13 N.Y.S. 473 | N.Y. Sup. Ct. | 1891
Concurrence Opinion
(concurring.) The plaintiff appeals from a judgment of non-suit. The testimony showed that plaintiff had for some years occupied a shop and store where he was engaged in the business of selling and repairing sewing-machines, and where he also carried on other branches of business. Among other machines he sold those of defendant. The retail price was $55, of which $20 went to defendant and the remainder to plaintiff. The plaintiff testified that he considered the machines his “after he signed for them,” and some support is given to that opinion by the fact that on one occasion defendant sued him, and entered judgment in its favor “for sewing-machines sold and delivered.” As early as 1885 a dispute existed between the parties, plaintiff claiming that defendant owed him $1,000 on account. He kept back $604 of money collected, claiming to hold it as an off-set to his claim. Being arrested, he executed to defendant a bill of sale of eight sewing-machines and other property as security for any balance that should be found due it. He was then set free, and restored to the possession of his goods. But no accounting took place, and it does not appear that the bill of sale was again referred to till it was produced on the trial of this action. In 1887 plaintiff claimed that the balance due him was as much as $1,500, and brought a suit to enforce his claim. It appears that in the course of that litigation a motion was made to punish defendant for contempt, and a reference to take proofs was pending. While affairs were in that position a conference was had in the office of defendant between its president, city manager, and other employes, where it was resolved to- eject plaintiff from his store, and take and hold possession. That was done .by defendant’s agents without legal authority; a policeman attending, as he expressed it, “to prevent a breach of the peace.” Numerous witnesses were examined. None of them testify that any claim of right was asserted on the part of defendant or its agents. After plaintiff was ejected, which required some violence, defendant continued in possession of the store, "and, as subsequently appeared, allowed the steam-engines and other property to be destroyed by neglect. The plaintiff then began proceedings against Steele and Irving, agents of defendant, who expelled him from his store, which resulted in a warrant for its restoration. Before the warrant was obtained the landlord gave a lease to another agent of defendant, so that possession could not be delivered under the warrant; and various unfounded criminal charges were instituted against plaintiff by the company’s agents, and, clearly, at the instigation and for the benefit of the company. The result evidently aimed at by these various proceedings was at last produced, namely, to reduce the plaintiff to such distress that he could no longer contend against the company, and to compel him to make his peace with it at its terms. When he applied to it to restore his property, saying he could resist it no longer, they required, as the only conditions, that he execute a release of his claims against the company for malicious prosecution, and of his claim of $1,500. He consented, and the company caused a general release to be prepared, in which was inserted a particular clause and agreement not to interfere with the collection by the company of the moneys due for machines sold by plaintiff. It contained no other special clause, and in that form it was executed by plaintiff, whereupon defendant directed its agent in charge of the place to deliver possession to the plaintiff, which was done. . An examination then disclosed to plaintiff what he had, up to that time, been ignorant of, viz., that Ms machinery had been damaged by neglect and by the elements, and a large part of his tools and other property, including 16 machines, and a valuable recipe for decorating tin, removed, inflicting injuries to the amount of several thousand dollars. Upon proofs of these facts at circuit, the judge, being of opinion that the claim was extinguished by the general release, directed a nonsuit, from which an appeal is brought. There can be no question that the original taking was wrongful. The only-suggested justification was under the “ bill of sale” executed two years before;
Lead Opinion
This case should have gone to the jury. The defendant is a manufacturer of sewing-machines. The plaintiff sold machines for the defendant. The precise nature of the arrangement is not very clear, but whether the plaintiff was a purchaser of the machines, or was merely an agent to sell them, it seems clear that the price of the machines was not payable by plaintiff to defendant until after they were sold. Kirchner hired the store and had property of his own in it. The defendant arrested the plaintiff for misappropriation of moneys collected, and the plaintiff was put in jail. The plaintiff made a bill of sale of his property in the store, or of some of it, and was released. This bill of sale was given as security for any claim which the defendant might have against the plaintiff. The plaintiff after his release began suit against the defendant to recover $1,500, which he claimed to be due him. If he was right in his claim, then the plaintiff has not misappropriated the defendant’s money; for the claim he made was much larger than the amount which the defendant claimed to have been misappropriated. The plaintiff commenced proceedings to punish the defendant for a contempt of court, the particulars of which do not clearly appear. The defendant then forcibly took possession of the plaintiff’s store under the bill of sale, and of all the property in it, and kept it some three months. There were other legal proceedings taken in the mean while. On the 27th of February, 1888, the plaintiff applied to have his property restored. The defendant agreed to give the store and contents back upon receiving a release of the plaintiff’s claim for the $1,500 and from the action for false imprisonment pending; for there had been arrests made beside the arrest for misappropriation of money. The release drawn was a general release. There were circumstances surrounding the transaction which tended to show duress and oppression, and also that it was not intended to cover any right outside of certain specified claims. It did not cover a refusal to give back the property taken from the plaintiff, for that was the sole consideration of the papers, whatever was in fact intended to be released by it. The complaint alleges that this was not done, and that certain property, which was delivered back, was in an injured condition. The judgment should therefore be reversed, and a new trial granted, costs to abide event.