Doss v. Tyack

Mr. Justice GRIER, delivered the opinion of the court. A short history of the facts of this case, extricated from the numerous allegations of the pleadings' and the mass of testimony contained in the record, will better qxhibit its merits than a more formal abstract of the pleadings and proofs. The appellees, who were complainants below, entered i.nto articles of agreement with Samuel Newell, one of the respondents below, on the 25th of September, 1847, in which they engaged to form a copartnership under the form and style of William Tyack & Cq., in New York, and Stewart, Newell & Co., in Galveston, Texas. “ The nature of the business to' be transacted by said firm to be a commission, general, and auction business.” The parties each to contribute towards the capital stock the -sum of five thousand dollars,- within ninety days; the capital to be augmented as the business required; Newell, “ in consideration'of his expense and labor in paving the way for the contemplated business, as well as his influence in the State of Texas, to be entitled to one fourth of the profits, and the balance to be equally divided betweén the three partners. Tyack and Murray to take charge of the business in New York, and Newell in- Galveston. At the time these parties entered into this contract of partnership, their several ability to perform their agreement of advancing capital and supporting the credit of the firm, as shown by the pleadings and evidence, would appear to be as follows: Tyack was worth, in all, probably twenty thousand dollars; Murray had nothing, and owed about five thousand dollars; Newell, while resident in Texas, “ had become interested in -a claim belonging to Alexander Edgar, to a league of land,” on which it was supposed that the city of Galveston was'built. He had come to New York, at this time, with a power of attorney from Edgar, to form a stock company of persons, who were to have ah interest in this litigated claim. He had divided it into one thousand shares, to be sold at one hundred dollars each, payable in instalments. He was to have half of all the money received for the stock, over twenty thousand dollars. A few persons had been persuaded to subscribe for some of this stoek, and *309 among others, Tyack and Murray had each agreed to take a few shares; and Tyack was appointed treasurer of the company under the name of “ The Galveston Land Company.” Newell’s property or capital consisted in the anticipated profits' of this speculation, and some stock in another company, called the “ Wilson Joint Stock Land Company.” The partners soon afterwards commenced business on about four or five thousand dollars, advanced by Tyack. Murray had nothing, and Newell’s stocks would produce nothing in the market; those who had before subscribed for it, refusing to pay, on the plea or suspicion that it was good for nothing, as the citizens of Galveston had probably a better title to the land than the company. Thus the source from which Newell’s, capital was anticipated, wholly failed; In the mean time a stock of goods was purchased for the house in Texas, costing about twenty thousand dollars, for' the payment of which Newell had drawn bills on Tyack & Co. for some seventeen thousand dollars, which Tyack had accepted, in-expectation of remittances of cotton ot other produce from Texas, by Newell, to meet the bills at maturity.-. The business expected to be transacted by Tyack & Co. in New York, was the disposal of these consignments from the Texas house — of cotton and other merchandise purchased with the funds of the firm.in Texas. In March, 1848, the acceptances in- New York being near maturity, and the consignments received from Newell to meet these large liabilities, .amounting only to about eight hundred dollars, Tyack, to avoid impending bankruptcy, if possible, called together-the creditors of the firm and made a statement of its situation.'' In consideration of the creditors agreeing to give further time on the acceptances about to mature, Tyack & Murray executed a power of attorney to William E. Warren, an agent chosen by the creditors, authorizing him to take possession of the property and effects ■ of the firm in Texas, and secure them for the benefit of the' creditors. Warren was authorized by the creditor^ to act for them, and to collect, secure, or .compromise their claims, in any way he thought best; with instructions .to proceed to Texas, and examine into the state of the firm, and if it was found that there was any probable prospect that the firm' could eventually pay their debts, to make any reasonable arrangement for that purpose, and suffer Newell to continue the business: on the contrary, if Newell could hold out no such prospect, or if he was found to be wasting the goods of the firm, and appropriating them to any other purpose than the regular mercantile business of the firm, the