McLaren v. Stokes — 38 N.Y. St. Rep. 993

Majority

p. 993

Charles McLaren, Resp’t, v. Thomas Stokes and James Stokes, App’lts.

(Supreme Court, General Term, Second Department,

Filed May 11, 1891.)

Headnote

Guaranty of sales—Collectibility of claims—Evidence.

Plaintiff employed defendant under an agreement that he was to have one-half the profits on the goods he sold, but should be liable for one-half the losses made on the sales of such goods. In an action against him for his share of losses, Held, that it was not necessary to sue a worthless account to have it considered a loss: uncollectibility may be proved otherwise than by return of an execution unsatisfied.

Appeal by both defendants from judgment granted at special term, Kings county, against James Stokes for $37.12, and for $129.36 costs against Thomas Stokes.

J. George Flammer, for app’lts; L. B. Bunnell, for resp’t.

The plaintiff and Thomas Stokes were partners in business. James Stokes was a clerk of the firm under an agreement by which he was paid for his services according to the amount of goods which he sold for the firm. This agreement was that the clerk should have one-half of the profits of the goods so sold by him, but he should be liable for one-half of the losses made on the'sales of such goods. There was no conflict as to the amount of these losses. The exact amount was proven to have been $2,027.32. There was no conflict as to the uncollectibility of the several accounts which made up this sum. The firm treated them as worthless and the defendant Thomas Stokes swore that the accounts “ were not worth going after.” There was no conflict upon the question of the sale of the goods which made up the accounts, having been made by James Stokes. The plaintiff had sold out to one John Kiddie, but these accounts had been

p. 994

crossed off as worthless and did not pass by the transfer which was given to secure a debt and as collateral thereto.

It was not necessary for the partners to sue a worthless account. Proof of uncollectibility may be proved other than by return of' an execution unsatisfied. The plaintiff was entitled to one-quarter of this loss. The case contained nothing for a jury to pass upon if the case was one triable by a jury. A verdict for the plaintiff' would have ordered as matter of law. The question, therefore whether.the correct mode of trial was by jury or by court, without a jury, was one of no importance. The costs were property awarded against Thomas Stokes. He joined in an answer and made denials which he could not support on the trial. His evidence is in entire harmony with the complaint which he by his-answer with the other defendant denies, and denies under oath.

The judgment should, therefore, be affirmed, with costs.

Dykman, J., concurs._