Campbell v. Emslie 101 A.D. 369

O’Brien, J.:

• The complaint in this action alleges that in the month of October, 1903, the plaintiffs, composing the firm of Campbell & Reid Western Sale Stables Company, sold and delivered to defendant forty-seven horses at the agreed price of $7,647.25, which has not been paid, although due, and judgment is demanded for that sum and interest. The answer, in so far as it need be considered, admits that the horses referred to in the complaint were delivered to the defendant, but denies that tliey were sold to him by the plaintiffs, and alleges that he received them from the Campbell Horse' Company.

Upon the trial the court, without objection from either party, stated that the issues to be determined were: First, whether the horses had been sold or had been only consigned to the defendant, and, second, if they had been sold to him, whether the sale was by the plaintiffs’ firm or by the Campbell Horse Company. And at the close of the evidence the court in its charge stated the contentions of the respective parties, and defined the issue to be determined by" the jury as follows: “ The plaintiffs claim that they are and were copartners in business under the firm name of the Campbell & Reid Western Sale Stables Company, and that as such, in the latter part of August, in the year 1903, they and the defendant had an understanding to the effect that the plaintiffs were to ship to the defendant horses for which the defendant was to pay the cost price and added expenses,” and also certain specified commissions ; “ the defendant, on the other hand, .claims that he had no transactions whatever with the plaintiffs’ firm, known as the Campbell & Reid Western Sale Stables Company, but that he dealt only with the Campbell Horse Company, with whom he claims that he had an: Understanding to the effect that the title to the horses which such firm was to ship to him would remain in the Campbell Horse Company *372until' they were sold, and that when sold' the; defendant .was to- remit the actual cost of tlie horses/’ together with the .amount of. certain specified expenses "and-commission's, and that all ovei and above “ such cost price, added expenses and commissions, the defendant was to retain as his profit.” Ho exception was taken by either party to this portion of the' charge*, and'the jury found for the defendant upon the issue thus raised. From the judgment entered upon the verdict, and from the order denying the motion for a new trial, the plain tiffs have appealed.

, It is not necessary to- set out in detail the testimony bearing upon the conflicting claims of the respective. parties. It. is sufficient to say that there was a sharply contested question of fact, as defined by the court, which was properly submitted to the jury; and the‘finding thereon is not against the weight of evidence. The confusion that has arisen as to the identity of the real party with whom the defendant dealt was caused by the'circumstance that both. firms were engaged-in the same business, the. buying and selling of horses on commission; by a. similarity in the names of-the two firms, and by the fact that the members of the plaintiffs’ firm -were all members of the Campbell Horse Company, and the transactions of the. two .firms were so intermingled that the business of the one could with great "difficulty be distinguished from the' business of the other. Concerning, the'defendant’s dealings with these firms the evidence disclosed the following facts : Prior to. June 11, 1903, he had .been a- copartner with the horse company under the firm name of James Emslie & Co., engaged in buying horses in the west, bringing- them to the., east and disposing of them in Hew York city and Weehawken* H. J. On the last-mentioned day the partnership was dissolved by voluntary agreement, tlie defendant succeeding to tlie' business* acquiring title to all the horses on hand, and agreeing to pay for the horse, company’s, interest in the partnership the sum of $37,476.70, the same to be paid in installments at. the. times.specified-in the dissolution agreement. The defendant testified that after the dissolution he had conversations, with oné Campbell and one. Beid who were-members of both companies, relativé to the párchase by- him of horses from the Campbell HorSe Company; and that. in one of the conversations with Beid, who seems to have been the active business manager of the horse company in the east, á con*373tract was made by which the horse company agreed to consign horses to him, the title to remain in it until he paid for them; and that when he had sold them he should remit to the horse company the amount which it had paid for the horses plus the reasonable and proper expense for feeding and shipping, the balance to be retained-by him as profit. He testified further that several carloads of horses were sent to him under this contract, and among them the two loads which comprise the horses that are the subject of this action. His testimony is contradicted in many respects by Reid and Campbell,- bht in so far as he stated that he was dealing with the Campbell Horse Company he is corroborated by the undisputed fact that certain checks given by him in payment for horses delivered subsequent to the making of .the alleged contract with the horse company are payable to the order of that firm. And this corroboration is strengthened by the fact that these checks were actually made out. by one Van Hess, who was the representative of these plaintiffs and! familiar with their business dealings with the defendant. The credibility of the witnesses was a question for the jury, and it does not need further analysis of the testimony to show.that there ivas ample to support the verdict in favor of the defendant’s claim. Therefore, the judgment entered upon that verdict must be affirmed, unless error was committed on the trial in the admission of evidence or in the charge of the court. -

