to such work. In reference to plan Ho. 4, however, the only objection taken was, that the witness looked at it. There was also a general objection made and noted to his looking at any plans while testifying. The objection to his testifying as to the work done on plans Eos. 7 and 8, was merely a general one. After that testimony, the same witness was again asked whether the plumbing work, delineated in colored lines and marks on the map, was correctly projected thereon ; a mere general objection was made to such question, and an exception to its admission taken.

The same question was put to another witness, (Wm. Stuart,) and the same general objection made to his answering it. That last witness, without apparently any aid from plan, memorandum or suggestion of any kind, detailed the whole of the plumbers’ work and apparatus done upon and put up in the building in question, and each part of it, with its character and all its dimensions, except as to the length of lead pipe and sheet lead. He then testified that he could not give the details of the results of such work without the aid of the plans on which he had originally laid down the lines of the pipes in pencil. An exception was taken on behalf of the defendants to a question answered by him, whether such lines correctly represented pipes put into the building by' the plaintiff. He also stated, in answers to questions similarly excepted to, that he could state size and kind of pipes, but not length; that his memory was not good enough to give distance without the plans. After that, he detailed the work as before stated. I find no evidence in the case that the statement of the details of work done by the plaintiff, in all parts of the building in question, given by this last witness, was the result of anything but unaided recollection, or that those details were at all read from any plans or statements. He spoke, throughout, as one testifying from memory. The details were given in answers to questions appealing solely to his recollection. In answer to general questions as to the general nature of the.work on each story, he stated each branch of it, as well as that in each compartment; then, in response to separate questions, as to the number of articles and extent of work in each branch, he enumerated such articles, and gave the size of lead pipe and sheet lead, without, however, stating the length which was delineated on. such plans. Many of the details given by him did not appear on such plans, particularly as to perpendicular lead pipes, and yet they were given with equal clearness and certainty. No objection was made while he was answering such questions, that he was using the plans to assist him, and no exception was taken to any of such questions. The statement “that the “witness read from the various plans, and the Referee took “ down, in writing, minute details of plumbing work in different stories of the building,” contained in the abstract of evidence furnished by the counsel for the defendants must, therefore, be regarded as entirely unfounded.

The same witness made use of a statement, made up by him out of Oourt, of the length, weight and size of lead pipe and sheet lead used by the plaintiff, as well as its fastenings. It contained the items thereof, specifying length, and weight per foot. After stating the aggregate weight of lead pipe and sheet lead used in the building, he testified that he could not give the items which made it up, except by reference to such plans or the statement in question ; because he was unable to carry in his memory the exact number of feet from one point to another. He further testified that he could remember distinctly how the pipes were obliged to be run, and how they were actually run, and could locate them all on the plans of the house; and when so located, it became a matter of mere measurement. He stated that the details in his statement were taken from such plans, without measuring which, or referring to such statement, he could not give the length of lead pipe and quantity of sheet lead used. Finally, he gave the items from which he made up the aggregate of sheet lead and lead pipe used in the building, using such statements to refresh his memory. The question which elicited such statement of items was excepted to, although they were the same which had already been given by him from memory, being nearly two hundred in number. The weight was obtained by multiplying the weight per foot, according to the size previously stated, by the number of feet.

The same witness also stated, from memory, apparently, there being nothing to the contrary in the case, the waste lead, solder, marble basins and other apparatus, and plumber’s fixtures used and put up in such building by the plaintiff, and the days’ work of plumbers and assistants employed by the plaintiff, done on the plumbers’ work and fixtures in such building or in preparing it elsewhere to be placed therein.

The same witness testified to the quantity of iron pipe put into the building by the plaintiff, from a memorandum of its measurement made by him upon measuring it after it was so put therein, stating that he could not give it from memory without such memorandum. The value and quantity of fastenings of such pipe he appears to have given from memory. Ho objection was taken to any of such evidence.

Evidence was given as to the existence of boqks in which materials taken from the plaintiff’s shop were entered from, time to time as they were taken. The prices of various articles were stated by the witness to be those charged by the trade; and that he got them from the record of the former trial. The witness Stuart stated it would take two or three months to make up, in Oourt, details of the statement made by him.

The first question that arises on all this testimony is whether the plans,.without reference to the plumbing work delineated on them, were properly in evidence. They were made partly from recollection and partly from former plans, but both witnesses testified they represented correctly the different horizontal divisions of the building into stories, and the perpendicular divisions or compartments of such stories. Thus far there was nothing in. them alone tending to make out the plaintiff’s case, as the plans might have been correct or incorrect, whether he ever did any work on the building or not. If asking the witness whether such representations were correct, was leading, it was still proper as mere inducement. I had occasion to state, on the former trial, that maps, plans, models and drawings were proper, as more rapidly and clearly conveying an idea of the subject operated on than could be done by words, and, I may also add, as presenting greater facilities for applying any evidence afterwards given. (Rex v. Hadden, 2 Car. &. P., 184.)

The next question which arises, is, whether such plans, with the plumbing work delineated on them, were properly presented in evidence. The first witness stated generally, without objection, that the colored lines on each of them represented the plumbing work and its location. He then, in answer to a question as to the correctness of plan Ho. 3, in regard to compartments only, which was objected to, volunteered to state the plumbing on the ground floor, which was not objected to. He then, in answer to questions as to the work done on each floor by the plaintiff, which were objected to by the defendants’ counsel, stated it, but also volunteered to say that the work was correctly - delineated on such map by colored lines, which was not objected to. After testifying to his means of knowledge as to the accuracy of such plans, having already testified as to the correctness of the delineation of the plumbing work on them separately, without objection, he was asked generally as to such correctness. The testimony of another witness (Stuart) shows that the lines representing such work could have been resuj)plied by him in Court, had they been erased from such plans. There was, therefore, nothing to be gained by preventing either of such witnesses from testifying to the correctness of the delineation of the plumbers’ work on the plan. It is true, that by such delineation, the question whether it was correct became leading, because it referred directly to the subject matter of the suit, (Bearnon v. Ellice, 4 Car. & P., 585,) but the objection was not put upon that ground, if it had been, the plaintiff might have obviated it. (Sheeler v. Speer, 3 Binney., 130; Stickler v. Todd, 10 Serg. & Rawle, 63.) Indeed, the propriety of allowing leading questions, has been deemed almost arbitrarily discretionary in the Court before whom a cause is tried.- At all events, such discretion ninsfc appear clearly to have been erroneously exercised to allow any interference with its application on appeal. (Cheeney v. Arnold, 18 Barb., 434; Budlong v.Van Nostrand, 24 Barb., 25; Moody v. Rowell, 17 Pick., 498; Steene v. Aylesworth, 18 Conn. R, 244.)

