Winter v. Matthews, Burke & Cameron

LOCHRANE, C. J. I. This was a motion for a new trial upon the grounds that the jury found contrary to the evidence and law. A preliminary question is made on the pleadings as to the uncertainty of the plaintiffs’ petition. The suit was originally in favor of Matthews, Burke & Cameron, and, without objection, was amended by adding a general money count, and the name of F. E. Brocket, who sues for their use. We need not say that under our laKv amendments are allowed at any stage of the proceedings, as matter of right, and either in form or substance, if there be enough in the pleadings to amend by. Section of the Code 3429. And by section 3436 this very case is provided for: “When it becomes necessary for the purpose of enforcing the rights of such plaintiff, he may amend by substituting the name of naother person in his stead, suing for his use.” The point raised on the amendment as made, that it is uncertain as to parties, we do not hold valid. The declaration is in the name of Brocket, for the use of these parties, who allege with sufficient distinctness the cause of action, and as the declaration as amended was neither demurred to nor claimed as a surprise, and the case proceeded to verdict, we would be cau [655] tious in holding any exceptions to the pleadings, that contained sufficient to enforce the verdict, invoking such exercse of power. 2. In this case, the evidence showed that Winter had received money from Brocket for investment. This fact is *not disputed; it appears, by the receipts of Winter, that he got the money, and this suit was instituted to recover it back. Brocket, whose interests had been assigned to these usees, testified, that on the 7th of September, 1867, he had his first interview with Winter, brought about by the intervention of one Burton, and at which time the larger portion of the money was handed .to Winter. The evidence discloses that this money was to be invested by Winter, and that he was to manage the affairs, and Brocket was to look to him for the return of the money and profits. How he was to invest, or through whom the matter of arrangements and profits were to be consummated, were not divulged. The division of profits was defined and Brocket, after paying over the money and taking the receipt therefor, retired from the scene without knowing anything, except that there was to be an investment that promised large results, in some ten days, from the purchase of one hundred barrels of whisky. After waiting the denouement of this business thus arranged, Brocket sought Winter, desiring settlement, but got none. In some of the several interviews following, Brocket desired to be put in communication with the party who held the property. This was not at first effected. Brocket, evidently from the evidence, was uneasy and followed up, with pertinacity his efforts to either get at the investment, or get the money. In one of the frequent importunities Winter expressed doubt of a certain man named Robbins having acted fairly in the investment. After this, Brocket, by letter, directed Winter not to invest, etc. In none of these varied interviews did Winter show any receipt from Robbins for the money, but invariably expressed his own responsibility for the money—at one time offering his own note, at sixty days, for it, which was declined, except he would give a firm note. Brocket also states, that in his hunt after the money, he went to Robbins, who said the amount was invested in wines in bond, but his business was with Winter. It appears that Winter was the bondsman of Robbins, who had a bonded warehouse, and Brocket swears that he had no knowledge of anything illegitimate being intended, that he did not know how the profits were to be realized. Brown, a witness introduced, stated that he was present at an interview between Winter and Brocket; in the interview, Winter said he had loaned the money to Robbins, who was in Washington, and when he returned the money should be paid, (appointing ten days afterwards as the time.) He went at the appointed time to Winter’s office; Brocket demanded the money of Winter he had loaned him; Winter said he presumed Rob [657] bins had invested it in low wines; Brocket then demanded if he had "invested it, to show him in what; Winter wrote a short nóte to be delivered to Robbins at one hundred and nine Washington street; they went and found him, delivering the letter; his reply was, that he knew nothing of any investment for Winter; they returned to Winter’s office and he was gone. Plaintiff also introduced the sworn plea of Mr. Winter, which set out, among other things, that this money was handed to him to invest in whisky, at forty cents per gallon, the object being to cheat the United States out of its tax; that he took the money without responsibility to turn over as might be requested; that he had turned it over to Robbins at once; that he was not to be interested nor responsible; that Brocket told him, after he received the money, that it was the purpose of the parties concerned • to sell the whisky without payment of the revenue tax to the government; that he did not know whether Robbins ever invested the money or not; that Robbins had only a few barrels in his bonded warehouse; he presented a receipt from Robbins for the amount, dated September 6th, 1867. Mr. Winter was sworn for the defense, and substantially swore what was in his plea. The jury found for the plaintiff the amount of $2,350 40. Was the verdict of the jury contrary to the evidence? We think not. The receipts taken with the evidence is clearly sufficient to sustain it. The money went into the hands of Mr. Winter for investment. Whether he returned the money or accounted for it, was a question of fact for the jury, and they were authorized to *look'into the whole transaction, and from the facts stated, from Both Brocket and Brown, parties without interest jn the case, there was such a case made out as warranted the finding! Was it against law? We think not. The evidence against Brown and Brocket showed no knowledge upon the part of Brocket with, or any participation in, the contemplated fraud upon the government. And the evidence of Mr. Winter in his own case was a question of credibility for the jury. Brocket says, positively, he did not. Winter says he did. The jury are the judges in such cases, and it is not necessary for us to go into the many reasons why the finding of the jury may be sustained on this point. Their finding either way would have been supported by proof. But even conceding that the weight of the evidence was in favor of such knowledge, there was evidence in this record that the principal was to be paid back to Brocket, and there is no evidence of any investment, or any cheat on the government, in fact, and there is some evidence of locus pentitentise and directions not to invest. These questions, under a fair charge from the Court, have been passed upon, and we will not disturb the finding of the jury upon them. Judgment affirmed.