Sherman v. Robertson

34 N.Y.S. 275, 88 Hun 40, 95 N.Y. Sup. Ct. 40, 68 N.Y. St. Rep. 154

• Court: New York Supreme Court
• Decided: June 21, 1895
• Status: Published

Opinion

BRADLEY, J.

The action was brought to recover for the alleged conversion of a quantity of leather, which the plaintiff and John M. Sherman, then constituting the firm of Sherman & Sherman, had placed in the hands of the defendant as collateral security for some indebtedness to him. The main controversy has relation to the extent of the security for which the leather was deposited with the defendant. The evidence on the part of the plaintiff tends to prove that it was solely as security for the payment of two notes of his firm, of date July 26,1893, for equal sums, due at one and two months, amounting to $551.50; while on the part of the defendant it is claimed that the leather was delivered to and held by him as security for the payment of those notes and a further indebtedness of the plaintiff’s firm to him existing in account, and amounting to $244.25. The purpose for which the leather was delivered to and taken by the defendant, as shown by the arrangement between him and the plaintiff’s firm, rests mainly in written correspondence. The occasion for the security arose when they desired renewal of their note about to mature. This the defendant consented to do on condition that they furnished the collateral. The two notes before referred to, and the deposit of the leather, were the result of that arrangement; and the correspondence in the outset, and when the leather was sent to the defendant, fairly justifies the conclusion that it was delivered as collateral security for the payment of the renewed paper only. Shortly after the leather was sent to the defendant, he, in acknowledgment of the receipt of the bill of lading, inserted in his letter the expression that he would take due care of the property for the plaintiff’s firni “until pending obligations have been met by you.” It is urged that such expression shows that the leather was received by the defendant as security for the payment of the account as well as the notes, and that it concluded the plaintiff from asserting any right to the return of the property until payment of it was made. The most that the evidence permits to be said in that respect is that, whether or not the security furnished by the leather extended beyond the renewed notes was a question of fact for the jury. The notes were paid, and thereupon the plaintiff, who had become the sole owner of it, demanded the possession of the property of the defendant. He insisted upon the payment of the account as a condition precedent, and refused, until its performance, to return the property to the plaintiff. The questions of fact were fairly submitted to the jury, and'their verdict is supported by the evidence. In the outset of the negotiation for the renewal of the maturing note before mentioned one Martin, who was in the service of the Sherman firm as salesman, called upon the defendant, and had an interview with him on the subject, as he had been requested and instructed by the firm to do. There is evidence to the effect that the defendant then made to Martin a proposition as to the terms and conditions upon which a renewal of the note Would be granted, and requested Martin to submit the proposition by letter to his firm, and by it request Sherman & Sherman to wire him (defendant) whether or not they accepted it. Martin wrote the letter, which was followed by a telegram from them, accepting the proposition. The letter, abstractly considered, was not competent as evidence, but, in view of the fact that it appears to have stated the proposition as made by the defendant, and was sent at his request by Martin, and acted upon by acceptance, the letter, in connection with evidence of the fact that it contained the proposition- as made by the defendant, was competent, as tending to prove the proposition which Sherman & Sherman, by the telegram, accepted. It appears that some time before the commencement of the action the plaintiff wrote the defendant that he had made a deposit of the amount of the account, subject to the order of the defendant, when the property should be received, examined, and found to be in good condition. This letter was received in evidence without objection, and to the testimony of a witness to the fact that the money had been so deposited the only specific ground of objection made was that it was not the best evidence. Neither the letter nor this evidence had any apparent materialty upon the issues on trial. But the objection specifically taken was not tenable. There was no error in the rulings at the trial to the prejudice of the defendant The judgment and order should be affirmed. All concur.