Wright v. Putnam

New York Supreme Court

Wright v. Putnam

2 Thomp. & Cook 455

DecidedDecember 15, 1873

StatusPublished

This text of 2 Thomp. & Cook 455 (Wright v. Putnam) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wright v. Putnam, 2 Thomp. & Cook 455 (N.Y. Super. Ct. 1873).

Pincite

Opinion

E. Darwin Smith, J.

The circuit judge, we think, erred in taking this case from the jury.

The plaintiff and defendant, as the proofs showed, were shareholders in a species of joint-stock enterprise to purchase, hold and [456]*456improve me acres of land, upon which was situated a mineral spring called the Crystal spring.

The stock’of said company was divided into forty shares, and of these shares the defendant owned three. In the years 1866 and 1867, the plaintiff proved that erections and improvements were made on the land of the company, at an expense of about $6,800, by the plaintiff; that in August, 1867, the said plaintiff, with one Benson Smith, another shareholder in said company, made an estimate or statement, in writing, of such expense as between the shareholders, making it amount to the sum of $158.94 -to each share in said company; that they exhibited to the defendant, who owned three shares of said company, such statement, and asked him to pay the amount assessed upon his three shares of $475.62, and $20 assessment on one share after March 1st, amounting to $495.90; that the defendant took the figures on a piece of paper, and said he would pay him the money; would be over in a few days and settle up — square up. This was proved in substance by two' witnesses. If the jury believed this testimony, and that there was at this time a distinct admission or recognition by the defendant of his liability to pay this amount, coupled with a promise to pay it, we do not see why they would not have been bound to find a verdict for the plaintiff for such amount with interest.

Even as between partners in ordinary partnerships, proof of a settlement between them, with a promise by one to pay the other a balance struck, would warrant and sustain a recovery at law. Clark v. Dibble, 16 Wend. 601; Powell v. Noye, 23 Barb. 186; Koehler v. Brown, 31 How. 235.

There should be a new trial, with costs to abide the event.

New trial granted.

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E. Darwin Smith, J.

The circuit judge, we think, erred in taking this case from the jury.

The plaintiff and defendant, as the proofs showed, were shareholders in a species of joint-stock enterprise to purchase, hold and [456]*456improve me acres of land, upon which was situated a mineral spring called the Crystal spring.

The stock’of said company was divided into forty shares, and of these shares the defendant owned three. In the years 1866 and 1867, the plaintiff proved that erections and improvements were made on the land of the company, at an expense of about $6,800, by the plaintiff; that in August, 1867, the said plaintiff, with one Benson Smith, another shareholder in said company, made an estimate or statement, in writing, of such expense as between the shareholders, making it amount to the sum of $158.94 -to each share in said company; that they exhibited to the defendant, who owned three shares of said company, such statement, and asked him to pay the amount assessed upon his three shares of $475.62, and $20 assessment on one share after March 1st, amounting to $495.90; that the defendant took the figures on a piece of paper, and said he would pay him the money; would be over in a few days and settle up — square up. This was proved in substance by two' witnesses. If the jury believed this testimony, and that there was at this time a distinct admission or recognition by the defendant of his liability to pay this amount, coupled with a promise to pay it, we do not see why they would not have been bound to find a verdict for the plaintiff for such amount with interest.

Even as between partners in ordinary partnerships, proof of a settlement between them, with a promise by one to pay the other a balance struck, would warrant and sustain a recovery at law. Clark v. Dibble, 16 Wend. 601; Powell v. Noye, 23 Barb. 186; Koehler v. Brown, 31 How. 235.

There should be a new trial, with costs to abide the event.

New trial granted.

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Bluebook (online)

2 Thomp. & Cook 455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wright-v-putnam-nysupct-1873.

Opinion

E. Darwin Smith, J.

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