Boyd v. Foot & Cole. The finding of the Referee, that this debt was a debt owing to the firm by the person running the mills, and not by Goodwin personally, is, in our opinion, warranted by the evidence. We are not justified in holding that it is contrary to the evidence. The Referee has charged Goodwin, and Boyd as his assignee, with one-fourth of this claim. This is conceded to be correct, provided it be assumed, or must be held, that Goodwin is not liable for the debt as principal. These views dispose of all questions made by the appellants on the appeal, except those connected with two exceptions taken during the progress of the trial, and which two are the only exceptions taken during the trial to which our attention was directed on the argument, or which are noticed in the points of the appellants. The exception taken to certain evidence of Goodwin, as being "hearsay," may be dismissed with the remark that the evidence objected to could not possibly have prejudiced the defendants. It related to the question whether a note dated October 8, 1855, for $500, made by McGee and Mitchell, had been paid. This note had been contributed by and credited to Goodwin as capital. The witness on behalf of the defendants testified that $200 only of its amount had been paid; that it was compromised for forty cents on the dollar, the makers having failed. This was the fact, as the defendants sought to prove it. The Referee charged against Goodwin the $300, by reason of the failure of McGee and Mitchell, and the acceptance of $200 from them as a compromise of the $500. Hence, it is evident that the defendants had all the allowance made to them which, by any possibility, could have been made, if no testimony had been given by Goodwin in respect to this item. The only remaining exception was taken to the decision, that testimony in relation to the purchase of the Pittstown Mill was impertinent "as the matter is not specified as a counterclaim in the pleadings." The defendants were apparently attempting to prove that this purchase was a partnership transaction. If it was, it was a proper item to be established, and the defendants were entitled to be Boyd v. Foot & Cole. allowed such sum as would be just with reference to its actual results. The direct examination of Cole tended to show that the purchase was on account of the firm of Foot & Cole, while Goodwin was a member of it. His cross-examination had weakened somewhat the force of his evidence on the direct examination, when the Referee (apparently) arrested the examination and excluded the evidence in relation to this claim, on the ground that it was impertinent; and impertinent because the claim had not been set up in the pleadings as a counterclaim. If the appellants were precluded, on this ground, from giving evidence to establish the fact that this mill was purchased for the firm with the assent of all of its members, the decision was erro neous. In the view which we take of the decision made, the Referee interposed while Cole was under examination in respect to this item, and expressed the opinion and decided that all testimony on this point was impertinent, because the matter was not pleaded as a counterclaim. To this decision the defendants excepted. It is indeed true that a full investigation of the matter may result in proof that the purchase was not made for and on account of the firm. But that consideration does not meet the difficulty created by the Referee's decision. That decision precluded the defendants from proving (however satisfactory the evidence which they were prepared and desired to give in that behalf) that it was a co-partnership purchase, and that they were entitled to a deduction by reason of it. It precluded them from proving these facts on the ground that the matter was not pleaded as a counterclaim. It is not a counterclaim, but is one of the several partnership transactions, if the supposed facts do in truth exist. But we think it unnecessary to grant a new trial, if the plaintiff will consent to a deduction of the whole allowance claimed by reason of this matter. The direct examination of Charles Cole on this point presents the precise claim which the defendants make in this behalf, and its nature and extent. His testimony is that "there are debts unpaid contracted when Goodwin was with us; we bought for $1,500 a mill at Pittstown, N. Y., on which was a mortgage of Boyd v. Foot & Cole. $3,000, on which we paid 10 per cent, the balance” ($1,350) “is still due and the parties claim payment of us; we have been unable to sell this property, although we have made great efforts; it is now in the hands of a Receiver and I have been notified that it will be sold on our account." This is the whole evidence given in relation to the nature and extent of the claim. It is the only statement respecting it found in the printed Case. The appellants' printed points state that "Goodwin should have been charged with one-fourth of the loss on the Pittstown Mill. This mill was purchased while Goodwin was with Foot & Cole, and at his suggestion, for $1,500, the whole of which has been lost." * * "The transaction entered into the accounts between the alleged partners, and the loss on it should be charged