The correctness of the delineation of the plumbing work on the plans in question being thus legally established, the whole plans, with such delineation, were properly in evidence, and proper to be presented to any subsequent witness in testifying as to the work.

The testimony of the witness Stuart, as to the weight of the lead pipe and sheet lead, taking the length or dimensions as laid down on such map, was perfectly correct. The items contained in his written statement, consisting of those to which he had testified, without the aid of any document or plan, with the length of the pipe and sheet lead, were mere separate computations of weight, which could have been made by the Referee upon the data furnished by the witness and the plans, or in Court, and in regard to which the results could easily have been disproved, if incorrect, by the immutable laws of arithmetical calculation. But even as to this testimony there was no objection made, that the questions were leading. 3STo application was made to the court to prevent the witness from looking at the paper while testifying, and he was only asked to look at it, if necessary, to refresh his memory. He testified that he would be obliged to look at it for that purpose. There is nothing before us to show that he used it for any purpose, or that it was taken by the Referee as evidence without the testimony of the witness as to the facts stated by him. The subject as to which he was testifying was one in regard to which the use of leading questions and memoranda has been sanctioned. In Feeter v. Heath, (11 Wend., 485,) Chancellor Walworth says: “Such is the frailty of human memory, that very “few witnesses would be able to testify as to particular “dates, numbers, quantities and» sums, after the lapse of “a few years, if they were not permitted to refer to papers “and writings, which they knew to be correct at the time “they were made.” Hence, he held parties might look at memoranda in Court to refresh their memory, provided they could afterwards speak from independent recollection. It does not appear affirmatively in this case that the witness could do so. But as he testifies directly to the facts, and was only asked to use the statement to refresh his memory, it is to be presumed that he confined the use of it to that.

The fact that there was better or more reliable evidence than that produced is immaterial. That which was used may have been inferior, but was not, technically, secondary. What weight was to be given to it was a matter for the Referee to- decide, in passing upon questions of fact. This applies to the existence of the original plans, and the scratch and order books.

For the main claim in this case, interest was allowed by the Referee only from the 15th of April, 1854, when for all work done under the contract he was entitled to interest from the 1st of January previous, as he was to be paid in cash, or notes equivalent' to cash, of course, which could only be by adding the interest, or making them payable with interest; cash and notes being merely two modes of payment, and not intended to indicate articles of different value; because in such case there could be no doubt as to the choice. But even if it were not so, and the notes were to be half in three and half in four months, the day when they were to become due was fixed, and interest must run from that time. (Williams v. Sherman, 7 Wend, 109; Still v. Hall, 20 Id., 51; Van Rensselaer v. Jewett, 2 Comst., 244; Livingston v. Miller, 1 Kern., 80; Van Rensselaer v. Jones, 2 Barb., 643; Lush v. Druse, 4 Wend., 313; Van Rensselaer v. Roberts, 5 Den., 470.)

In regard to the interest on the smaller sum of six hundred dollars, the only exception filed as to the interest, except that taken to its allowance on the larger sum, is the ninth, by which the defendants except to that part of the report where the Referee “ finds there is anything due “to the plaintiff for interest.” This is too ambiguous to be capable of application; it may apply to either sum allowed for interest, and, not being good in toto, is untenable. Ho point was made as to such- interest on the argument, and I apprehend it is not intended to be .insisted on. Some of the items in such amount were for goods sold which bear interest from their delivery. (Sewall v. Gibbs, 1 Hall, 602; Pollock v. Ehle, 2 E. D. Smith, 541; Beers v. Reynolds, 1 Kern., 97.) The plaintiff could recover interest on the whole from the time of suit brought, (Feeter v. Heath, ubi sup.,) and perhaps the dealing between the parties entitled the plaintiff to interest prior to the time when it was allowed to commence. (Esterly v. Cole, 3 N. Y. R., 502.) The difference, if any, is so small as not to justify a reversal upon this ground alone.

In reference to the guarantee of the work, the answer only alleges that it was worth two thousand dollars to be released from it, but not what the probable injury to the plaintiff from keeping it would be. Ho evidence was offered upon either point. An allegation in a pleading, of an amount of unliquidated damages or a value, is not to be taken as true by an omission to deny it, except to sustain jurisdiction or show the performance of a contract requiring such value, or the like. Besides this, the answer alleges that the fire, which was an act of God, and not the defendant’s testator, released the plaintiff. He was either bound to replace all the work or was relieved from the guaranty. And most clearly such guaranty only applied to defects or accidents in use, and not destruction of the building and plumbers’ work by fire.