agent, was instructed to get possession, by all legal means, of the partner *310 ship assets, and hold thorn ox dispose of then*1 in the best manner for the. interests of thé creditors and all concerned.. In pursuance of this authority, Warren proceeded to Galveston. He there found the assets in Newell’s possession insuffi-' cient to- pay the debts, and that the firm was hopelessly insolvent; and moreover, that Newell had appropriated a portion of the assets of the firm to the payment of his personal debts, incurred in his land stock, speculations,' and was unwilling to comply with any reasonable terms of compromise, to secure the creditors, or save Ibis partner, Tyack, from insolvency and ruin. Warren then instituted proceedings in the State Court on behalf of Tyack and the creditors, and obtained an injunction and a writ of seizure against Newell, on which the sheriff took possession of the property of the firm. On the 10th of July, 1848, on motion of Newell’s counsel, the court, for some reason, set aside the injunction and' writ of seizure. The counsel for Tyack and the creditors, immediately discontinued their proceedings in the State Court, and commenced proceedings in the District Court of the United States. While the bill, for that purpose was being prepared, and application being made for an -injunction and the appointment of .a receiver, Newell and one Peter McGreal proceeded in hot haste from the court house, got possession of the goods from the sheriff; and had the following instrument of writing executed : “ Received, Galveston, July 10, from S. W. Doss, of Brazoria, the following amounts: Two thousand dollars, in good notes, mortgages, liens, and judgments, and seven thousand seven hundred and fifty-three dollars in lands, full payment of. the . stock of goods, wares, and merchandise now in our store in Galveston. Stewart Newell. . Recap.,— Cash,' $2,000/ Notes, $2,000; Lands, $7,753•^-To-tal, $11,753. “ In presence of John Warrin, Isaac D. Knight.” . No notes, judgments, or liens, were in fact assigned by McGreal to Newell, nor any conveyances of land made; but McGreal gave his written promise to assign and convey securities and lands to that amount within thirty days. The production of the two thousand dollars cash, was also dispensed with, as the parties appear to have been in too great haste to be particular.' The answer of Newell attempts to account'for the cash as follows: “ This, defendant states, that the said first payment in cash of $2,000, mentioned in said receipt, was secured and made to this defendant by Peter McGreal, Esq., the agent of said Doss; 'that a portion of said sum of' $2,000, to wit, about $1,200, was paid by the said McGreal, agent as aforesaid, to Benjamin C. *311 Franklin, Joseph A. "Swett, and John B. Jones, in pursuance of, and in accordance with, an order given by this defendant to said McGreal for that purpose; that forty-two dollars and fifty cents were paid upon the order of this defendant to J. A. Sauters for rent of said store, due by said firm; and the balance, to wit, about seven hundred and fifty dollars, was directed by this defendant to be paffi over, or secured to Isaac, P Knight, to be by him held to the use of the'firm of S. N. & Go., to be paid over for the said use upon the order of this defendant, in like manner as the said book debts and other choses in .action assigned to said Franklin, as above mentioned.” "What right Franklin, Swett, and Jones had, to receive this money, or how,■ or why it was paid to them, (if it was paid,) or how Knight, the brother-in-law of Newell, became a trustee for the creditors of the .firm, the answer does not disclose. McGreal appears also to have treated Newell with the same unbounded confidence which Newell had reposed in him. He took the goods on trust, as to quantity and quality; required no invoice or schedule, being content with one which the sheriff had made; and immediately commenced to pack them up and seek for assistance and means for carrying them off.' The transaction commenced after twelve o’clock in the day, and by twelve o’clock at night, a large portion of the goods were put on board the sloop Alamo, which set sail before morning. In the ¡mean time the bill in this case had been filed, and a receiver appointed, who, on the following day, (11th July,) w.as enabled by means of a writ of assistance, to arrest the sloop and get possession of the goods. It is unnecessary to enumerate all the charges of-the bill, and the answers thereto, as it is amply sufficient for the purposés of the decision in this case, that the facts we have already stated .were either admitted by the answers, or undeniably proved. The plaintiff in error, Stephen W. Doss, who claims- to -be the owner of the goods, thus alleged to have been purchased by Peter McGreal, was made a party to the suit. .Both he and Newell deny, in their answer, all