Gerding v. Funk

64 N.Y.S. 423 | N.Y. App. Div. | 1900

GOODRICH, P. J.

The facts are so fully stated in the opinion hereto appended of the referee, Cephas Brainerd, Esq., as not to require repetition. Nor would any addition to that opinion be necessary, except for points argued before this court. It is true that the action was brought as upon an account stated, based on the letter of the defendant dated January 31, 1896. A good definition of “account stated” is given in 1 Enc. PI. & Prac. 87, as follows: “An ‘account stated’ is an agreement between persons who have had previous transactions, fixing the amount due in respect of such transactions and promising payment.” The letter, however, contains a statement that the amount named is for “withdrawal of suit for right of way claim, and for help in various ways which you have rendered and may render,” and that the agreement is “subject to the ratification of the reorganization committee.” If the agreement is not strictly in accordance with the definition quoted, because it referred to future services, and was subject to ratification by other parties, it is sufficient to say that the complaint alleged the facts upon which the plaintiff’s right of action was based, that the case was tried on that theory, that evidence of the whole transaction between the parties was given, and that substantial justice has been reached. While an amendment would not be allowed to support the reversal of a judgment (Volkening v. De Graaf, 81 N. Y. 268, 272), it may and should be allowed to sustain a judgment of this character, where all the facts have been before the referee, and by him passed upon. Besides, it is well settled that, under our present system of pleading, a suit does not fail now, as formerly, because the plaintiff has made a mistake as to form of remedy. Emery v. Pease, 20 N. Y. 62.

The referee, on conflicting evidence, found facts sufficient and necessary to sustain the judgment in favor of the plaintiff, and with such findings, after a careful examination of the voluminous record, we see no reason to interfere.

There are several objections to the exclusion of evidence, only one of which seems to us to require consideration. The defendant offered in evidence the stenographer’s minutes of three meetings of the reorganization committee of the Harriman & Northeastern Railroad Company’s affairs, at which Gerding, Sr., was present. Objection being made, the testimony was excluded, and properly. In the first place, Gerding, Sr., assigned to the plaintiff, in June, 1896, the claim upon which this action is founded. The meetings in question occurred in April and May, 1897. Of course, no act or declaration of Gerding, Sr., made after he parted with the cause of action, could be received to defeat the claim. Nor does it make any difference that Gerding, Jr., also was present. It does not appear that he participated in the discussions at any of the meetings. Mere silence on his part cannot be construed into an admission to defeat the claim which had already passed to him under the assignment. The promise of the defendant or "account stated” was dated January 31, 1896. It is true that it contained a claim making the promise subject to the ratification of the reorganization committee. But it is evident that there was such ratification, inasmuch as before the meetings in question the committee had turned over to the defendant, as a separate transaction, $5,000 of the bonds after he had rendered an account in which the claim of Gerding for $5,000 for services was included.

Besides, we cannot find anything in the report of the meetings which tended to prove bad faith on the part of the plaintiff, as alleged in the answer. It is true that certain statements were made by some one of the committee, but it appears by the report that Gerding, Sr., denied the truth of such statements. We do not find anything in the report which would have required the referee to find as matter of fact that Gerding, Sr., had violated his agreement with the parties in interest. The evidence, in our opinion, therefore, was properly excluded, and the judgment should be affirmed.

Judgment affirmed, with costs. AH concur.