McMaster v. Vernon — 10 N.Y. Super. Ct. 249

Majority

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James McMaster v. William Vernon and Samuel B. Vernon.

Headnote

A judgment obtained against one partner, upon notes or drafts made or drawn by him for the purpose of satisfying a debt due from the firm, extinguishes the

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joint liability of the partners, and is a bar to a recovery in any subsequent action against them for the same debt.

(Before Oakley, C. J., Campbell and Hoffman, J.J.)

March 21;

April 29, 1854.

This action was brought by Levi H. Gale, the original plaintiff, to recover of the defendants, surviving partners of the firm of William Vernon and Company, the sum of $15,271 33, with interest, for advances and disbursements alleged to have been made by the plaintiff at the request and by authority of the defendants in Hew Orleans, in the year 1831, and the succeeding years to 1835 inclusive, in establishing and putting into operation at that place on their account two brick-making machines.

The cause came on to be tried before Mr. Justice Bosworth and a jury on the 15th June, 1852.

After the trial, in April, 1851, Gale died, and McMaster as his successor in interest was substituted, as plaintiff, by an order of the court. (Code, § 121.)

There are only two questions arising upon the evidence upon the trial, that it is deemed proper to notice, as it was upon these that the decision of the court wholly turned.

The plaintiff claimed to recover the sum of $250, as money expended by him, at the request of the defendants, in putting up the first machine; and, in support of the claim, a letter addressed to him by W. Vernon & Co. was read in evidence, containing the following passage. “ We request you to permit Mr. Hearsey to set up said machinery in Hew Orleans or its vicinity and work it a week, if he wishes to try it so long, before you require payment. We also request you will, if required, pay the charges necessary to set up said machinery, not exceeding $250.” The judge excluded the proof that was offered to show that this sum had been expended by the plaintiff in setting up the machine, unless the advances were proved to be made in setting up the machine for Mr. Hearsey, as specified in the letter, and to this ruling the counsel for the plaintiff excepted. The firm of W. Vernon & Co. consisted of the defendants and Philip H. Vernon, deceased.

Ho proof having been given that the first machine had

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been set up for Hearsey, the claim for $250 was entirely rejected.

In respect to the second machine, the plaintiff proved that he had made disbursements and advances amounting to more than $4000, for which sum, with interest, his counsel insisted that he was entitled to a verdict.

In bar of this demand the counsel for the defendants insisted and gave evidence to show: 1. That all the advances made on account of this second machine had been made upon the sole credit of the deceased partner, P. H. Vernon, and that the firm of W. Vernon & Co. had no property or interest in the machine whatever; and 2. That P. H. Vernon, for the purpose of reimbursing to the plaintiff the advances so made, had drawn and delivered to him bills upon his father—not one of the firm—covering the whole balance then claimed to be due; and that these drafts not having been accepted and paid, the plaintiff had brought an action thereon against P. H. Vernon in the Supreme Court of Rhode Island, and in such action had obtained a judgment for the whole amount covered by the drafts. The record of this judgment was produced and read upon the trial, and upon all the grounds so insisted on, the judge held that the plaintiff was not entitled to recover, and directed the jury to find a verdict for the defendants. To this decision the counsel for the plaintiff excepted. "

The cause was now before the court upon an appeal from the judgment entered upon the verdict so directed.

E. Sandford, for the plaintiff,

moved for a reversal of the judgment and a new trial, and rested his argument upon the following points.

I. The judge erred in excluding the evidence of the amount of the advances made by the plaintiff on the first machine.

II. The judge erred in admitting in evidence the record of the judgment recovered by the plaintiff against Philip H. Vernon.

TIT. The plaintiff had given evidence of demands against the defendant sufficient to entitle him to go to the jury.

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IY. The plaintiff was not estopped or precluded from recovering the demands so proved by the judgment given in evidence.

Y. The judge erred in refusing to submit the case to the jury, and in his direction to them to find a verdict for defendant.

YI. The verdict should be set aside, and a new trial granted, with costs, to abide the event.

D. Lord, for defendants, made and argued the following points.

I. 1. The evidence as to the second machine clearly shows those advances to have been on the credit and account of Philip H. Yernon only; there is no conflict of evidence on the subject. 2. There is no evidence of any ownership by W. Yernon & Co. in the second brick machine, and they could not be made liable except by a writing expressing the consideration. 3. The judgment against Philip H. Yernon, individually, merged the claim for these advances, and no person could be afterwards sued jointly with him for the same.

