Burhans v. Burhans

This action was brought by the plaintiff to foreclose a mortgage. The answer of the defendants Carrie Burhans and Albert Burhans:

First. Denied each and every allegation of the complaint.

Second. That before the action they satisfied and discharged the plaintiff’s claim, by payment of said bond and mortgage.

Third. Théy set up by way of counter-claim, and sought to have applied upon the mortgage as payment, $250, with interest thereon, for an alleged bonus paid by them to the mortgagees for an extension of time for the payment of such mortgage.

Fourth. By way of equitable defense, a claim that the $250, with interest thereon, be applied upon the mortgage, upon the ground that said sum had been received by the mortgagees upon no other consideration than as alleged in the third part of the answer.

The plaintiff and the defendant William J. Turck were partners in business, and in that capacity took the mortgage in question. They dissolved the partnership, and their agreement contains the following provision: “And it is further mutually agreed that the moneys owing the said firm shall be kept and deposited in the old firm name of Turck & Burhans; and that the said William J. Turck is hereby authorized to use said firm name, and sign in liquidation of the firm business.”

It is claimed by the defendants Carrie Burhans and Albert Burhans that before the commencement of this action, and on the 6th day of August, 1885, there was an adjustment between them and the defendant William J. Turck in regard to the payments which have been made upon said mortgage, and they ascertained the amount then due and unpaid thereon, and applied thereon certain moneys which were due and owing to the defendant Carrie Burnhans from the said firm of Turck & Burnhans, being money in the hands of such firm belonging to her in amount sufficient to satisfy said mortgage.

That such money was applied in payment and satisfaction of the mortgage. Ana an agreement was then made that such mortgage should be discharged of record. But the preparation and execution of such discharge was omitted on that day, owing to the fact that Albert Burhans was in a hurry to go to New York upon business. William J. Turck testified as follows :

Q. Was it on that day, by an understanding and agreement between you and he, considered paid, and you agreed to give a satisfaction piece % A. Yes, sir.

He further stated : Q. What happened on the 10th ? A. On the 10th he was afraid of the costs.

Q. He came to you ? A. Told him to go to New York ; I says this is all right, you have money enough here, and if you have not I will put it in, this was on Monday, so the satisfaction was dated on Monday; that was the ioth.

The witness gave a history of the money transactions between the defendant Carrie Burhans, agent, with said firm of Turck & Burhans, before and after the dissolution of partnership.

The defendant Turck refused to join as a plaintiff in the action, and was made a defendant. The action was commenced on the 14th day of August, 1885. Upon the evidence taken in the action, the learned justice made the following findings, which are incorporated herein, as they were obviously the result of a careful examination and consideration of the case, and contain a full statement of the facts involved in the controversy and constitute the basis of the judgment entered herein. Such findings are as follows: "Supreme Court, Nelson H. Burhans against Carrie Burhans, Albert Burhans and William J. Turck.

The above cause having been brought on to trial before the court without a jury, the court finds as to the facts and rulings of law as follows : As to the facts :

First. That the defendants, Carrie Burhans and Albert Burhans, for the purpose of securing the payment to the defendant William J. Turck and the plaintiff Nelson H. Burhans of the sum of $2,110.60, with interest thereon, on or about the 5th day of September, 1874, executed and delivered to the said William J. Turck and Nelson H. Burhans a bond bearing date on that day, sealed with their seals, whereby the said Carrie Burhans and Albert Burhans did bind themselves, their heirs, executors and administrators in the penalty of $4,300, upon the condition that the same should be void if the said Carrie Burhans and Albert Burhans, their heirs, executors and administrators, should pay to the said William J. Turck and Nelson H. Burhans, their executors, administrators or assigns, the said sum of money first above mentioned, as follows : Two thousand one hundred and ten dollars and sixty cents on the 5th day of September, 1875, with the interest thereon, payable semiannually on the first days of January and July in each year, and as collateral security for the assessment of the said indebtedness, the said Carrie Burhans and Albert Burhans,

On July 9, 1875, which was duly indorsed on said

bond............................................ $373 84

On February 9, 1880 ............................... 501 89

On February 28, 1881 .............................. 136 64

On April 16, 1883 .................................. 253 28

On May 6, 1884................;................... 500 00

Fifth. That on the 10th day of August, 1885, the defendant, Carrie B. Burhans, had moneys to her credit in the hands of the defendant, William J. Turck, in the sum of $619.66. That, on that day, it was agreed between them that the said William J. Turck, who had the possession of said bond and mortgage, should apply upon said bond and mortgage from said moneys such amount as was then unpaid thereon, and that said bond and mortgage should be thereby paid and discharged at that time, and a satisfaction piece should be given.

