18 N.Y.S. 419 | N.Y. Sup. Ct. | 1892
This action was commenced on October 3,1877, against one-George H. Peck, now deceased. The allegations of the complaint are, in substance, as follows: That in 1866 the said Peck conveyed to one Lewis St. John, by deed, an undivided 20|-96 of a certain farm of land containing about. 100 acres, situated in Venango county, Pa., called the “Booker Farm;” that said. farm contained oil wells, and that, the same having been leased for a. percentage of the oil produced, large sums of money were realized from the sale of such oil, and large profits were also realized from the letting of portions of said farm for building lots; that s&id Lewis St. John was entitled to-20|-96 of said rents and profits; that said Peck received large sums of money-as manager of the said property,.which belonged to said St. John, but neglected to pay over the same; that said Lewis St. John conveyed by deed to one Ellen Cole an undivided 10-96 of said farm, for which proportion said St. John, thereafter was bound to account to said Ellen Cole, (the deed to her not having been recorded;) that said Lewis St. John and said Ellen Cole assigned to-the plaintiff all their interest in the premises; that the plaintiff demanded of said Peck that he render an account of the moneys received and paid by him for said Lewis St. John, but that he did not do so. Therefore plaintiff prays that an accounting may be taken of such moneys, and that the defendant-may be adjudged to pay to the plaintiff anything which shall, upon the taking of such account, appear to be due to the plaintiff. The answer denies that the defendant conveyed a portion of said farm to Lewis St. John, or that-said Lewis St. John was entitled to 20|-96 of the rents and profits, or that said Peek received any money belonging to said Lewis St. John, or that Lewis St. John ever assigned to the «plaintiff any part of his interest in the premises; also alleged that Lewis St. John, for the previous two years, had been of unsound mind, and incapable of making any such assignment; also set up-the six-years statute of limitation, and an affirmative defense in the nature of a set-off, upon the ground that one Cole was agent of the property, and, with said Lewis St. John, wrongfully retained, appropriated, and converted.
The transactions out of which this action arose are as follows: On August 30, 1866, the sheriff of Venango county, Pa., deeded to said Peck and others a tract of land in said county, known as the “Booker Farm.” The deed conveyed the property in the following proportions: To one Perry, 51-96; to said Peck, 24-96; to one Bates, 12-96; to one Baum, 6-96; to one Austin, 1-96; to one Matthews, 1-96; and to one Graves and Seager, jointly, 1-96; all expressed to be in undivided portions; and the deed was recorded September 6, 1866. On October 1, 1866, said Perry and his wife conveyed said 51-96 to said Peek,' and the deed was recorded October 10, 1866. It appears that Joseph H. Godwin and Augustus A. Conover and Bhoades Cole were interested with Peck in the purchase of such 75-96 of the farm, and Cole stated to Peck that one Lewis St. John (plaintiff’s assignor) was equally interested within him in a fractional share thereof. Cole went to the farm, and acted as a superintendent, under a power of attorney from Peek and the other owners, collecting the rents and royalties, paying expenses, and remitting to Peck what purported to be 75-96 of the net income. The money so received Peck distributed, in the proportions above indicated, to Godwin and Conover, retaining his own share, and paying to St. John, by Cole’s direction, the joint share of Cole and St. John. Up to June, Peck had received from Cole $33,750, which had been so distributed. It is claimed by the defenants that about this time Cole confessed to Peek that he and St. John had been sinking oil wells in Pennsylvania on their own private and joint accounts, and that Cole had taken moneys from the income of the Booker farm, which should have been remitted to Peck, and had used the same on his own and St. John’s account in sinking such wells; that said Cole then agreed that until such misappropriations were made good all moneys sent by him to Peck should belong to and be divided between Godwin, the personal representative of Conover, (who had died prior to February, 1867,) and Peck, and that St. John consented to such agreement; that from that time on Peck distributed the moneys received by him in accordance with said agreement. In April, 1870, the production of oil having greatly diminished, Cole returned to New York, and resided there from that time to the time of the trial. It is also claimed
