5 Daly 327 | New York Court of Common Pleas | 1874
There was no error committed by the referee in admitting or rejecting evidence which would warrant a reversal of this judgment. We are referred by appellants to the exceptions taken by them to the referee’s rulings, at folios 571, 649-51, and 1264-67 of the case.
As to the second exception, it may also be said that the evidence objected to did not influence the decision of the referee, if his opinion be taken into account. But apart from that, I am of opinion that it was proper. So far as it was not in rebuttal, but rather a part of plaintiff’s case, it was in the discretion of the referee to allow it in that stage of the trial. So far as the relevancy of the testimony goes, I think it was properly allowed, since it was competent to show (in support of plaintiff’s claim, that the account in suit was a joint one of Young, Woodward and White, and not several as to each) that Woodward had at the same time, a separate individual account with plaintiff’s house. The same fact had been proved as to defendant Young.
As to the third exception, the questions were proper. They were intended to draw out the fact that the plaintiff at the time of making the agreement of July 15th, alleged by defendants, knew nothing of such an arrangement. The defendant White swore that the plaintff was present at the interview at which the alleged agreement was made, and was consulted by Heath, his partner. This evidence was proper to show that Quincey heard nothing from the defendant or his partner, on that subject.
There is nothing in the claim made on this appeal by de
Second point, sub. 1. There was evidence that the plaintiffs were brokers and not speculators, sufficient to warrant the referee’s remark to that effect.
Sub. 2. There was evidence that when Heath & Co. asked for margin, their request was acceeded to; for Woodward says that he told Quincey when he asked for margin, that “ he must look to Young for his share and to me for mine,” and this was an assent to the demand, although it is true the margin was never given.
Sub. 3. There was evidence that Quincey denied the existence of any agreement for limited liability, so far as he knew anything about the agreements with defendants, as appears by his direct examination, where he testifies to what Heath told him in presence of" defendant Young, and by his cross-examina•tion, and it cannot be said that his attitude in this controversy was other than a most positive denial of any such agreement for limited liability.
Sub. 4. There was evidence that both Heath and Quincey denied the making of the alleged agreement of July 15th, since Heath certainly did deny it, and Quincey denied any knowledge whatever of such agreement on his part, and the language of the referee, that “ both Heath and Quincey denied the making of this agreement, and if their version of the transaction is to be believed, nothing was said or done by them upon the settlement in question which can have the effect of discharging the liability of Woodward and White,” must be taken as referring, so far as Quincey is concerned, to his denial of taking any part in making, or of any knowledge of any such agreement.
Sub. 5. There is evidence that at the time spoken of by the
Hnder the appellant’s third point: Sul). 1. There is nothing in the remark of the referee in his opinion, speaking of the making of the alleged agreement of July 15th, that, “Young is silent on the subject,” to warrant the conclusion that he overlooked Young’s testimony as to what Heath told him of the occurrences on that morning. The referee refers merely to the fact, which was not disputed, that although Young was present in the room when the alleged agreement was made, he did not hear anything that was said, and not to the testimony of Young as to what was subsequently told him by Heath. The latter evidence he evidently refers to and disposes of for what, in Ms judgment, it was worth, by the lines of his opinion which follow the remark above quoted: “In fact, his (Young’s) state of mind on that eventful day was such as to render him incapable of participating in what took place, or of recollecting with any distinctness what had occurred.” There would be no necessity for questioning Young’s recollection if the referee had not in view the testimony of Young as to what was said on that day.
