Farrington v. Woodward

Mr. Justice Woodward delivered the opinion of the court, October 9th 1876. Portions of the deposition of De Lancy Crittenden which were rejected by the court below were admissible, if they did not contradict the record of the suit of Yan Yoorhis against Farrington in the Supreme Court of New York. The importance of the testimony, however, is not apparent. The statement of the witness in answering the third interrogatory, that the suit was commenced by the service of a summons and an order of arrest, and that a defence was interposed and a trial had before a referee, resulting in ajudgment, and his statement in answering the tenth interrogatory, that his registry showed the payment by Farrington of the debt, interest and costs recovered against him, amounting to $235.55, on the 12th of July 1870, could only have been cumulative proof of what must have been abundantly made out by the exemplification of the New York judgment. While, therefore, as corroborative and perhaps explanatory of the record, the statements were evidence under the authority of such cases as Carmony v. Hoober, 5 Barr 310, and Stark v. Fuller, 6 Wright 320, no injury could have been caused to the plaintiff by their rejection, and the error would not be significant enough to require on that ground that the judgment should be reversed. The rejection of Mr. Crittenden’s recital of the opinion he had given Farrington as to the effect Woodward’s testimony would have had in the New York suit, and of his statement of the contents of [264] Woodward’s letters, was right. In both instances the witness gave not facts communicated to him, but his recollection of the impressions produced on his own mind' as conclusions from those facts. His conversation with Farrington was in Woodward’s absence. He said in reference to the letters: “My present recollection is that he [Woodward] stated in those letters, in substance, that he would corroborate Mr. Farrington in his statements, and that the facts as stated by him would have been sufficient, if testified to by him, to have entitled the defendant to a dismissal of the complaint with costs.” This testimony could tend to prove nothing and was so vague as to be valueless. There is more substance in the second error assigned by the plaintiff. The defendant was permitted to answer the question, “whether or not, under the contract of dissolution, and in pursuance of its terms, he did or did not fulfil all the contracts and obligations of the firm of which he had any knowledge at the time of the dissolution.” The objection urged on the argument that the question was leading, was not made at the trial and is not entitled to be considered here. But it involved an answer covering the entire issue in the case. The agreement dissolving the partnership and transferring the assets to the defendant, had stipulated that “ the said Woodward is to pay or satisfy all of the debts of the late firm, and carry out all of its contracts, engagements or obligations, and save and keep harmless the said Farrington of and from the payment of any debts of said firm, and save and keep harmless the said Farrington of and from the non-fulfilment of any of said contracts, engagements or obligations.” Now the patterns out of which this controversy has arisen had been borrowed of Van Voorhis for the firm. The law created the obligation to restore them. They were transferred to the possession and control of the defendant with the other partnership effects at the time of the dissolution. It will be shown hereafter that he could not have been ignorant that the patterns had been borrowed and not bought. Under his agreement with the plaintiff he was required to discharge every obligation the law laid on the partnership. Whether the duty to return these patterns to Van Voorhis was such an obligation, it was for the court and jury to ascertain upon the evidence before them, and was a question which could not legitimately be left to rest on the opinion a party to the contract might be found to entertain. A statement by the defendant of what acts he had done in pursuance of the agreement would have been unobjectionable, but the answer he was permitted to give was entirely too comprehensive. He was allowed, in substance, to say that he did not legally owe the duty to enforce which the suit was brought, and that the plaintiff had no cause of action. All the remaining assignments of error develop, with greater or less directness, the main point on which the controversy in the court below was made to turn. Relying on the authority of Case [265] v. Cushman, 3 W. & S. 544, the court charged: “ This case depends on this question of fact, whether at the date of this article of dissolution of partnership between Woodward & Farrington, Mr. Woodward was ignorant of any liability existing on the part of the firm of Woodward & Farrington to return these patterns immediately. If so, then no damages can be recovered from him for a breach of contract that he was wholly ignorant of at that time.” It is observable that no question as to the defendant’s means of knowledge, and no facts bearing on that question were submitted to the jury. Hurlburt, the foreman and agent of the firm, received from the Holly Manufacturing Company, on the order of J. Van Voorhis, Jr., twenty-five wooden patterns, belonging to a header, bander and turner for manufacturing wood pipe, on the 15th of August 1866. The receipt of Hurlburt stipulated that the property should “ be returned immediately after using.” The patterns were delivered in Williamsport about the 22d of August, and were taken to Elmira by the plaintiff and Hurlburt the same day. The next day