Before taking up that branch of the appeal, and in order to properly understand the force' of certain objections made by plaintiffs, it is necessary to consider .the peculiar standing of the man Van Hess, who has already been referred to. He was.originally in the employ of the Campbell Horse Company, and when it entered into partiiership with the defendant he was sent east, nominally to act as bookkeeper of the new firm at its office in Weehawkeñ, H. J., b‘ut it is clear from the entire evidence in the case .that his real duties were to look after and .protect the interests of these individual plaintiffs in that partnership as distinguished from the interests therein of this defendant, the other partner. Van Hess kept the people whom he represented informed of all that transpired in that business, making regular reports to them of its dealings and financial condition, arid when the partnership was dissolved a provision was inserted in the dissolution agreement that he should remain with *374the defendant until the indebtedness incurred for the purchasing of the business should'have been finally, paid. By the terms of the agreement the final payment was due on September 10,1903, but. it-will be noticed that Van Hess’ retention was not limited so as to ter- • inmate on that date; but he was to continue to represent the plaintiffs until the indebtedness should have been, actually paid, irrespective of • whether that payment was made upon the date specified or not. The agreement recited that he should-perform “ the same duties as.he has hitherto performed, provided the Campbell Horsé Company shall so.desire. - The wages of said Van Hess while.so employed, however, shall be paid by the Campbell Horse Company.” . Certainly under stich an agreement lie could not be regarded as the representative of. the defendant who had no right to discharge him and apparently had' no right to prescribe his duties. Indeed, it can fairly be inferred from the testimony of Van Hess himself that he considered himself subject only to the directions of these plaintiffs and employed to protect their interests.' This inference is strengthened by a letter from the -plaintiff Beid to the defendant dated' September fourth, written upon the business stationery of the Campbell & Beid Western Sale Stables Company, in which lie said : “ I will .expect you (after September 10th) to employ Mr. Van Hess at your own expense, - but I am to have the privilege of him making report of the business to me just exactly the same as has-been done for the past three months until a final settlement is made * * - as per contract:” It will be - observed that the letter was on the regular business paper of plaintiffs’ 'firm (n ot of the horse company) and although the writer required that the deféndant should.pay Van Hess’ salary after the date mem tioned the plaintiffs were still the parties who could, prescribe his duties and whd could insist upon his retention in. the position in which he had been placed by them,, and it appears that up tb Ho-vember,, when the defendant’s -business was seized by the sheriff, Van Hess remained with him without apparently any.change in his. duties. He drew the cheeks, kept the books, apparently attended to the, financial part of defendant’s business, rendered detailed accounts of the business, to his principals, the individual plaintiffs, sending them trial balances showing exactly who the creditors- and debtors of the defendant were. He admits ,that during his employment lie "wsis practically his own boss so-far as the defendant was concerned, ‘and the testj*375many would warrant a finding by a jury, if regarded as a disputed question, that he was acting as the agent and representative of these plaintiffs whose interests lie was guarding and who'were responsible for his continued employment in the defendant’s establishment. We think the testimony would justify a finding not' only that Van Hess represented Réid, Campbell and the other members of the horse company in so far as they had an interest in that firm, but .also that he represented their interests in the Campbell & Reid Western Sale .Stables Company. Mr. Reid when upon the stand rwas shown certain checks, some to the order of the Campbell Horsé •Company and one to the order of the Campbell & Reid Western Sale Stables Company, and in response to interrogatories he said.: “ They are made out in Mr. Van Hess’s handwriting; he was our representative; ” apparently making no distinction between the interests of himself and his companions in the' horse company and their interest in the sales stable company. From all of which it would appear that he was placed and retained there by the plaintiffs .to represent their interests in both firms, and they by receiving and cashing checks made out by him'sometimes-to one firm and sometimes ' to the other in payment of horses delivered to defendant sanctioned and ratified his conduct in that respect. The objectionable testimony should, therefore, be considered" in the- light of the status held by Van Hess. Upon his direct examination he testified that he had a conversation, with the defendant concerning the invoices of the two carloads, of horses now in' dispute in which defendant raised the-question as to the parties who had sold the horses to him! The witness testified: Emslie “ asked me to show him the invoices of "the last horses received and I went to the safe and took the invoices out of the drawer. He said to me — he handed it back to me and .said, ‘ Why, that is Campbell & Reid Western Sales Stables,’ and T asked him why, and he said : Well,,I"just wanted to-know,’ and'that is all there was to it. I put them back in the safe and they remained there.” When the defendant was put upon the (Stand he in turn was asked to - state this conversation: This was objected to as immaterial and irrelevant; the objection, was overruled and the plaintiffs excepted. We think the trial court properly admitted this testimony. The plaintiffs having' called for the conversation in the direct examination, of their own witness and one. who might be *376found to be -their representative, the defendant was. of course entitled to state his version of it. He then testified concerning the conversation that he said to Vañ Hess: “I thought I was dealing .with the Campbell Horse Company all the time, as the railroad bills said that the horses were consigned from the Campbell Horse Company.” The witness was-then asked : “Did yon say anything about the railroad bills?” And he responded : “Yes, sir, I produced.two or three of them and they were all — C. II. Co.’ I showed him that .railroad bill (showing paper).. I said that is C. H- Company.’ That means Campbell Horse Company.” He was next asked:. “ What did 'he' sáy to you with reference to the C. II. Co.?-’ ’’ -and he. answered, “ Campbell Hoi-se Company.”