fraud in the transaction, and-Doss avers, “ that the said transaction was made in the regular, mode of conducting such business, and at a time when there •was ño lawful restraint existing to prevent the sale and delivery of the go'ods.” On this case the court below, at the.March term, 1850, rendered a decree for the complainants, dissolving the- partnership, setting aside the sale to McGreal, or Doss, as fraudulent, and ordering the receiver to pay over the proceeds of the -goods, (which had been previously sold by order of the court,) to the creditors of the firm. *312 But, in order rightly to apprehend the points relied on by the counsel for appellants, in claiming a reversal of the decree, it will be necessary to state some of the intermediate proceedings in the case, as exhibited by the record. During the pendéiicy ..of the suit, Newell aid McGreal had gone to New,York,-and persuadéd Tyack & Murray to revoke the power of attorney given to Warren, and to execute one to the respondents’ counsel, authorizing them to dismiss the bill; and a motion was made by them, for this purpose, in August, 1848. This motion was resisted, on the. ground that the firm was wholly insolvent; that the power to Warren was given on a contract with the creditors, and for, a- valuable consideration, and was, therefore, irrevocable; as. it would be a fraud • in Tyack to dismiss the proceedings, for the benefit of the ■ creditors, after the ' great trouble and expense incurred by them for the purpose of protecting Tyaék from ruin: .Notwithstanding these - objections, the court' ordered'the suit .to .be dismissed; but,, some days after, at the same term, vacated and’ set aside this order or decree, on' proof, that the revocation of the .power to- Warren, and the order given to discontinue or dismiss the proceedings, were obtained from the complainants .by gross misrepresentation and fraud. Afterwards, an issue, was ordered, on prayer of respondents’counsel,, to try the question of fraud. This, issue was tried before a j ary, who rendered a verdict that “ the sale was fraudulent..’’ Whereupon, the respondents moved -for a new trial, on the ground-that the-verdict was given “junder'a misconstruction and -misunderstanding of the charge" of the court.” This motion was founded .on an- affidavit of some of the jurors that, “ on their retirement, they did not, inquire into the right and power of Doss to purchase, nor of the question of fraud on Doss’s part, but only into the right and power of Newell -to make the sale.” We are now prepared to examine the points relied upon for the reversal- of this decree.- • - They are, 1st. That the court had .'no power to set aside the order Or decree, dismissing the, bill, unless, on a new and original bill, filed for. the purpose. 2d. That, on this certificate of the jury, the court should-have granted a hew trial on the question of fraud. 1. As regards the first point, we perceive no error in the action of the court, except in their first order dismissing the s.uit. It did not require an original bill, to authorize- the court to vacate an order or decreé, at the sanie term in which it was made, on. discovering tliat they have committed an error, or that the consent of the complainants to such dismissal was obtained by the. fraud of the respondents, or their agents. In fact, under *313 such circumstances,- it cannot be said that the act was done by the consent or will of the complainants, at all. The court, in vacating the decree, were correcting an error both of fact' and of law; and, during the term at which it was rendered, they ha,d full power to amend, correct, or vacate it, for either of these reasons. 2. The second point is equally without foundation. It is true, that the answers of the respondents denied fraud in the,, abstract, but they admitted all the facts and circumstances necessary to constitute it in the concrete. The general denial of the answer, only showed that the definition of fraud was much narrower, in the estimation of the respondents, than in that of courts of law and equity. In this case, a verdict was wholly unnecessary, to inform' the conscience of the Chancellor; and, the verdict being perfectly correct, the court very properly refused to set it aside, on any .representation from jurors thus obtained. Any argument to vindicate the correctness of the verdict and the decree of the court below, after the exhibition of the merits of this case, which we have given, would be entirely superfluous. The decree of the District Court of Texas, is therefore affirmed, Order: This cause came on tó be heard, on the transcript of the record, from the District Court of the United States for the District of Texas, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed, by this -court, that' the decree of the said District Court in this cause be, and.the same is hereby, affirmed, with costs.