Ward v. Woodburn

By the Court, Ingraham, J. This action is for the recovery of personal property. The goods were bought by the defendant's, who were partners in business, on the 18th August, 1853. The purchase was made by their agent, who represented, at the time of the purchase, that the defendants’ house was worth $40,000 over and above their liabilities, and on this statement credit was given. The agent, Mr. Howe, on his examination stated that he made the purchase; that he had not been authorized to make statements respecting the affairs of the firm; that he made the representations on common report, and he thought the defendants worth the amount stated. The evidence to prove that the statements were false showed that the defendants failed early in October, 1853, and the assignment was made 4th January, 1854, which only sufficed to pay the preferred debts and a small balance over. Upon the trial, the defendants were offered as witnesses for each other, and excluded by the court. Under the decision in Beal v. Finch, (1 Kernan, 128,) it was erroneous to exclude the party when offered, but his examination is to be restricted to questions which do not relate to matters wherein he was personally interested. The case of Dean v. Thornton, (3 Kernan, 266,) remedied the difficulty which followed from that decision. In that case it was held that parties might be thus excluded as witnesses, when the matter to which each defendant was offered to be examined was one in which they were jointly interested. If therefore it appears that there is no issue involving any thing personal to one of the defendants, but all the defense made is a joint defense, there is no error in the exclusion of the witnesses. The answers in this case, although separate, all agree in establishing that the only defense the defendants had was "a joint one; that there was nothing personal to either defend [353] ant, and therefore that there was no subject on which either of the defendants could be examined that he was not jointly-interested in with the other defendants. It would have been an idle ceremony to swear the defendants as witnesses, when it appeared from the pleadings that neither of them could be allowed to testify to any matter in issue in the cause. The judge was requested to charge the jury that the action would not lie, if the suit was not brought before the sale by Scott & Franklin to Woodburn; which he refused to do. There was no evidence to show any such sale, except a recital in an assignment by Woodburn, which I should hardly think sufficient evidence of such a fact. But if it had been proved, it furnished no ground for such a charge. If such an assignment was made it was only a release from one partner to another of his interest in the partnership effects, taken with full knowledge of, and subject to, all the equities between the parties; and it was not such a sale ds could deprive the plaintiff of his right of action for the goods which he alleged the defendants had fraudulently obtained from him, even under the decision of the superior court in Roberts v. Randall, (3 Sand. 707.) But upon a review of this question in the supreme court, that case has been substantially overruled, and it has been held that the present remedy for the recovery of personal property is as full, general and complete as replevin was under the revised statutes, and that the action will lie although the defendant before suit has wrongfully parted with the possession. (Brockway v. Burnap, 16 Barb. 309. Drake v. Wakefield, 11 How. P. R. 106.) This disposes of the questions arising on the bill of exceptions, and neither exception being well taken, the plaintiff is entitled to judgment thereon. Upon the case, another question arises, viz: whether the verdict is against the evidence. The false representation alleged by the plaintiff was the statement that in August, 1853, the defendants were worth $40,000. The proof of such falsity is their failure • in October, and making an assignment [354] in January following, with a small amount of assets beyond the payment of the confidential debts. Without some further proof I am at a loss to see how such evidence makes out an intended fraud on the part of the agent, at the time he made the purchase. His testimony shows that the defendants never had directed him to make the statement; that he supposed it to he true; and that he learned it from common -report and from the persons who were references for the defendants. It has not been of late unusual for merchants, and corporate bodies, within a period of two months, to find themselves reduced to inability to pay their debts, from the possession of what they at the time supposed to he a much larger fortune. The mere fact of failure within two months thereafter will not furnish sufficient evidence to establish a fraud against an agent who made such a statement without direction from his principals. Upon this point I think the jury have erred, and the verdict should be set aside. [New York General Term, May 3, 1858. Davies, Clerke and Ingraham, Justices.] When a new trial is granted as being against the evidence, the new trial can only he ordered on payment of costs.