1 Keyes 44 | NY | 1863
This action was in the nature of assumpsit for money paid to the defendant’s use at his request, and was brought in the Common Pleas of the city and county of 3STew York, to recover an alleged balance of $3,772.09, claimed to he due to the plaintiffs, for advances as the factors of the defendant, who was a manufacturer of felt goods at Glenville, in Connecticut, the plaintiffs carrying.on their business at the city of Baltimore. The facts, as found by the referee before whom the case was tried, were as follows: In February, 1852, an arrangement was entered into between the parties by mutual letters passing between them to the effect that the defendant should make consignments of his goods to the plaintiffs for sale on commission, and that the plaintiffs should accept the defendant’s bills at six months for two-thirds of the market value of the goods. During the course of the dealings which ensued, the individuals of the firm of the factors was changed by the retirement of one of the partners and the talcing in of a new partner, but after the close of the transactions the outgoing partner assigned his interest in' the claim against the defendant to the plaintiffs, and no point is now made upon the question of parties. Business of the character contemplated was commenced and carried on down to and including June 17,1854, one Wliittal acting as the agent of
The defense set up arose in part out of an alleged change in the proprietorship of the manufacturing business, by means of which, as the defendant insisted, the liability for the advances, or a portion of them, had devolved upon an association or corporation which had succeeded to the business of manufacturing the felt goods, and which had taken the place of the defendant in the dealings with the plaintiffs. On that subject the referee found that the manufacturing business was carried on in the name of the defendant until the month of December, 1853, when, for reasons of convenience and advantage to himself, the name of “-The Glen-ville Woolen Company” was used by him, but without any change of interest; and that on the 25th Hay, 1854, a preliminary meeting for the organization of a company under the laws of Connecticut was held, and that on the next day a second meeting was held; but that the plaintiffs had no notice of such movements until on or about the 13th July, 1854; that said company was not completely organized, or authorized to commence business until the 13th day of December in that year; that the plaintiffs had never received any notice forbidding them to pay their acceptances, that they had not received any consideration for discharging the defendant from his liability, nor had ever agreed to discharge
Upon this statement of facts, it is difficult to see how any question of law can arise. Primafacie, it is an ordinary case between factor and principal, where the factor has advanced in excess of the proceeds of goods placed in his hands to be sold. It is very familiar law, that in such cases an action of assumpsit upon the implied contract, arises in favor of the factor, to recover the balance against the principal. Accordingly, the trial and the argument of the defendant’s counsel bring forward a variety of facts found in the testimony, which, as it is alleged, show that the referee arrived at incorrect conclusions of fact upon the evidence. Twelve of the fourteen exceptions to the report, are based upon an alleged want of evidence, to sustain his conclusions. The thirteenth claims that certain facts should have been found, which are not found, and the last is a general exception to all their conclusions of law and fact. The statement of facts found contained in the case were made in pursuance of an express provision of the Code (§ 272); and it is furthermore explicitly provided, that although questions of law, arising upon trials, before a judge without a jury, and before a referee, may be reviewed upon every stage of the appeal, the questions of fact are open to examination only upon an appeal to the General Term of the court in which the trial took place. (§§ 268, 272.) Plain as this seems to be, upon the language of the statute, it has frequently been found necessary to re-assert it, and the decisions have been uniform and consistent. (Davis v. Allen, 3 Comst., 168; Easterly v. Cole, id., 502; Borst v. Spelman, 4 id., 284; Western v. The Mut. Ins. Co., 2 Kern., 258; Dunham v. Watkins, id., 556; Griscom v. The Mayor of New York, id., 586; Hunt v. Bloomer, 3 id., 341; Johnson v. Whitlock, id., 344; Magie v. Baker, 4 id., 435; Smith v. Grant, 15 N. Y., 590; Turner v. Haight, 16 id., 465; Otis v. Spencer, id., 610; Griffin v. Marquardt, 17 id., 28; Viele
It sometimes happens that by an inadvertance of counsel the facts are presented in such a manner that it is impossible, without violating well-settled rules of practice, to do justice between the parties. In such cases it is in our power to suspend the judgment here, in order to enable the party whose rights might otherwise suffer, to apply to the court from whose judgment the appeal was taken for a re-settlement of the case. It having been very earnestly insisted in this case that if the facts could be examined, without prejudice from the findings of the referee, it would appear that the judgment was manifestly wrong, I have looked into the testimony with a view to the exercise of the jurisdiction referred to if it should be invoked.