Plaintiff’s counsel claims that the relations between Peck and the other owners of the 75-96 of the farm were those of partners, but we do not think that this claim is well founded. In the first place, the complaint contains no allegation that such relation of partnership existed between Peck and the other owners of such 75-96. The allegation is that Peck conveyed an undivided 20|-96 to St. John, and that St. John conveyed an undivided 10-96 to Ellen Cole. This amounts to an allegation that Peck, St. John, and Ellen Cole were tenants in common. There is no allegation or suggestion to be found anywhere in the complaint in regard to such alleged partnership. According to the complaint, the right of plaintiff to recover is placed solely upon the fact that the parties were tenants in common, and that Peck, one of such tenants, had received rents and profits, of which a portion rightfully belonged to St. John and Mrs. Cole. Moreover, the only allegations in the complaint, upon which a claim for equitable relief can be founded, are those in which it is alleged that plaintiff had demanded an account of Peck, which demand had not been complied with, and the prayer for relief that such account be taken. The complaint has not been amended, nor does it appear that any application to amend it was made, and it would seem that the idea of a partnership was an after-thought, put forward to meet the exigencies of the case. If the owners of such 75-96 of the farm were partners, they or their representatives should all have been made parties to this action, and the fact that they were not tends to support the conclusion that it was not intended by the draughtsman of the complaint to rest the claim of the plaintiff upon the ground that the owners of such 75-96 were partners. Moreover, the evidence in the action does not establish such partnership. According to the agreement of the plaintiff, at the time payments were made to Peck the title of the property stood as follows: 10|-96 in St. John, by virtue of Peck’s conveyance to him; 10-96 in Ellen Cole, by virtue of St. John’s conveyance to her; 54J-96 in Peck, by virtue of the conveyance to him from the sheriff of Venango county and Perry, which 54J-96 belonged in equal parts
Cole went to Pennsylvania, and acted as superintendent. His testimony as to what he did is as follows: “I never had but one power of attorney from* Mr. Peck. It was a power of attorney to act for George H. Peck for 75-96 of the farm, and collect the moneys. While 1 was out at the farm, I collected! the rents—royalties—for the oil sold, and paid the money to the different parties for the interest I held a power of attorney for. Isent 75-96 of the profits to Mr. Peck. The expenses were deducted by myself. I sent them the balance of the moneys after deducting expenses. Of the remaining interest, 12-96 were owned by one William A. Bates; 6-96 by Bond; 1-96 by Graves and Seager. I collected these. I had a power of attorney from them, and remitted them the money. I held a power of attorney from all parties. I remitted 75-96 to Peck, and the balance to the other parties. My position* was superintendent. * =5» * The income came from the production of the farm, the royalties of the wells, and rents. * * * My duties as superintendent were to lease the farm in half-acre plots for half-royalties,—the usual way of the oil business. I collected royalties, and gave 75-96 of them to Mr. Peck, and the other 21 shares were owned by others. I deducted expenses. What I sent to the owners was the net product. I might have received instructions from other persons, but I did not act upon any instruction or order of any other person than Peck, with respect to the 75-96.” The situation, therefore, was as follows: Peck, St. John, and Mrs. Cole, (the wife of Cole, the superintendent,) and other parties were tenants in common of this farm. Cole stayed at the farm, received royalties and rents, and, after paying expenses, sent 75-96 of the net balance to Peck, for distribution. These-facts do not establish a partnership between Peek, St. John, and Mrs. Cole, but merely that Peck, being a tenant in common with them, received certain moneys, which it is claimed it was his duty to pay .over to them.
Partnership, as between the partners, is a matter of agreement, and, so far as concerns the partners only, whether such agreement was made must depend upon the intention of the parties. There is no evidence whatever of any express agreement for a partnership between Peck and St. John or Mrs. Cole or any of the other persons who were interested in the property. Peek and Godwin both testified that there was no partnership, and Peck testified that he never knew anything about St. John’s having an interest in the property, except what Cole told him; and it certainly is difficult to understand how Peck can be regarded as having formed a partnership with Mrs. Cole„ simply because St. John conveyed 10-96 of the property to her. We are of the opinion that, assuming that Peek made the conveyance to St. John, and St. John to Ellen Cole, as claimed in the complaint, the relations between. Peck, St. John, and Mrs. Cole were not those of partners, but of tenants in* common, and that the six-years statute of limitations applies, notwithstanding the fact that the complaint prays for an accounting, because the plaintiff could have maintained an action at law to recover any moneys due him as assignee of his brother, Lewis St. John, and Mrs. Cole.