There being no errors in the admission or rejection of evidence, or the Beferee’s findings, the judgment should be affirmed with costs.


author: By the Court—Robertson, J. Bosworth, Ch. J.,

text:
    James B. Taylor, Plaintiff and Respondent, v. Silas C. Herring, Defendant and Appellant.
    1. Entries in partnership- books are not evidence for one partner against another, on an accounting between them, Unless it appears, or may be presumed that the latter not only had access to the books, but actually inspected them. (Bosworth, Oh. J., dissented.)
    2. Thus, where the defendant was a dormant partner, who took no part in conducting the business, except to give his notes for its liabilities, and merely visited the place of business occasionally, and thgre was no evidence that he ever looked at any of the books; — Held, that the entries in the books were not admissible against him, in favor of his partner. (Bosworth, Oh. J., dissented.)
    3. Such entries, made by a bookkeeper employed by the partnership, are not admissible on the ground of their being made by a mutual agent, unless it is shown that the bookkeeper was authorized by them to determine with what sums each should be charged. (Bosworth, Oh. J., dissented.)
    4. Entries in partnership books are prima facie evidence, as in favor of one partner, against another who had access to them, and an opportunity to inspect them, notwithstanding his omission to do so. (Per Bosworth, Oh. J., dissenting.)
    5. It seems, that where two creditors take an assignment of their debtors’ stock in trade, agreeing with each other and with him, that they will carry on the business for a certain time, and apply the profits to the payment of their claims, and after that to the payment of other creditors, they are not thereby necessarily rendered partners as between themselves.
    (Before Bosworth, Ch. J., Robertson and Barbour, J. J.)
    Heard, December 3, 1862;
    decided, April 15, 1863.
    This was an appeal from a judgment in favor of the plaintiff, entered upon the report of a Referee.
    This action was brought for a settlement of the accounts of an alleged partnership between the parties, the plaintiff claiming a balance to be due to him on such accounting.
    The defendant denied the alleged partnership, and all indebtedness.
    The case was referred to B. W. Bonney, Esq., as sole Referee, who reported in favor of the plaintiff, finding that the parties were partners in the transactions in question, and that there was a balance due to the plaintiff of $10,713.02.
    The evidence in the case was very voluminous. The facts material to an understanding of the questions decided by the Court, were stated by the Referee iii his report substantially as follows:
    That in 1851, Charles H. Post and Daniel B. Post were copartners in the trade and business of manufacturers of and dealers in hats and caps, under the copartnership name and firm of “ C. H. & D. B. Post,” and conducted their business at Ho. 142 Water street, in the City of Hew York. That on the 1st day of March, 1851, they, as such copartners,#were indebted to James B. Taylor, the plaintiff in this action, in the sum of $6,492.54, and were also indebted to Silas 0. Herring, the defendant herein, in the sum of $5,637.08 ; and, in consideration of such indebtedness, and in payment or on account of the same, the Posts then bargained, sold and delivered to Taylor and Herring their stock in trade, and gave Taylor and Herring a bill of sale of the same.
    That at that time the Posts were also indebted to other persons, and it was then understood and verbally agreed, by and between the plaintiff and defendant.herein, and also between them and the Posts, that the plaintiff and defendant would continue and carry on the business which had been carried on by the Posts; that the proceeds of such business, after paying the expenses thereof, should be applied to the payment of the said indebtedness of the Posts to the plaintiff and defendant, respectively, until the debts owing to them, respectively, were paid and satisfied, and that the residue of the proceeds and profits of such business should be applied to the payment of the Posts’ debts to other creditors; and it was also understood and verbally agreed, between the plaintiff and defendant, that the business should be conducted in the name of the plaintiff, “James B. Taylor,” and that he should take and attend to the management and carrying on of the same, and should receive and be paid for his services in that behalf, with and out of the profits of said business, the sum of fifteen hundred.dollars per annum, and that the defendant Herring should aid in raising or procuring funds for the carrying on of such trade and business, by uniting in or indorsing notes made for that purpose by said James B. Taylor, and should receive and be paid therefor, and for so using his name and credit, with and out of said proceeds and profits, two and one-half per cent commission on the amount of notes by him so made or indorsed, for the purpose aforesaid.
    That in pursuance of this agreement the plaintiff and defendant took possession of the store, Ho. 142 Water street, and the stock in trade; and the bookkeeper and clerks, who had been employed in the service of the Posts, were retained in continuing the business, and made the purchases and sales therefor and therein, and kept the books of account relating thereto. That the business was so continued in the name of the plaintiff, James B. Taylor, who took the management and direction of the same, and made the financial arrrangements therefor, but neither purchased nor sold goods in or for account of said trade and business, nor made any entries in the books of account thereof; and the defendant Herring united with the plaintiff in making promissory notes for the purposes of the business, and also indorsed notes made by Taylor for the same purpose.
    That the books of account of aud relating to the business, and the transactions thereof, were kept -at the same store, Ho. 142 Water street, by the bookkeeper employed for that purpose, as above stated, in which were entered and set down the purchases, sales and other transactions of the business, which books were at all times open to the examination aud inspection of Taylor and Herring, and each of them; and that while the business was so conducted, the plaintiff had his office and place of business at and in the store, Ho. 142 Water street, and the defendant had his office and place of business in the immediate vicinity of, and was frequently in, said store.
    On the trial the Referee admitted as evidence entries in the books thus kept in the business; and he found, among his conclusions of law :

      First. That the plaintiff and defendant, in continuing and carrying on the said trade and business of manufacturing and dealing in hats and caps, were copartners, and jointly and equally liable, as between ■ themselves, for losses sustained in such trade and business.

      Second. That the books of account of the said trade and business, kept by the bookkeeper employed therein, and for carrying on the same, are evidence, as between the said parties to this action, for each or either of them against the other.

      And lastly, That upon the accounting the defendant was indebted to the plaintiff in the sum of $10,713.02, without interest, for which sum he ordered judgment, with the costs of this action.
    From the judgment entered upon this report, the defendant, having made a case containing his exceptions, appealed to the General Term.

