27 Neb. 346 | Neb. | 1889
This action is brought on error from the district court of York county.
Philip Puyear, the plaintiff below, brought his action for conspiracy against John W. Hinckley, Richard D. Booker, and Arthur A. Allen and Edgar IT. Allen, partners in trade as Allen Bros., doing business at Omaha, alleging that on January 1, 1887, and prior thereto, the defendant Booker and the plaintiff were partners in the retail grocery business at York, doing a prosperous business, in Avhich plaintiff had invested $1,000, and the good-will of the business was valued at $500; that on said day the defendants unlawfully entered into a conspiracy to break up his said business and defraud the plaintiff of his money invested, and of the good-will .of the business, in pursuance of which they agreed together that Booker should buy of plaintiff a one-half interest in said business under the pretense of a fair and bona fide purchase, but intending not to pay for the same, and that the half interest should be delivered to Booker before payment, and that he should then declare himself insolvent, dispose of his property, and refuse to pay any of the indebtedness of the business, and inform Allen Bros., to whom the business of plaintiff and Booker owed $267 for groceries, that they should come and superinduce plaintiff to give a bill of sale to them of his half interest in said business, and that at the time of making and securing the bill of sale the defendant Hinckley should come forward and claim that he owned a half interest in the grocery business which he had purchased of
That, in pursuance of said conspiracy, the defendant Booker, on the 29th of December, 1886, under pretence of a bona fide purchase, obtained from plaintiff the one-half interest of said grocery business, and took possession of it, and declared himself insolvent, disposed of all his property, refused to pay any indebtedness of the grocery business, and so informed Allen Brothers, who then came and promised and superinduced the plaintiff to give them a bill of sale of his half interest in the grocery business, and to induce
The case is now brought to this court on numerous exceptions to the proceedings and judgment of the court below. The evidence, preserved in the bill of exceptions, is voluminous and conflicting. The testimony of the plaintiff, who was examined as a witness on his own behalf, was evidently believed by the jury, and, so far as this court of review is concerned, must be taken as credible and true if not found to be inconsistent in itself. From his testimony it appears that in November and December, 1886, the plaintiff was carrying on a small grocery business in the town of York. Looking at his testimony alone, and without making allowance for the peculiar manner of his examination by counsel, it would appear upon the first reading that he was in the business by himself; but on examining it by the light of other testimony it appears, without discrediting auy of his statements, that at the time' he was in partnership with one Kempton. The plaintiff had invested in his business about $1,000; Kempton had invested really nothing except his note to the plaintiff for $400. On December 27, 1886, the defendant Booker succeeded to the partnership . of Kempton, by purchase from Kempton, or the plaintiff, or from both; the fact is not clear, but it is shown that Kempton’s note was given up, and Booker’s for a like amount was substituted. The plaintiff testifies that it was his understanding and argument with Booker, when he came into the business, that he was to pay plaintiff this $400; that he then represented to plaintiff that he had the money in the bank to pay it, and that he was also to pay one-half of the bills then to be paid by the partnership, for which he represented that he had the money. On the next day he came into the store, and, upon looking over the book
“Well, I thought about it, and told him to pay me $700 cash, and I would do it. I thought it was better to get out than to be there in the way, and if he would pay me I would get out; and he wanted me to wait on him for the money; I told him I didn’t want to wait, that I wanted to go into business again and would have to have the money; and then he and Hinckley stepped out and were gone a few minutes and then came back, and it wasn’t over ten or fifteen minutes before Mr. Allen and his attorney came in. Mr. Allen began to talk and I looked over the account books and said to him, ‘I just owe yon two dollars on your bills, that is, back payments;’ .and he said to me, ‘that is just exactly what you owe me;’ well, I told him that I didn’t know, that Ferguson said he would send down for you, what for, I didn’t know; I didn’t know what good he could do me, and wanted to know ‘if he was going to shut*352 me up?’ He said no, not to be uneasy about what I owed him, that I had always paid promptly; he said not to be uneasy, that the trouble would all be fixed up; that he would try and straighten up with Booker and get him out of there and have things running all right again.” The witness also testified: “ I told him Booker was here, and Mr. Allen stepped down to talk with Hinckley a minute or two, and came back and informed me that ‘Hinckley ■was a member of the firm, and owned half the store.’ I told him that was the first I knew of it, that Hinckley was a man that didn’t own anything; that he had been working all winter for his board, and so he and the attorney went to where Hinckley was standing and talked with him, and I went about the store attending to my business, and then went to supper and came back, and Allen sent for Booker who came in and they spent the evening talking with others there at the other end of the store.”
