Payne v. Dexter ( 1912 )

Sheldon, J.

These cases were all tried together and verdicts were rendered against Payne and Steinbrugge. Steinbrugge, who is hereinafter called the defendant, as he was called by the judge in charging the jury, has alleged exceptions in each case. It may be doubted whether he has any right of exception in the two cases to which he was not a party; but in view of the testimony that the interest of Payne has been transferred to him, we have preferred to treat the exceptions as properly taken in all the cases.

I. Because the cases were all tried together and all the evidence put in was to be considered in each case so far as applicable, and some of that evidence did tend to control the auditor’s report in the case of Payne ». Dexter, the defendant’s second request could not be given.

2. Nor could his first request have been given in spite of the auditor’s report. It may be assumed, as his counsel has argued, that the agreement between him (acting under the name of Lyon, Dupuy and Company) and Prescott did not create a partnership between them and did not give to Prescott a right of property in the fish ijhat should be procured under that contract, but that the fish so procured would become the property of the defendant; and the judge so ruled. But the bill of exceptions states that this agreement so far as it related to the fish here in question, was made on May 25, 1906, although added to the written agreement dated in the previous March. It also appeared that just before May 25, on a suggestion made by Gifford to Prescott, it was arranged between these parties that Gifford should secure the fishing privilege in Tisbury with money to be furnished by Prescott, and that Gifford and Prescott should divide equally the profits thereof; and on May 27 Gifford did secure that privilege. It was claimed by the Seaboard Trading Company, hereinafter called the plaintiff, .which afterwards had dealings with Prescott and Gifford under which it claimed title to the fish in question, that the fishing privilege at Tisbury was bought by Gifford, not as an agent of Prescott, and not at all under the agreement between Prescott and the defendant, but as a member of a copartnership formed by Prescott and Gifford under the name of A. N. Gifford and Company, and that the fish which were taken there, and which are the subject of these replevin suits, were taken by and became the property of that firm, and not the property of the defendant. Upon this issue there was much evidence which raised a question for the jury to pass upon. In substance and very clearly the judge instructed the jury that if the purchase of this fishing privilege was made by Prescott, or by Gifford as Prescott’s agent, under the agreement between the defendant and Prescott, then the fish taken under it became the property of the defendant, and the claim of the plaintiff failed. The cases could not have been taken from the jury.

3. The third request was rightly refused. The subject matter thereof was for the jury. As the judge said, there was nothing in the agreement itself to show to what fish it referred; but there was other evidence. Nor, for the reasons next to be stated, was this a material question.

4. As to the fourth request, it is enough to say that as the case was submitted to the jury the agreement of June 11 between the plaintiff and Prescott was immaterial. The plaintiff’s right was made to depend ,entirely upon the questions whether a partnership had been created between Gifford and Prescott, whether the fishing privilege in Tisbury had been acquired by that firm and the fish had become its property, whether the plaintiff had gained title to the fish under the bill of sale given to it, as it claimed, by A. N. Gifford and Company acting through Gifford, and whether that property had been finally transferred to Shipman, who brought the last of the suits. Under these circumstances the defendant was not harmed by the failure to give its fourth request.

5. It was not material to the real issues in this case whether Prescott had misused the defendant’s money in his hands by applying it for the benefit of the firm of A. N. Gifford and Company. The defendant could not follow the money or its proceeds against Gifford or his firm or those claiming under them, under the circumstances here presented. There was no evidence that Prescott disclosed to Gifford his wrongful use of the defendant’s money, and it could not be presumed that he had done so. If that fact had been disclosed it would have had a material bearing on the question of Gifford’s good faith and whether a partnership had really been created.

6. The seventh and eighth requests could not have been given. If the partnership really existed, as the jury must have found that it did, Prescott’s denial of it could not affect the rights of one dealing with the firm or with the other member thereof within the limits of the agency created by the partnership. This is elementary. The conduct of the plaintiff’s agent Born in attaching the fish in behalf of the plaintiff as the property of Prescott might create an estoppel in favor of any one who claimed under that attachment or had acted under it to his injury or whose rights were destroyed or injuriously affected thereby. Such in principle are the cases relied on by the defendant. Daniels v. Tearney, 102 U. S. 415. United States v. Hodson, 10 Wall. 395, 409. But the defendant is in no such position and cannot claim the benefit of an estoppel.

7. The twelfth request was rightly refused. The defendant could not become the absolute owner of the fish at Tisbury before they were caught, although work under his agreement with Prescott already had been begun at other places. The matter of this request was correctly dealt with in what was said to the jury.

8. The judge properly ruled that the auditor’s report was prima fade evidence. There was nothing objectionable in his other instructions as to this.

Looking at all the exceptions which have not been expressly waived, we find no error in the record.

Exceptions overruled.