Gowing v. Warner , 61 N.Y.S. 500 ( 1899 )

Comxam, J.-

This is an action to recover certain chattels, or their value, with damages for the retention of the same. The answer was a general denial, and it affirmatively alleged that the defendants had in good faith bought the goods without collusion and without fraud or notice of the plaintiffs’ claim.

The plaintiffs’ firm were commission dealers, and in August and September, 1893, had dealings with the firm of Gerrish & Co., to whom they sold goods of the value of $1,202.70. On October 7, 1893, Gerrish & Oo. executed a bill of sale to the defendants of all the goods in the store of the former at 30 Howard street, Hew York city, and the latter subsequently assumed control and disposed of the same to the other persons. Prior to the sale by Gerrish & Co. to the defendants, the firm of Gerrish & Co., had hypothecated, or in some way assigned, all of their book accounts to one Barnes, as security 'for loans, and, in the event that these accounts, when paid, should not cancel this indebtedness, Barnes was to have recourse to the goods iri the store for any sum - remaining .unpaid. The consideration for a transfer to the defendants was made up of $1,000 in cash, $3,555.54 represented by the loans, and the balance by accounts due from Gerrish & Co. to the defendants and others, making a total of $16,144.22 as the consideration expressed in the bill of sale. It appears that Gerrish & Co., on the 14th day of October, 1893, permitted a judgment to be taken against them by a creditor, for goods sold and delivered, amounting to $756.43; on the 5th of Hovember, 1893, they permitted judgment to be entered in favor of another creditor for $769.76, and, on the 19th day of Hovember, 1893, another judgment in favor of another creditor for $411.08; executions upon all these judgments were returned unsatisfied. The statement accompanying the bill of sale to the defendants also showed various o.l aim r of other creditors, which, it was claimed, were assumed or paid by the defendants as part of the consideration.

Francis T. Gill, an employee of the defendants and a witness for the plaintiffs, testified as follows, with reference to the credit obtained by Gerrish & Co. from the plaintiffs: “ Mr. Sawyer, one of the plaintiffs, called and I introduced him to Mr. Warner, one of the defendants. He had spoken to me before of the Gerrish matter. On this second visit I introduced him to Mr. Warner; they talked for awhile and Mr. Sawyer made known his business to Mr. Warner, and, in a general way, as my mem■ory serves me now, Mr. Warner told Mr. Sawyer that Gerrish ■& Company were all right; that they had been selling them, and further than that I don’t remember.” This was in August or September, 1893, and it will be recalled that the transactions between plaintiffs and Gerrish & Co. were in August and September, 1893. The defendants’ attorney (Serviss) was called as a witness for the plaintiffs, and declared, among other things, that he drew the bill of sale of October 9, 1893, and that at that time the books of account of Gerrish & Co. were in the hands of the defendants. The defendants, therefore, at the time of the bill of sale, were in a position to know all of the indebtedness of Gerrish <& Co., including the amount owing to the plaintiffs. Further on the attorney says he also prepared a bill of sale dated October 7, 1893, an assignment of the lease of the store of the same date and a statement, being the original statement, and that these were executed in his presence; that after these papers were executed, they, Gerrish, John Warner and the witness, went to a nearby restaurant, and there the witness said to Gerrish: “ Now, Gerrish, is there any claim, lien, chattel mortgage or encumbrances of any kind against this stock of goods or the store fixtures?” And Gerrish replied: “ I suppose there is.” To the question by the witness: “ What do you mean by the words ‘ I suppose there is,’ there either is or is not, and if there is we want to know it?” Gerrish replied that he had assigned his books of account to W. D. Barnes & Co. as collateral for the advance of $14,000 and that he had given him a sort of an assignment or warehouse receipt on the goods in the store. Serviss then stated he did not see how the transaction could go through; Mr. Warner insisted upon its going on and then the other papers were prepared, dated October 9, 1893, and executed. Gerrish & Co. was composed solely of the wife of Albert E. Gerrish, and the latter managed the business for her.

