Brayton v. Sherman — 24 N.Y. St. Rep. 369

Majority

p. 369

George W. Brayton, Individually, and as Assignee, etc., Resp’t, v. Darwin W. Sherman et al., as Ex’rs, App’lts.

(Supreme Court, General Term, Third Department,

Filed May 27, 1889.)

Headnote

1. Assignment—Op accounts—What best evidence op.'

The books containing accounts alleged to have been assig-ed are the best evidence, and it is error to permit a witness, in order to show the assignment, to testify to the entries without producing such books, but the error is cured where the defendant himself subsequently testifies to the assignment, thus obviating his own objection.

2. Finding—When not reviewed.

Where there is any evidence to support a finding, and the case does not state that all the evidence has been returned, the finding will not be reviewed.

3. Assignment—When need not be in writing.

The statute which requires all assignment of accounts to be evidenced by a written instrument where the amount exceeds fifty dollars, does not. apply to an executed sale accompanied by delivery.

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

Where the complaint, 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, 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 be 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 a judgment in favor of the plaintiff entered, upon the decision of the court upon a trial at the Warren county special term.

Esek Oowen, for app’lts; L. H. Northrup, for resp’t.

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 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 & Law-lover, 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 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 plaintiffs’ 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 value. The

p. 371

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 nfeed not. review the finding itself, since the case does not state that all the evidence is returned. Porter v. Smith, 107 N. Y., 531 ; 12 N. Y. State Rep., 479. 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 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 fifty dollars, 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 lifetime,, and as his executor after his death, has, according to his-own testimony, “ tried to collect them the best he 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 th& 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 five per cent extra allowance on the sum deducted, and as modified, affirmed, without costs in this, court.

Learned, P. J,, and Ingalls, J., concur.