Davis v. Peck

Miller, J. It is objected that the plaintiff was not entitled to recover the amount of the several notes payable to his order as receiver of the Watervliet Bank, and the sums loaned, for which checks were given by the plaintiff as such receiver, for the reason that he showed no title to them, and that they were the property of the plaintiff as receiver, and did not belong to him individually. I am inclined to think that the objection is not a valid one, and that no error was committed by the referee in allowing these items. As to the notes, it appears that they were indorsed by the plaintiff as receiver, and thereby the title to them was transferred to him. This fact is apparent from the copies of notes and indorsements introduced in evidence, and the finding of the referee on this point, to which no exception was taken. By the indorsements the title, prima fade, became vested in the plaintiff, and; in the absence of any proof to the contrary, the plaintiff would be entitled td prosecute them in his individual character. They were received in evidence, with the indorsements, without any objection being made that the indorsements were not proved, or any point being taken on that account; and the fact that the plaintiff had used money in his hands as receiver in making some of the loans on the notes, would not, I think, of itself be sufficient to establish that they did not belong to him individually. It may also be observed that there was evidence to show that they were presented by the plaintiff as an individual claim against the defendant, and were recognized by him as such, no objection being made on that account, on the occasion of the meeting of the plaintiff' and defendant for the purpose of having their accounts looked over. The referee has also found that the plaintiff held the notes in his individual capacity, and I am not prepared to say that the finding is not supported by sufficient evidence. • As to the checks, they were introduced as evidence of [430] the loans made, and although signed by the plaintiff as receiver, yet the' testimony of the plaintiff shows—and there is nothing to contradict it directly—that they were .individual transactions. It may well have been the case, that the amount drawn by him as receiver upon these checks was a portion of his fees, and actually belonged, to him. ■ The parties seemed to consider the transaction as an individual matter, and it was so treated by both of them. There is certainly no" evidence 'which establishes that the defendant in receiving this money considered that he was dealing with the plaintiff as receiver. Such a theory is also contradicted by the fact, that these, with other items of the accounts between the parties, were included in the statement made by Mr. "Vanderheyden, to whom the accounts had been submitted for the purpose of being examined, and with a view of having a balance struck, at the request of both parties, and that there was no serious dispute in regard to them. The allowance of the check of four hundred dollars is especially objected to upon the ground that it was never had by the defendant. I think it was properly allowed. The defendant swears that he never had the check, and that on the 19th of September, 1851, the day it bears date, he was not in Troy, but at 'Kaine, in Oneida county. He is supported by the witness Gilbert, who testifies that the defendant was at Rome on the 19th, having, as he thinks, stayed with him the night previous. The plaintiff, on the other hand, testifies with great positiveness as to the loan of the money and the delivery of the check, and gives the particulars connected with the transaction, and states the manner in which it was to be paid. His recollection is sustained by a memorandum made by him at the time, containing a statement of the matter. In addition, it appears that this was one of the items contained in the plaintiff’s account left with "Vanderheyden [431] to strike a balance, and that no objection was made to it by the defendant at the time when it was presented. Looking at probabilities, it is possible that the check may have been obtained prior to its actual date, thus rendering the proof as to the defendant’s absence from Troy of no consequence. But in any view which may be taken of the testimony, it is manifest that it was conflicting, and as it is not entirely preponderating in favor of the defendant, the finding of the referee is conclusive. I also think there was no error in allowing the plaintiff to be asked, whether the loan of $400 was an individual transaction. Also in asking, whether the plaintiff loaned the money as his own or as receiver. Both of, these inquiries embodied a fact within the knowledge of the plaintiff, and did not, I think, require the expression of an .opinion upon the law of the case. The plaintiff, above all others, was in a position to know how the fact was. I have had considerable hesitation whether the plaintiff was entitled to recover the five hundred dollars claimed for his services in the case between Slocum and Peck. The plaintiff was employed alone, and before the termination of the suit, but after a greater portion and nearly all the services had been rendered, he formed a partnership with another person. The evidence does not show that any part of the services were actually performed after the formation of the copartnership, and the plaintiff would clearly be entitled to recover for what services he did render personally prior to its formation. It is, perhaps, questionable whether the defendant should not have pleaded the nonjoinder of the plaintiff’s partner, if he desired to avail himself of that fact. (See 31 Barb. 239.) But the contract as to the services was between the plaintiff and the defendant, and although the plaintiff subsequently took in a partner, I think that this fact alone did not affect the relationship previously existing between the [432] plaintiff and defendant. When an attorney is employed by a party, the law implies a contract between them; and before a new partner can be made a party to the contract, there must, I think, be some agreement or understanding to place him in a position which would entitle him to make a claim against the client who originally did not employ him. As there is no proof of any such agreement, or of the substitution of the firm as the attorneys or counsel of the defendant, I am inclined to think that the relation of attorney and client did not subsist with the new firm by the assent of the defendant, and' therefore the plaintiff was entitled to recover for these services by virtue of his contract with ■ the defendant. (Ayrault v. Chamberlin, 26 Barb. 83.) I discover ho error in any of the decisions made by the referee upon the trial, and I think the judgment should be affirmed, with costs. Hogeboom, J. I am not quite satisfied, without further examination, as to the $500 for professional services in the Slocum case. . Evidently a part of the amount belonged to Whitman, and I think such amount cannot be recovered by Davis. Peck swears ’ he employed Davis and Whitman. Whitman swears they were employed. At first, thinks they were employed before arbitration commenced ;• afterwards seems to doubt about it. Davis swears most of the services were performed before the partnership. Assume that this is so, I think Davis could not alone recover for the residue, because the testimony shows that Peek employed or adopted both of them afterwards in the transaction. As the plaintiff has not made the matter clear, I incline to think he should consent to deduct $245, (and interest thereon,) which is $5 less than half of $500, or else that a new trial should be granted, and that neither party should have costs of appeal. Besides, were not both of the questions- at folio 78 erroneously over [433] ruled? I incline to think so. As to the residue of the case, although the plaintiff has been pretty liberally dealt with, I do not know that there are legal objections on which we can set aside the report. [Albany General Term, March 4, 1867.