the defendant went to Elmira, and the parties met in the foundry, where it was agreed ' the eastings should be made. According to the recollection of the defendant himself, the patterns "were then there. The firm was dissolved on the 3d of March 1868, the defendant remaining in the management of the business and in possession of the castings manufactured from the patterns, and Hurlburt, the foreman, remaining in his employment for a year after the dissolution. Van Voorhis brought suit against the present plaintiff on the 4th of December 1868. Up to that time the patterns appear to have been left in the hands of Stevens, at his foundry in Elmira. In the opinion of the court below, the want of proof of express knowledge by the defendant of the terms of Hurlburt’s receipt to the Holly Manufacturing Company, was fatal to the plaintiffs case. But it is not possible that the defendant could have been deceived or misled. While he was on the stand as a witness he was asked, “When the patterns were here, when they were at Elmira, and when you agreed at Elmira to have the work done at the shops there, did you not know that they were not yours, and belonged to a man of whom your agent had borrowed them ?” He answered: “ I knew that they were not ours, and I knew that Mr. Farrington had borrowed them of some one, I presume he said Mr. Van Voorhis. I don’t recollect now. I recollect it was an attorney, and was surprised that it was an attorney who owned them.” It is to be borne in mind that after the 3d of March 1868, the defendant was in possession of the entire firm property, and was controlling its entire business. The patterns had been used and the castings made at the time of the dissolution. The fact that the property had been borrowed was admittedly known, and the defendant was perfectly aware that it had never been owned by the firm, and did not belong to him. It was his duty to see that it was surrendered to the true [266] owner, who had a right to its possession. But it is insisted there was no affirmative proof that he knew the contents of Hurlburt’s receipt. Perhaps not, but whose fault was that ? Hurlburt was in his service, and he had the means and opportunity of obtaining all the knowledge which Hurlburt possessed. It is true nothing appeared in the papers or books of the firm disclosing the terms on which the patterns were held. But the defendant held them. He knew not only that they were not his, but that Van Voorhis owned them. He knew also that he owed some duty regarding them. If he was in doubt, he was bound to use the means at hand to ascertain exactly what that duty was. It has often been held that anything that would put a prudent man on inquiry is equivalent to notice: Churcher v. Guernsey, 3 Wright 84; Twitchell v. McMurtrie, 27 P. F. Smith 383. If in point of fact, the defendant was unaware of the terms Hurlburt had made, his ignorance was the consequence of his own want of precaution. The plaintiff ought certainly not to be required to pay without the chance of redress the penalty of the defendant’s forgetfulness or neglect. Case v. Cushman was not a precedent to govern the rights of these parties. Cushman and one Volz had been partners, and on dissolution Volz assigned his whole estate to Case in trust for the payment' of his debts. The partnership books containing an account of the firm debts were delivered to Case, and some months afterwards Cushman assigned to him all his interest in the effects of the firm, Case agreeing to secure Cushman against “ the payment of any debts, or the part payment of any debts due by the late firm of U. Cushman & Co.” Subsequently J. & C. Gascoigne brought a suit against the firm for the balance of an account, and recovered judgment for $335.84, which Cushman paid, and for the amount of which he commenced an action against Case. It appeared that the last item of the account of the Gascoignes, amounting to $143, had not been entered in the firm books, and that the omission to enter it was the neglect of Cushman. Case. was a third party with no knowledge and no means of knowledge of the firm’s indebtedness other than that derived from the partnership books. He had dealt with Cushman on his faith in the accuracy of the accounts which those books disclosed. On such facts this court most justly held that he could not be made liable for a debt of whose existence he must of necessity have been ignorant when the agreement of indemnity was executed. But the rule adapted to such a state of facts does not apply in favor of a party by whom the existence of a liability and the person to whom it was due were known, and who retained in his service the agent through whose intervention the liability was incurred. Case v. Cushman would be an apt authority if it appeared that the plaintiff knew the terms on which the patterns were borrowed, and concealed the knowledge, while the defendant supposed them to be the property [267] of the firm, and executed the agreement in that conviction. The transaction would have been a fraud of which the defendant would have been the victim. No such ground was taken, and yet the cause in many respects was tried as if such a theory had been asserted. The fact was controverted' on the argument, but' be it that the plaintiff was aware of the terms of the receipt given by Hurlburt. The defendant had access to the same source of information. Before the dissolution he had an equal interest with the plaintiff in the details of the business. After the dissolution it was his special duty to ascertain the extent and nature of a liability the existence of which he is admitted to have fully known. Judgment reversed, and a venire de novo awarded.