Sternberger v. Bernheimer

The complaint in this action proceeds against the defendants, Meyer A. Bernheimer, Joseph Falk and George W. Falk, upon a joint undertaking to engage in a stock speculation, in pursuance of which they employed Louis Sternberger, one of the plaintiffs, as a broker to purchase and carry for them six hundred shares of stock; which speculation resulted in a loss. The evidence tended to show that the order for this purchase was given by Joseph Falk to Louis Sternberger in the presence of, and with the express approval of the defendant, Bernheimer, and purported to be given on behalf of the defendants and two other persons, who were not made parties to the suit. The defendants Bernheimer and George W. Falk were alone served with process and appeared in the action, the defendant, Joseph Falk, having become insolvent and left the state. The defendants served answered separately and without alleging the non-joinder of other parties defendant, respectively denied giving or authorizing the order of purchase referred to, or any participation in such speculation, either jointly or otherwise. Soon after executing the order of purchase, the plaintiff, Louis Sternberger, associated the other plaintiffs in business with himself and duly assigned to them an interest in his business, which included the claim in suit.

The question, litigated upon the trial, was whether the defendants, Bernheimer and George W. Falk, or either of them, were interested with Joseph Falk in the purchase of the stock; each contending that he had no interest whatever in such purchase. Much evidence was given upon both sides in respect to-this issue; that of the plaintiffs tending to show that the stock was purchased and carried by them upon the order and at the request of the three defendants, jointly, as alleged in the complaint. This evidence was strenuously disputed by the respective defendants appearing in the action, each testifying in his own behalf, and a question of fact, as to the credibility of the witnesses testifying on the respective sides, was made for the determination of the jury.

The evidence was so conflicting that it could not be reconciled or harmonized, and no other alternative was presented except a, submission to the jury of the questions of fact arising in the case.

The appellant argues quite strenuously, that an exception to the charge of the trial court, reading as follows: “ My exception is to that portion of the charge in which your honor told the jury, if the defendants were jointly interested that a verdict could be found against them, or either of them,” was well taken, and should cause a reversal of the judgment. There can be no doubt, we think, as to the general proposition that, upon a trial in an action where there are several defendants, whether they are all served with process or not, the verdict should be rendered against all who are proved to have been jointly liable, and a refusal by the court to direct such a verdict to be given in a proper case would be error, requiring a reversal of the judgment. Nelson v. Bostwick, 5 Hill, 37 ; Code of Civil Procedure, § 1932. It is also undoubtedly true that the evidence tended to show that the defendant Bemlieimer was jointly liable with Joseph Falk upon the contract proved, and that a verdict against Bernheimer alone was rendered by the jury. If this was done against his objection the judgment should be reversed; but on a careful scrutiny of the charge, we have been unable to find any statement by the judge authorizing such a verdict, or any exception bringing up the question urged. Wc have been referred to a paragraph in the charge which, it is claimed, supports the exception; but we do not find in it anything which authorizes the claim that the jury were directed that they could find a separate verdict against a defendant who was shown to be jointly liable with another.

The portion of the charge referred to reads as follows: “ If you should find that the plaintiffs have fully established a case within the rules laid down by me, the plaintiffs are entitled to a verdict against both defendants, if both were jointly interested ■with Joseph Falk within the rules laid down by me, and before the purchase of the 600 shares by Louis Sternberger. Or if only one of the defendants was so interested, then against the one who was so interested.”

This does not purport to authorize a separate verdict against defendants jointly liable. The court had previously charged that “if the two defendants named (referring to Bernheimer and Geoi’ge Falk) were so jointly interested, it matters not how many more were interested with them. It is sufficient for you to determine that either one, or both of them, were so interested with. Joseph Falk.”

It seems to us that the fair interpretation of the whole charge is, that, as between Bernheimer and George Falk, the jury might find a verdict against either or both, according to the conclusion reached by them in regard to their joint liability with Joseph Falk, and the fair implication from it was, that where there was a joint-

The judgment should therefore be affirmed.

All concur.