Goldenson v. Lawrence , 37 N.Y.S. 194 ( 1896 )

Conlan, J.

Appeal from a judgment entered upon a verdict and from an order denying a motion for a new trial.

This action was brought to recover damages for the conversion of sixteen casks of soda ash valued at $500.

The answer, as originally interposed, admitted the delivery to the defendants (who were warehousemen) of sixteen casks of soda ash, and that the plaintiff tendered the warehouse receipt therefor, and the storage amounting to twelve dollars, and demanded redelivery thereof, and also admitted the partnership of the defendants, and denies all the other allegations of the complaint.

Pursuant to an order made herein on the 21st day of March, 1892, the defendants were permitted to serve an amended answer; which added a seventh subdivision or paragraph to the original answer theretofore served.

This seventh paragraph constituted a separate and distinct defense, and alleges in substance that the soda ash in question was obtained by fraudulent practices and representations made by one Solomon Seligman to the firm of Welch, Holme & Clarke, which firm replevied the goods in question from the defendants, and that notice thereof was given to the plaintiff.

At the time of the granting of this order the defendants entered into a written stipulation with the plaintiff, which is found at folio 39 of the printed case, as a condition of allowing the amendment to the answer, whereby it was provided, among other things, “ that if, at the close of the testimony, no evidence shall appear upon the minutes of the court that the plaintiff was not the owner or holder for full value of the soda ash, and also if no' evidence shall appear upon the minutes of the court that the plaintiff, when she parted with such value, had knowledge or notice of the facts connected with the purchase or procurement by one Solomon Seligman from the firm of Welch, Hohne & Clarke of the soda ash referred to in the complaint, then and in that event all testimony that shall have been admitted in evidence to sustain the allegations of the seventh paragraph of the amended answer shall be stricken out upon plaintiff’s motion; the trial then to proceed as if paragraph seven were omitted and stricken out.”

Upon the trial of the action it appeared that one Solomon Seligman became indebted to the plaintiff in March, 1891, in the sum of $500 for money loaned, and that the soda ash in question was not bought by Seligman until May, 1891; so that at the time of the creation of the indebtedness of Seligman knowledge or notice of any fraud on the part of Seligman in the procuring of the soda ash could not have been imparted or imputed to her, the plaintiff. The transaction had not taken place.

To support the good faith of the loan by plaintiff to Seligman the plaintiff put in evidence a mortgage given by her jointly with her husband upon land purchased by her money, accompanied with a coupon interest note and a memorandum of the expenses attending the execution of the mortgage, which amounted to $36.90, leaving as a proceeds of the loan $493.10, which amount was handed to Seligman in a draft, he agreeing to pay the expenses, amounting to $39.09, as a condition of obtaining the loan from the plaintiff, who was his sister. This evidence is undisputed.

Subsequently, as appears from the evidence, the plaintiff desired repayment of the loan and called upon Seligman for that purpose at his place of business and demanded the money, but Seligman said he didn’t have it, but if she desired payment then he would turn over to her some of his stock, and it was agreed that she should have sixteen casks of soda ash in payment, and the same were turned over to her at that time, and were afterwards sent in her name, E. L. Goldenson, to the defendants’ warehouse, and they issued their warehouse receipt therefor.

The conversation between plaintiff and Seligman was corroborated by the witness Londe.

This testimony is nncontradicted by the defendant.

Subsequently the plaintiff called at the defendant’s place of business, tendered them the warehouse receipt that had been issued in the name of E. L. Goldenson, and the amount of tire storage, and demanded the delivery to her of the property, which was refused. This is admitted by the answer.

We have looked in vain for any evidence which assails the good faith of the loan by the plaintiff to the brother Seligman, or that imputes to her any knowledge of fraudulent transactions of Seligman as set forth in the seventh paragraph of the amended answer, and are of the opinion that the motion to strike out paragraph 7 and all of the testimony offered thereunder regarding the representations that were alleged to have been made by Seligman with reference to the purchase from Welch, Holme & Clarke was properly granted.

With this feature of the case eliminated the plaintiff’s title to the soda ash in question became undisputed in every particular.

She had parted Avith her money- in good faith, and when the borrower could not repay on demand he delivered to her in payment the soda ash in question, and the same avbs stored for her account and in her name by the defendants, who issued to her thereafter their warehouse receipt, and on its presentation to them they refused to deliver the goods which it called for, after being tendered the amount clue for storage.

The defendants appear to have been fully satisfied with the charge of the trial justice, as no exception was taken thereto, and, indeed, it was in all respects fair to them.

We have examined the other exceptions taken by the defendants, but do not think they are of any importance to the defendants upon this appeal, in view of all the circumstances attending the trial of the case in the court helow.

The evidence admitted tending to show the good faith of the loan was, we think, properly admitted. The defendants had attacked the good faith of the transaction, and the documents relating to the loan were certainly the best evidence that could be offered, and besides they fully corroborate the testimony of the plaintiff.

For these reasons, we are of the opinion that the judgment and order appealed from should be affirmed, with costs.

Fitzsimons and Botty, JJ., concur.

Judgment and order affirmed, with costs.