Q,. Who did they spend the evening with?
A. Allen, and his attorney, and Booker, and Hinckley.
Q,. Talking together at the other end of the store?
A. Yes.
Q,. What were yon doing?
A. I was attending to my business. I never heard anything that was said at all. About half past eight o’clock Mr. Allen came and took me to the lower end of the store and said: “Puyear, I see how this trouble is, Booker has sold out and turned the whole thing over; there is but one way to get out and save trouble; that is, in the evening I want you to come forward,— my attorney will make a bill of sale out, — we want to get Hinckley into it, and you just step forward and sign the bill of sale first, and then we will go ahead and take an invoice of the store, and when we get through we will keep so much for ourselves, kick Hinckley out, he has not paid but $50 anyhow, pay him up his $50, and kick him out, and turn it over to you, and just furnish you goods right along.” And then Allen went
Q,. Who was the attorney?
A. I think they called him Fitz.
Q. Is this the gentleman here?
A. Yes, sir; I think so.
The witness answered to the
Q,. Well, what occurred then?
A. The attorney told me the same thing, und I said to him, Look here, I have thought of another thing: suppose after I go and sign the bill of sale you should sell out the whole stock at forced sale; it wouldn’t bring $400, and it would leave me in a bad place; all I have got is right here; and he said he wouldn’t think of the like. Well, they talked so fair, that I agreed to sign the bill of sale; so we adjourned that night and I gave up the key, and Hinckley stepped forward and handed over, as well as I remember, $34.10 that was in the drawer. * * *
Q. What key was that — key to the business?
A. I went out and took it to Mr. Allen’s attorney; he and Allen were standing in front of the store, and the attorney said: “ Booker wants me to take the keys until to-morrow morning.” I thought he wanted to keep the keys from Booker, and so I told my son to lock the door and give the key to Mr. Allen, and he did so. Then the next morning I came up and went into store to see about the invoicing; when I got in Mr. Allen took me to the lower end of the store and said, “ Whenever we bring forth the bill of sale,” he says, “ you step forward and sign it, and then we will go ahead and have everything ready.” So I had no more than got back before his attorney took me off again and told me the very same thing, and I told him T would sign the bill of sale; and then Mr. Allen took me back and showed me a statement they had drawn up, — they had looked over the goods, and the items I don’t remember, but there
Q,. He said there was that amount of goods?
A. Yes, sir; they were satisfied there was that amount of goods then.
Q. "What occurred then?
A. Well, I went out and my son came out and told me they wanted to see me, and I went in, and the attorney holloed to me “to come around and sign the bill of sale, sign it quick, quick! quick!” he says, “we want to get Hinckley into it.” “Now,” he says, “Mr. Hinckley, you come in and sign it, and he can go to hell,” that’s all.
Q. Then what?
A. They had put on the door, “Invoicing: will be open soon.”
Q,. Who put it there?
A. I suppose Allen, or the attorney; they appeared to be running things.
Q,. Then what occurred?
A. He came up and peeped out over the door, Allen did, and spoke to me, and said, “you are going back in business now;” again he said, “ now you go out and tell people we are invoicing, and will be open soon, and you are going back in business.” So, I went out and told them when any one asked me, there was a little trouble between myself and Booker, and we should commence again that evening. I stood out for some time and then went in at the back door; they wanted me to go home, but I stood around; I wanted to keep Hinckley away from there, but they wanted him to stay, and me to go, and so I went home, and left Hinckley in the store. I staid till noon and came back and it was closed yet, and the sign was there yet. I went in at the south door, and Hinckley was there still; they spoke and said they had concluded to send the goods around to different stores, and I could get them together after I commenced business. So I went on
Q,. At that time did you see the attorney of Allen Brothers?
A. Yes, sir; after Allen left he came up to me, and told me the very same thing, word for word.
Q. What next occurred?
A. He told me to take the books home, that Hinckley had no right to them, that he had nothing in the store; and so I just took the books on home, and went to bed, and slept sound, and thought everything was going on nice. I didn’t see anything more of them until next morning, between nine and ten o’clock, I met Allen on the street corner near the First National Bank, and asked him how the thing was going along? He said, “Smoothly; they got out about $75 worth of goods the night before, and a few that morning,” and he said, “ I’ll bet this morning there is more than $500 worth there now; and we are holding them goods up to get all out there is in- them. I told him that was what I wanted. The next thing I saw of them was at half past three o’clock, he and his attorney came to me and said “that there wouldn’t be anything left; it would take every thing to pay Allen’s bill;” and Mr. Allen made some remarks — that was the first I knew I was
Q,. State whether you ever saw any of those goods after-wards, and if so, where ?
