Brahe v. Kimball — 7 N.Y. Super. Ct. 237

Majority

p. 237

Augustus H. Brahe & Henry Kayser v. Marcus T. C. Kimball & Joseph Beesley.

Headnote

When entries on the boot of a defendant are read by his counsel upon the trial, without objection, they are evidence, bearing upon the fact they were adduced to prove¡ and the charge of the judge, submitting them as such to the consideration of the jury, is not, for that reason, liable to an exception.

When the question is, whether a credit was given to A & B as partners, or to A alone; the subsequent admission by B of the liability of the firm, may be received as evidence of the fact, since the effect is not to charge A with a debt, to which he would not otherwise have been liable, but to discharge him in part from an'admitted liability.

Motion for a new trial denied, and judgment at special term affirmed with costs.

Before Oakley, Ch. A, Mason & Paine, JA

October 6th,

Nov. 8th, 1851.

This was an action to recover the amount of two promissory

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notes, one for $294, the other for $222 18, given by the defendants to the plaintiff.

The defence was a set-off for goods sold to the plaintiffs, as partners, composing the firm of Brahe & Co. The jury found a balance due to the defendants of $41 6, for which sum, with costs, judgment was entered in their favor.

The plaintiffs appealed from this judgment, and the cause was now heard upon the following bill of exceptions.

Afterwards, to wit, on the 22d day of April, of April Term, A.D. 1850, this cause came on to be tried before the Honorable Lewis H. Sandford, one of the justices of this court, and a jury of the city and county of New York, duly chosen, sworn, and empanneled for that purpose.

The defendant offered evidence of the loss of an order-book in which it was alleged were certain entries affecting the liabilities of the plaintiffs, for the purpose of having their claim in this action reduced or extinguished by a set-off.

The evidence was as follows :

James Marshall—The order-book I have testified about, in which the entry was written, is lost; it mysteriously disappeared on or about the 14th day of November last; the book had but one usual place, being near the place where Mr. Kim-ball cuts. There are two entrances to the store, one from Broadway and one from Warren street; as near as I can recollect, the book stood within three yards of the Warren street door; I saw this order-book when I opened .the store On the morning the book was missing, and about six and a half o’clock; I do not recollect opening the back door ; sometimes the men came in early for their work, and I let them out this back door; I did not miss the book until eight o’clock in the morning, when Mr. Beesley came in ; as near as I can recollect, one or two of our journeymen were in; I don’t recollect bolting the door after letting them out; all this time the front entrance was open ; a search was made for this book all over the store; Mr. Beesley came in, and went to get the order book, and could not find it; from the time of seeing the book in the morning, up to the time of the discovery of the loss, Mr. Kimball was not in the store.

. Cross-examined—The book was always kept at night on the

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cutting counter ; I am always there before seven o’clock in the morning ; I recollect seeing the book on the counter that day; this order-book contained the different orders, the items and description of goods ; there were two journeymen in that morning; these books were not used by journeymen ; I had heard of this suit being commenced before the loss of this book.

The defendants next called

Joseph Beesley, one of the defendants, who being sworn, testified :—My order-book has been lost; I missed it on the 14th of November last; I searched all over the store for it ; I missed it about eight o’clock in the morning, almost immediately after I arrived.

Cross-examined—Have not made any inquiries of the journeymen who were in the shop about this book.

Marcus T. C. Kimball, one of the defendants, who being sworn, testified:—I had an order-book ; it has been lost; I can’t recollect the date of the loss ; it was some time after this suit was commenced ; it was missed quite early in the morning, prior to my arrival at the store; it was three years old last September ; Beesley and-Marshall said they had it out examining it, and afterwards missed it; we made search and examination for it, but could not find it.

Cross-examined—I don’t know, I have no idea what has become of it. Mr. Beesley and Mr. Marshall said they had seen the book the morning it was lost; they had gone to enter an order, when they discovered the book was missing ; I got to the store between seven o’clock and eight o’clock ; the store is opened between six and seven generally; nothing was said about any one having been in ; the book was of no value to any one but ourselves ; it contained measures and orders generally. .We gave publicity to the loss, and spoke to police officers in the matter ; it was valued as a record of measures of persons abroad.

The defendants here offered to give parol evidence of the contents of the said order-book, to which the plaintiffs objected,.

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on the ground that sufficient evidence of the loss of said book had not been given. The court overruled the objection, and decided that in the judgment of the court the proof was sufficient, and permitted the evidence ; and the plaintiff excepted, and the exception was duly noted.

The defendants introduced their day-book on the trial, and a witness testified to, and concerning entries therein without objection. The plaintiffs introduced in evidence the defendants’ ledger, and the index thereto, and read entries therefrom. It was sought by the defendants, by the evidence given, to charge the plaintiffs for certain goods shipped to one Peter Wagner in New Orleans, and alleged to have been sold to them by the defendants.

There was evidence on the part of the defendants tending to show that the plaintiff Brahe had ordered the goods in question, after the firm of Brahe & Co. had been formed.

The point to be submitted to the jury, was to say whether or not the credit was given to Brahe alone, or to A. H. Brahe & Co., the plaintiffs.

There was also evidence that after the goods, or some of them, had been ordered, the plaintiff Kayser had called on the defendants, and requested the defendants to draw on Wagner for the amount, and said that if the defendants would draw on Wagner, he, Wagner, would more readily pay defendants than Brahe & Co. Beesley concluded to do it, as a favor to Brahe & Kayser.

The judge charged the jury, that in reference to the point whether / the credit was given to Brahe alone, or to Brahe & Co., the jury might, in connexion with the entries in the defendants’ books, consider the testimony on the other side, that Kayser called on the defendants subsequently to the goods being ordered, to request them to draw on Wagner.

To this portion of the charge the plaintiffs, by their counsel, excepted, and the exception was duly noted.

The jury returned a verdict in favor of the defendants against the plaintiff for forty-one dollars and six cents.

N. B. Blunt, for plaintiff,

said he should not press the first

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exception, that the order-book was improperly admitted in evidence, but contended, that the exception to the charge of the judge, was well taken.

R. J. Dillon, for defendants, contra.

By the Court.

The objection, that the proof of the loss of the order-book, was insufficient, was very properly abandoned. It was plainly untenable.

It is" not necessary to determine, whether the entries in the books of the defendants, which were read by their counsel, upon the trial, were proper evidence of the facts, they were adduced to prove. No objection was made to them at the time, nor were they read subject to any future objection. They became evidence, therefore, in judgment of law., by the admission and consent of the counsel for the plaintiff, and it was the duty, of the judge, to submit them as evidence, to the consideration of the jury. His omission to do so, would have furnished to the defendants,. a far more reasonable ground of exception. .For the same reasons, the judge was justified in calling the attention of the jury to the subsequent declarations of Kayser, as a part of the proof, that credit had been given to the firm, and not to Brahe, individually, and had this -evidence been objected to, when offered, we do not think the objection could have been sustained. -The admission by Kayser, of the liability of the firm, no matter when made, was clearly good evidence against himself; nor under the circumstances, could the reception of the evidence, furnish any ground of complaint to Brahe, since its effect was not to charge, him with a debt, for which, otherwise, he would not have been liable at all, but to diminish in part, an admitted liability, by making it joint, instead of several and sole.

The exceptions are overruled, and the judgment, at special term, affirmed with costs.