Moore v. Belloni — 42 N.Y. Super. Ct. 184

Majority

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FREDERICK W. MOORE, et al., Plaintiffs, v. LOUIS J. BELLONI, Jr., Defendant.

Headnote

I. EVIDENCE.

1. WRITTEN INSTRUMENTS.

(a.) Copies, when admissible without accounting for the originals.

1. When the party against whom they are offered, furnished them to the party on whose behalf they are offered, as a guide in the performance of the contract contained in the originals to be performed by the latter for the former.

II. BILL OF PARTICULARS.

1. WHEN DEMANDABLE AS A MATTER OF RIGHT.

(a.) Only when the action is on an account stated, not when it is based on the original indebtedness.

1. Meld in this case not to be demandable.

2. PRECLUDING THE GIVING OF EVIDENCE FOR NOT FURNISHING ON DEMAND, IN A CASE WHERE IT IS DEMANDABLE.

(a.) Order at special term. An order to that effect should be obtained at special term in advance of the trial.

(6.) Application at the trial. If the motion to produce is made

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in the first instance at the trial, it is then at best addressed to the discretion of the trial judge, the exercise of which should not be interfered with on appeal.

Before Curtis, Ch. J., Sanford and Freedman, JJ.

Decided March 5, 1877.

Exceptions heard at general term.

The defendant consigned to the plaintiffs, who are merchants at Buenos Ayres and Monte Video, two cargoes of coal for sale on commission.

The action is brought by the plaintiffs to recover for advances and an alleged balance for disbursements on account of freight, demurrage, &c., over and above the proceeds realized from the sale of the coal.

The complaint was as follows : ‘ ‘ For a first cause of action, plaintiffs allege that on or about September 30, 1872, the defendant consigned to the plaintiffs a cargo of coal by the bark “ Margaret S. Weir,” to take charge of and sell the same for the account of the defendant, and on which the plaintiffs, at the special instance and request of the defendant, advanced to the defendant the sum of five hundred and twenty-two pounds eighteen shillings and eleven pence, British money, on the sixteenth day of December, 1872, and that thereafter the said cargo of • coal arrived at Monte Video, and was there received by the plaintiffs, and the freight and other. charges thereon paid by the plaintiffs, and thereafter the said cargo was sold, and on the eighteenth day of March, 1873, the plaintiffs received the proceeds of said cargo and applied the same in payment of the freight and charges by them paid, and after so applying -the same, there remained a balance due the plaintiffs of four hundred and eighty-seven pounds eighteen shillings and four pence, which, together with the aforesaid sum of five hundred and

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twenty-two pounds eighteen and eleven pence, and the further sum of seven pounds sixteen shillings and ten pence for commission, together amount to the sum of ten hundred and eighteen pounds fourteen shillings and one penny, British money, and which sums the defendant promised to pay to the plaintiffs.

“That the value of said ten hundred and eighteen pounds fourteen shillings and one penny in the currency of the United States is the sum of seven thousand dollars.

“Second. And for a second and distinct cause of action the plaintiffs allege that, on or about the third day of December, 1872, the defendant consigned to the plaintiffs a cargo of coal by the bark ‘Kestrel,’ to take charge of and sell the same for the account of the defendant, and on which the plaintiffs, at the special instance and request of the defendant, advanced to the defendant the sum of two hundred and seventy-three pounds fifteen shillings and seven pence, British money, on the seventeenth day of February, 1873, and that thereafter the said cargo of co#l arrived at Monte Video, and was there received by the plaintiffs, and the freight and charges thereon paid by the plaintiffs; and thereafter the said cargo was sold, and on the nineteenth day of. March, 1873, the plaintiffs received the proceeds of said cargo, and, after paying the said freight and charges by them paid, applied the balance thereof, to wit, the sum of eighty-one pounds thirteen shillings in payment of said advance, and the interest and commissions thereon, amounting to the sum of five pounds five shillings and five pence, leaving a balance then due the plaintiffs thereon of one hundred and ninety-seven pounds eight shillings, which sum the defendant promised to pay to the plaintiffs, with interest thereon from the nineteenth day of

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March, 1873. That the value of said one hundred and ninety-seven pounds eight shillings in the currency of the United States is the sum of thirteen hundred dollars.

“"Wherefore plaintiffs demand judgment against the defendant for the sum of eight thousand three hundred dollars, with interest on thirty-five hundred dollars from the sixteenth day of December, 1872, and on forty - eight hundred dollars from the nineteenth day of March, 1873, besides costs.”

On the trial the court ordered a verdict for the plaintiffs for §6,744.15 in gold, and directed defendant’s exceptions to be heard in the first instance at the general term.

Scudder & Carter, attorneys, and George A. Black, of counsel, for plaintiff, on the questions discussed by the court, urged:

I. The defendant’s exceptions to the admission of the evidence of payments made by plaintiffs and his objection thereto are based upon a demand of copies of the accounts and omission to serve them. The answer to the objection is two-fold: 1. The complaint does not allege any account, and the action is not in its nature based upon an account, but is for money lent and paid, laid out and expended, and there was consequently no items of an account to set forth (Code, § 158). 2. If the defendant desired to preclude the plaintiff from giving evidence on the ground of failure to comply with the demand, his remedy was to apply to the court, at special term, and have the question settled there, in advance of the trial (Kellogg v. Paine, 8 How. 332 ; Goring v. Patten, 17 Abb. 339 ).