.The invoice so called, which was in reality a bill from the express •company for the carriage or freight of the horses, was regarded-by | both'parties as part of the res gestee / and for this'reason as wéll as .for the reason already given, the defendant’s version of the conversation regarding it .was, we.think, admissible. :

. The recapitulation of the testimony shows ' its materiality and competency. It bore upon the question of which party shipped the-horses to the defendant, and the statement'made by. Van Hess-that “ C. II.' Co.” meant-the “ Campbell Horse Company ” was competent, we think, as a statement by him which would have beén. binding upon the plaintiffs’ firm if the jury should find from tlve evidence, as they were justified in. doing, that he representedv tire interests of the plaintiffs in. that firm. Surely such a statement by'one who was-authorized to represent them was competent as bearing .upon- the question, of whether they, shipped the horses.

The invoice or bill referred to was then offered in evidence and objected to by plaintiffs as irrelevant, incompetent and -not binding upon them. The objection was overruled.. and exception taken. We think 'this ruling-also was proper ; the bill ór invoice was part of the res gestee. It showed the .delivery of the horses and the payment of the freight therefor. . The defendant had testified that the horses were shipped under the contract which, he had with the Campbell Horse Company that they should send him' horses and charge him the price paid therefor together with shipping expenses. Here Was a receipted bill -showing the amount of the- shipping charges .upon- these particular horses, and that the same had been *377paid. It was a piece of evidence that the jury had a right to have before .them, in determining whether the horses had been shipped pursuant to the contract claimed by the defendant with the Campbell Horse Company.

Exception was also taken by the plaintiffs to so much of the charge of the court ás referred to this conversation and the freight bill. What the court said in that respect is as follows: “ It appears that the receipt to which reference was made, was given by the H. S. Express Company to the defendant. Hence it is not binding upon plaintiffs, except in so far as the plaintiffs may have made admissions with respect thereto, but the receipt itself is not binding, I repeat, except yon find admissions were made by the plaintiffs in regard thereto. * *•* If you find that Van Hess was the agent of the plaintiffs, and not of the defendant and that he made any admissions with respect to the receipt so given by the H. S. Express Company, you may take the same into consideration, together with all the other evidence and circumstances in the case.”

We think this charge was correct. It coincides with our idea 6f the force and effect to be given to the bill or invoice. It left for the determination of the jury the question of whether or not Van Hess was the agent of the plaintiffs, and as we have already pointed out, there was sufficient evidence to justify a finding that he was. It instructed the jury that the freight bill was not binding, except so far as the plaintiffs through this person might have made admissions with respect to it; and it instructed the jury that, under these restrictions, they might take the freight bill into consideration as they would any other evidence in the case. All of this was proper.

We have examined the other exceptions taken by the plaintiffs, but find none that requires a reversal; therefore, the judgment and order appealed from must be affirmed, with costs.

Van Brunt, P. J., and Patterson, J., concurred; Hatch and Laughlin, JJ., dissented.

Hatch, J.

(dissenting):

