Sipfle v. Isham — 36 N.Y. St. Rep. 762

Majority

p. 762

Conrad Sipfle, Jr., et al., Resp’ts, v. Alfred Isham, Impl’d, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed February 20, 1891.)

Headnote

Partnership—Proof of—Findings of referee.

In an action on a note made in the names of defendants but executed by defendant S., appellant denied that he was a partner or ever authorized the making of the note. On a former appeal it was held that he eould not be held liable as the referee did not find that there was a partnership. On the second trial there was evidence of a conversation with him in which he said that he and S. were going in as partners in the purchase of certain patent rights which were valuable, and. the referee found that defendants were partners. Held, that as there were some evidence to sustain the findings, the appellate court would not interfere therewith.

Appeal from a judgment entered upon the report of a referee in Onondaga county in favor of the plaintiffs.

Action on a promissory note given for $1,200. Upon the hearing the testimony of Byron E. Loomis was given in respect to a conversation Detween “ Isham and Stimpson in reference to Burdock’s Patent Refrigerator and Butter Cooler in San Francisco.” Among other things the witness testified: “I said to Mr. Isham, ‘ I suppose you have a real good thing; ’ he said: there aint money enough to buy it; we have an independent fortune out of it; Mr. Stimpson and I are going to have it; ’ I said: ‘ It will take plenty of money to run it; ’ he said: ‘ we have plenty of money; ’ he said: ‘ we are going in as partners; we have the states of Louisiana and New York and Mr. Stimpson is going there to sell territory of the places, and we have made arrangements with Mr. Bugby to that effect.’ "" * * They were in together, and in all his conversation he stated ‘we’; he was the most enthusiastic of -the two." This evidence was repeated in substance on cross-examination. The witness added in his direct examination : “ The whole conversation was that we are going to make a fortune out of this business: in fact, I believe he told me that they had bought two states.” In his cross-examination he stated : “We are going to do this; we have bought the two states; he said: we are going in as partners; ’ this is the impression I got; the exact words it would be difficult for me to remember." The referee found as a matter of fact: “ That the defendants were copartners as far as the plaintiffs are concerned at the time of the execution of said note of $1,200, and prior thereto, and at the time of making the contract out of which the note

p. 763

grew.” As a matter of law he found: “That the plaintiffs for the purposes of this action are co-partners.” Second. That the defendants Albert S. Stimpson and • Alfred H. Isham, “ became and were partners under the name of Stimpson & Isham in the particular venture of the purchase of the patent of the states of New York and Louisiana, and the working of the same in said states.”

E. A. Hash, for app’lt; Homer Weston, for resp’ts.

When this case was before us on a former peal, 46 Hun, 366 ; 12 N. Y. State Bep., 359, among other things, we said: “ The referee does not find that Isham and Stimpson were copartners, nor that Stimpson, who made and signed and delivered the note to plaintiffs as a copartner or otherwise, was authorized by Isham to make the note in suit. * * * The plaintiffs planted themselves upon the averment that Isham was a partner. That was not proven; nor is it found by the referee.” Upon the proofs given and the findings made by the referee found in the present appeal book, the case differs quite essentially from the case found in the former appeal book. It may be observed that the evidence is slight tending to sustain the conclusion of fact found by the referee in the last trial. However, as there is some evidence to sustain the findings we are not inclined to interfere with the same. The referee has carefully considered the evidence, and weighed it in the light of the discussion of the authorities bearing upon the questions involved, and delivered an opinion reaching a conclusion upon the evidence which we are not inclined to disturb.

(2.) We have looked at the rulings made upon the trial and we are of the opinion that they do not present such prejudicial error as require us to disturb the report of the referee.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.