      S. P. Nash, for defendant, appellant.
    I. Eeither the facts, as found by the Beferee, nor the evidence in the case, justify his conclusion of law that the partners were copartners, and jointly and equally liable, as between themselves, for the losses sustained in the alleged partnership business.
    Several persons may in various ways have joint or undivided interests in' property; or be united in undertakings and adventures, without being partners. (See Post v. Kimberly, 9 Johns., 470; Putnam v. Wise, 1 Hill, 234; Mumford v. Nicoll, 20 Johns., 611; Pattison v. Blanchard, 1 Seld., 186; Smith v. Wright, 5 Sandf., 113; Nowlen v. Colt, 6 Hill, 461; Heimstreet v. Howland, 5 Denio, 68; Burckle v. Eckhart, 3 Comst., 132; Fitch v. Hall, 25 Barb., 13; Merrick v. Gordon, 20 N. Y. R., 93.)
    For a case similar in its controlling features, see In re Stanton Iron Co., (21 Beav., 164,) (Ch.) and same case at law; Hickman v. Cox, (36 Eng. L. & Eq., 400; 18 Com. B., 617; 3 Com. B., N. S., 523 ;) reversed finally in House of Lords, Cox v. Hickman, (8 H. L. Cases, 268; 9 Com. B., N. S., 47.)
    II. The Beferee does not find as a fact either that the parties were to share the losses, or that they called themselves partners.
    Whether these facts make out a partnership is a question of law, as the Beferee has treated it. (Coll. on Partn., § 95, Am. ed., 1861.)
    III. If the Court will examine the testimony,' it will appear not only that there was no partnership, but that defendant’s version of the arrangement is the only probable one, namely, that if defendant would furnish credit to buy fresh stock, plaintiff would agree to carry on the business, and work out of it the amount of defendant’s debt against the Posts.
    IY. Assuming that the parties were interested as co-partners, the plaintiff did not establish any indebtedness in the joint business from defendant to plaintiff.
    The evidence to establish this indebtedness consisted entirely of the books of account.
    1. The Referee erred in receiving the books in evidence. (Coll. on Partn., 316, note, ed. of 1861; Stainton v. Carron Co., 24 Beav., 346 ; U. S. Bank v. Binney, 5 Mason, 188; Cameron v. Watson, 10 Rich. Eq. (So. Car.), 64.)
    Y. But if the books were properly admitted as prima facie evidence, their character, as exhibited on further investigation, should have deprived them of all weight as evidence.
    Though the maxim falsus in uno, falsus in omnibus, may not strictly apply to books of account (but see Forsyth v. Clark, 3 Wend., 637, 643; N. Y. Firem. Ins. Co. v. De Wolf, 2 Cow., 56, 68), yet even a stated account examined by the parties and settled between them, will be entirely opened and independent proof of the items required, where fraud, imposition or concealment is established. (1 Story’s Eq., § 523; Barrow v. Rhinelander, 1 Johns. Ch., 550; Bruen v. Hone, 2 Barb., 586; Ogden v. Astor, 4 Sandf. S. C., 311, 348 ; and see Blisset v. Daniel, 10 Hare, 493; 23 Eng. L. and Eq. R., 105.
    VI. But if the books were so far evidence as to conclude the defendant, except where he showed errors or omissions, yet the report does great injustice to the defendant in the several particulars.

      E. W. Stoughton, for the plaintiff, respondent.
    I. The partnership between the plaintiff and defendant was established by abundant and substantially by uncontradicted evidence.
    II. The loss sustained by the firm was proven by the accounts kept in their books, by the testimony of Way, their bookkeeper and clerk, and by that of Taylor; and this proof is neither controverted nor weakened by any introduced on behalf of the defendant.
    III. The fact of partnership having been established, the losses and their payment^y the plaintiff proven, and it appearing from the Referee’s report that he allowed to the defendant, by way of commissions, very large sums; all, indeed, which were claimed, it follows that the judgment should be affirmed.
   By the Court—Robertson, J.

Whatever may have been the relations of the parties to this action, the admissibility of the entries in account books kept under the plaintiff’s charge, affects vitally the validity of the judgment. Putting the case in the most favorable aspect for the .plaintiff, the parties were at most partners, and the admission of such entries is only to be vindicated on the ground that they were in partnership books.

There is no question that the general rule is well enough laid down for ordinary cases, that entries in partnership books, during the continuance of the partnership, are evidence against all the partners. But this is neither an arbitrary rule nor an exception to ordinary rules of evidence. For does the reason of it arise from any suppposed authority given by either partner to the other, to bind him by entries in his own favor, as is apparently intimated by Sir Knight Bruce, L. J., in Lodge v. Prichard, (27 Eng. L. & Eq. R., 474.) That would be equivalent to a man’s making a contract with himself, since no such authority can be delegated by one partner to another to create an indefinite liability by admissions in an account book. The true rule in regard to the admissibility of such entries is to be found in the case of The United States Bank v. Binney, (5 Mason, 188,) where it is laid down by Judge Story, with his usual fullness and clearness. In that case he states that the liabilities of the defendants in the case, as partners, depended qn their “knowledge of the entries. “ Whether they had such knowledge is matter of fact upon the whole evidence in the case. The ordinary presumption “is, in cases of partnership that all the partners have “ access to the partnership books, and might know the “ contents thereof. But this is a mere presumption from the ordinary course of business, and may be rebutted by “ any circumstances which either positively or presumptively rebut any reference of such access; such, for “instance, as distance of place, or the course of business of the particular partnership, and, indeed, any other cir- cumslances raising a presumption of non-access.” This doctrine is still further explained in Cameron v. Watson, (10 Richardson Eq., [So. Car.,] 92). Dargan, Ch., says, in that case: “ The admissibility of the books of a copart- “ nership, on questions arising between the partners them- “ selves, is founded on * * the right of each partner “ to have access to the books and to inspect them, and the “ presumption that he has, in fact, inspected them. * * “ His acquiescence amounts to an implied acknowledg- “ ment of a tacit assent to the correctness of the books. “ This is * * analogous to the well settled rule that if “ a creditor presents to a debtor his account as a statement “ of his demand, and the debtor examines it or retains it “ for examination, and makes no objection within a reason- “ able time, it is an admission of the debt.” Upon the same principle, in Hutcheson v. Smith, (5 Ir. Eq., [Exch.,] 123,) an item was rejected in partnership books, “ because “they remained altogether under the dominion of the “ defendant, and it did not appear that the plaintiff ever saw them.” In Heartt v. Corning, (3 Paige, 572,) Ohafc- ■ cellor Walwobth tacitly acknowledged the same principle, by qualifying the principle that partnership books are prima facie evidence against partners, with the proviso that they had access to them at the time or immediately after entries were made.