Sixth. That, on the said 10th day of August, 1885, the said William J. Turck, had calculated the amount unpaid upon said bond and mortgage at the sum, of $619.66 and applied that sum from the moneys in his hands belonging to said Carrie Burhans, upon said bond and mortgage.

Eighth. That the defendants, William J. Turck and Nelson H. Burhans, since about the year 1853, had been partners in business under the firm name of Turck & Burhans, which partnership continued until April 4, 1883. That the moneys loaned for which said bond and mortgage was part of their partnership property.

Ninth. That by the articles of dissolution in writing, signed and sealed by the said William J. Turck and Nelson H. Burhans, it was agreed between said partners as follows, viz.: “ And it is further mutually agreed that the moneys owing said firm shall be kept and deposited in the old firm name of Turck & Burhans, and the said William J. Turck, is hereby authorized to use said firm name and sign in liquidation of the firm business.” That said William J. Turck kept the possession of said bond and mortgage thereafter till paid.

Tenth. That prior to December, 1884, plaintiff brought suit in this court against said William J. Turck for an accounting of the affairs of said firm, and asked in the complaint in said action for the appointment of a receiver to settle outstanding affairs and accounts of said firm.

Eleventh. That in December, 1884, said plaintiff moved in said action for the appointment of a receiver, and procured and entered and served an order granting such motion, unless the defendant in said action made, executed and served a bond or undertaking in the penalty of $10,000 that he would comply with the final judgment that should be entered in said action, and pay the plaintiff any and all sums directed by said judgment to be paid to said plaintiff.

That said defendant, in December, 1884, made, executed and served said bond duly approved.

Twelfth. That there were at the time of the dissolution of said firm eleven bonds and mortgages belonging and owing to said firm, left with said Turck, for collection, and he was authorized to collect the same, one of which was the bond and mortgage in suit.

Thirteenth. That judgment was entered in said action between said Nelson H. Burhans and William J. Turck on the 25th day of July, 1885, which adjudged among other things as follows:

4. The plaintiff is entitled to judgment in his favor, that

5. The plaintiff is entitled to judgment in his favor, that one-half of the accounts of the firm as collected be paid to the plaintiff to his separate use.

6. That a receiver of the firm be appointed to this action to collect and receive the assets mentioned in the fourth and fifth findings now in defendant’s possession, and to divide the same as specified therein. That the fourth and fifth parts of said judgment correspond to the fourth and fifth findings of the report therein.

Fourteenth. That said judgment was appealed from by said defendant, William J. Turck, and that the appeal therein has not been heard and that in consequence no final judgment has been entered in said action, and no receiver has been appointed.

Fifteenth. That the plaintiff requested said Turck to join as a party plaintiff in this said action to foreclose said mortgage on the 13th day of August, 1885, after the same had been fully paid and discharged.

Sixteenth. That on the 13th day of August, 1885, the plaintiff was duly notified by said William J. Turck that said bond and mortgage was paid.

Seventeenth. That this action was commenced by the service of the summons and complaint on William J. Turck on the 14th day of August, 1885, on the defendants, Carrie and Albert Burhans on the 15th day of August, 1885.

Eighteenth. That on the 10th day of August, 1885, the defendants, William J. Turck and Nelson H. Burhans, so credited and received from Carrie Burhans $418.44 in excess of the sum actually due on said bond and mortgage in ¿onsequence of not applying the sum of $250 paid September 22, 1874, as a bonus thereon against the consent of said Albert and Carrie Burhans, as rulings of law.

. Fzrst. That the sum of $250, paid on the 22d day of September, 1874, was paid upon a usurious agreement for forbearance and a payment in excess of legal interest, and should be applied as a payment of that date on said bond and mortgage.

Second. That the whole sum due for principal and interest after the application of said $250 paid as a bonus and the several other payments at their respective dates on said bond and mortgage on the 10th day of August, 1885 (not including the $619.66 then credited and received), was the sum of $201.22.

Third. That on the 10th day of August, 1885, said bond and mortgage was paid, satisfied and discharged.

Fourth. That the sum of $418.44, the excess of the sum due on said bond and mortgage, credited and received on

Fifth. The complaint should be dismissed on the merits as to the defendants.

Sixth. The defendant, Carrie Burhans, is entitled to recover judgment against the defendants, William J. Turck and Nelson H. Burhans for the sum of $418.44.

Seventh. The defendants, Carrie Burhans and Albert Burhans, should have judgment for costs of the. action against the plaintiff, and judgment is accordingly ordered and directed as herein found.

Dated June 10, 1887. A. B. PARKER,

Justice Supreme Court.

