3 Keyes 533 | NY | 1867
The plaintiffs claim to recover in this action a balance of account due them from the defendants, copartners, transacting business under the name of Samuel Barker. The referee before whom the action was tried found the following facts:
1. At the times in said report mentioned, the plaintiffs were and still are copartners in business in the city of New York under the firm name of Melvin & Danforth.
2. On the 1st day of April, 1859, the defendants became copartners in the business of tanning hides and skins in the Highland Tannery, Newburgh, Orange county, under the firm name of Samuel Barker, and such copartnership continued from said first day of April, 1859, until after the 5th day of November, in the same year.
3. That between the 9th day of April and the 5th day of November, 1859, both inclusive, the plaintiffs at the request of the defendants sold and delivered to them, on divers days, hides and leather, and lent and advanced to them cash, amounting altogether to the sum of $9,131.80, as more particularly appeared in a schedule annexed to his report marked A.
1. That during the times aforesaid and on divers days after the dissolution of defendants, said firm, prior to July 10, 1860, the plaintiffs received from defendants, for sale on commission for account of said defendants, divers quantities*534 of leather and sold the same for defendants’ account, and credited the defendants with the net proceeds thereof; and that during the same period they made certain allowances as credit to said defendants on account of damage on hides sold them, and of a small balance due from the said plaintiffs to defendant Barker at the date of the formation of said firm of Samuel Barker.
5. That the net proceeds of such sales including said allowances, after deducting all commissions, charges, disbursements and allowances, amounted to the sum of $7,521.99, and the items of' said credit, were stated in detail in said schedule A.
6. That by agreement between plaintiffs and defendants, the defendants were to be charged with interest bn sales from the time when the same became due, and on all moneys advanced from the date of such advance, and were to be credited with interest on all proceeds of sales for their accounts from date of realizing said proceeds, and on the 10th of July, 1860, the balance of interest on said accounts of debits and credits, was in favor of plaintiffs and amounted to $184.32, and there was then due from- defendants to plaintiffs on said account, a balance of principal and interest amounting to the sum of $1,797.13.
7. That on said 10th of July, 1860, payment of said balance was demanded of said defendant Wood.
8. That no part of said balance had been paid by said defendant to said plaintiffs, but that the whole amount thereof was due from said defendant to said plaintiffs, with interest thereon from said 10th day of July, 1860.
The said referee accordingly reported as a conclusion of law, that the said plaintiffs were entitled to recover that sum, and judgment was thereupon entered in favor of the plaintiffs therefor, and on appeal the same was affirmed.. The defendant Wood now appeals to this court.
Upon the facts found by the learned referee, the judgment in favor of the plaintiffs, for the amount thereof, was clearly correct, and must stand, if no errors were committed upon the trial. This I understand to be ^conceded by the learned
1. It is urged that the referee erred in excluding this question put to the defendant Wood, on his examination as a witness: “ Did you ever know that any goods bought by Eaybold & Barker previous to April 1, 1859, were carried into the account of your firm ?” It had appeared from the previous testimony of the defendant Barker, taken without objection, that previous to the formation of the copartnership between the defendants, the defendant Barker had been in partnership with a man named Eaybold : that the goods of Barker & Eaybold went into the stock of Wood & Barker. That they had been partly tanned at Harlem; were finished at Hewburgh; sent to plaintiffs for sale; the proceeds passed into the new books and the notes given by Barker & Eaybold were paid by the new firm.
It is not perceived how the plaintiffs were affected by the fact, whether Wood knew or did not know whether any goods bought by Barker & Eaybold, previous to the formation of the defendants’ partnership, were carried into the accounts of the firm of the latter. Such knowledge on the part of Wood, was wholly irrelevant and immaterial, to these plaintiffs. But the exception to the exclusion of the question is of no moment, as the defendant Wood immedidiately thereafter testified that he never knew or sanctioned any transfer to Ms firm of any of the transactions of the plaintiffs with Eaybold & Barker. This covered the fact of Wood’s knowledge that any goods bought by Eaybold & Barker, were carried into the account of the new firm. There was no error in the exclusion of the question, but if there was any it worked no injury to the defendant Wood, as he subsequently testified that he never knew of any such transfer.
2. It is objected that the referee erred in allowing the plaintiffs to amend their bill of particulars. To the complaint was annexed and served therewith an account of the defendants with the plaintiffs, appropriately designated as a
Wood, on his examination as a witness in his own behalf, testified that he called on Melvin for an account; he told him he was going to have a church trial and wanted a correct account ; He, Melvin, went to his books and took that off, and said it was a correct account. The witness Wood then produced the account, bearing date April 3, 1860, showing a balance of $1,633.88.
The plaintiff Melvin, after the defendant Wood had rested, was recalled for the plaintiffs, and asked, “ From what book did you make exhibit 1, May 13, that is, the account of April 3,1860 ?” Answer: “ Partly from the ledger—the $1,148.34, as it stood as far as posted, and then there were two notes, one for $1,190.32 and one for $1,423.22, which had fallen due a few days before, but was not posted. I took them from the bill book. The estimated value of the stock I took from the commission sales book. The quantity of goods appeared on the books; the value, as estimated, was not taken from the books at all, but was a mere estimate.”
All this evidence given under this question, and the question itself, were objected to in due time by the counsel of the defendant Wood, and the objection overruled, and the counsel for the defendant Wood excepted. The witness was then asked: “Was any computation of interest made ?” Like objection, decision and exception. He answered, “ Ho.” He was then asked: “Was there any computation of commissions of guaranty?” Like objection, decision and exception. He answered, “Ho.” He was then asked: “Was any more leather received by your firm from Barker & Wood after Hovember, 16, 1859, than you have stated in your former evidence
We have examined carefully all the exceptions taken to the rulings of the referee, and we are of the opinion that they are untenable, and that the decisions of the referee must be sustained. '
It follows that the-judgment must be affirmed with costs.
All concur.
Judgment affirmed.