Adsit v. Ehmke

47 A.D. 223, 62 N.Y.S. 702

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1900
• Status: Published

Opinion

Adams, P. J.:

. Upon the trial in the County Court some evidence was given by the defendant tending to show that the plaintiff Augram sold his. interest in the logs to the defendant, with the knowledge and consent of his co-plaintiff, Adsit; and in view of this evidence it was contended by the defendant that the plaintiff Augram had no interest in the subject-matter of the litigation and, consequently^ ' Could not maintain an action therefor. At the conclusion of his charge the learned trial judge was requested by the defendant’s counsel to instruct the jury: “That if they should find that Ehmke bought the remainder of the logs pr lumber of Augram, that then the plaintiffs cannot recover im this action, even if he has not paid for or settled for them; that this action could be maintained only for goods sold and delivered.” In reply to which request the court stated: “ I decline to charge as requested and give you the exception. If Augram sold to him his interest there is no evidence in the case that he had any authority to sell Miss Adsit’s lumber, and she might in any action of trover and conversion recover for her interest; whether that, would be a joint action is another question.”

This language is somewhat obscure and precisely what meaning the learned trial court intended thereby to convey is involved in some doubt, but we think that the defendant was entitled to have the jury instructed in accordance with this request and that it was error for the court to decline to so charge.

While the evidence in the case perhaps does not establish a copartnership between these plaintiffs as respects the lumber in question, the action was nevertheless brought and sought to be maintained upon the theory that they were jointly interested therein; but it is obvious that if the plaintiff Augram had disposed of his share of the lumber with the knowledge and consent of his co-plaintiff, he had no further interest therein, and consequently was not entitled to maintain this action. It is equally obvious that if such were the case the plaintiffs were not entitled to recover the full value of the lumber which, it is claimed, the defendant liad sold and converted to his own use; and inasmuch as the verdict represents such, value it is impossible to say that the refusal of the court to charge as requested did not, in some measure, influence the action of the jury. We con elude,'therefore, that the error complained of rénders a new trial necessary.

All concurred.

Judgment and order reversed and a new trial ordered, with costs of the appeal to the appellant to abide the event.