Van Camp v. Gilbert

1 Cin. Sup. Ct. Rep. 358

• Court: Ohio Superior Court, Cincinnati
• Decided: April 15, 1871
• Status: Published

Opinion

Storer, J.

We are asked to grant a new trial on the ground of “ newly discovered evidence,” and because the finding of the court below for the defendant was not sustained by the evidence and was contrary to law.

A brief history of the case, as we glean it from the testimony in the record, is that the New York brokers referred to held a “pool,” so called inWall street parlance, in which lai’ge sums had been and were to be invested for the purchase and sale of Cleveland and Pittsburg Railroad stock, which at one time represented between three and four hundred thousand dollars. In this investment a number of persons engaged, residents not only of New York, but of Cincinnati and Chicago, of all which the plaintiff seems to have been well advised, and was willing to risk his money in the adventure; this adventure being the purchase of the stock already described, and its resale from time to time at the option of the contributors to the fund invested. A large sum was at hazard, and, as usual in such transactions, the financial thermometer was closely watched, to take every advantage of every rise or fall in the market to purchase and sell with profit. The plaintiff knew, it is evident, how the affair was being conducted, and trusted, with all who held shares in the “ pool,” to future good fortune, and all were alike deceived in the result. On a detailed statement, which the evidence assures us was accurately made and furnished to both plaintiff and defendant, it was ascertained there was due each of them $1,273.25, which was paid on May 4,1865, and the following receipt signed by the parties:

“The above account has been examined and adjusted and is found correct, and is hereby settled by the payment to A. Yan Camp of $1,273.25, and the transfer to the general account on Mills, Currie & Co.’s books to H. O. Gilbert of $1,273.25.” ' ^ '

This memorandum was signed by both the plaintiff' and defendant, without any protest or complaint, so far as the evidence discloses their conduct at the time. This was in 1865, and no demand was made of any further sum, on account of error or mistake in the settlement, until this action was brought in June, 1869.' This singular delay has not been explained, and during the whole period the defendant has been within the reach of process in New York and Cincinnati.

There is no question of law presented in the case to be passed upon. The determination of the whole controversy depends entirely upon the facts proved, and, after a consideration of the evidence submitted to us, we find no difficulty in arriving at the same conclusion with the judge at Special. Term. We are satisfied the preponderance of testimony can lead to no other conclusion. We can not shut our eyes to the fact that he, who was bound by his contract with Yan Camp “to manage purchases and sales of the stock in the same manner he did his own,” not oiily did invest in the “pool” the same amount of his own money as of the plaintiff’s, but has also sustained a similar loss, and been content, in adjusting accounts with the brokers, to receive the same amount that was paid the plaintiff. We are all of opinion that the plaintiff has no right of action against the defendant, and. that the motion for a new trial be overruled and judgment entered for defendant.