The opposite doctrine to this, is that' entries in partnership books are conclusive evidence against all the partners who had an opportunity to inspect them, or rather from whom they were not actually proved to have been withheld. This makes the legal presumption of actual access conclusive, in the absence of evidence of physical exclu- ' sion. The presumption of acquiescence follows quite easily when knowledge is thus presumed, and there is no evidence of dissent. Absence, incarceration, loss of sight, ignorance of writing or other physical infirmity, must, equally with other' evidence of want of access, be unavailing, since each partner can employ an agent', spy or sentinel to watch over the entries in the books. The doctrine must extend that far. The cases of Simms v. Kirtley, (1 Monr., Ky., 80,) Fletcher v. Pollard, (2 Hen. & Munf., 549, 550,) Caldwell v. Leiber, (7 Paige, 507,) Lodge v. Prichard, (ubi sup.,) and Stoughton v. Lynch, (2 Johns. Ch., 217, 218,) are cited as authority for it. In none of them was evidence offered and rejected of any omission or want of opportunity to examine the books by the parties sought to be charged. So far as the “course of thebusiness” in them can be gathered from the reports, it would seem that every one of the partners were actively engaged in conducting the business in one and the same place, and equally present and attentive, at their place of business, in its management. There seems to have been no question raised as to actual inspection. In Simms v. Kirtley, (ubi sup.,) the admission of the books was put upon the ground of a supposed agreement to appeal to them as evidence, and their being “ kept sub ject to the inspection of both. Fletcher v. Pollard, (ubi sup.,) is to the same effect. Whether, by being subject to inspection, is meant exposure to it, or actual inspection, does not very clearly appear. The ground of an agreement to be bound by such entries is, I think, untenable for reasons before stated, and it renders the fact of access wholly immaterial, as the entry precedes it. In Caldwell v. Leiber, (ubi sup.,) Ch. Walworth laid down merely the general rule, without regard to any qualifications as stated by him in Heartt v. Corning, (ubi sup.) Lodge v. Pritchard simply disposed of the questions as to the admissibility of one partner’s entry against the others. In Stoughton v. Lynch, (ubi siq).,) the controversy was wholly as to dates; the transactions themselves being apparently admitted or proved; the entries in the books, when appearing to be made in regular and orderly succession, were admitted to fix dates merely.

Of course the admissibility of entries in partnership books, in favor of strangers, has nothing to do with this question, as, in such case, all admissions made by one partner, whether orally or in writing, are binding upon the others in reference to partnership affairs. (Walden v. Sherburne, 15 Johns., 409.)

Taking the course of business in this case, and the conduct of the supposed partners as the test, there was enough evidence to overthrow any prima facie presumption of inspection of the books in question by the defendant. He was a dormant partner, (if one at all,) who took no part in conducting the business, except to furnish his. notes, and merely visited the place where the business was conducted, it being in the neighborhood of his own. So little did he interfere, that none of the clerks, but the bookkeeper, knew he had any interest, and even he did not derive his knowledge of that from any inspection of the books by the defendant. Substantially, all the books were under the plaintiff’s dominion, and he had important ones relating to the business not within the defendant’s reach. The purchases and sales were made exclusively by the plaintiff, who was the treasurer of the concern;' he paid all the bills and managed and directed the business in his own name exclusively. There is not a particle of direct or even circumstantial testimony to show that the defendant ever looked at a book. On the contrary, he seems to have acted as if his only interest was to ascertain if enough had been made to satisfy his claim. These circumstances, unexplained and uncontradicted, are conclusive evidence that the defendant never saw an entry in a book. The Referee has not passed upon the effect of such evidence in determining that the entries were admissible. He finds, as a fact, that the books were open to the defendant’s inspection, and on that alone he undoubtedly determined their admissibility as evidence.

Such entries were received in evidence solely because they were in the books. Hone of them were made by the plaintiff, but all by a bookkeeper, who might, for all evidence to the contrary, have been able to state the facts without the entries. They were, therefore, not admissible as independent entries, (Russell v. Hudson River R. R. Co., 17 N. Y. R., 134; Halsey v. Sinsebaugh, 15 N. Y. R., 487,) the witness being present and not showing any defect of memory. Entries of purchases and sales, except the few made by the witness, were clearly not records of his transactions ; and other entries were copies of those made by third persons.

Bor were such entries evidence by reason of having been made by a mutual agent. The bookkeeper may have been a common agent to charge the partnership as regarded third persons, by his entries. To make him a mutual agent, he must have had power to bind each partner to the others by entries in the books. It is well settled that the same person cannot act as agent between two parties, for both, because he cannot consult the interest of both in making a contract. But can a mutual agent be appointed to make admissions, either verbally or by entries in a book, alternately and mutually for or against either of two parties, and for or against the other ? Parties may employ a common agent to conduct a particular transaction, and agree, as between each other, to be bound by his narration of how he performed it. Such was the case of Peltier v. Sewall, (12 Wend., 386,) wherein a joint adventure was consigned to a foreign factor, who was authorized to make a return of sales, and such return was held to be evidence against both parties. In such case the statement of the common agent becomes mutually binding, not by the joint authority to sell, but by the mutual agreement to take it as binding. In fact, he becomes an umpire, and it is put on that ground in a similar case, (Riche v. Broadfield, 1 Dall., 16.) That he could not bind his principals, after the purpose of his agency was ended by a sale, is clearly shown by Washington, J., in Blight v. Ashley, (Peters’ C. C., 15-21.) A bookkeeper is a simple agent to enter transactions which have actually occurred, and the proof of which must be made out aliunde, not to create evidence of them at his pleasure. The Referee has not found, nor was there evidence to show, that the bookkeeper in question possessed any such authority. Even if he had been authorized to make sales, and enter them, there were entries in the books of purchases and payments not made of his own knowledge, and therefore the books were not, as an entirety, evidence against the defendant. Upon neither ground, therefore, that a mere bookkeeper is a mutual agent selected to determine with what sums each partner shall be charged in the partnership books, or that the person who made the entries in this case had such authority, particularly where it appears he had no knowledge of some of the transactions, were all the entries in the books before mentioned evidence against the defendant.

