« PreviousContinue »
and 120 New York State Reporter the settlement, the jury had a right to observe that, as the result of the settlement as made, the plaintiff derived from it no direct pecuniary benefit; the amount received being divided equally between the defendant and the creditor, Streit. Recognizing the weight that might be attached to this circumstance, the defendant sought to meet it by his testimony that the plaintiff, having concluded that he would reap little benefit from the claim, told the defendant that he could do as he pleased with it, as he was going to leave the country for South America. This testimony the plaintiff denies. The jury might also consider the testimony that, at the time these papers were signed, the defendant, by telephone, arranged the terms thereof with the attorney for the administratrix, and that plaintiff was then present, which testimony the plaintiff denied; and although, by his manner of denial, he placed in doubt the question of whether there was or was not a telephone at that time in defendant's office, the latter made no effort to have this doubt solved in his favor by competent evidence.
That the parties met at the defendant's office either on or about April 7, 1892, as testified by the defendant, or on or about May 21, 1892, as testified by the plaintiff, is admitted. And as to what then occurred, according to the two versions, we have already indicated; and, as to corroboration outside of the written instruments, we have the testimony of Leander, for the plaintiff, as against that of the witness Booth, for the defendant. Were it not, therefore, for the written instruments, we do not think it would be seriously contended that a verdict either way would be against the weight of evidence; the testimony upon the disputed fact being so evenly balanced. It is insisted. however, that the written instruments are overwhelmingly in support of the defendant's version, and, to a great extent, our conclusion must turn upon the faith and credence to be given to them.
In regard to the agreement of retainer, the defendant testified that it was a completed instrument when it was presented to and signed by plaintiff, and that this occurred when he was first retained, in April, 1891, which, as stated, was the date written in that agreement. Booth, whose name appears as the witness to that agreement, swore to the same effect. On cross-examination, however, the latter admitted that he was not in the defendant's office in 1891 at all, but said he was there from the ist of February to the ist of May in the year 1892, and therefore he did not sign the paper at the time it bears date, which was 1891, and that the defendant, when he said it was witnessed by him in 1891, if he so stated, was mistaken. This is a serious discrepancy, because, if Booth is to be believed, and the retainer agreement was witnessed by him in 1892, although the date written in it was 1891, then the defendant was mistaken in his testimony that it was executed in 1891. We must, with respect to this paper, therefore, whether we decide that before it was executed it was filled out in full, or presented to the plaintiff in blank, conclude, with the plaintiff, that it was executed at or about the date of the other two papers. Upon the question of whether all these were signed in blank, or were all completed when they were signed by the plaintiff, we should incline to the view that the defendant was supported in his contention that the former was the fact. This is important as bearing upon the credibility of the plaintiff, but it is by no means conclusive upon the real issue presented, which was not whether the plaintiff had signed the papers in blank or when fully completed--for it was admitted by plaintiff that the papers bore his signature, and he acknowledged the fact before a notary and defendant as commissioner of deeds—but whether the defendant induced the plaintiff to sign them by misrepresenting their intent, purpose, provisions, and bearing, and thus succeeded in obtaining a ratification of a settlement which he had already made in April. From the fact that one of these papers was acknowledged before a notary, and the additional fact appearing that the agreement of retainer was signed in the middle of the page, we should conclude that one, and maybe all, of the three written papers were in their present condition when signed by the plaintiff. As we have endeavored to point out, however, this is not conclusive upon the plaintiff's rights, although it might injuriously affect his credibility. The jury, as stated, were called upon finally to decide the crucial question of whether or not the plaintiff knowingly assented to the settlement, or whether, in violation of his instructions, the defendant settled it, and then, by misrepresentation, induced plaintiff to sign papers necessary to carry it out. The plaintiff did not deny his signature to the papers, but insisted that they were obtained as the result of the misrepresentations by the defendant of the use which would be made of them, and the purpose for which they were intended. The request to charge, therefore, upon which the appellant so confidently relies—that if the jury reach the conclusion that the papers, when executed by the plaintiff, were in the same condition as when presented upon the trial, then they must give a verdict for the defendantwas properly refused, because, as we have attempted to show, this was not conclusive upon the rights of the parties.
