91 N.Y.S. 1069 | N.Y. App. Div. | 1905
Lead Opinion
• The complaint in this action alleges that in the month of October, 1903, the plaintiffs, composing the firm of Campbell & Reid Western Sale Stables Company, sold and delivered to defendant forty-seven horses at the agreed price of $7,647.25, which has not been paid, although due, and judgment is demanded for that sum and interest. The answer, in so far as it need be considered, admits that the horses referred to in the complaint were delivered to the defendant, but denies that tliey were sold to him by the plaintiffs, and alleges that he received them from the Campbell Horse' Company.
Upon the trial the court, without objection from either party, stated that the issues to be determined were: First, whether the horses had been sold or had been only consigned to the defendant, and, second, if they had been sold to him, whether the sale was by the plaintiffs’ firm or by the Campbell Horse Company. And at the close of the evidence the court in its charge stated the contentions of the respective parties, and defined the issue to be determined by" the jury as follows: “ The plaintiffs claim that they are and were copartners in business under the firm name of the Campbell & Reid Western Sale Stables Company, and that as such, in the latter part of August, in the year 1903, they and the defendant had an understanding to the effect that the plaintiffs were to ship to the defendant horses for which the defendant was to pay the cost price and added expenses,” and also certain specified commissions ;■ “ the defendant, on the other hand, .claims that he had no transactions whatever with the plaintiffs’ firm, known as the Campbell & Reid Western Sale Stables Company, but that he dealt only with the Campbell Horse Company, with whom he claims that he had an: Understanding to the effect that the title to the horses which such firm was to ship to him would remain in the Campbell Horse Company
, ■ It is not necessary to- set out in detail the testimony bearing upon the conflicting claims of the respective. parties. It. is sufficient to say that there was a sharply contested question of fact, as defined by the court, which was properly submitted to the jury; and the‘finding thereon is not against the weight of evidence. The confusion that has arisen as to the identity of the real party with whom the defendant dealt was caused by the'circumstance that both. firms were engaged-in the same business, the. buying and selling of horses on commission; by a. similarity in the names of-the two firms, and by the fact that the members of the plaintiffs’ firm -were ■ all members of the Campbell Horse Company, and the transactions of the. two .firms were so intermingled that the business of the one could with great "difficulty be distinguished from the' business of the other. Concerning, the'defendant’s dealings with these firms the evidence disclosed the following facts : Prior to. June 11, 1903, he had .been a- copartner with the horse company under the firm name of James Emslie & Co., engaged in buying horses in the west, bringing- them to the., east and disposing of them in Hew York city and Weehawken* H. J. On the last-mentioned day the partnership was dissolved by voluntary agreement, tlie defendant succeeding to tlie' business* acquiring title to all the horses on hand, and agreeing to pay for the horse, company’s, interest in the partnership the sum of $37,476.70, the same to be paid in installments at. the. times.specified-in the dissolution agreement. The defendant testified that after the dissolution he had conversations, with oné Campbell and one. Beid who were-members of both companies, relativé to the párchase by- him of horses from the Campbell HorSe Company; and that. in one of the conversations with Beid, who seems to have been the active business manager of the horse company in the east, á con
Before taking up that branch of the appeal, and in order to properly understand the force' of certain objections made by plaintiffs, it is necessary to consider .the peculiar standing of the man Van Hess, who has already been referred to. He was.originally in the employ of the Campbell Horse Company, and when it entered into partiiership with the defendant he was sent east, nominally to act as bookkeeper of the new firm at its office in Weehawkeñ, H. J., b‘ut it is clear from the entire evidence in the case .that his real duties were to look after and .protect the interests of these individual plaintiffs in that partnership as distinguished from the interests therein of this defendant, the other partner. Van Hess kept the people whom he represented informed of all that transpired in that business, making regular reports to them of its dealings and financial condition, arid when the partnership was dissolved a provision was inserted in the dissolution agreement that he should remain with
.The invoice so called, which was in reality a bill from the express •company for the carriage or freight of the horses, was regarded-by | both'parties as part of the res gestee / and for this'reason as wéll as .for the reason already given, the defendant’s version of the conversation regarding it .was, we.think, admissible. :
. The recapitulation of the testimony shows ' its materiality and competency. It bore upon the question of which party shipped the-horses to the defendant, and the statement'made by. Van Hess-that “ C. II.' Co.” meant-the “ Campbell Horse Company ” was competent, we think, as a statement by him which would have beén. binding upon the plaintiffs’ firm if the jury should find from tlve evidence, as they were justified in. doing, that he representedv tire interests of the plaintiffs in. that firm. Surely such a statement by'one who was-authorized to represent them was competent as bearing .upon- the question, of whether they, shipped the horses.