Sub. 2. The fact that the referee in his opinion states that the defendant White “ says nothing as to any allusion being made on this occasion (interview of July 16th) by Heath to the alleged original agreement for limited liability,” does not present the shadow of reason for reversing this judgment. It is the fact that White did testify that Heath admitted such original agreement at that meeting of July 16th; Woodward testified to the same effect, and the referee gave full consideration to Woodward’s testimony as to what was then admitted. But the referee disbelieved both Woodward and White’s testimony as to what the original agreement was, and how can it be said that further testimony of White to admissions of Heath would or could affect a decision founded on the broad disbelief of White’s truthfulness ? The testimony of White as to Heath’s admissions is no stronger, is not as strong, in fact, as the testimony of White concerning the acts and statements of the parties when the original agreement was made. But there is conclusive evidence that the referee’s decision was not affected by
We are next asked to reverse this judgment on the facts, as clearly against the weight of evidence. Upon a careful perusal of the testimony in the cause, aided by the very well prepared points of the appellant’s counsel, I am unable to discover any ground of fact whatever for reversing the decision of the referee. Two simple questions of fact were tried in this case : 1st. Was the original agreement between Heath & Go. and the defendants for several and limited, or for joint liability of the latter; 2d. Was there a severance of liability of defendants by agreement between them and Heath & Co., a new contract, and accord and satisfaction on July 15th.
On these questions a large amount of evidence was produced, extending in the printed case to more than 1,200 folios. There were only eleven witnesses examined, the transactions in dispute depending largely on verbal agreements between Heath, the plaintiff’s partner, and defendants Young, .Woodward and White, few other persons being present. There was a direct and irreconcilable conflict in the statements of ’ Heath and the defendants on all material points. The evidence on which the referee found the facts supporting his judgment was conflicting. That is conceded. It is claimed, however, by appellants, that the version of the transactions by defendants’ witnesses is corroborated by other circumstances, and a preponderance of proof in favor of defendants is established. This
Again, as to corroboration of defendants, that there was no interview on July 21st, as sworn to by Heath. An account of that date was produced by plaintiff, and was the subject of that interview. Appellants say that if Heath had sworn he gave it personally to Woodward, it would tend to confirm his testimony, but they say that Heath only swears that he sent that paper by a messenger to Woodward. But there is positive testimony by Heath that he took that account to Woodward at the office of Marvin Bros., and showed it to him on July 21st.
As to the corroboration of either side by the acts of the parties after July 15th, and subsequent to the alleged accord and satisfaction, the proof is not stronger in corroboration of one side than the other. The referee discusses very fully the evidence on this point. He had before him the several accounts rendered after that date by Heath & Co., as well those in ■which it appeared that there might be an acquiescence in an arrangement to sever the account as those to the contrary. He had the writing signed by Young, of date July 15th, 1870, and the letter of Young of the same date. He gives all these acts due weight, and puts a construction upon them which he lawfully might in making those deductions or inferences which the tribunal that tries the fact may draw from undisputed evidence. That another construction may be put upon them, or that they may lead to other inferences or deductions as well, can be no ground for reversing the judgment. There is not in the whole case any controlling evidence which requires a judg
I am in favor of affirmance.
After a careful examination of the voluminous testimony in this case, I am of the opinion that the conclusion of the referee cannot be disturbed. The question in the case was a question of fact. It was whether the agreement between Young and Woodward on the one part, to which White subsequently became a party, and William Heath & Co. on the other, was originally, that Woodward and Young were each to be liable only for his portion of the losses which might be incurred, neither of them being answerable for the losses of the other; for if this were not the distinct understanding, they were liable jointly. Whether there was such an agreement or not depended upon the testimony of Woodward and Young, and upon the testimony of White, so far as respects certain admissions alleged to have been made by Heath after White became a party to the contract. Heath testified that he never made the admissions sworn to by White, and as between him and Heath there was conflict upon this point., The agreement was made by Woodward and Young with William Heath & Co., and Heath and Quincey explicitly denied the making of any such special agreement, and the whole of the testimony given by them, whether oral or documentary,, was to the effect that the agreement was one of joint liability.. As between the parties, therefore, by whom the agreement wag; made, there was
It may be that the rule which justly limits the review of the finding of a jury upon a question of fact, where the evidence has been conflicting, is not to be applied to the same extent to the finding of facts by referees upon conflicting evidence, inasmuch as the code has specifically provided for the review of questions of fact, where the trial is by the court or by referees; probably for the reason that more weight is to be given to the united conclusion of the twelve men who compose a jury, where the evidence has been conflicting^ than is to be given, under like circumstances, to a finding by a single judge, or by referees, a tribunal never composed of more than three persons, and which may and generally does, as in this case, consist of but one.