H. 1. The evidence is clear and undisputed, that W. Yernon & Co. were not owners of the first machine, and no advances thereupon, or for its owners, can be brought to charge them, unless by writing signed by them. 2. The only writing is the letter of February 6, 1830, assuming charges necessary to set up that machine, to be done by Mr. Hearsey or his assigns. There was no evidence that Mr. Hearsey or his assigns did set it up, or that the charges incurred were with his or their sanction. 3. All the advances claimed could and should, if just, have been introduced and recovered in the suit in Rhode Island against the defendants. The plaintiff cannot lay by, and split up his claim of the same nature into more than one suit. He is precluded by the judgment in the suit he adopted. ( Vendernagle v. Cocks, 19 Wend. R. 207, and cases there reviewed.)

III. The giving of time by taking the drafts on the owners of the machines discharged the Yernons as guarantors.

The action is to recover the sum of $15,271 33, with interest, for advances and disburse

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ments made at New Orleans, by the request of the defendants, in establishing and putting into operation two brick machines.

Two distinct accounts are produced in evidence. One relates to the first machine for making bricks, the other to the second. The latter will be first referred to.

I. This account, as to the second machine, begins January 3d, 1833, and closes 12th of June, 1833, with a balance of §4,153 3 L of debits, and this is closed by a credit of two drafts on S. Yernon, of Newport, for §4,350 94, exchange and interest being deducted, §198 69.

The account is carried on at folio 172 (a confusing transposition in printing), when the drafts are re-charged under date of July 13, 1836, with interest. Certain other small charges are added of about §226, and the account ends (with §810 96 of interest added) in a balance of §5,290 65.

This account was the subject of an action brought by Gale, assignee of the plaintiff, in Rhode Island, against P. II. Yernon, one of the partners, singly. The judgment was for the exact amount of the drafts, $4,350 94.

It is insisted that the evidence of Knowlton raises a case fit to go to the jury, whether the defendants had not undertaken to pay all expenses attending the trial of the second machine • and Millandon proves expenses (if his evidence is admissible) for the second and third trial, of $1,751.

It is certain, however, that Gale opens an account for this second machine with P. H. Yernon, and brick machines only, and other evidence tends to show that he looked to him only.

The questions are rendered unimportant by the effect which the law gives to the judgment obtained in Rhode Island. This was obtained against Philip H. Yernon, in November, 1833, upon the identical debt incurred for the second machine. Yer-non was a partner, in the firm now sought to be charged on this account; and so the question distinctly arises as to the force of that judgment.

The authorities are decisive that a judgment obtained on a note, given by one partner for a joint liability, extinguishes the demand. If the case of Peters v. Sandford, 1 Denio, 224 , is not overthrown, this is unquestionable law. The suit in

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Rhode Island was upon P. H. Vernon’s drafts on his father, S. Vernon, at Hewport.

The case of Waydell v. Luer, 5 Hill, 448 , relied upon by counsel, was a case of a mere note given by one partner. It was held not to extinguish the joint liability. The case of a judgment on such a note is very different.

Roberts v. Smith, 18 John. R. 459, applied the doctrine of extinguishment of a joint responsibility by a judgment against some of the parties to the case of dormant partners. But relief probably could be had in equity. ( Watson v. Owen, 1 Rich. R. S. C. 111; Renny v. Martin, 4 John. C. R. 566.) See also Smith v. Black, 9 Serg. & Rawle, 142 ; Pierce v. Kearney, 5 Hill, 82 .

We are clearly of opinion that the verdict cannot be interfered with, so far as this part of the case is concerned.

H. The other branch of the account relates to the expenses and advances connected with the first machine. There is not the slightest evidence to render the defendants liable for any part of this account except as to the item of $250. Indeed, this becomes the only question, in the whole cause, upon which a doubt can arise.

That item is sought to be supported by a letter of the defendants, of the 6th of February, 1830, engaging to be responsible, under certain conditions, for the expense of putting up the first machine, to the limit of $250. Other corroborative circumstances are referred to.

The judge, at the trial, excluded this evidence from going to the jury, “ unless the advances were proved to be made, in setting up the machine for Mr. Hearsey, as specified in the letter of the 6th of February, 1830.”

We have carefully examined this point, and are of opinion that there was not error in this ruling of the judge, and that the verdict cannot be interfered with .even upon this, the only question, in the case, of any difficulty.

The application for a new trial is denied with costs.