We have at some length thus gleaned the state of facts 'and circumstances which surround this case, and by which, in accordance with the principles of law, as they shall be applied to the same, the judgment appealed from must stand or fall.

Among the questions submitted to the jury in the charge of the trial justice were the following: “I charge you that if you find that Gerrish & Company bought these goods with the intent not to pay for them, then the sale would be a fraudulent one, which the plaintiffs had a right to rescind, and they would have a right to recover the goods as against Gerrish & Company or any other person who was not a bona fide holder for value, and that brings yon down to the second question necessary for you to determine here: Was Mr. Warner’s firm a bona fide holder for value? Ton will ask yourselves this- question as I charge you under the pleadings as filed: Did Warner, when he made this purchase and took the bill of sale, have notice of the fraud of Gerrish & Company as against these plaintiffs, so as to make Warner’s firm not a bona fide purchaser or holder for value? Upon that question, as upon the first question whether Gerrish & Company’s purchase was in fact fraudulent, and with intent not to pay for the goods, you will regard all of these elements of truth which have been adduced before you.” The jury had before them all of the facts and circumstances detailed above, and which it will not be necessary to repeat. In the course of the charge, certain requests were submitted by the defendants’ counsel and these were all supposed to be favorable to the defendants’ contention, and the exceptions, to such as were refused, were taken, it is believed, to the refusal to charge in form as submitted, because the court had charged the broad proposition which it intended to be the guide to the jury in its office of determining the issues. This is apparent from the record before us.

We think there was evidence, which was brought to the knowledge of the defendants by the statements of the witnesses Serviss and Gill, of the fraudulent character of the dealings of Gerrish & Co. as to the plaintiffs, and are of the opinion that the language employed by Mr. Justice Van Brunt in Cooper Mfg. Co. v. De Forest, 5 App. Div. 43, is, for that reason, not applicable to the case at bar, for, with this knowledge, the defendants could not protect themselves against the claims of the plaintiffs, though they had a right to recover the goods, or their value, in the form of the action brought by them. It is not exactly the act of a vigilant character securing himself against loss, but it becomes rather an effort made to protect one’s self at the expense of another, and with full knowledge of the wrong done to the sufferer, and this the law will not sanction. The jury, therefore, having before it all the evidence, determined the questions submitted, and the issues, in favor of the plaintiffs, and we are not disposed to disturb their finding.

At the close of the plaintiffs’ case the following occurred: Defendants’ counsel. “We ask your Honor to dismiss the complaint. Motion denied. Defendants except.” And at the close of all the testimony the following: Defendants’ counsel. “ We ask your Honor to direct a verdict for the defendants on the grounds before stated. Motion denied. Defendants except.” Defendants’ counsel. “We ask your Honor to dismiss the complaint on the grounds before stated. Motion denied. Defendants except.”

We have given the precise words, as they appear in the record, and no grounds whatever are shown or stated for either ruling asked for. It was said in Quinlan v. Welch, 141 N. Y., at page 165, and so the courts have uniformly held, that a motion for a nonsuit or to dismiss the complaint to he effectual must specify the defects supposed to exist. The exception to the ruling was, therefore, without effect to the defendants, and, in consequence, the court, upon appeal, is prevented from considering whether the defendants were entitled to judgment — as was said in Pollock v. Pennsylvania Iron W. Co., 157 N. Y. 699; and to the same effect is the ruling in Meyer v. Suburban Home Co., 25 Misc. Rep. 686, where the court, on appeal, was asked to review the facts and held that it was without the faculty to do so, and for the reasons stated.

We have not found in the records or in the verdict anything which commends the case to us as one where a different determination is called for, and are, therefore, of the opinion that the judgment and the order appealed from must be affirmed, with costs.

Fitzsimons, Oh. J., and McCarthy, J., concur.

Judgment and order affirmed, with costs.