But whether this is so or not, the tribunal before whom witnesses are examined, where, as in this case, they directly contradict each other—the one positively swearing to a certain state of facts, and the other as positively denying that they occurred—is more competent to decide which of the two is to be believed, than an appellate tribunal can possibly be. All that the appellate tribunal has before it is what the witnesses said; but this is not all of which the mind takes cognizance, in deciding upon the credibility of witnesses. The Ibok of a witness, the tones of his voice, and his whole manner upon the stand, have often more effect upon those who have to
As respects the nature of the original agreement, the defendant Young was met by his deliberate statement in writing that the shares were carried for the account of Woodward Young and White, and that Woodward and White had, with his consent, assumed the management of the joint interests of the three. He undertook upon his examination to avoid the effect of this written acknowledgment of the joint liability by declaring that he signed it at Heath’s request, who told him that he, Heath, had been advised by his counsel that if, during the operation, they should get rid of all the stock, and it should afterwards advance, that Young might come and claim his portion of it, which I do not see that Heath controverted. The referee however held Young to his written statement; from which we must infer that he was not satisfied with the explanation by which Young sought to avoid the effect of it, and we cannot say that the referee erred in so doing.
As respects Woodward, it is impossible to read his testimony, especially his cross-examination, and hold that the referee ought to have given more weight to his evidence than he did. This being the position of the two witnesses who made the agreement with Heath & Co., the case was narrowed down to the conflict between White and Heath, in respect to the admission alleged to have been afterwards made by Heath, and to some other evidence, which will be referred to, upon that point.
A deliberate admission of the terms of a verbal agreement by a party to it, is very satisfactory evidence, where there is no doubt of the fact of the admission. But where the making of the admission is denied—where the party averred to have made it swears distinctly and positively that he never made it—
The referee having reason, upon the grounds already stated, to doubt the credibility of Woodward and Young, he had the right to attach no weight to their testimony upon this point, and having before him the positive statement of White, that such an admission was made, and the equally positive denial of Heath, that it was not made, the referee had to believe one or the other. White testified that in a conversation at Marvin’s, Woodward said to Heath, “I had a distinct understanding with you, that you should look to Young for his share,” and that Heath said that was so when the account was opened, but it had not been renewed after White came into the concern. Heath’s attention, upon his re-examination, was specifically called to this testimony, and he swore expressly that this alleged conversation never occurred. It is not a statement of a want of recollection, but an unqualified denial, so that one of these two parties must have sworn to what was untrue.