The invoice or bill referred to was then offered in evidence and objected to by plaintiffs as irrelevant, incompetent and -not binding upon them. The objection was overruled.. and exception taken. We think 'this ruling-also was proper ; the bill ór invoice was part of the res gestee. It showed the .delivery of the horses and the payment of the freight therefor. . The defendant had testified that the horses were shipped under the contract which, he had with the Campbell Horse Company that they should send him' horses and charge him the price paid therefor together with shipping expenses. Here Was a receipted bill -showing the amount of the- shipping charges .upon- these particular horses, and that the same had been
■ Exception was also taken by the plaintiffs to so much of the charge of the court ás referred to this conversation and the freight bill. What the court said in that respect is as follows: “ It appears that the receipt to which reference was made, was given by the H. S. Express Company to the defendant. Hence it is not binding upon plaintiffs, except in so far as the plaintiffs may have made admissions with respect thereto, but the receipt itself is not binding, I repeat, except yon find admissions were made by the plaintiffs in regard thereto. * *•* If you find that Van Hess was the agent of the plaintiffs, and not of the defendant and that he made any admissions with respect to the receipt so given by the H. S. Express Company, you may take the same into consideration, together with all the other evidence and circumstances in the case.”
We think this charge was correct. It coincides with our idea 6f the force and effect to be given to the bill or invoice. It left for the determination of the jury the question of whether or not Van Hess was the agent of the plaintiffs, and as we have already pointed out, there was sufficient evidence to justify a finding that he was. It instructed the jury that the freight bill was not binding, except so far as the plaintiffs through this person might have made admissions with respect to it; and it instructed the jury that, under these restrictions, they might take the freight bill into consideration as they would any other evidence in the case. All of this was proper.
We have examined the other exceptions taken by the plaintiffs, but find none that requires a reversal; therefore, the judgment and order appealed from must be affirmed, with costs.
Van Brunt, P. J., and Patterson, J., concurred; Hatch and Laughlin, JJ., dissented.
Dissenting Opinion
(dissenting):
I am unable to concur in the view expressed by Mr. Justice O’Brien in this case. . It is undisputed that the plaintiffs shipped to the defendant from East St. Louis, in the State of Illinois, to the city of Hew York forty-seven head óf horses of the value of
Upon the trial evidence was offered by the defendant tending to establish that the horses were consigned to him by the Campbell Horse Company. To this testimony objection was interposed that' it was incompetent, immaterial, irrelevant and was not embraced within the pleadings. The court overruled the objection, to which the plaintiffs excepted. Subsequently a motion was made to strike out the testimony and the court reserved its decision. Defendant’s counsel thereupon stated that if the court held against him upon such question lie should ask leave to withdraw a juror and amend his answer. It does not appear from the record that the court ruled upon the motion to strike out or that the answer was amended, and it in fact submitted such question to the jury in its charge. The evidence, however, was inadmissible, the objection interposed properly raised the question and reversible error was committed in its reception. ’
The plaintiffs’ "counsel excepted to the refusal to charge as requested and to the charge as made. It is clear, therefore, that . the jury were not only authorized to consider the receipt given by the express company, but they were also authorized -to find that Van Ness made the admission concerning it; that the shipment Was from the Campbell Horse Company, and if they found that Van Ness made such admission, then it was binding upon the plaintiffs, and from- the whole the jury were authorized to conclude as they did, that the defendant dealt with the Campbell Horse Company, and not with the plaintiffs, and that the latter, therefore, had no cause of action against .the defendant! The improper evidence was used and, as used, operated to establish a controlling element in the case.
It follows from these views that the judgment should be re.versed and a new trial granted, with costs "to the appellant to abide- the event.
Laughlix,-J., concurred.
Judgment and order affirmed, with "costs.