Upton v. Bedlow , 4 Daly 216 ( 1871 )

Bt the Court.^*—Joseph F. Daly, J.

—It seems, upon reading the evidence in the case, that there was ground for the defendant’s request to submit the question of misrepresentation to the jury. The disappearance of plaintiffs’ books, from which alone the truth or falsity of the plaintiffs’ representations as to the account presented to and signed by defendant could be shown, was a suspicious circumstance. The books belonged to plaintiffs, were brought to court by them, on the examination before trial, were not delivered into the custody of the court, and should have been most carefully guarded by the plaintiffs. The evidence of Mr. Watson was uncontradicted as to what the plaintiff Titus swore on preliminary examination' his books showed, and that statement of Titus contradicted the account. Whatever inferences were to be drawn from these facts might be drawn by the court, unless the defendant required the jury to do it. He did make the request, and the court should have left it to the jury (Lockwood v. Thorne, 18 N. Y. 291).

Under the ruling in Markham v. Jaudon (41 N. Y. 235), the plaintiffs could not sell the defendant’s stock without giving him notice. They did sell it without notice, and were liable to him for a conversion. If the agreement signed by the defendant at the foot of the account or settlement, be urged as a settlement or waiver of the claim he then had for such conversion, it was without consideration.

It seems to me that the judgment should be reversed, and a new trial ordered.

Larremore, J.

—I think the questions involved in this case should have been submitted to the jury.

Daly, Oh. J.

—I am of the same opinion.

Judgment reversed.

* Present, Daly, Ch. J., Larremore and J. 3?. Daly, JJ.