I think, therefore, that this case should go back for a new trial, for improper admission of evidence alone. But there are some other questions involved which, I think, ought upon such trial to be more fully disposed of than they are in the present report of the Referee.

The rights, of course, of the parties to. this action depend exclusively upon the nature of the transfer to them by-the Posts of their stock in trade, and the agreement made by and between both the former and latter at the time of such transfer; and such is the view taken by the Beferee. The mere subsequent admissions of the parties as to the nature of their relation to each other, of which evidence is scattered through the case, do- not amount to any modification of such agreement. The Beferee has given us most, if not all, of the terms of such agreement in his report, from materials carefully selected from the testimony, which, in some matters, is slightly conflicting; and his statement of them is undoubtedly sustained by the evidence. He does not, however, find whether there was an express agreement to share in losses as well as profits; and perhaps there is no direct testimony upon that point; that must1 be left to the legal consequences of a contract ■ for joint benefit. It also clearly appears that one of the terms of such agreement was that the business should be carried on for a definite time, viz., one year. By the plaintiff’s testimony it would appear that Varnum, another creditor of the Posts, suggested that if the parties to this-action would make the ■ proposed arrangement to carry on the business of the Posts, he would cash their paper. “ He agreed to advance “money on notes for a year.” The consideration to him was, that'“ the parties to this action should carry on the “ business for a-year, and after paying their debts, and “ all their debts, the profits should go to the creditors of “ the Posts. That was agreed to before the Posts cxe- “ cuted the transfer.” This is corroborated by the testimony of Way, (the bookkeeper,) Charles A. Post, and the defendant himself, and I think has some bearing on the liabilities of the parties to each other and the Posts’ creditors.

The transfer by the Posts to the parties to this action, although absolute on its face, was evidently only part of the agreement between the parties. If part óf the consideration for such transfer was that the parties to this action should carry on the projected trade for a year, with the assistance of Varnum, not only for the purpose of realizing the amounts of . their claims, but also those of all other creditors of the Posts, their obligation to the latter did not cease with any supposed acceptance of the transfer in discharge of their debts. The mere form of that transfer, as being of the absolute ownership of the stock, although it contains the words, “granted, "bargained and sold,” which are recited in the findings as the legal effect of the instrument, is no barrier to our access to the substance of the transaction. Upon the facts in evidence, and the substance of the agreement, as found by the Beferee, no one can, with any show of reason, say that the parties to this action could divide the assigned property on the instant of its transfer, and not move a step in carrying on the business agreed upon, without some responsibility to some one for breach of their agreement. The effect of the transfer and its acceptance was, undoubtedly, to discharge the Posts from all liability to the parties in this action, but they had an interest remaining in having the stock and good-will of their business employed in paying their creditors. .With the exception of the discharge of the original debtors, and the transfer of the legal title of the goods to the parties to this action, for the purposes of the agreement, this case does not differ, essentially, from that of Wheatcraft & ano. v. Hickman, (9 Com. B., 47.) It is true that in that case the debtors had expressly reserved to themselves any surplus after paying their debts, but, with the exception of the active trustees, the debtors were held to ,be the only persons liable for any engagement of such trustees, as being the only persons interested in the profits. Lord Cram worth remarked that “he received the benefits of them as they ‘accrued, although he precluded himself from applying ‘them to any other purpose than the discharge of his ‘debts,” and that the trade was still his. The mere receipt of the money by other creditors, in payment of their debts, was held not to be sufficient to make them liable, and, of course, they were not partners. The powers of partners were declared, in that case, to be a branch of agency, and the trustees had no authority to bind the creditors of the assignor.

If- this be so, as the defendant, unless he was to carry on the business after all the creditors of the Posts were paid, could only realize the amount of his debt in any event, he was not a partner participating in the profits as profits so as to make him liable to third persons. His liability to the plaintiff could, therefore, only arise out of an express agreement to pay one-half the losses in the joint adventure, if it was one. (Pattison v. Blanchard, 5 N. Y. R., 186; Ogden v. Astor, 4 Sandf., 311; Post v. Kimberly 9 Johns., 470; Ross v. Drinker, 2 Hall, 415.)

I think it, therefore, a matter of some doubt whether the agreement in this case, as found by the Beferee, sustained his finding, as a conclusion of law, that the parties in this case, in continuing the business, were partners, or that they -were equally liable for its losses, unless the defendant made some agreement binding himself thereto.

This becomes also important, because the business Avas carried on beyond the first year by the plaintiff, and the defendant had some reason to believe that the business had been profitable during that time. I think, in order to make the defendant liable for losses beyond the period fixed by the agreement, there should have been some evidence and finding as to his entering into a new agreement to charge him with the losses of the continued trade.

This reasoning, of course, is founded upon the supposition that, by the original agreement, the business was to cease when the parties to this action, and the other creditors of the Posts, were paid off, and not to continue for the whole jrear if that happened within it. If the defendant had any interest in carrying it on afterward, he would be, of course, liable as a partner; still, however, his acquiescence and participation in carrying it on the second year must be proved and found.

