Goldenson v. Lawrence — 72 N.Y. St. Rep. 664

Majority

p. 664

Eva L. Goldenson, Resp’t, v. Chester R. Lawrence et al., App’lts.

(New York City Court, General Term,

Filed January 28, 1896.)

Headnote

1. Warehousemen—Conversion—Defense.

The defense, in an action against a warehouseman for conversion of goods, that the goods were not owned by plaintiff in good faith, was held not to be sustained by the evidence.

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2. Evidence—Documentary.

A bond and a mortgage securing it and a draft to a third person for net proceeds of the mortgage, are admissible to prove that the transfer of goods by such third person to the mortgagor, was made in good faith.

Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

Goodrich, Deady & Goodrich, for app’lts; David Leventritt, for resp’t.

—Appeal from a judgment, entered upon a verdict, and from an order denying a motion for a new trial.

This action was brought to recover damages for the conversion of sixteen casks of soda ash, valued at $500. The answer, as originally interposed, admitted the delivery to the defendants (who were warehousemen) of sixteen casks of soda ash, and that the plaintiff tendered the warehouse receipt therefor, and the storage, amounting to $12, and demanded redelivery thereof, and also admitted the partnership of the defendants, and denied all the other allegations of the complaint. Pursuant to an order made herein on the 21st day of March, 1892, the defendants were permitted to serve an amended answer, which added a seventh subdivision or paragraph to the original answer theretofore served. This seventh paragraph constituted a separate and distinct defense, and alleges, in substance, that the soda ash in question was obtained by fraudulent practices and representations made by one Solomon Seligman to the firm of Welch, Holme & Clark, which firm replevied the goods in question from the defendants, and that notice thereof was given to the plaintiff. At the time of the granting of this order the defendants entered into a written stipulation with the plaintiff, which is found at folio 39 of the printed case, as a condition of allowing the amendment to the answer, whereby it was provided, among other things;

“ That if, at the close of the testimony, no evidence shall appear upon the minutes of the court that the plaintiff was the owner or holder, for full value, of the soda ash, and also, if no evidence shall appear upon the minutes of the court that the plaintiff, when she parted with such value, had knowledge of notice of the facts connected with the purchase or procurement, by one Solomon Seligman, from the firm of Welch, Holme & Clarke, of the soda ash referred to in the complaint, then and in that event all testimony that shall have been admitted in evidence to sustain the allegations of the seventh paragraph of the amended answer shall be stricken out upon plaintiff’s motion; the trial then to proceed as if paragraph seven were admitted and stricken out.”

Upon the trial of the action it appeared that one Solomon Seligman became indebted to the plaintiff, in March, 1891, in the sum of $500 for money loaned, and that the soda ash in question was not brought by Seligman until May, 189 L ; so that, at the time of the creation of the indebtedness of Seligman, knowledge or DO

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tice of any fraud on the part of Seligman in the procuring of the soda ash could not have been imparted or imputed to her (the plaintiff). The transaction had not taken place.

To support the good faith of the loan by plaintiff to Seligman, the plaintiff put in evidence a mortgage given by her, jointly with her husband, upon land purchased by her money, accompanied with a coupon interest note, and a memorandum of the expenses attending the execution of the mortgage, which amounted to' $36.-90, leaving as proceeds of the loan, $-193.10, which amount was handed to Seligman in a draft, he agreeing to pay the expenses, amounting to $39.09, as a condition of obtaining the loan from the plaintiff, who was his sister. This evidence is undisputed. Subsequently, as appears from the evidence, the plaintiff desired repayment of the loan, and called upon Seligman for that purpose at his place of business, and demanded the money; but Seligman said he did not have it, but, if she 'desired payment then, he would turn over to her some of his stock, and - it was agreed that she should have sixteen casks of soda ash in payment, .and the same were turned over to her at that time, and were after-wards sent, in her name, E. L. G-oldenson, to the defendants’ warehouse, and they issued their warehouse receipt therefor. The •conversation between plaintiff and Seligman was corroborated by the witness Londe. This testimony is uncontradicted by the defendants. Subsequently, the plaintiff called at the defendants’ place of business, tendered them the warehouse receipt that had been issued in the name of E. L. Gloldenson, and the amount of the storage, and demanded the delivery to her of the property, which was refused. This is admitted by the answer.

We have looked in vain for any evidence which assails the good faith of the loan by the plaintiff to the brother, Seligman, or that imputes to her any knowledge of fraudulent transactions of Seligmap, as set forth in the seventh paragraph of the amended .answer, and are of the, opinion that the motion to strike out paragraph seven and all of the testimony entered thereunder regarding the representations that were alleged to have been made by Seligman with reference to the purchase from Welch, Holme & Clarke, at folios 270 and 271, was properly granted.

With this feature of the case eliminated, the plaintiff’s title to the soda ash in question became undisputed in every particular. She had parted with her money in good faith, and, when the borrower could not pay on demand, he delivered to her, in payment, the soda ash in question, and the same was stored for her account .and in her name by the defendants, who issued to her thereafter their warehouse receipt, and on its presentation to them, they refused to deliver the goods which it called for, after being tendered the amount due for storage. s

The defendants appear to have been fully satis Bed with the •charge of the trial justice, as no exception was taken thereto; and, indeed, it was in all respects fair to them.

We have examined the other exceptions taken by the defendants, but do not think they are of any importance to the defendants upon this appeal, in view of all the circumstances attending

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the trial of the case in the court below. The - evidence admitted tending to show the good faith of the loan was, we think, properly admitted. The defendants had attacked the good faith of the transaction, and the documents relating to the loan were certainly the best evidence that could be offered; and, besides, they fully corroborate the testimony of the plaintiff.

For these reasons we are of the opinion that the judgment and order appealed from should be affirmed, with ycosts.

All concur.