Boody v. Pratt , 35 Vroom 281 ( 1900 )

The opinion of the court was delivered by

Garrison, J.

At the trial the court directed the jury to-find by its verdict that the sum of $11,756.66, with interest, was due from the plaintiffs to the defendant upon her set-off, that being the amount reported to be due by the referee to whom the account had beeli referred. The admission of this report was objected to by the plaintiffs upon the ground that the statement of the amount found to be due was a conclusion of law and not a finding of fact. The report, however, made such reference to the set-off and bill of particulars annexed to and forming part of the plaintiffs’ declaration as to make it prima fade evidence of the uncontradicted state of that account. It was not error, therefore, to admit the report, and upon it alone a verdict for the defendant might have been directed had not the plaintiffs given testimony that placed the transaction in a different light. The whole transaction must be gathered from this proof, as thére is none other. One view of the affair, in the light of this evidence, is that Mr. Pratt, at the time he proposed to transfer $15,000 from his account with Boody & Company to a new one to be opened in the name of his wife, stipulated with Boody & Company, who were his brokers, that notwithstanding the transfer the new account should, to the extent of the sum transferred from Pratt’s account, be used by Boody & Company to make good that account, and that later, when the transfer was actually made, Mrs. Pratt gave Boody & Company authority to execute against her account orders given on it by her husband.

The' plaintiffs contend that these are separate and distinct stipulations, and that only by suppressing the earlier oral agreement in favor of the later written authority can the controverted question of fact be eliminated from the case or taken from the jury. I do not know any rule of law that would compel the merger of the husband’s stipulation with his brokers into that made with them by the wife. The two agreements were not at all alike, they did not have the same general object, and were not even between the same parties. At the time the earlier one was made, Mrs. Pratt had no known interest in the fund in the hands of Boody & Company, while Boody & Company inferentially had. Later when Mrs. Pratt gave her authority to Boody & Company, her husband had no known interest in the wife’s fund excepting what he got from her. The husband’s stipulation, therefore, may have been a provision for the protection of Boody & Company with which Mrs. Pratt had nothing whatever to do, while her written authority to Boody & Company was clearly given either for her own convenience or in the interest of her husband. It is not at all perceptible by me how the one agreement in the slightest degree modified still less destroyed the other, and, unless it did so, Mrs. Pratt had no right of action unless the balance of the account in her favor exceeded the sum originally transferred by her husband, viz., 115,000.

In any event the direction of a money verdict for the defendant upon her set-off, was error. The case should have gone to the jury under instructions, unless the trial court felt constrained by the uncontradicted proof of the husband’s stipulation to direct a verdict for the defendant, because none could be rendered for the plaintiffs.

There must be a venire de novo.

For affirmance—The Chief Justice, Depue, Nixon, Hendrickson.

For reversal—Dixon, Garrison, Lippincott, Gummere, Ludlow, Collins, Bogert, Adams, Vredenburgh. 9.