It is contended that the defendant ought not to be charged with two of the drafts which were drawn upon, and accepted and paid by the plaintiffs, because, as it is said, they were drawn after the defendant had disposed of his interest in the manufacturing business. They were dated respectively the 27th Hay, and 17th June, 1854, for $800 and $700, by Whittal as agent, and were in no manner distinguishable in •form, or otherwise, from those which he had been accustomed to draw when the defendant was confessedly carrying on the business under the name of the G-lenville Woollen Company. Conceding that the transfer of interest had taken place before
Another position of the defendant’s counsel is that the plaintiffs’ acceptances to a considerable amount, matured and were paid after the defendant had ceased to be interested in the business, and it had passed into the hands of a corporation. It is urged that there is no evidence that the acceptances had been negotiated to a bona fide holder. The course of business was for Mr. Whittal to send the drafts, which were payable at six months, to the plaintiffs for acceptance, who returned them accepted, either to Whittal or to some other agent of the drawer named by him.. The evidence does not show who was the holder when this paper matured, though the. circumstances render it extremely probable that the defendant or Whittal used them by procuring them to be discounted in the course of the business. Still the evidence is.not positive to that point; When produced by the plaintiffs on the trial they all bore the blank indorsement of the defendant; To charge the plaintiffs with having paid them in their own money so as to deprive them of the right to charge the defendant with such payment, an unlawful diversion of them should have been proved, and that plaintiffs paid them with notice of such diversion. As the evidence stands, it presents only the case of the plaintiffs accepting negotiable bills at the defendant’s request, under the arrangement to
The defendant’s counsel contends, lastly, that the plaintiffs have released the defendant by means of their dealings with the company to whom he had transferred the manufacturing business. The defendant gave in evidence an instrument dated June 28, 1854, by which certain parties describing themselves as the president, treasurer and agent of the Glen-ville woolen company, in consideration of a transfer to that company made by the defendant, of the property employed in the manufacturing business there, engaged to assume the defendant’s liabilities incurred in that business and to indemnify him against such liabilities. The plaintiffs received notice of the change of the business on the 13th July thereafter, and a few days later they were informed that the company had assumed the defendant’s liabilities.
In the latter part of the summer of 1854 the goods which the plaintiffs had received from the defendant to sell had fallen in price, and it had become difficult to sell them, and they became anxious for a reduction of their advances, the balance of which amounted to "over $8,000, which exceeded the proportions of the then market value of the goods for which they had agreed to accept in advance, and the drafts they had accepted were about maturing. They consequently contracted for such reduction. The correspondence was with Whittal, who had become the managing agent of the new proprietors, who, as has been mentioned, had assumed the liabilities of the defendant. The defendant insists, in the first place, that the plaintiffs had so contracted as to accept the new company as their debtors in the place of the defendant and to discharge the latter. But there is no evidence of an intention on their part to make such change. They had been told that this company had undertaken to discharge the liabilities of the defendant. It was indifferent to them what party paid them, so that they were paid by some one and
But sometime in April, 1855, Whittal sent to the plaintiffs two promissory notes of this company, dated respectively on the 1st and 27th of that month, for $1,000 each, and payable six months after date.' The purpose of transmitting this paper is not fully explained, but it seems probable from the correspondence that it had some reference to the cash payment agreed to be made the preceding year. The receipt 'of these notes is relied upon as extending the payment of so much of the debt due from the defendant, the argument being that, under the circumstances, the defendant is to be considered as standing in the relation of a surety for the company, it being the principal debtor. I hardly believe these notes were sent on the 22d of March, 1855, the plaintiffs being apparently under some apprehension that the ground now relied upon might betaken, addressed themselves directly by letter to the defendant. They mentioned to him that the balance in their hands was about $8,000, and gave him a statement of the quantity of goods remaining unsold. They then referred to an interview, between Mr. Chase, one of the plaintiffs’ firm, the defendant himself, and Whittal, a few weeks before, in which it was, as they say, agreed that their advances should be reduced by the Glenville company, giving their notes for that purpose, with a letter from the defendant approving of the same, and that they, the plaintiffs, had learned by a letter from Whittal that he desired a little more time to perfect that arrangement, and that they would be satisfied with an answer from him that it should be arranged in the first two weeks of the next month. The defendant answered that letter from Mew York the next day.
Affirmed.
