Powell v. Conover — 82 N.Y. Sup. Ct. 11

Majority

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Robert S. Powell and Eugene L. Bennett, Formerly Comprising the Firm of Powell & Bennett, Respondents, v. Daniel D. Conover, Appellant.

Headnote

Corporation hooks of account — not per se evidence against a trustee of file corporation.

The mere fact that a party is a trustee of a corporation does not make him chargeable with actual knowledge of its business transactions and of the entries made on its books, so as to render the books of the corporation per sc evidence against him.

In an action brought to recover money loaned, the defendant claimed that the loan was not made to him but to a corporation of which he was an officer and of which the plaintiff was a trustee, and offered the books of the corporation in evidence, without having shown by whom they were kept, or that the entries were made at the time of the transaction, or by whose direction they were made, and without having given any proof tending to authenticate the books or to warrant an inference that the plaintiff had knowledge of their contents, and after it had been made to appear by the plaintiff’s testimony that he never saw or knew of the entries, had never examined the books, and that they were’never shown to him. The court refused to admit the books.

Held, that in view of the evidence previously adduced, the refusal to admit the books was not erroneous.

Appeal by tbe defendant, Daniel D. Oonover, from a judgment of the Supreme Court in favor of the plaintiffs, entered in tbe office of the clerk of tbe city and county of New York on tbe 16th day of May, 1893, upon tbe verdict of a jury rendered at tbe New York Circuit, and also from an order entered in said clerk’s office on tbe 2d day of June, 1893, denying tbe defendant’s motion for a new trial made upon the minutes.

The action was brought to recover money alleged to have been loaned to tbe defendant.

E. E. Benn, for tbe appellant.

George B. Adams for tbe respondents.

The judgment awards to tbe plaintiffs $954.05, which was necessarily founded upon a determination by the jury that plaintiffs bad. loaned to tbe defendant tbe principal of that sum.

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It -was defendant’s contention on the trial that while he received the money from the plaintiffs it was received by him as an officer of a corporation, and that it was understood and intended by plaintiffs and defendant as well, that the loan was made -to the corporation and not to the defendant.

Upon the trial, one of the plaintiffs, who represented his firm in making a loan, and the defendant testified, each sharply contradicting the other.

At the close of the testimony no motion to dismiss, or for the direction of a verdict, was made by either side, both the parties assuming that the testimony presented a question for the jury. The case was submitted in a charge by the court, to which no exception was taken, and' the jury having rendered a verdict in favor of the plaintiffs, it follows that the judgment must stand unless errors were committed during the trial which call for a reversal.

The only exception to which our attention is called by the appellant was taken to the refusal of the court to admit in evidence the books of the corporation to which the defendant claims the loan was made.

Defendant, before offering the books in evidence, did not show by whom they were kept; furnished no proof that the entries were made at the time of the transactions, nor by whose direction they were made. Indeed, there was an entire absence of proof tending to authenticate the books, or to warrant the inference that plaintiff had actual or was chargeable with constructive knowledge of their, contents. While on the other hand it had already been made to appear by the plaintiffs’ testimony that lie never saw or knew of the entries; had never examined the books, and that they were never shown to him.

How it was that defendant’s counsel was induced to be content with a simple offer of the books in evidence is apparent when we read from the record what he said to the court at the time of offering them in evidence. He said: “ I offer the books of the company for the purpose of showing that the transaction was a company transaction, and the witness, being a trustee of the company, must have been familiar with the entries in the books of the company.” It seems to be clear, therefore, that it was his view that the mere fact that one of the plaintiffs was a trustee of the corporation made him chargeable with

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actual knowledge of its business transactions, and of tbe entries made on its books.

But this is not the rule, and has not been, at least since Rudd v. Robinson ( 126 N. Y. 113 ). The refusal to admit them, therefore, was not, in yiew of the evidence previously adduced, error;

The judgment should be affirmed, with costs.

YaN Bruet, P. J., and O’BrieN, J"., concurred.

Judgment" affirmed, with costs.

Cases cited

Rudd v. Robinson 126 N. Y. 113 N.Y. 1891-03-20 p. 13