Section 1666 of the present Code provides that a tenant in common of reaB property, or his executor or administrator, may maintain an action to recover his just proportion against his co-tenant, who has received more than his own just proportion, or against his executor or administrator. If Peck, being a tenant in common with Lewis St. John and Mrs. Cole, had received more than his proportion of the rents and profits of the farm, they, or their assignee, could, under this section of the Code, have maintained an action* to recover their proportion. Moreover, independently of this provision of the Code, an action at law might have been maintained by Lewis St. John, and Mrs. Cole, or the plaintiff, as their assignee, to recover money had and received for their benefit, if it was true that Peck had received from Cole
Under these circumstances, the jurisdiction of the court to entertain this ■action for an accounting in equity was concurrent with its jurisdiction to entertain an action at law to recover the amount alleged to be due from the defendants to the plaintiff, and, upon all the authorities, where such concurrent jurisdiction exists, the six-years limitation applies. Kane v. Bloodgood, 7 Johns. Ch. 121; Bertine v. Varian, 1 Edw. Ch. 345; Atwater v. Fowler, 1 Edw. Ch. 422; Loder v. Hatfield, 71 N. Y. 103; Roup v. Bradner, 19 Hun, 517; In re Neilly, 95 N. Y. 390. In Kane v. Bloodgood, supra, the court ■said: “Courts of equity are bound to yield obedience to the statute of limitations upon all legal titles and legal demands, and cannot act contrary to the spirit of its provisions. I understand this proposition to mean that, if a party lias a legal title, and a legal right of action, and, instead of proceeding at law, resorts to equity,—instead of bringing his action of account or detinue or ease for money had and received at law files his bill for an account,— the same period of time that would bar him at law would bar him in equity.
We think it is clear upon the facts proved in this case that if Peck was indebted to the plaintiff as the assignee of his brother and Mrs. Cole, the plaintiff might have maintained an action for money had and received, and that the six-years statute of limitations applies to all of said payments, except the payment of $541.50, which was made on April 15, 1872. We are, moreover, of the opinion that the plaintiff cannot recover the said last item of $541.50, ibscause the evidence establishes that Cole, while acting as superintendent, ■misappropriated moneys which he should have paid over to Peck, and that he subsequently agreed that the proceeds of the farm should be distributed between Peck, Godwin, and the estate of Conover, until the amount of the ■misappropriation was made good; and that St. John consented to this arrangement. The ascertained amount of such misappropriation was, if Cole was entitled to a salary, $4,418.68. If he was not entitled to a salary, such misappropriations amounted to $11,710.35. The evidence tends strongly to establish the fact that he was not entitled to a salary. But it is not necessary to determine that question, because we consider that the statute of limitations bars a recovery as to all payments except the last, which was $541.50; and, if the misappropriation was no more than $4,418.68, such sum of •$541.50 could not be recovered if Cole and St. John agreed that the proceeds should be distributed between Peck and Godwin and the estate of Conover, until such sum of $4,418.68 was made good. We think that the evidence fully establishes that the misappropriation by Cole did amount to said sum of ■$4,418.68, and that Cole made the agreement in question. It is objected, .however, that such agreement did not bind Cole’s wife, to whom it has been
The plaintiff is not entitled to any especial consideration in a court of equity. It seems that in the fall of 1876, Lewis St. John had a stroke of apoplexy, and that his mind was somewhat affected thereby. The assignment Af his alleged claim against Peck to his brother, the plaintiff, was made after he had only partially recovered from such stroke of apoplexy, though the jury has found that he had sufficient mental capacity to make such assignment. It appears, however, that the plaintiff paid nothing for the claim, but took it on account of an alleged antecedent debt.
It appears also by the testimony that Cole was active in promoting this stale claim against the original defendant, Peck. Lewis St. John, who had made no claim on his account for over eight years, was induced to execute-the assignment to- his brother, the plaintiff, and thereupon Mrs. Cole also executed to plaintiff an assignment of her alleged interest in such claim. The-plaintiff tnerefore represents the alleged interest of his deceased brother, for which he paid nothing, and also the interest of Mrs. Cole, who is the wife of Cole, whose misappropriation of moneys led to all the trouble. We think the evidence establishes the misappropriation by Cole, and the agreement by himself on behalf of his wife, which was consented to and acquiesced in by St. John, that, until the misappropriation was made good, Peek should distribute the moneys in the manner above specified; and, even if the consideration of all the testimony in the ease has led to a doubt upon these points, as the burden of proof was upon the plaintiff to establish his case by a preponderance of evidence, we should think that the defendants ought to have the benefit of any such doubt. Upon the whole ease, we think that the judgment should-be reversed, and a new trial ordered, with costs to appellants to abide event.