one-fourth to the plaintiff." The claim, as here made, in the broadest construction which can be given to the language in which it is stated, is one-fourth of $1,500 and interest from the time of the purchase. The purchase could not have been made earlier than the 1st of October, 1855, the day the partnership was formed. If, therefore, $375 with interest from that date be deducted, the defendants will be allowed the utmost they can pretend to have claimed. Allowing this will allow more than a fair construction of the language used may be thought to claim. The 10 per cent paid down, (viz.: $150,) if the matter was deemed and treated as a partnership transaction at the time, would naturally be charged to the firm when it was paid. If that was done, they have been allowed already one-quarter of that in the accounts as kept by the partners. So too, if the property shall sell for any sum over and above the mortgage upon it, the loss will be only the difference between that excess and $1,500. Hence if the plaintiff, rather than submit to the delay and expenses incident to a new trial, will stipulate to deduct from the balance found by the Referee $375 and interest thereon from October 1, 1855, to the date of the report, the judgment as a judgment entered on a report for the true balance arising on such a correction, may be affirmed. In that event it will be Anderson et al. v. Nicholas. affirmed without costs of the appeal to either party, as it will, in substance, be affirmed in part and reversed in part. The decision in Moffet v. Sackett, (18 N. Y. R., 522,) in our view of it, does not prevent our making this disposition of the appeal; we do not undertake to decide, upon conflicting or uncertain evidence, how much was lost by this transaction, but allow to the defendants the whole amount of their claim in this behalf.1 If the plaintiff does not choose to make such a deduction, the judgment must be reversed and a new trial granted, with costs to abide the event. Ordered accordingly. ROBERT D. ANDERSON and FREDERICK E. HOUGHTON, Plaintiffs and Respondents, v. ANASTASIUS NICHOLAS, Defendant and Appellant. 1. One who has either tortiously or feloniously, without the knowledge or consent of the owner, obtained the possession of a certificate of stock having a power of attorney in blank annexed thereto, cannot confer title on a third person by selling and delivering the same for a valuable consideration, although the purchaser acts in good faith, believing he is dealing with one who owns or has due authority to sell the stock. 2. One who receives such a certificate and power, and sells the same or causes the same to be sold, by direction of one whom he supposes to be the owner or to have due authority, is liable to the actual owner for a conversion of the stock, notwithstanding he has paid over the proceeds to the person employing him. 3. One who deals with or disposes of the personal property of another (the same not being negotiable paper) must see to it that he acts by the authority of some one who has power sufficient to warrant such dealing or disposition. (Before BOSWORTH, Ch. J., and WOODRUFF and MONCRIEF, J. J.) THIS is an appeal by the defendant from a judgment entered on the report of M. B. Maclay, Esq., as Referee. 1 See Chouteau v. Suydam, (21 N. Y. R., 179, 185,) affirming the like order of this Court. REPORTER. Bosw.-VOL. V. 16 Anderson et al. v. Nicholas. The action was brought to recover the value of twenty shares of stock of the American Guano Company, which had been wrongfully taken from the plaintiffs' possession by the son of one of the plaintiffs, and delivered, disposed of, or pretended to be sold to the defendant; a demand of the stock by the plaintiff, and refusal to deliver was alleged, and a conversion thereof by the defendant to his own use. The defendant's answer put in issue all the allegations in the complaint. The Referee found, first, "That the plaintiffs were possessed of and owned, as partners, twenty shares of the capital stock of the American Guano Company; and that on or about the 25th day of October, 1858, one Alexander H. Anderson, a son of the plaintiff, Robert D. Anderson, and a minor of the age of about sixteen years, without the leave, permission, authority or knowledge of plaintiffs, or either of them, wrongfully took said twenty shares of stock out of the possession of the plaintiffs. "Second. That the said twenty shares so taken were in one certificate, and were in all respects, except as to the number of shares and the number of the certificate, like the following: "No. 732. "AMERICAN GUANO COMPANY. One Share. "This is to certify that A. G. Benson, President, of New York, is entitled to one share in the capital stock of the American Guano Company, standing in his name, and transferable on the books of said Company only upon surrender of this certificate by the said A. G. Benson, President, or his attorney. "New York, 7th January, 1856. "A. G. BENSON, President. "Jos. L. WYCKOFF, Treasurer. "(Indorsed.) "Know all men by these presents, that.... ..for value received, do hereby constitute and .....to be........true appoint.... and lawful attorney for..... .and in. and stead to sell, assign and transfer unto. name |