Brayton v. Sherman — 5 N.Y.S. 602

Majority

p. 602

Brayton v. Sherman.

(Supreme Court, General Term, Third Department.

May 27, 1889.)

Headnote

1. Statute of Frauds—Agreement for the Sale of Goods.

A transfer of accounts, amounting to more than §50 in value, is valid, though not in writing, when the purchaser has accepted the transfer, and has collected all the collectible accounts.

2. Assignment for Benefit of Creditors—Evidence—Proof of Value.

In an action by a general assignee of an insolvent partnership to recover the value of firm accounts transferred in payment of the individual debt of one of the partners, evidence that the creditor had collected all the accou nts but a specified amount,

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which was uncollectible, is sufficient prooí of the value of the accounts to sustain a finding that they were worth the amount represented on their faces, less the sum found uncollectible.

8. Same—Harmless Error.

. It is not error for which a judgment for plaintiff, in such an action, will be reversed that he was permitted to prove entries in the creditor’s books respecting the accounts assigned by oral evidence, instead of by the books themselves, when the defendant himself, the creditor’s executor, afterwards testifies concerning them, and assumes the accuracy of the list alleged to have been taken from the entries.

4. Same—Pleading—Complaint—Trover and Conversion.

Though the complaint in such an action alleges that defendant, as executor, converted the assets mentioned to his own use, the action is not necessarily one for tortious conversion, when taken with other averments, the allegation appears to mean only that the creditor took possession of the assets assigned, and that at his death defendant, as his executor, took possession, and refused to surrender them on demand.

Appeal from special term, Warren county.

Action by George W. Brayton, individually, and as assignee for the benefit of the creditors of John A. Sheldon and Thomas Lawlover, insolvent debtors, against Darwin W. Sherman, executor, etc., of Augustus Sherman, deceased, and others, to recover the value of certain assets transferred by said debtors to said testator. Judgment for plaintiff for $1,800.85, and defendant Sherman appeals.

Argued before Learned, P. J., and Landon and Ingalls, JJ.

Esek Oowen, for appellant. C. 8. Enohes, (Z. N. Northup, of counsel,) for respondent.

The complaint is in behalf of the general assignee for the benefit of creditors of Sheldon & Lawlover, assignors and copartners, to recover from the executor of Augustus Sherman, deceased, the value of certain partnership property and accounts, which before the general assignment the partners assigned and transferred to said Sherman in payment of, or as security for, the'individual debt of Lawlover, one of the partners, to said Sherman. The complaint alleges that Augustus Sherman converted to his own use this partnership property thus assigned to pay or secure the individual debt due him from Lawlover; and that after A. Sherman’s death, his executor, the defendant D. W. Sherman, as executor, converted the same to his own use. Thereupon the appellant urges that the complaint is for a tortious conversion, and upon that basis urges objections to the recovery. We need not consider them. The allegations of conversion mean, in the connection in which they are used, no more than that A. Sherman, in his life-time, took possession under the assignment of the property assigned to him, and that upon his death his executor, D. W. Sherman, took possession, and upon demand refused to surrender it. It fully appears upon the evidence that Sheldon & Lawlover, being largely indebted to firm creditors, and contemplating an assignment for their benefit, first transferred the property and accounts which are the subject of this action to A. Sherman, to secure him upon the individual indebtedness of Lawlover, and then made their general assignment. The value of the assigned property, exclusive of that previously transferred to A. Sherman, was small in comparison with the liabilities of the firm, and of course the firm creditors are injured to the extent that the firm property was diverted to pay the individual debt of Lawlover. The object of this action is to recover the value of that property, and thus repair the injury.

On the merits a recovery is the plaintiff’s right, and unless some error was made to the prejudice of the defendant the judgment should be affirmed. The plaintiff was permitted, in order to show the assignment, to prove by a witness the entries in A. Sherman’s books respecting the accounts of Arnold & Lawlover, alleged to have been assigned, notwithstanding the objection that the books were the best evidence. The books were in the "possession of the

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witness, but do not appear to have been produced. This ruling would be a fatal error but for the fact that the defendant himself subsequently testified to the assignment. The defendant thus obviated his own objection. The defendant testified that he had tried to collect the accounts specified in the list which the plaintiff’s witness had transcribed from A. Sherman’s books. The accuracy of the list was thus implied.

The defendant objects that there is no'proof that the accounts represented values. The accounts stated in the list foot up to $509.93. The court found their value to be $509.93. The defendant’s exception is that there is no evidence to support the finding. If there is any evidence tending to support the finding, we need not review the finding itself, since the case does not state that all the evidence is returned. Porter v. Smith, 107 N. Y. 531 , 14 N. E. Rep. 446 . The defendant’s testimony is that he tried to collect the accounts specified in the list, and that $145 of them were worthless. There is no other evidence returned as to value. The finding as to the value of all the accounts except the worthless portion must be sustained, since the defendant furnishes some evidence implying value, and all the evidence does not appear to be returned; but respecting $145 of the accounts there is no evidence tending to show value, and hence, to that extent, the finding is an error of law.

It is further objected that the amount of the accounts exceeds $50, and therefore should have been transferred by a written instrument. The statute does not apply to an executed sale accompanied by delivery. The testator accepted the transfer of the accounts, in whatever form made, and the defendant, acting as his agent in his life-time and as his executor after his death, has, according to his' own testimony, “tried to collect them the best I could, ” and reports only $145 of them as uncollectible. We may assume that the assignment was an executed one, whatever theoretical difficulty there may be in the delivery of intangible rights of action, and that all of the accounts, except the uncollectible ones, represented the values found by the trial court. The judgment is modified by deducting, as of the date of its entry, $145, and interest thereon from June 2, 1882, to that date, and the 5 per cent, extra allowance on the sum deducted, and, as modified, affirmed, without costs in this court. All concur.

Cases cited

Porter v. Smith 107 N. Y. 531 N.Y. 1887-12-13 p. 604