I am unable to concur in the view expressed by Mr. Justice O’Brien in this case. . It is undisputed that the plaintiffs shipped to the defendant from East St. Louis, in the State of Illinois, to the city of Hew York forty-seven head óf horses of the value of *378$7,647.25 ; that the defendant received and sold the horses and has not paid therefor. The salé' issue between these parties was whether the defendant in Ordering the horses dealt with the Campbell & Reid Western. Sale Stables Company or with the Campbell Horse Company. The defendant claims'that he dealt with the latter and not the former and that, therefore, he is under no liability to pay the plaintiffs for the horses thus received. There is no. pretense upon his part, however, that he has ever paid anything on account of the horses, although they were received and sold by .him. An issue was sought to be raised in.the case that the defendant entered into a contract with the Campbell Horse Company by which the latter was to ’ consign horses to the defendant for sale by him, the proceeds to be remitted, when the sales were made and not before. Such defense, however, was not interposed in the answer of the defendant. It first denies any knowledge or information of the existence of the •copartnership between the plaintiffs,. then denies each and every allegation of the complaint,- except that the defendant received, forty-séven horses on the dates referred to in the complaint; but denies that they were received from -the plaintiffs and alleges- that they were received from the Campbell Horse Company. For a further, separate and distinct defense and as a counterclaim, the answer alleges, that in the month of October, 1903', the defendant requested the Campbell Horse Company to ship him forty-seven horses at once upon receipt of the defendant’s order'; the horses to be suitable'for hauling heavy trucks used in the coal business:; to be sound and.kind and suitable for such business and to be' on hand the first part of October for the buying coal merchants; that thejOampbell Horse'Company undertook and agreed to fill such order and to sell to said defendant said horses at the prices which they paid therefor, plus the reasonable and proper expense of feeding, and-shipping, added to the purchase price thereof, and to deliver said horses on time to supply the .demand in the coal trade. The answer further averred' that' the plaintiffs violated said agreement; that they shipped ftifty-sev'én horses and charged, or , attempted to charge, defendant therefor prices far' in .excess .of .their actual;.value.-and far in excess of -, the purchase, price therefor; that the horses were wholly tmsuited for the purposes for .which: defendant -had purchased, them; tHat they were unsound, were not kind and were in am unhealthy and *379unfit condition for tlie purpose for which they were intended. The. answer then avers that the acts of the Campbell Horse Company in failing to fulfill their contract caused the defendant to lose an-opportunity to supply his customers in the coal trade with horses for which he had orders ; that his reputation and standing as a horse dealer by reason of the unsound horses sent him were injured and impaired, and he suffered damage in the sum of $10,000, for which sum he demanded judgment, together with costs. It is apparent, therefore, that the answer raised no issue as to the consignment of the horses, but in terms it avers a purchase of the same from the Campbell Horse Company. While it is true that a general denial would authorize proof showing that the plaintiffs never had a cause of action against the defendant, and it would be a sufficient answer to the plaintiffs’ claim under such a plea to. show that defendant never purchased from the plaintiffs or never in fact made any purchase of the horses from any one, and that they were shipped on consignment, yet the denial in the present case does not go to that extent, because it excepts in its denial and admits that the defendant received the horses from the Campbell Horse Company and then it proceeds to aver the terms and conditions under which it received them, which -showed the transaction to have been a purchase and sale of the horses upon specified terms and excludes any theory of a consignment.

Upon the trial evidence was offered by the defendant tending to establish that the horses were consigned to him by the Campbell Horse Company. To this testimony objection was interposed that' it was incompetent, immaterial, irrelevant and was not embraced within the pleadings. The court overruled the objection, to which the plaintiffs excepted. Subsequently a motion was made to strike out the testimony and the court reserved its decision. Defendant’s counsel thereupon stated that if the court held against him upon such question lie should ask leave to withdraw a juror and amend his answer. It does not appear from the record that the court ruled upon the motion to strike out or that the answer was amended, and it in fact submitted such question to the jury in its charge. The evidence, however, was inadmissible, the objection interposed properly raised the question and reversible error was committed in its reception. ’