We have sufficiently discussed the evidence to show, we think, that, notwithstanding the written instruments, there was still a question for the jury. It frequently happens that, taking the printed record on appeal to this court, upon closely contested and nicely divided questions of fact, whichever way the jury determine the disputed facts, we would be obliged to affirm their verdict. This is but saying-what has been frequently repeated—that disputed questions of fact are for the jury, and it is only where the trial court, or this court upon a review of all the facts, concludes that the verdict is against the weight of the evidence, that it has the right to interfere. The learned trial judge in this case enjoyed the advantage—which the mere examination of this record does not furnish-of seeing the witnesses, and noting their demeanor and manner of testifying, which was a benefit that the jury also had, and which rarely, if ever, can be exactly written into, or photographed upon, a printed record. Upon the whole case, therefore, we do not think that we would be warranted in interfering with the jury's verdict, and, unless the errors assigned are sustained, the judgment entered thereon must be affirmed.
Among the other alleged errors, our attention is called to the refusal of the learned trial judge to dismiss the complaint; the defendant's insistence being that this action, in form, was one for conversion, and plaintiff cannot succeed, because no demand was made before suit, and there was no proof of damage. In our view, the cause of action is and 120 New York State Reporter one to recover damages for breach of duty which the defendant, as an attorney, owed to the plaintiff. And while, in such an action, no demand before suit was necessary, it was undoubtedly incumbent upon the plaintiff to have some basis upon which the resulting damage could stand. As between attorney and client, the presumption would be that the claim was valid, and it became the defendant's duty, upon that theory, to insist upon its payment for the full amount. We think, therefore, the respondent was right in insisting that the measure of such damages is the amount of the claim of the client which the attorney was employed to prosecute, and which the client presumably lost by reason of the breach of the attorney's duty. In defense, it would be proper to show that plaintiff had no claim, or, as was here shown, that, though valid, but 50 per cent. could be recovered thereon. We need not, however, dwell longer on this feature of the case, because the original amount of the claim was $840.66, and, the verdict being for $211.16, it is evident that the jury considered the testimony tending to show that only one-half of the amount was collectible, and made some allowance for the value of defendant's professional services. As said, therefore, if the plaintiff was entitled to any recovery, the amount awarded was not excessive.
We have examined the many exceptions taken to rulings upon evidence and in the charge, but find no error which would be ground for reversal. We think, therefore, that the judgment and order should be affirmied, with costs. All concur, except LAUGHLIN, J., who dissents.
LAUGHLIN, J. (dissenting). I think, if the plaintiff was mistaken about signing the papers in blank, it must be presumed that he knew their contents. According to his testimony, there being no writing, there was no misrepresentation as to the contents. He merely contends that the papers were signed in blank. That contention, in my judgment, cannot be sustained. It therefore follows that he signed with these papers filled out as they now appear, and, if so, he is chargeable with knowledge, and the settlement was authorized.
FELLOWES V. JOIINSON. (Supreme Court, Appellate Division, First Department. February 5, 1904.) 1. PARTNERSHIP-DISSOLUTION-ACCOUNTING-LIMITATIONS.
On November 1, 1889, a copartnership existing between plaintiff and de fendant was dissolved by mutual consent. Defendant's evidence, partially corroborated by plaintiff, was that at the time of the dissolution the firm was practically insolvent, and that it was agreed that defendant was to take the assets, discharge the obligations, and save plaintiff harmless therefrom. In March, 1895, plaintiff requested a copy of the trial balance on the day of the dissolution, and a statement of his account, which defendant failed to furnish, by reason of not having the data, and inclosed a claim against plaintiff accruing from transactions after the dissolution. This, however, the parties settled by setting off plaintiff's alleged claim against the old firm, and, after substantially all the books and papers of the firm had been lost or destroyed without defendant's fault, plaintiff, in May, 1901, brought suit for dissolution of the firm, the appointment of a receiver, and for an accounting. Held, that such facts justified a finding that the affairs of the parties had been settled at the time of the dissolution of the firm, and hence plaintiff's rights, if any, were barred by limitations.
Appeal from Special Term, New York County.
Action by Cornelius Fellowes against Davis Johnson. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.
Argued before VAN BRUNT, P. J., and McLAUGHLIN, O'BRIEN, INGRAHAM, and LAUGHLIN, JJ.
David Burr Luckey, for appellant.
