36 N.Y.S. 853 | N.Y. Sup. Ct. | 1895
This is an action to recover damages for deceit alleged to have been practiced by the defendants on the plaintiff at the time of and in connection with a sale made by him to them, his copartners, of his interest in the assets and business of the firm of W. Duke, Sons & Co., manufacturers of tobacco and cigarettes. The sale was made on September 16, 1885, for the “lump sum” of $39,750, the plaintiff giving a deed of conveyance of such interest, as well as a release under seal of all claims and demands against his copartners. The office and principal factory of the firm was at Durham, N. C. James B. Duke had general oversight of the operations of the firm. George Watts had charge of the office at Durham, and acted as cashier, secretary, and treasurer in a general way, being assisted by B. N. Duke. B. L. Duke took no active part in the business. Plaintiff’s duties were traveling, introducing the firm’s goods, and establishing agencies, in the course of which he traveled at different times over nearly all the world. He had nothing to do with the office of the company, and very little with the manufacturing. The articles-of copartnership between plaintiff and defendants had expired by limitation on January 1,1885, and negotiations for a fuller term with increased capital were in progress from that time to the time of the sale, the affairs of the partnership meanwhile drifting along as if the firm was still in existence. During this time, from February to April, 1885, negotiations were pending between James B. Duke, on behalf of the firm, and a Mr. Strouse, representing the Bonsack Machine. Company, for a more favorable license to the firm than the one then existing respecting the use of machines for making cigarettes, the patents for which were owned by the Bonsack Company. It is undisputed that plaintiff was aware of and consulted concerning these negotiations, and was informed by James B. Duke of the proposition made by the Bonsack Company to reduce the royalty to 24 cents a thousand on cigarettes made upon the machines, and that plaintiff objected, and said he thought better terms ought to be, obtained. The conditions of the contract, being determined upon in New York between James B. Duke and Mr. Strouse, were communicated by the former in a general way by letter to Benjamin N. Duke
The plaintiff admitted that in or about February, 1885, J. B. Duke told him that he was trying hard to get from Strouse a more favorable agreement than any other firm for the use of the Bonsack machines, and that the latter had made a proposition to reduce the royalty to 24 cents a thousand. But it is evident from the proofs that plaintiff was unaware of the execution of a contract such as was entered into. He himself so testifies. B. L. Duke says he did not know of its existence. B. FT. Duke says he told no one of its execution, except, perhaps, his partner, Watts. Watts testified that he certainly believed that plaintiff knew nothing about it, because the written article had been in his possession since its execution, and that plaintiff never had asked for it, nor had it been shown to any one; and J. B. Duke does not say that he told plaintiff of its execution, but simply that some months prior to the contract being signed he informed plaintiff of the terms being agreed upon for which the contract afterwards provided. But, even had the plaintiff, prior to the transfer of his interest in the firm, read or been told the contents of the written memorandum of agreement, he would not thereby have become aware of the vital feature of the contract between his firm and the Bonsack Company, which provided that the firm should always have 25 per cent, lower rate than anybody else; because, though it had been agreed upon between J. B. Duke and Mr. Strouse before the contract was signed, it was not reduced to writing until January, 1886, when this hitherto unexpressed condition was written in at the instance of J. B. Duke.
The learned judge below has found as a fact “that the plaintiff was informed by James B. Duke, at the time of negotiating the said oral contract, as to what terms Mr. Strouse, the president of the Bonsack Machine Company, was willing to have provided in said contract.” Upon the question whether or not this finding is correct, the whole case turns. If the plaintiff, though ignorant
“Should such an event take place, we would at once begin manufacturing cigarettes under the name of W. Duke, Sons & Co., with as much capital as we now have, and all the experience; so would give the new buyers a lively time, as we feel confident that within twelve months any new cigarette business we might start would be as large as this one now is. We desire to know that, should we conclude not to purchase the present brands and business, but start a new one, will you give us the use of the machines now in use here? If we get these machines as soon as we should want them, and under same arrangements as now (of which Mr. Wright knows nothing). we would endeavor not to employ any hands to roll cigtts. Advise us at once, as we are making all necessary arrangements looking to the possibility of such an event.”
This certainly looks as though the defendants fully appreciated the value of the machines in the manufacture of cigarettes, and that the experimental stage in their use was past, else why should they say, “We would endeavor not to employ any hands to roll cigtts.”; i. e. rely wholly on the machines for production? And with such faith in and reliance upon the machines, if they could have them under the same arrangements as then existed, whether known or unknown to plaintiff, they might well feel justified in saying they "would give the new buyers a lively time, as we feel confident that within twelve months any new cigarette business we might start would be as large as this one now is.” In addition, we have the evidence of J. B. Duke on the trial of an action brought by the Bonsack Machine Company against W. Duke, Sons & Co. after the dissolution of the firm, in which he stated that he had not told Mr. Wright about the contract. And it appears from the correspondence of the defendants with that company that, in order to avoid knowledge of the terms of the contract by persons who might open
“The relation of partners to each other is one of trust and confidence. Each is the general agent of the firm, and is bound to act in entire good faith to the other. The functions, rights, and duties of the partners in a great measure comprehend those both of trustees and agents, and the general rules of law applicable to such characters are applicable to them.”
In T. Pars. Partn. 225, it is said:
“Prom the requirement of perfect good faith it, follows that no partner must deceive his copartners for his benefit and their injury by false representations, or even by concealment. * * * So, if he proposes to buy of them the whole or any part of their share of the business, and by any false statement or intimation on his part, or any concealment or prevarication, influences them to enter into an arrangement to effect his wishes, it will not be obligatory on them.”