Marvin, in whose presence White testified this alleged admission was made, was examined, and when first interrogated, had no recollection of any such conversation. A written memorandum in the witness’s handwriting, of what was said at this interview, was then put into his hand, and he testified that whatever was stated in the memorandum was said. After he had read the paper, he was asked to look at the part relating to Heath’s admission, and after having done so, to state whether, thus refreshed, he could then recollect that what was there written was stated at the time, and his answer was “ No, I don’t remember; ” after which the further question was put,
The appellants insist that there was no evidence of any such intimacy, and no foundation for inferring that Marvin, when he wrote the statement, was acquainted with White and Woodward’s view of the case, which is simply preposterous. The very putting down the matter in writing at White’s request, after the speculation had proved disastrous and the dispute arose, was of itself enough to warrant such an inference. The very fact of getting such a paper signed was enough. The referee attached weight to the fact that no explanation had been given of what he called “ the patent inconsistency ” between the written and the oral account of the admission, and that the paper was not written until twelve days after the conversation it professed to record. In view of these considerations, he thought that this written statement was not of any value in sustaining the position of the defendants, and he came to the conclusion that the statement of Heath, explained by the circumstances, justified the inference that he never made the admission alleged; whilst, at the same time, his language may have been of so indefinite a character as to have led White, in the ardor of establishing a fact of such vital importance to himself, to suppose that the admission was as broad and unqualified as he then thought it to be. This was a charitable attempt to reconcile both statements, .which, perhaps, the case scarcely admits of, as there was a detailed, statement of a certain conversation sworn to by White, and an explicit denial on the part of Heath that any such conversation ever occurred. The conclusion arrived at shows that the referee must have believed the
The referee was certainly justified in attaching no weight to the corroborating testimony on this point of Woodward. The answers of this witness to a number of questions, upon his cross-examination, relating to his own acts in these transactions, exhibited a want of memory which was in remarkable contrast to his precise and accurate recollection of matters asked upon the direct, which went to establish his own and the other defendant’s defense. He seemed to remember all that bore in his own favor with sufficient particularity; but his memory was vague and unsatisfactory in respect to nearly everything else. His answers from fols. 1040 to 1045 may be cited as an illustration of this peculiarity in his evidence; whilst his refusal to answer the number of questions -put to him in respect to acts, 'which, if true, seriously damaged his moral character, placed him in a position that entitled him to very little consideration where his evidence was in conflict with that' of others. There is nothing, in my experience, that a witness is more prompt to reply to, answer, and explain, where he is entirely able to do so, than questions relating to acts affecting his moral character; and where a witness meets every such inquiry with the response, “I decline to answer,” he cannot expect tribunals to give any moral weight to what he says, where he is contradicted by other witnesses to whom no such tests as to their integrity and truthfulness have been applied. Assuming, as we must for the reasons given, that the referee had the right to discredit both the evidence of Woodward and the written statement of Marvin upon this point, the question is reduced to the direct conflict between White and Heath, in which the referee must be regarded as discrediting the statement of the one, and believing that of the other. He found the fact that no such admission was made;
One of the grounds upon which we are asked to set aside the report is, that the referee, 1, assumed the existence of evidence that had not been given; and, 2, overlooked and excluded from his consideration important evidence of the defendants. Judge Daly has fully considered this objection, and shown by reference to the testimony, that the appellants are mistaken in respect to many particulars upon which they relied, and as respects matters upon which they were correct, that they were not of the slightest importance. I have read the evidence from beginning to end, and have gone over the referee’s long opinion, in connection with the minute and and elaborate commentary upon it, made by the appellants, and considering the voluminous nature of the testimony, I think, upon the whole, that it was fairly and comprehensively considered. It is complained that the referee has not taken into account any of the acts of Heath & Co. from the 15th to the 19th of July, in dividing the stock into thirds, and delivering to each his several third, and that he refused to find this fact. Assuming that he should have so found, such a delivery to each of his proportional part, as between themselves, may have been entirely consistent with their collective liability to Heath & Co., as their brokers. It did not necessarily tend to prove that Heath’s statement of the, original agreement was untrue. It does not follow, that because the referee does not refer to it in his opinion, that he overlooked it. He probably attached no weight to it; and are we to say that he should have done so, and from that circumstance have believed White, Woodward, and Young, and disbelieved Heath and Quincey? Again, it is certainly true that some of the statements made by Heath do not seem to agree with others ; and the referee himself seems to have regarded some things established which Heath denied. But it is not in this way that a finding upon a general question of fact is to be tested upon conflicting evidence. It is the conclusion which the mind forms in respect to the facts in controversy that is to govern, and it must be plain and obvious, upon the whole evidence, that the finding was wrong, to justify setting it aside. It may be, upon a re
I have carefully perused the evidence in this case, and agree with my brethren that, for the reasons stated in the opinions delivered by them, the judgment should be affirmed.
Judgment affirmed.