Campbell v. Emslie

101 A.D. 369, 91 N.Y.S. 1069

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1905
• Status: Published

Opinions

O’Brien, J.:

• The complaint in this action alleges that in the month of October, 1903, the plaintiffs, composing the firm of Campbell & Reid Western Sale Stables Company, sold and delivered to defendant forty-seven horses at the agreed price of $7,647.25, which has not been paid, although due, and judgment is demanded for that sum and interest. The answer, in so far as it need be considered, admits that the horses referred to in the complaint were delivered to the defendant, but denies that tliey were sold to him by the plaintiffs, and alleges that he received them from the Campbell Horse' Company.

Upon the trial the court, without objection from either party, stated that the issues to be determined were: First, whether the horses had been sold or had been only consigned to the defendant, and, second, if they had been sold to him, whether the sale was by the plaintiffs’ firm or by the Campbell Horse Company. And at the close of the evidence the court in its charge stated the contentions of the respective parties, and defined the issue to be determined by" the jury as follows: “ The plaintiffs claim that they are and were copartners in business under the firm name of the Campbell & Reid Western Sale Stables Company, and that as such, in the latter part of August, in the year 1903, they and the defendant had an understanding to the effect that the plaintiffs were to ship to the defendant horses for which the defendant was to pay the cost price and added expenses,” and also certain specified commissions ;■ “ the defendant, on the other hand, .claims that he had no transactions whatever with the plaintiffs’ firm, known as the Campbell & Reid Western Sale Stables Company, but that he dealt only with the Campbell Horse Company, with whom he claims that he had an: Understanding to the effect that the title to the horses which such firm was to ship to him would remain in the Campbell Horse Company until' they were sold, and that when sold' the; defendant .was to- remit the actual cost of tlie horses/’ together with the .amount of. certain specified expenses "and-commission's, and that all ovei and above “ such cost price, added expenses and commissions, the defendant was to retain as his profit.” Ho exception was taken by either party to this portion of the' charge*, and'the jury found for the defendant upon the issue thus raised. From the judgment entered upon the verdict, and from the order denying the motion for a new trial, the plain tiffs have appealed.

, ■ It is not necessary to- set out in detail the testimony bearing upon the conflicting claims of the respective. parties. It. is sufficient to say that there was a sharply contested question of fact, as defined by the court, which was properly submitted to the jury; and the‘finding thereon is not against the weight of evidence. The confusion that has arisen as to the identity of the real party with whom the defendant dealt was caused by the'circumstance that both. firms were engaged-in the same business, the. buying and selling of horses on commission; by a. similarity in the names of-the two firms, and by the fact that the members of the plaintiffs’ firm -were ■ all members of the Campbell Horse Company, and the transactions of the. two .firms were so intermingled that the business of the one could with great "difficulty be distinguished from the' business of the other. Concerning, the'defendant’s dealings with these firms the evidence disclosed the following facts : Prior to. June 11, 1903, he had .been a- copartner with the horse company under the firm name of James Emslie & Co., engaged in buying horses in the west, bringing- them to the., east and disposing of them in Hew York city and Weehawken* H. J. On the last-mentioned day the partnership was dissolved by voluntary agreement, tlie defendant succeeding to tlie' business* acquiring title to all the horses on hand, and agreeing to pay for the horse, company’s, interest in the partnership the sum of $37,476.70, the same to be paid in installments at. the. times.specified-in the dissolution agreement. The defendant testified that after the dissolution he had conversations, with oné Campbell and one. Beid who were-members of both companies, relativé to the párchase by- him of horses from the Campbell HorSe Company; and that. in one of the conversations with Beid, who seems to have been the active business manager of the horse company in the east, á contract was made by which the horse company agreed to consign horses to him, the title to remain in it until he paid for them; and that when he had sold them he should remit to the horse company the amount which it had paid for the horses plus the reasonable and proper expense for feeding and shipping, the balance to be retained-by him as profit. He testified further that several carloads of horses were sent to him under this contract, and among them the two loads which comprise the horses that are the subject of this action. His testimony is contradicted in many respects by Reid and Campbell,- bht in so far as he stated that he was dealing with the Campbell Horse Company he is corroborated by the undisputed fact that certain checks given by him in payment for horses delivered subsequent to the making of .the alleged contract with the horse company are payable to the order of that firm. And this corroboration is strengthened by the fact that these checks were actually made out. ■by one Van Hess, who was the representative of these plaintiffs and! familiar with their business dealings with the defendant. The credibility of the witnesses was a question for the jury, and it does not need further analysis of the testimony to show.that there ivas ample to support the verdict in favor of the defendant’s claim. Therefore, the judgment entered upon that verdict must be affirmed, unless error was committed on the trial in the admission of evidence or in the charge of the court. -