And in 1 Bigelow, Fraud (Ed. 1890) 311, 312, it is said:
“Where a partner, intending to purchase the interest of his copartner, has had the special management of the business or the keeping of the accounts, * ® * the intending purchaser must make a full disclosure of the extent and situation of the business; otherwise the purchase will be liable to be avoided by the other partner.”
And in the same work (pages 312, 313) it is said:
“It is certainly the duty of partners towards each other to refrain from all concealment in the transaction of the partnership business. If a partner be guilty of any such concealment, and derive a benefit therefrom, he will be treated in equity as a trustee for the firm, and be compelled to account to his copartners. * * * The burden is upon him to justify the transaction.”
There would be no advantage in multiplying authorities upon this subject, all tending to support the proposition that in their dealings as between each other partners must act with the utmost candor and good faith. This duty or obligation was not lessened by the fact that during the negotiations the relations between the partners became strained, for until the relation was terminated the obligation remained. Where, therefore, the knowledge that the firm possessed a favorable contract was exclusively in the possession of the defendants, which did not appear in any writing or book kept by the firm, and could not, in all its terms, be ascertained from the written agreement, it is useless to argue “that plaintiff was given a full opportunity to investigate the firm’s affairs,” and, against his right to com-. plain, to insist that “by his own admissions it appears that he was invited to be present at the taking of the inventory; that he did not come; that he knew there were many contracts of the firm, none of which were included in the inventory”; because, had he done what the defendants claim he should have done with respect to attending and examining, he could not have obtained, except from an admission of such of the defendants as knew, any knowledge of the existence of an agreement which gave the firm the preference they then had over all competitors, which, if the result of the use of the machines could have been foreseen, was a most valuable asset. This,
The crucial point is that the most valuable part of the contract was verbal, and it was not known by or communicated to plaintiff, and seems to have been purposely concealed. The concealment of so much as was in writing is not, therefore, very material, except as bearing on the question as to whether or not knowledge of the existence of the contract was designedly withheld from plaintiff. It is begging the real question, then, to argue that plaintiff could have ascertained by inquiry the existence of the written portion, and upon demand could have seen it, or could have ascertained its conditions from the firm’s books. And in connection with the testimony showing that plaintiff’s expert was given full opportunity to examine the books, we must remember the testimony of Watts that “no expert looking at our books could have told that we paid a royalty to the Bonsack Company of less than thirty and thirty-three cents, respectively.” It is contended, however, that, assuming that plaintiff sold his interest in the business in ignorance of the existence of this license, as he claims, he suffered no damage and can recover none. This proposition is claimed to be supported by the well-settled rule that the gravamen of the action for deceit is that plaintiff has been. deceived to his hurt, and not that the defendant has gained an advantage. It may be that the measure of damages as to the value of the contract is its value on the 18th day of September, 1885; and it is claimed that the license was then of no value to the plaintiff, and could not have been used in any way to his advantage whatsoever, for the reasons, as claimed, that the partnership had expired by limitation; that the license could not have been sold or transferred or realized upon as an asset of the firm; that it could not have been used separably by any of the individuals theretofore composing the firm; and finally, for the reason that, if assignable, it was, as a matter of fact, a contract of no value at that time. Tiffs last reason we shall consider hereafter. With regard to the others assign- . ed, they are based on what actually did occur, and not what might have been the result had plaintiff known of the true state of facts. After the notice of July 2d, and when plaintiff had filed his bill for a dissolution, it could not be known what the ultimate mode of dissolution would be. It might be that the defendants would, as they actually did, buy out the plaintiff. It might be that the plaintiff would buy out the defendants. It might be that the assets of the firm would be sold under judicial decree in plaintiff’s suit. Whether the purchaser would secure the benefits of the contract, we do not regard as important. There is apparent authority for the proposition, both in the federal and state courts, that the validity of
This brings us to a consideration of the contention that, though the contract was assignable, the plaintiff was not injured, because, as a matter of fact, the contract at the date of the sale had no value. If this question is to be determined by the evidence, there is sufficient to show, not only that the plaintiff would have regarded such a contract as of some value, but the efforts of the defendants in preventing his knowledge of its existence, and taking measures to secure an equally favorable one in the event of his having purchased their interest, have a tendency to show that they also regarded it as of some value. Whether the value was more or less is beside the question presented for our consideration, and would be wandering into the regions of speculation. Its only bearing could be upon the question of damages, and would go to the amount thereof. Of course, if it clearly appeared that it was of no value, this court would not put the parties to the expense and labor of a new trial merely for the purpose of determining a technical right. But, as we have said, there being evidence to show that even at the date of the sale it had some value, it is unnecessary for us- to determine how much, because that concerns the amount of damages, and not the right to damages, which latter is the question we have to decide.
Our conclusions upon this record therefore are that, if the finding of fact made by the learned judge below to the effect that the plaintiff was informed as to what terms Mr. Strouse was willing to have provided in said contract is intended as covering plaintiff’s knowledge of the existence of the preference clause of 25 per cent., then we-think that such finding is unsupported by evidence, which is preponderating in favor of a finding that the plaintiff was ignorant of' any such clause; that its existence was deliberately concealed from, him to his injury; and that, in view of the relation of the' parties, the concealment of such fact was a fraud on the plaintiff for which he is entitled to damages.
The judgment therefore should be reversed, and a new trial ordered. with costs to appellant to abide the event. All concur.