II. The exceptions of defendant to the admission of the copy charter-parties are not well taken. If the originals were the best evidence, the defendant had notice to produce them, and failed to do so. But,

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taken in connection with the evidence that the broker always kept the original charter-party, and furnished copies to the parties, and with the defendant’s letters, in evidence, mentioning the inclosure of the charter-parties to the plaintiffs’ agent, and the evidence of Hughes that the documents had gone to Moore and Tudor by mail, had come back to Hughes and been handed by him to the plaintiffs’ attorney, and were produced by them on the trial and identified, they were sufficiently proved. But the copies were in this case the best evidence. They were what the defendant furnished to the plaintiffs as their guide, as to the contract they were to perform for him.

George L. Ingraham, attorney, and Charles A. Davison, of counsel, for defendant.

The action is for advances and disbursements made over and above the proceeds realized from the goods consigned. There were two distinct consignments. The first was made in September, 1872, by the bark Margaret S. Weir, and the second in the month of December following, by the bark Kestrel. Defendant’s answer is in effect a general denial, except as to the advances which are admitted.

Defendant complains that against his objection and exception the court, upon the trial, admitted in evidence copies of the charter-party of both vessels.

Notice had been served on defendant’s attorney to produce the originals, but they had never been in his possession or in that of the defendant. George H. Brewer, a witness, had been subpoenaed to produce them, but it turned out that at the time of the service of the subpoena he was no longer connected with the shipping firm which had the custody of them. ¡Nor was any proof given that a search had been made

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for them and that they could not be found. Unless, therefore, the copies were admissible without accounting for the non-production of the originals, they were improperly received.

Proof was given, however, of the due execution of the originals by the defendant, and then it was shown that the shipping brokers always kept the original charter-party and furnished copies only to the parties in interest; that this custom was observed in this case; that the defendant received his copies, which were certified, and handed the copy relating to the bark Margaret S. Weir over to plaintiffs’ agent in the city of Hew York, who mailed the same to the plaintiffs ; that the copy received by the defendant relating to the bark Kestrel was mailed by the defendant himself to the plaintiffs; that the plaintiffs subsequently sent both copies so mailed to them back to their agent in the city of Hew York, and that said agent handed them over to plaintiffs’ attorney, who produced them in court.

Having been thus identified and connected with the defendant, the copies produced and put in evidence were clearly admissible. Indeed it may be said, that such copies were, as between the plaintiffs and the defendant, the best evidence, for they were furnished by the defendant to the plaintiffs as a guide, in the performance of the contract which they were to perform for him.

The defendant also objected to the admission in evidence of certain accounts of sales and disburse•ments relating to the cargo of the bark Margaret S. Weir, upon the grounds, first, that the defendant had, during the pendency of the action, demanded copies of the accounts mentioned in the complaint, and that the plaintiffs had omitted to furnish the same, and hence were precluded under section 158 of the Code from giving evidence thereof; and secondly, because, as they

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claimed, there was no evidence that the accounts offered had ever been rendered to the defendant.

As to. the first ground of objection the answer is twofold:

1. The complaint does not proceed upon an account stated. It is for moneys advanced, laid out and expended for defendant’s use, and it specifies the facts and circumstances under which, and the manner in which, it was done. The causes of action pleaded are based, therefore, upon the original indebtedness. It is only in cases in which the pleading is based upon a specific account, set forth in the manner permitted by section 158, that the items may be called for as matter of right.

2. Even if the complaint could be deemed to allege an account, if the defendant desired to preclude the plaintiffs from giving evidence thereof, on the ground of failure to comply with the demand, he should have applied to the court at special term, and have the question settled there in advance of the trial. Having delayed until the trial, the motion to preclude the plaintiffs was at best addressed to the discretion of the presiding judge, and the exercise of his discretion should not be interfered with, especially when it appears, as it does in this case, that the accounts were rendered to the defendant before the commencement of the action, and that their correctness as to items was expressly acknowledged by him.

As to the second ground of objection:

It distinctly appears that accounts were rendered by plaintiffs to defendant of both consignments. The defendant, by letter, acknowledged that he had examined them, and that they were correct as to figures. These accounts hti had notice to produce, but he failed to do so. The plaintiffs thereupon offered a copy of the account relating to the Kestrel, and the same was received without objection. The account of the Mar

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garet S. Weir, it seems, was transmitted by the plaintiffs to their agent in ¡New York on the same sheet with the account of another vessel called the James Kitchen, in which defendant had no interest, and so much of the account as related to the Margaret S. Weir was offered and put in evidence after proof had been made that the agent referred to had shown the whole document to the defendant, and had discussed it with him, and that he had furnished the defendant with a copy of so much of it as related to the Margaret S. Weir.

¡No error was therefore committed in receiving the accounts.

The defendant finally claims that the case should have been submitted to the jury on the question whether the defendant is chargeable with the lighterage, demurrage and cartage set forth in the accounts.

The evidence was not only abundant, but uncontradicted, and all the facts and circumstances in the case seem to corroborate it, that these charges were incurred by the plaintiffs in good faith and necessarily, and hence plaintiffs were entitled to have the jury so instructed.

There are other exceptions in the case, but, as they have not been noticed in defendant’s points, they may be deemed to have been waived.

Defendant’s exceptions should be overruled and judgment ordered for the plaintiffs, upon the verdict, with costs.

Curtis, Ch. J., and Sanford, J., concurred.