23 N.Y.S. 217 | N.Y. Sup. Ct. | 1893
On or about the 9th May, 1879, the plaintiff, then being the owner of certain real estate in the city of Syracuse, executed and delivered to the defendants a conveyance thereof, which was dated May 6, 1879, acknowledged May 9, 1879, and recorded
The facts, thus far stated, are substantially as found at special term, and are not disputed. It is also found that the purchase by Lynch from Crawford, and the subsequent proceedings thereon, were in pursuance of an arrangement between Joseph Barton and Lynch,
The main claim of the appellant is that upon the evidence she was entitled to the finding that the deed was given as security. The agreement, if any to that effect, was verbal, and is sought to be shown from the negotiations between the plaintiff and her husband with Lynch, or from declarations of Lynch, and also divers surrounding circumstances are shown as bearing upon the probability of such an agreement. So far as the evidence rests in proof of negotiations or declarations, it is conflicting. Upon the one side, the plaintiff and her husband give their recollections of what was said at divers interviews between them and Lynch, and they are corroborated more or less by the testimony of their three sons, Joseph Barton, Jr., Wil
There are some other circumstances that may be briefly adverted to. It will be observed that the transfer by Crawford to Lynch was on 20th April, 1879, while the deed was not given till May 9, 1879. Ho other debt of the firm was purchased by Lynch, or compromised by him. The deed was drawn by Lynch, and sent to Barton on May 6, 1879. On May 8,1879, Lynch wrote to Mr. Barton to return the deed, and that he didn’t want it executed. Instead of doing this, Barton and his wife executed the deed, and sent it to Lynch. Barton in his evidence testifies that before the date of the deed propositions as to the block had been exchanged between him or his wife and Lynch, but that nothing definite had been concluded upon. If that be so, it may be argued with some force that the giving of the deed was entirely separate from any agreement for the compromise of debts. A part of the agreement between plaintiff and Lynch, as claimed by plaintiff, was that Lynch should indorse for her, upon her continuing the business. Still, very soon after she commences business, and on the 13th June, 1879, she gives to Lynch a mortgage of $10,000 upon her house and lot, upon which the $8,000 mortgage above referred to had been given, and also upon other real estate owned by her, and this was as collateral security to Lynch for all money he might advance to her, and for any notes he had or might have against her, or might indorse for her benefit. This mortgage was recorded July 3, 1879. Lynch thereupon indorsed for her benefit in her business, or helped her get credit to more or less extent, until August, 1885, when he declined to indorse further, and demanded payment of the $5,000 note given by J. Barton & Son, and for which he held the $8,000 mortgage. Upon this
Our attention is called to some exceptions to rulings upon evidence. Error is claimed in the admission of certain declarations of Joseph Barton. There was evidence that the management and control of the block while the plaintiff held the title was left by her entirely with her husband, and that he had full charge and management of her business then and afterwards until she failed, and that he was in fact her general agent. Evidence was received of his declarations as to the block in the negotiations that led up to the deed, and of the interviews between him and Lynch with reference to indorsements for plaintiff in the business after the deed, and in fixing the rent of the store to be used in plaintiff’s business, and as to leasing some portion of the block before the deed. The declarations of Barton, in transactions within the scope of his authority would bind the plaintiff. Story, Ag. § 134. Within this principle, no material error is apparent.
There are no other questions that call for special consideration. It follows that the judgment should be affirmed. Judgment affirmed, with costs. All concur.