Before taking up that branch of the appeal, and in order to properly understand the force' of certain objections made by plaintiffs, it is necessary to consider .the peculiar standing of the man Van Hess, who has already been referred to. He was.originally in the employ of the Campbell Horse Company, and when it entered into partiiership with the defendant he was sent east, nominally to act as bookkeeper of the new firm at its office in Weehawkeñ, H. J., b‘ut it is clear from the entire evidence in the case .that his real duties were to look after and .protect the interests of these individual plaintiffs in that partnership as distinguished from the interests therein of this defendant, the other partner. Van Hess kept the people whom he represented informed of all that transpired in that business, making regular reports to them of its dealings and financial condition, arid when the partnership was dissolved a provision was inserted in the dissolution agreement that he should remain with the defendant until the indebtedness incurred for the purchasing of the business should'have been finally, paid. By the terms of the agreement the final payment was due on September 10,1903, but. it-will be noticed that Van Hess’ retention was not limited so as to ter- • inmate on that date; but he was to continue to represent the plaintiffs until the indebtedness should have been, actually paid, irrespective of • whether that payment was made upon the date specified or not. ■ The agreement recited that he should-perform “ the same duties ■ as.he has hitherto performed, provided the Campbell Horsé Company shall so.desire. - The wages of said Van Hess while.so employed, however, shall be paid by the Campbell Horse Company.” . Certainly under stich an agreement lie could not be regarded as the representative of. the defendant who had no right to discharge him and apparently had' no right to prescribe his duties. Indeed, it can fairly be inferred from the testimony of Van Hess himself that he considered himself subject only to the directions of these plaintiffs and employed to protect their interests.' This inference is strengthened by a letter from the -plaintiff Beid to the defendant dated' September fourth, written upon the business stationery of the Campbell & Beid Western Sale Stables Company, in which lie said : “ I will .expect you (after September 10th) to employ Mr. Van Hess at your own expense, - but I am to have the privilege of him making report of the business to me just exactly the same as has-been done for the past three months until a final settlement is made * * - as per contract:” It will be - observed that the letter was on the regular business paper of plaintiffs’ 'firm (n ot of the horse company) and although the writer required that the deféndant should.pay Van Hess’ salary after the date mem tioned the plaintiffs were still the parties who could, prescribe his duties and whd could insist upon his retention in. the position in which he had been placed by them,, and it appears that up tb Ho-vember,, when the defendant’s -business was seized by the sheriff, Van Hess remained with him without apparently any.change in his. duties. He drew the cheeks, kept the books, apparently attended to the, financial part of defendant’s business, rendered detailed accounts of the business, to his principals, the individual plaintiffs, sending them trial balances showing exactly who the creditors- and debtors of the defendant were. He admits ,that during his employment lie "wsis practically his own boss so-far as the defendant was concerned, ‘and the testjmany would warrant a finding by a jury, if regarded as a disputed question, that he was acting as the agent and representative of these plaintiffs whose interests lie was guarding and who'were responsible for his continued employment in the defendant’s establishment. We think the testimony would justify a finding not' only that Van Hess represented Réid, Campbell and the other members of the horse company in so far as they had an interest in that firm, but .also that he represented their interests in the Campbell & Reid Western Sale .Stables Company. ■ Mr. Reid when upon the stand rwas shown certain checks, some to the order of the Campbell Horsé •Company and one to the order of the Campbell & Reid Western Sale Stables Company, and in response to interrogatories he said.: “ They are made out in Mr. Van Hess’s handwriting; he was our representative; ” apparently making no distinction between the interests of himself and his companions in the' horse company and their interest in the sales stable company. From all of which it would appear that he was placed and retained there by the plaintiffs .to represent their interests in both firms, and they by receiving and ■cashing checks made out by him'sometimes-to one firm and sometimes ' to the other in payment of horses delivered to defendant sanctioned and ratified his conduct in that respect. The objectionable testimony should, therefore, be considered" in the- light of the status held by Van Hess. Upon his direct examination he testified that he had a ■conversation, with the defendant concerning the invoices of the two ■carloads, of horses now in' dispute in which defendant raised the-■question as to the parties who had sold the horses to him! The witness testified: Emslie “ asked me to show him the invoices ■ of "the last horses received and I went to the safe and took the invoices ■out of the drawer. He said to me — he handed it back to me and .said, ‘ Why, that is Campbell & Reid Western Sales Stables,’ and T ■asked him why, and he said : Well,,I"just wanted to-know,’ and'that is all there was to it. I put them back in the safe and they remained there.” When the defendant was put upon the (Stand he in turn was asked to - state this conversation: This was objected to as immaterial and irrelevant; the objection, was overruled and the plaintiffs excepted. We think the trial court properly admitted this testimony. The plaintiffs having' called for the conversation in the direct examination, of their own witness and one. who might be found to be -their representative, the defendant was. of course entitled to state his version of it. He then testified concerning the conversation that he said to Vañ Hess: “I thought I was dealing .with the Campbell Horse Company all the time, as the railroad bills said that the horses were consigned from the Campbell Horse Company.” The witness was-then asked : “Did yon say anything about the railroad bills?” And he responded : “Yes, sir, I produced.two or three of them and they were all — C. II. Co.’ I showed him that .railroad bill (showing paper).. I said that is C. H- Company.’ That means Campbell Horse Company.” He was next asked:. “ What did 'he' sáy to you with reference to the C. II. Co.?-’ ’’ -and he. answered, “ Campbell Hoi-se Company.”