*380It further appeared that prior to this transaction the defendant and some of the plaintiffs had entered into a copartnership for dealing in horses in the city of Hew York.; that "during the period of the existence of such copartnership one Van Hess was employed at the stable where the business was carried on as the representative of the,plaintiffs, who were then in the west. He took charge"of the financial end of the business conducted by the firm. After the dissolution of the . copartnership the plaintiffs, or "some' of them, continued to deal with the defendant, who carried on business for himself in1 the city of Hew York. This dealing' was of .such a character that Yan- Hess was retained in' cpnnection therewith as the agent' and representative of- the plaintiffs or some ' of them. Upon the trial the defendant, for' the purpose of showing that he. had dealt in' the purchase of the horses with the Campbell. Horse.. Cpmpapy and not with the plaintiffs, produced' a receipt or freight bill issued by the United States Express Company to the defendant for freight, upon a car of hoijses. Upon the face of this receipt ^appeared the letters- “ O. H. Co.” • After this action was commenced the defendant testified that he went to Yan Hess and stated to him that he thought he was dealing with the Campbell Horse Company and thereupon soug'ht to introducéin evidence a conversation had with Yan Hess respecting such, mat-' ter. This was objected to by the plaintiffs upon the ground that it was immaterial, irrelevant, Was not proper by way of,,contradiction. to anything which Yan Hess had testified to,'as it "did riot call -the' witness’ attention to specific statements made by him-. Motion was-also made to strike out the-testimony.- The objection was overruled •and the witness answered that he said to Yan Hess: “ I said-I thought'I was dealing with the Campbell Horse Company all the • .time, as the railroad bills said that the horses were consigned from the Campbell Horse Company.” He was then asked if anything was said about the railroad bills, to which he replied that .he produced two or- three of them and they were all “ C. H. Co.” Defendant further said: “I showed him that railroad bill (showing paper) I said that is ‘ C. II. Company.’ That means Campbell Horse Company.” Thereupon the defendant Offered the bill in evidenceit was objected to as irrelevant, incompetent and riot binding uppii the jolaihtiffs. The objection was overruled, an exception was taken by the plaintiffs *381and the bill was received in evidence. Defendant was then asked : Q. What did he say to you with reference to the C.- H. Co. ? ’ A. Campbell Horse Company.” This was objected to and the- objectian overruled, to which an exception was taken. The testimony thus offered and received was clearly erroneous for two reasons: First, it permitted the defendant to testify to his own declarations and to state that he dealt with the Campbell Horse Company and not with the plaintiffs, and under pretense of a conversation with Van Hess his entire declaration bearing upon the only issue properly in the case was permitted to be given. It needs neither argument nor authority to establish that such declarations were improper and incompetent. It was not pretended that Van Hess had given specific evidence for the plaintiffs in relation to such subject, and if admissible for purposes of contradiction the defendant was required to specify the particular thing to which Van Hess had testified and ask him the direct question. It was not offered nor received upon such theory. On the contrary, it was offered and received upon the theory that Van Hess was the agent of the plaintiffs and, consequently, a general conversation, without regard tó contradiction, was admissible. Clearly this is not so. Second, nor was it admissible as constituting it an admission by Van Hess, based upon the ground of his agency - for the plaintiffs. The declarations of an agent may be admissible in evidence when it is a part of the res gestee, but in order to be admissible as such “ they must be made not only during the continuance of the agency, but in regard to a transaction depending at the very time.” (Anderson v. Rome, Watertown & Ogdensburgh R. R. Co., 54 N. Y. 334; Taylor v. Commercial Bank, 114 id. 181.) The declaration of Van Hess does not come within the rule. It was not embraced with'in the scope of his employment in respect to which he could make an admission; it was not of a present, pending transaction, but of one long since passed and with respect to which he was not authorized to bind the plaintiffs. The declaration itself bore upon a material issue raised by the pleadings,' as its effect was to show that the dealings "were had with the,Campbell Horse Company and not with the plaintiffs. The bill itself to which the conversation and declaration related was also inadmissible; it was not pretended that the bill emanated from the plaintiffs. It was a mere freight bill, issued by the *382express company to the defendant and there is no proof to show-that the plaintiffs ever had any knowledge upon the subject or that their attention was ever called to 'it and they were in no sense parties to it. This evidence was not only improper for those reasons, but the use made of it by the court -in submitting the case to theT jury was most damaging to the plaintiffs. Upon such subject the' plaintiffs’ counsel asked the court to charge that the receipt given by the express company and not by the plaintiffs was not binding upon them and could not be considered. Attention"was then called by the defendant to the conversation had between "him and Van Ness and after further colloquy the plaintiffs again asked the court. to charge “ that the evidence does not show there were any admissions made by the plaintiffs in regard to- this receipt. The Court: Were there no conversations about it ? Mr. Baldwin : -None whatever. The Court: With Van Ness? ' Mr. Thompson: Ves, their agent. - The. Court: If you find that Van Ness was the agent of the plaintiffs and not of the defendant, and that he made any admissions with respect to the receipt, so given by the U. S. Express Company, you may take the same into consideration, together with all the other evidence and circumstances in the case.’’

The plaintiffs’ "counsel excepted to the refusal to charge as requested and to the charge as made. It is clear, therefore, that . the jury were not only authorized to consider the receipt given by the express company, but they were also authorized -to find that Van Ness made the admission concerning it; that the shipment Was from the Campbell Horse Company, and if they found that Van Ness made such admission, then it was binding upon the plaintiffs, and from- the whole the jury were authorized to conclude as they did, that the defendant dealt with the Campbell Horse Company, and not with the plaintiffs, and that the latter, therefore, had no cause of action against .the defendant! The improper evidence was used and, as used, operated to establish a controlling element in the case.

It follows from these views that the judgment should be re.versed and a new trial granted, with costs "to the appellant to abide- the event.

Laughlix,-J., concurred.

Judgment and order affirmed, with "costs.