If the agreement, however, should turn out to be one by which the defendant was merely to lend his notes, to be discounted by Mr. Yarnum, for the benefit of all parties, to be applied by the plaintiff on a mere contract by him to carry on the trade for the purpose of paying off his own, and the defendant’s claim, and all other creditors’ claims, the plaintiff’s right to be reimbursed orie-half of his expenditures would be rendered more doubtful.

The case, however, must go back upon the question of evidence, when all the other questions can be determined.

The judgment should be reversed, and a new trial had, with costs to abide the event. The Beferee to be discharged, if either party desire it.

Bosworth, Ch. J.,

dissenting. The pleadings in this case are but six folios in length, while the Beferee’s findings of fact and conclusions of law occupy nearly nine printed pages.

The complaint states, that about the first of March, 1851, the defendant and plaintiff entered into a copartnership, under the name and style of “ James B. Taylor,”, in “ the hat and cap business, in the city of H. Y.,” and carried it on about two years, agreeing each to bear and pay half of the losses; that there were heavy losses, and that the defendant-refuses to account, or pay any part of the loss.

The referee has not found in terms, as a fact, whether there was a partnership or not. He has found a series of special facts, and his first conclusion of law is, the 'plaintiff and defendant “were copartners, and jointly and equally liable, as between themselves for ‘losses sustained in such trade and business.”

But the Beferee finds that, at the time when 0. H. and D. B. Post sold their stock of goods to the plaintiff and the defendant, it was verbally agreed between the latter two, and also between them and the Posts, “ that the said plaintiff and defendant would continue and carry on the business of manufacturing and dealing in hats and caps, * * and it was understood and verbally agreed between said plaintiff and defendant, that said trade and business should be conducted and carried on in the name of the plaintiff, “ James B. Taylor,” * * “that the said trade and business were so continued, conducted and carried on in the name of the plaintiff, “James B. Taylor,” with the result stated in his report.”

In the exceptions taken to the Beferee’s report, the second one is, “ the omission to find, as matter of fact, that the arrangement was that the plaintiff should carry on the business in his own name, and at his own risk, he agreeing, in consideration of defendant’s assistance, to secure to defendant, out of the business, the amount due ■from the Posts.” In accordance with this, is the defendant’s third point on this appeal, viz.: “ that defendant’s version of the arrangement is the only probable one, namely, that if defendant would furnish credit to buy fresh stock, plaintiff would agree to carry on the business, and work out of it, the amount of the defendant’s debt against the Posts.”

It is, therefore, quite evident that neither party claimed, on the trial, that if there was a partnership, the Posts were included in it. And the defendants position, if intelligible, is that Taylor went into the business at his own risk, agreeing in substance, that the defendant should realize his debt against the Posts; this involves the idea that the defendant not only relinquished to'Taylor all control of the stock bought by the two from the Posts, but all property in it.

The evidence was such, that a finding in terms that-the plaintiff and defendant formed a partnership and agreed to carry on this business as partners, and did so carry it on, could not have been disturbed as being against evidence. The actual finding amounts in substance to the same thing. When the evidence on the question of there being a partnership was “closed,” and the plaintiff proposed to go into proof of the state of the accounts, the defendant’s counsel objected, and “ the Beferee held and “ decided that, upon the evidence, the parties were part“ners, and that the accounts must be taken.” It is not, therefore, a mere presumption that he decided, as a fact, that the parties were partners, but it is stated, in terms, that he so decided. (See Grant v. Morse, 22 N. Y. R., 323.)

I have no doubt, upon the evidence, that the plaintiff' and defendant took the transfer of March 1,1851, in payment and satisfaction of the debts which the Posts owed to them.

The draft agreement (Exhibit No. 1) so declares, and that shows Yarn mu’s understanding at the time. St. John says that “Taylor & Herring were to receive the goods for their debts—that was the conversation then.” Way testifies that, “if there was a loss, it was to be borne by Taylor & Herring.”

Charles H. Post testifies thus : “I sold the goods to Herring & Taylor, for a consideration that I owed them, for the neighborhood of $11,000, which I owed part to each; * * I sold out the goods to Taylor & Herring, with the understanding that they were to give me my liabilities, to the amount of about $11,000.”

There is nothing in the evidence of Taylor or Herring tending to show that the business was to be conducted at the risk of the Posts, in any such sense that they were to share any of its losses, if any there should be, or that they were to continue liable on these debts to Taylor & ' Herring, if the latter were subjected to losses, instead of making profits.

They stipulated for the contingent benefit, if there should be profits, of having all the profits, after the debts of Taylor and Herring were realized and the expenses of the business paid, applied to pay debts owing to other creditors. If there had been such profits, those creditors could have recovered them in a suit against Taylor & Herring.

If there were any partners in continuing the business, they were Taylor & Herring only. The stock was theirs, they owned it jointly, and agreed at the time they bought it to carry on this business, and the subsequent declarations of Herring (if he made those which it is testified he made) show that he claimed to be interested in it, and to be carrying it on with Taylor. The case of Cox v. Hickman, (9 Com. Bench, N. S., 47,) is an authority to the point, that the creditors of the Posts, even if they had formally assented to the arrangement, would not, thereby, have become partners. The facts in this case, that the business was a new one, was carried on in a new name by "new parties as principals, and that the Posts had no power or right to control it, and stipulated for nothing to revert or be paid to them in any event, distinguish this case from Cox v. Hickman so materially, that it is not an authority in support of a suggestion that the Posts were partners in the new business.

