22 A.D. 132 | N.Y. App. Div. | 1897
From the year 1874 down to December, 1886, the defendants were law partners under the firm name of De Forest & Weeks, when their partnership was dissolved by mutual consent. After that time, however, down to the year 1890, at least, they remained in the same offices which they had occujiied when they were in partnership, and there was no change in the condition of affairs in those offices, the firm name remaining upon the outer door as before and each member of the firm occupying a private room, upon the door of which his own name was painted, opening from the main office, so that after the dissolution of the partnership any one who was not aware of the real fact that the partnership had been dissolved and that they were doing business individually would have been justified in assuming that they were still law partners. In the year 1875 the father of the plaintiff died, and Mr. De Forest became one of his executors, and the firm of De Forest & Weeks were counsel for the estate. After that time and down to 1883 the plaintiff had more or less business, in his capacity of devisee of his father’s estate, with the firm of De Forest & Weeks, and was aware of the existence of the firm. In 1883 he went abroad to live and remained there until 1888, when, having married, he returned to this country. Shortly after his departure from the United States
It appeared upon the trial that no money whatever had been
When the testimony was closed, the defendant moved for the direction of a verdict upon the ground substantially that the
Upon these undisputed facts, we are of the opinion that the plaintiff failed in his effort to show that the firm of De Forest & Weeks, as such, were liable upon their retainer to receive and pay out this money, or that the retainer included any such duty on their part. Admitting that they were retained as a firm for the purpose of examining the title, as is said by Mr. Andrews, it does not follow that they were retained for the purpose of completing this purchase. The duty of the examination of a title does not usually impose upon those who are retained for that purpose the duty of the raising of money by mortgage to complete the purchase, and certainly not the duty of advancing money out of their own pockets to pay incumbrances upon the property bought. Unless there was a special arrangement by which the firm of De Forest & Weeks agreed to take upon themselves that duty, as well as the usual examination of the title, they were not called upon to do' it. There is no claim in the testimony of the plaintiff that he employed them for any such purpose. On the contrary, it appears not only by what he says as to his conversation with Weeks when he first spoke to him about the examination of the title, but by the accounts which were furnished to him and which were received by him without objection, that the receipt and payment of the money was to be made by Weeks, and was made by by him in his capacity as attorney in fact engaged in the management of the plaintiff’s affairs. No other conclusion can be drawn from the testimony of the plaintiff. If Weeks were at that time the partner of the other persons who composed the firm of De Forest & Weeks, or if the circumstances were such that the plaintiff in retaining them had the right to believe that he was still a partner, as may be assumed for the purposes of this case, it yet does not follow that the firm as such were liable for a fraud committed by Weeks under his personal employment by the plaintiff. A fraud committed by a partner while acting on his own separate account is not imputable to the firm, although had he not been connected with the" firm he would not have been • in the position to commit the fraud-(1 Lindley on Part. [Ewell’s ed.] 309.) As a matter of fact it
Van Brunt, P. J., Barrett, Williams and Patterson, JJ.-, concurred.
Exceptions sustained and motion for new trial granted, with costs to the defendant to abide event.