We do not perceive that the additional findings which were made at the request of plaintiff’s counsel, and which are incorporated in the case, materially change the foregoing findings, so far as the essential features of the case are concerned. We have carefully examined the evidence, and investigated the facts in regard to the payments alleged to have been made upon the mortgage, and which were allowed by the court, and find such payment supported by the evidence to the full amount stated by the court in his findings. We are entirely satisfied that the decision is in accordance with the facts of the case, as established upon the trial, and is eminently just. The evidence was conflicting, and the transactions out of which the controversy arose, are not a little complicated. The trial court possesses a great advantage over the appellate tribunal in the investigation of a question of fact, when the evidence is conflicting, as the former has an opportunity to examine the witnesses, and observe their appearance upon the stand, and the manner they testify. William J. Turck, as a member of the partnership firm of Turck Sc Burhans, was authorized to deal with the mortgage by adjusting .the amount due thereon, to apply payments, and to discharge the same. Such authority was incident to the partnership, and survived its dissolution for the purpose of settling and winding up its affairs. Robbins v. Fuller, 24 N. Y., 570 ; Gillilan v. The Sun M. In. Co., 41 N. Y., 376 . But in addition to such general power, Turck, by a provision in the contract of dissolution, to which reference has already been made, was, we think, authorized to adjust the amount due upon the mortgage, and to apply thereon the money due from the firm, to Carrie Burhans; and to discharge the same as Hilton v. Vanderbilt, 82 N. Y., 591 . Every act which he performed in regard to the mortgage, was received, connected with the partnership business, held and regarded as property of the partnership, ^p,nd dealt with accordingly. Turck was, therefore, fully '"authorized to receive payment therein, and to discharge it.

It would have been unjust to Mrs. Burhans, to keep her money tied up in the hands of the firm, or a member thereof, and subject her property to sale by foreclosure of the mortgage, which belonged to the partnership. No receiver had been appointed to settle and wind up the affairs of the partnership, previous to the discharge of the mortgage. But it appears that William' Turck, was substantially authorized to discharge that duty, and executed a bond in the penalty of $10,000, to account for the money which came to his hands belonging to the firm. We may therefore assume that the plaintiff was not in danger of being prejudiced pecuniarily, in consequence of the discharging of said mortgage. If Mrs. Burhans had paid the mortgage, she was entitled to have it discharged. And whether or not such payment had been made, became a question of fact for the court to decide, which has been done, upon evidence too strongly supporting the decision, to be disturbed. The facts justify the assumption that the mortgage had been paid and there was on the 8th and 10th day of August, 1885, an agreement to discharge the same. And therefore the paper which was in fact, executed on the 17th day of August, 1885, by relation, took effect at the time the agreement to discharge was made. The paper was but evidence of what had been previously agreed upon, for the purpose of canceling the mortgage upon the record. Green v. Fry, 93 N. Y., 358 . The application of the $250, which had been paid to the partnership firm, by Mrs. Burhans, for the purpose of obtaining an extension of the time for the payment of the mortgage was properly applied as a payment thereupon. Real Estate Trust Company v. Keech, 69 N. Y., 248 .

We think the court properly directed judgment in favor of Carrie Burhans, against William J. Turck and Nelson H. Burhans, for the balance which was ascertained to be due her, after satisfying the mortgage. The parties were all before the court, and the balance thus found due, arose substantially out of the same transaction, and affected only the parties to this action, so far as the case discloses. A multiplicity of actions will not be' favored, when one will end the entire controversy. The provision of the Code of Civil Procedure is very broad, and was,, we think, intended to accomplish just such a result. It is as follows: “ Section

No question seems to have been raised at the trial in regard to the sufficiency of the pleadings, to authorize the relief granted. And consequently the case is not embarrassed by any such question. If any such objection had been made and it had been deemed neccessary, an amendment might have been granted. " At folio 387 of the case it appears that the court found, at the request of the plaintiff’s counsel, the following: “ 35. There was in fact no money paid to either defendants, Turck or plaintiff Burhans, by Albert Burhans after that dated 8th August, 1885, applicable to the mortgage. ”

We discover nothing in this finding inconsistent with the other findings herein, or with the decision of the court. All the payments upon the mortgage, strictly considered, were made upon and previous to the 8th of August, 1885, the money of Mrs. Burhans, which was applied on that day to the payment of the balance due upon the mortgage, was then, and for some time previous thereto, had been, in the hands of the partnership. And consequently there was no actual counting, and handing over money, at any time subsequent to the 8th of August, 1885, as the court found.

The cause seems to have been properly disposed of by the trial court, and the judgment must, therefore, be affirmed with costs.

Learned, P. J., and Landon, J., concur.