The fact that the Referee states in his findings of fact, that the Posts, being indebted to Taylor & Herring, “ in consideration of such indebtedness, and in payment or on account of the same,” bargained, sold and delivered their goods, &c., does not appear to me to present any serious difficulty. This report does not, like the Code, contain a definition of some, or any of the words used in it. Ho one, therefore, can assert that his definition of any particular words in the report of the Referee, will express the precise idea which the latter designed to convey by them. But I think it quite clear that he did not use the words, “ on account of the same ” as synonymous with, “ as collateral security for the same.” That idea would conflict with the fact of a sale of the goods, which fact he finds. And the written instrument of transfer signed by the Posts, declares that they “ do sell ” the goods for the consideration of $11,636.73, and the transfer it makes is absolute and unconditional.

I think the Referee, if he should attempt to explain his meaning by a supplemental report, would show that he did not mean by these words anything materially different in meaning from that of the words “ in payment.” The words “on account” are frequently used to express the idea of a partial payment, and, as used here, are, as I think, designed to express the idea of satisfaction, discharge or extinguishment.

When, there is nothing in the report tending'Hc^show that words were used to express an idea justifying ah inference inconsistent with that naturally arising from other facts specially found, such as the fact of an actual sale of the goods, they should not be so construed as to create an inconsistency between that and other findings of fact, when they can consistently be so construed as to harmonize with each other.

I conclude, therefore, that Taylor & Herring bought these goods, and took them in satisfaction of these debts, and that this is the just construction of the Referee’s findings of fact.

Whether the creditors of the Posts could have held this property on executions against the latter, as against Taylor & Herring, it is useless to inquire. Whether they could or would not, will not aid in determining the legal relations between Taylor and Herring on the facts found, or their liabilities inter se.

The only important question, on the facts found, is, whether the books of account kept in this business were, on an accounting between these parties, prima facie evidence in favor of each one of them against the other.

The facts are found “ that the books of account of and “ relating to the said trade and business, and the transac- “ tions thereof, were kept at the said store, Ho. 142 Water “ street, by the bookkeeper employed for that purpose, as “ above stated, in which were entered and set down the “ purchases, sales and other transactions of and in the said “ trade and business, which hooks were at all times open to “ the examination and inspection of said parties (Taylor and “ Herring) and each of them ; that while said trade was “ so conducted and carried on as aforesaid, the plaintiff “ had his office and place of business at and in said store, “Ho. 142 Water street, and the defendant had his office “ and place of business in the immediate vicinity of, and “ was frequently in said store, Ho. 142 Water street.”

That Taylor “ neither purchased nor sold goods in or for account of said trade and business, nor made any entries in the books of account thereof.”

The language of the Court in Simms v. Kirtley, (1 Monr., [Ky.,] 80,) is very pertinent to the question under consideration, in a case like the present. The Court say that “ from the very nature of the case, the books of a partnership must be evidence between the partners themselves. Their situation is one of confidence. They agree to unite, and, as to others, to become one person, and the books of the firm are to speak their language and record their joint transactions, and there is an understanding that these books are to be appealed to to tell their true situation. To admit them as evidence, then, is only effectuating their agreement, and using their own criterion and test, to ascertain the truth. Such books, therefore, kept subject to the inspection of each, must be admitted as correct until.the contrary is shown.” Fletcher v. Pollard (2 Hen. & Munf., 544, 549 and 550) is to the same effect.

The question is not whether either party has neglected or omitted to inspect, but whether he has had opportunity to inspect; whether he has had access and could have inspected. The presumption is, that each partner had access, and an opportunity to inspect, until some fact is proved tending to show that a partner did not have access. United States Bank v. Binney (5 Mason, 176, 188) does not conflict with this view.

In Heartt v. Corning, (8 Paige, 572,) the Chancellor said that, “in stating the accounts of partners, as between themselves, the entries on the partnership books, to which both partners have had access at the time when those entries were made, or immediately afterwards, are to be taken as prima facie evidence of the correctness of those entries.”

In Caldwell v. Leiber, (7 Paige, 507,) the Chancellor says that, “ entries in the copartnership books, made during the continuance of the partnership, are, as a general rule, evidence for and against the different members of the firm, in a subsequent adjustment of their accounts between themselves. And it lies upon the party alleging a fraud •or mistake in such entries to prove it.”

In Lodge v. Prichard, (27 Eng. L. and Eq., 474,) Turner, L. J., said, “ I am aware that some doubt has been felt in the master’s offices whether entries in partnership books are evidence against all the parties, but I am not aware that any such doubt has been expressed by the Court.”

Kniuht Bruce, L. J., said, “Prima facie, the books of the partnership are evidence among all the partners, for them all and against them all, owing to the agency which pervaded all the partnership transactions. * * * The only question is, whether the books are prima facie evidence between the partners and their estates. In my opinion, they are.”

In Stoughton v. Lynch, (2 Johns. Ch., 217 and 218,) the Chancellor says, “I presume, and cannot but deem it proper, that in stating accounts between copartners, the true dates, as furnished Iny the hoolcs themselves,^ought to he assumed.’’'1 The point under the consideration of the Chancellor was, whether the defendant should be charged with various sums of money, at the times when he was debited with them in the books, or at anterior dates. And he held that the books must be taken as prima facie evidence on that point.

Entries made by one of the partners, during the partnership, in a book of account, are admissible evidence against both. (Walden v. Sherburne, 15 Johns., 409.)

An account of sales, rendered by a common , agent of both parties to one of them, has been held to be admissible as evidence against the other, of the facts stated in it. (Peltier v. Sewall, 12 Wend., 386.)

It seems to me quite clear that, as the general rule, the entries in partnership books of account, made during the partnership, are prima facie evidence for all, and against all the partners, on an accounting between them.

That where the books are equally open to the inspection of both partners, the mere fact that one may omit to examine them does not affect the application of the rule.

And that every consideration calls for the application of the rule in a case where no entry is made in the books by either partner, but all of them are made by a bookkeeper employed for the purpose, as the common agent of both.

I have examined all the cases cited, and several others, and do not find one where the books were not held to be grima facie evidence against a partner haying access to them and an opportunity to inspect them, merely because he omitted to do so.

The judgment should be affirmed.