.The invoice so called, which was in reality a bill from the express •company for the carriage or freight of the horses, was regarded-by | both'parties as part of the res gestee / and for this'reason as wéll as .for the reason already given, the defendant’s version of the conversation regarding it .was, we.think, admissible. :

. The recapitulation of the testimony shows ' its materiality and competency. It bore upon the question of which party shipped the-horses to the defendant, and the statement'made by. Van Hess-that “ C. II.' Co.” meant-the “ Campbell Horse Company ” was competent, we think, as a statement by him which would have beén. binding upon the plaintiffs’ firm if the jury should find from tlve evidence, as they were justified in. doing, that he representedv tire interests of the plaintiffs in. that firm. Surely such a statement by'one who was-authorized to represent them was competent as bearing .upon- the question, of whether they, shipped the horses.

The invoice or bill referred to was then offered in evidence and objected to by plaintiffs as irrelevant, incompetent and -not binding upon them. The objection was overruled.. and exception taken. We think 'this ruling-also was proper ; the bill ór invoice was part of the res gestee. It showed the .delivery of the horses and the payment of the freight therefor. . The defendant had testified that the horses were shipped under the contract which, he had with the Campbell Horse Company that they should send him' horses and charge him the price paid therefor together with shipping expenses. Here Was a receipted bill -showing the amount of the- shipping charges .upon- these particular horses, and that the same had been paid. It was a piece of evidence that the jury had a right to have before .them, in determining whether the horses had been shipped pursuant to the contract claimed by the defendant with the Campbell Horse Company.

■ Exception was also taken by the plaintiffs to so much of the charge of the court ás referred to this conversation and the freight bill. What the court said in that respect is as follows: “ It appears that the receipt to which reference was made, was given by the H. S. Express Company to the defendant. Hence it is not binding upon plaintiffs, except in so far as the plaintiffs may have made admissions with respect thereto, but the receipt itself is not binding, I repeat, except yon find admissions were made by the plaintiffs in regard thereto. * *•* If you find that Van Hess was the agent of the plaintiffs, and not of the defendant and that he made any admissions with respect to the receipt so given by the H. S. Express Company, you may take the same into consideration, together with all the other evidence and circumstances in the case.”

We think this charge was correct. It coincides with our idea 6f the force and effect to be given to the bill or invoice. It left for the determination of the jury the question of whether or not Van Hess was the agent of the plaintiffs, and as we have already pointed out, there was sufficient evidence to justify a finding that he was. It instructed the jury that the freight bill was not binding, except so far as the plaintiffs through this person might have made admissions with respect to it; and it instructed the jury that, under these restrictions, they might take the freight bill into consideration as they would any other evidence in the case. All of this was proper.

We have examined the other exceptions taken by the plaintiffs, but find none that requires a reversal; therefore, the judgment and order appealed from must be affirmed, with costs.

Van Brunt, P. J., and Patterson, J., concurred; Hatch and Laughlin, JJ., dissented.