A. The next I saw of them was here, on the west side of the square, in the possession of Hinckley & Booker.
Q,. In a store there, were they ?
A. Yes, sir.
Q,. Were those the goods you had in your store ?
A. They were.
Q. How many did you see there ?
A. It looked like there might have been $500 worth or more. * * *
Q,. After you saw those goods in Hinckley & Booker’s possession was there anything said by you to them, and if so, what was the conversation ?
A. I had a conversation with Hinckley, he said the agreement with Allen Brothers was that they should turn the goods over to him ; Booker said that Hinckley had passed into the possession of the goods.
In reply to counsel the plaintiff stated that there was about $1,000 worth of goods when defendants took possession, and about $115 worth of fixtures ; that Hinckley & Booker took the fixtures, he understood, and they were over there in their store. This is the pith and strength of the plaintiff’s testimony, as given in his own behalf, on his examination in chief. There was a cross-examination at length, but, as it appears, without material difference or effect as to the credibility and value of his evidence. There was also called a number of witnesses who testified in his behalf and corroborated his statements generally as to the value of the goods, and in some other respects.
The defendants also called and examined a number of witnesses, including Arthur Allen, the defendant T. J. Ferguson, the traveling man, Booker and Hinckley, and
It was doubtless considerations of like nature that induced the jury to believe the plaintiff’s evidence, when in some important particulars he was “withstood to the face ” by more than one of the defendants.
The law of the case was given to the jury in eleven impartial and well considered instructions, neither party taking exceptions to any. The errors relied upon by counsel in the brief are :
1. In admitting any evidence against Allen Brothers, the petition not stating a sufficient cause of aclion against them.
2. The verdict is not supported by evidence.
3. That the verdict is contrary to law.
By the initial statement it will be seen that a considerable part of the petition alleges conspiracy against all the defendants. In this the pleader followed a prevailing custom in like cases. It was probably drawn from the precedent of Neudecker v. Kohlberg, 81 N. Y., 296, cited by
The real cause of action presented by the petition is, that the plaintiff, who was in possession of the one-half interest of a stock of groceries, valued at $1,000, was induced to sign a bill of sale of his interest for the ostensible purpose of enabling the defendants Allen to take from the whole stock $267, the indebtedness of the plaintiff and his partner to them, under their promise that, after taking out the amount due, they would return the balance of his interest to him; and that, instead of returning the balance to him, after deducting the indebtedness, they delivered it over to their co-defendants, one of whom was the owner of the other half-interest only. This allegation, if true, was a wrong for which the plaintiff was entitled to a remedy, and not only against the defendants Booker and Hinckley, but also against Allen Brothers, who, through the false representations alleged to have been made by Arthur Allen, a copartner of the firm, controlled the conversion of the property in the manner stated, and defrauded the plaintiff thereof, and it was not error for the court to receive evidence tending to prove such allegations.
The second and third objections may be considered together. The supreme court of Vermont, in case of Sheple v. Page et al., 12 Vt. 519, held that “in an action on the case in the nature of a conspiracy, the gist of the action is the damage to the plaintiff and not the conspiracy. (2.) Where conspiracy is charged in a declaration between two or more, the acts of one, in pursuance of the conspiracy, are the acts of all in legal contemplation, and may be alleged in such case in the declaration as the individual acts of the one.”
* * *
“An actual conspiracy can seldom be proved unless by circumstances; but if there be no evidence of conspiracy, the plaintiff may recover against one alone where there is sufficient evidence against him though not enough against the other. This being an action founded in tort, one defendant may be found guilty and the other have a verdict in his favor. The damage here is the gist of the action, not the conspiracy; the plaintiff showed damage, and if it resulted from the wrongful acts of the defendants, or either of them, the plaintiff was entitled to recover.”
From these examples I conclude that although the plaintiff in the petition charged a conspiracy against Booker and Hinckley and the Allen Brothers, yet it was not neees
The judgment of the district court is affirmed.
Judgment affirmed.