Stiles v. Meyer — 64 Barb. 77

Majority

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Stiles and others vs. Meyer, impleaded, &c.

Headnote

In an action upon a promissory note, made by the firm of J. L. B. & Co., of which the defendant M. was alleged to be a member, the referee found that the note was taken by the plaintiffs as the note of J. L. B. & Co., for goods sold to such firm; that at the time of the sale, M. & B. stated that M. was to be a member of said firm in about six weeks, and that they wished to buy goods for such new firm; that they jointly purchased the goods for which the note in suit was given, for said contemplated new firm; that said partnership was not in fact formed, but that no notice of that fact was given to the plaintiffs, until after the delivery of the goods and the receipt of the note.

Held 1. That it would be a violation of a settled rule to disturb the finding of a referee upon a question of fact, when there was so much evidence to support it as in this case. That it must therefore be held conclusive.

2. That the facts found established a legal liability against M.

3. That although the agreement was that the partnership should not commence until a future day, and the agreement was never carried out, yet the purchase itself was a quad partnership transaction, and it having been expressly sanctioned by M., he was estopped from disputing his liability.

If evidence, though erroneously admitted, could have had no effect upon the judgment, the error is a harmless one.

APPEAL, by the defendant, Meyer, from a judgment entered upon the report of a referee.

The action was brought upon a promissory note for $1,827.49, dated April 2, 1866, made by the firm of “ J. L. Bach & Company.” The plaintiff alleged in the complaint that at the time of giving the note, the defendants represented themselves to be copartners under that firm name; and that the goods, for the price of which

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the note was given, were sold by the plaintiffs npon the faith that Meyer was a member of the firm of J. L. Bach & Co. and also upon his representations that he was a. man of means, and jointly interested with his co-defendants in- said purchase.

The defendant Meyer, by his answer, admitted that on one occasion he told one of the plaintiffs that negotiations were pending, and that if everything was agreed to, he might possibly become a partner with the other defendants, but-he denied that he ever told or represented to the plaintiffs or any of them that he was such partner, or that it had been settled or agreed that he was to become such; and denied each and every other allegation in the complaint contained.

The action was referred to a referee; who found the following facts: On and prior to the 18th of February, 1866, and from thence until after the 3d of April following, the defendants, other than said Meyer, were in partnership under the name of .“Jacob L. Bach & Co.,” and prior to said 18th of February had dealt largely with the plaintiffs, purchasing goods of them. On said 18th day of February said Meyer and said Jacob L. Bach called, together, at the store of the plaintiffs, and there stated, in substance, to the plaintiffs,'that said Meyer was to be a member of said firm of Jacob L. Bach & Co. on the first of April then following and afterwards; that said Meyer was to put in the new firm $50,000; and that they then wished to buy goods of the plaintiffs for said new firm. They then jointly purchased of the plaintiffs goods to the amount of $1,837.49, for said contemplated new firm, payable four months from 3d of April, 1866, which goods before said 3d of April the plaintiffs, in consequence of their reliance on said statements, delivered to said Jacob L. Bach, as one of the members of said contemplated firm, and shortly after that day received the note set forth in the complaint in this action as the note of said new firm. The plaintiffs never

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received any notice that said proposed partnership had not and would not be carried out, until after the delivery of said goods by them, and after the receipt of said note by them. In the summer following, and before the maturity of said note, the old firm of Jacob L. Bach & Co. failed. Meyer and J. L. Bach & Co. in fact intended to enter into such partnership, and Meyer to put in as capital $50,000, when such representations were made, and until after 2d of April, 1866; but shortly after that day this intention was abandoned, on account of Jacob L. Bach not being able to put in as much capital as he had promised, and wishing to put in old stock at cost; and such partnership was never in fact made or formed.

The referee found,, on these facts, as matter of law, that the plaintiffs were entitled to judgment against the said Meyer, as well as against the other defendants, for the amount of said note, with interest from maturity, and them costs to be adjusted, and directed that judgment be entered accordingly. That they were also entitled to interest on said principal and interest from the date of the report; said principal, with interest to said date, being $2,092.58.

E. A. Doolittle and Wm. Fullerton, for the appellant.

Amos, G. Hull, for the respondents.

The referee has found as matter of fact, upon evidence which is conflicting, that the note in suit was taken by the plaintiffs as the note .of the firm of J. L. Bach & Co., of which they supposed the defendant Meyer was a member; that the consideration of the note was goods sold to such firm; that on the occasion when the goods were sold, Meyer and Bach stated that Meyer was to be a member of said firm in about six weeks; that they then wished to buy goods of the plaintiffs, for said new firm; that they

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jointly purchased the goods for which the note in suit was given, for said contemplated new firm; that said partnership was not in fact formed, but that no notice of that fact was given to the plaintiffs, until after the delivery of the goods and the receipt of the note.

[First Department, General Term, at New York,

November 4, 1872

Leonard and Gilbert, Justices.]

It would be a violation of a settled rule to disturb the finding of a referee upon a question of fact, where there is so much evidence to support it as in this case. It must, therefore, be held conclusive.

The question is, whether the facts found establish a legal liability against Meyer. We think they do, for the reason that he was a party to the contract of purchase of the goods. The credit was given to the individuals who were to become members of the proposed partnership; and this was done with the express assent of Meyer. Although, therefore, the agreement was that the partnership should not commence until some time after the purchase, and the agreement was never carried out, yet the purchase itself was a quasi partnership transaction; and having been expressly sanctioned by Meyer, he is estopped from disputing his liability. (Dickinson v. Valpy, 10 B. & C. 128. Battley v. Lewis, 1 Man. & Gr. 155. Lake v. Duke of Argyll, 6 Q. B. 477. Fox v. Clifton, 6 Bing. 776. Burns v. Rowland, 40 Barb. 368 .)

It was certainly competent to prove what the statement was, on the faith of which the goods were sold. The exception to this evidence is not good.

We are unable to perceive any materiality in the evidence respecting what had been done by the plaintiffs in limiting their terms of credit. But if the evidence was erroneously admitted, it could have had no effect upon the judgment. The error, therefore, was a harmless one. (The People v. Gonzalez, 35 N. Y. 59 .)

The judgment should be affirmed, with costs.

Cases cited

Burns v. Rowland 40 Barb. 368 N.Y. Sup. Ct. 1863-02-14 p. 72