McLAUGHLIN, J. Prior to 1889 the parties to this action were for a short time copartners in business. The copartnership, however, was on the ist of November, 1889, dissolved by mutual consent. This action was commenced in May, 1901, eleven years and six months after the dissolution, to procure a judgment dissolving the copartnership, the appointment of a receiver, and an accounting. The complaint was dismissed after trial at Special Term, and the plaintiff appeals.
We think, upon all of the facts set out in this record, the complaint was properly dismissed. The evidence adduced at the trial on the part of the defendant, which was corroborated in some respects by the plaintiff, tended to establish that at the time of the dissolution of the firm it was practically insolvent, and that it was agreed between the parties the defendant should take its assets, discharge its obligations, and save the plaintiff harmless therefrom. This is precisely what appears to have been done. The plaintiff took no interest in the firm's affairs from that time until the commencement of this action, except that in March, 1895, he wrote the defendant as follows:
"Please send me a copy of our trial balance on the day of the dissolution of our copartnership. Also a statement of my account with interest to date."
The defendant replied, a few days later:
"I do not see how I can answer your letter of March 1st, as I have not the data. I enclose the only account I have with you on my books, showing a debit of $2,802.68, for which you will kindly send me a check at your early convenience as I am much in need of the money."
The account inclosed was for a balance due defendant from plaintiff, growing out of transactions in stocks subsequent to the dissolution. After this correspondence, it seenis, the parties met, and the plaintiff then claimed there ought to be a sufficient balance due him from the old firm to offset this indebtedness, which the defendant denied, claiming that, under the agreement of dissolution, the plaintiff released his claim to all of the assets in consideration of the defendant's assuming its obligations; but, it appears, as a result of this conference the defendant did cancel such indebtedness. Nothing more was done until 1901, when this action was brought, as above indicated. In the meantime substantially all of the books and papers of the firm had been destroyed or lost, without any fault of the defendant, and there was no way in which a statement of the transactions of the firm, including its assets and obligations at the time of the dissolution, could be ascertained with any degree of accuracy. The action of both parties would seem
and 120 New York State Reporter to indicate that the partnership affairs were finally settled and adjusted at the time of the dissolution. If this be true, then whatever rights, if any, the plaintiff had, must be determined as of that date, and the enforcement of which at this time is barred by the statute of limitations pleaded by defendant.
The judgment appealed from, therefore, must be affirmed, with costs. All concur.
(91 App. Div. 94.)
(Supreme Court, Appellate Division, First Department. February 5, 1904.) 1. SERVICE OF SUMMONS-CORPORATIONS-CASHIER.
Code Civ. Proc. $ 431, authorizing service of summons on a domestic corporation by delivering a copy to the cashier, does not authorize such service by delivering a copy to one who has no interest in the corporation, except that he receives the price of papers sold by him in one of its de
partments. 2. SAME-ACTUAL RECEIPT BY DEFENDANT.
That a summons, served otherwise than as prescribed by statute, reached the defendant, does not render the service valid.
Appeal from Special Term, New York County.
Action by Pauline Eisenhofer against the New Yorker Zeitung Publishing & Printing Company. From an order denying a motion to set aside the service of the summons and complaint, defendant appeals. Reversed.
For former opinion, see 85 N. Y. Supp. 1129.
Argued before VAN BRUNT, P. J., and McLAUGHLIN, O'BRIEN, INGRAHAM, and LAUGHLIN, JJ.
Benno Loewy, for appellant.
MCLAUGHLIN, J. The defendant is a domestic corporation, and jurisdiction of it in this action was sought to be obtained by service of the summons and complaint on one Holz: After such service had been made, the defendant appeared specially for the purpose of moving that the service be set aside upon the ground that Holz was not a person upon whom service could be legally made. The motion was denied, and the defendant has appealed.
Jurisdiction of a domestic corporation can only be obtained, in the absence of voluntary appearance, by service of process in the manner indicated in section 431 of the Code of Civil Procedure. This section, so far as the same is material to the question here under consideration, reads as follows:
"Personal service of the summons upon a defendant, being a domestic corporation, must be made by delivering a copy thereof within the state as fol lows:
* (3) in any other case to the president or other head of the corporation, the secretary or clerk to the corporation, the cashier, the treas. urer or managing agent."
It is sought to justify the service upon Holz on the ground that he is a cashier, within the meaning of the section. It is true, he receives