27 N.Y.S. 579 | N.Y. Sup. Ct. | 1894
This action is brought to set aside a deed made in 1884 by this plaintiff to William D. Bowerman, deceased, and for a copartnership accounting. It is alleged that, in 1882, William D. Bowerman fraudulently represented that an indebtedness of $12,-000 existed in his favor, and against the plaintiff; that plaintiff be
To open an account stated, it is usually required that the account be produced, the- errors pointed out, whatever has been entered in error or wrongfully omitted being shown, the necessary rectification can be made, and, so far as not impeached, the áccount will stand as stated. In the present case the account is not produced, and the parties who examined it do not claim to remember any of the items. Obviously, it must have been a statement which, if true, would prove the $12,000 debt, and the plaintiff testified that he believed it to be true. It cannot be said that he was hasty in acting upon his belief, for it was two years before he made his deed; and apparently no thought of questioning the deed or the account stated occurred to plaintiff until after his brother’s death. The ground upon which we are asked to find the account stated to be false and fraudulent is that an examination now made of such accounts as can be found is said not to show the plaintiff indebted to William, but the contrary. If none but firm transactions had taken place between the partners, there would be considerable force in the argument, for the firm books were regularly kept by expert bookkeepers; they were constantly open to the inspection of all the partners; trial
We think an error was committed in excluding evidence of William D. Bowerman’s reputation for honesty, integrity, and general reputation of character during his lifetime. The contention of plaintiff is that, during a long term of years, a man, now deceased, carried out a comprehensive and consistent scheme of fraud, involving enormous sums. The evidence-was circumstantial. One of the witnesses was the plaintiff, and another principal witness was plaintiff’s brother, who might reasonably have expectations of benefit from a recovery by plaintiff. Such writings as were produced came from plaintiff’s custody. The transactions were ancient. It is not usually the case that men with a reputation for honesty and integrity embark in a scheme of persistent fraud, and, if they do, it is not often they can carry it on for years without discovery. Under the circumstances of this case, we think the testimony admissible, and its exclusion error.
Judgment must be reversed upon both law and fact, and a new trial had before another referee, with costs to abide the event. Let the order be settled on notice. All concur.