Mead v. Shepard

54 Barb. 474 | N.Y. Sup. Ct. | 1867

By the Court,

E. Darwin Smith, J.

The referee finds, as matter of fact, that the defendants were partners in the business of purchasing land in the counties of Wayne and Seneca, and the cutting and sale of wood thereon, from the 24th day of January, 1865, until after the 16‘th day of September of the same year; and that as such partners they cut, or caused to be cut, wood and logs on a tract of" land known as the Armitage ltit, and also on a tract of land known as the Smith lot, and were engaged in the construction of a saw-mill on said Smith lot. The whole case depends upon this finding; for there is no question, or room to doubt, that the judgment is right if this finding upon the fact is warranted by the evidence. The legal conclusions drawn by the referee are clearly correct upon the premises assumed by him. We are therefore asked, in reviewing this judgment, to set the same aside on the ground that the report of.the referee upon the facts upon which it is founded is without evidence, or against the clear and decided weight of the evidence. Upon the clear and undisputed evidence in the case, aside from some evidence which perhaps was erroneously received against the objections of the defendants’ counsel, it seems to me that the report of the referee not only cannot be set aside as against the evidence, but is clearly right and in full accordanee with the fair and just weight of the evidence. The defendants, by their agreement in writing of the date of January 24, 1865, became jointly interested in an adventure for the purchase of lands in the counties of Seneca and Wayne, and for the cutting and sale of the wood thereon, on their joint account. The defendant Spaulding was to be the acting agent of the parties in the purchase of the said lands and in carrying on the business of cutting and selling the wood thereon, and the defendant Shepard was to be the party or trustee for his associates to receive the title to the lands purchased and to hold possession of all papers and vouchers connected with the said purchases, and with the sales thereof, and to keep and deposit all money received or realized, for the use and benefit of the said parties. Under and in pursuance of this agreement it clearly appears, and is undisputed and indisputable, that the said defendant Spaulding proceeded from Brooklyn, where these parties then resided, to Savannah in the county of Wayne, where he opened, and kept open, for six months or so, an office for the purchase of land and the cutting and sale of the wood or timber growing thereon. That during this period he purchased a large number of strips or parcels of land, for which he took contracts in his own name, or deeds. That most of these contracts were afterwards assigned to Shepard. That the money for the purchase of these lands and for the carrying on of the said business was paid chiefly by the said Shepard, all of said defendants paying more or less thereof, except the defendant Spaulding, who was not to contribute any thing to the original purchase of said lands, but was afterwards to contribute towards the expenses in proportion to his interest.-

Among other lands purchased by said Spaulding after hd opened such office, February 2d, 1865, and while he kept up the said business, which ended in September afterwards, were the two lots called the” Smith lot and the Ármitage lot. The principal work done during this period by the defendant Spaulding, and under his direction, was on the said Armitage and Smith lots, and all the wood- cut and timber got out by the large number of men employed by him was on these two lots. In contracting for the purchase of these two lots, and in cutting the wood and timber thereon, Spaulding was performing the duty assigned to him by his associates, the other defendants, and for which he went to Savannah and opened and kept open said office. The wood and timber cut on these lots was so cut for the common benefit of these defendants. It matters not that the contract for the purchase of these lots was given up, or that the defendants , failed or refused to complete the purchase thereof by paying up the purchase price in full. While Spaulding held possession of said lots and was carrying on the defendants’ business entrusted to him, they were, and must be, responsible for all his contracts with the men hired to do such work thereon, and for supplies furnished him to enable him to prosecute. such business. Such work was done and such supplies furnished for the common use and benefit of all the defendants. I can see no ground in the evidence for the pretense that the said Smith lot and the Armitage lot were not purchased on the joint account and for the common benefit of the defendants. The Smith lot was purchased on the 11th of April, 18(55. Of the $2000 of purchase money paid in hand upon it, $1500, it appears, was paid by the defendant Shepard, and $500 by the defendant Nichols, upon his note or check. There is no evidence in the case which tends to discriminate between the purchase of the Smith and Armitage lots and the other lots, or to show that the work done on these was for the private benefit and account of the defendant Spaulding, except his deposition, which is shuffling and evasive and not entitled, I think, to credit in view of his whole conduct, acts and declarations, as disclosed by the clear and undisputed testimony in the case. At least, the referee had a right to disbelieve him. Some of the questions put to the witness, I think, were objectionable; but rejecting all the evidence called for or received, which might possibly be regarded as inadmissible upon objections properly taken thereto, there is abundance of testimony besides, properly received and clearly admissible, to sustain the referee’s report, and I do not think any possible injury has been or could be done by the answers to the questions so objected to. I think the judgment should be affirmed.

[Monroe General Term, September 2, 1867.

Judgment affirmed.

J. C. Smith, Welles and E. D. Smith, Justices.]