The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-12-03
Supreme C0urt-GeneraI Term.
INTERESTING COMMERCIAL CASE.

INTERESTING COMMERCIAL CASE.
Before Judges Davies, Hogeboom and Sutherland
Nov. 2o-Robe't Leuan respondent, Thomas j.
&e1tur, impleaded acith William r. Wright, drteiEam
This was al appeal from judgment given by Mr.
Justice Roosevelt, at special term, In 1854, hodg Mr.
Stewart liable upon purchase Of cotton or ship
ment of cotton. Levin is the surviving partner
of Jonathan Ogden Co., by whom the suit was
originally brought. The suit was commenced ia The late
Court of Chancery 1874 fourteen years ago) and tho
object to establish liability on the part of the firm
of Stewart Wright for half the loss on shipment of
cotton OF about 2S5 bales mado by Jonathan Ogden Co.
who alege that they made the shipment Joint adven
ture Of the firms and Stewart alone defended tho
ground that he had not consented TO take interest in
the shipment.
SUTHERLAND Justce-The principal questions discussed
on the argument OF this case were ,
Stewart Wright is ned by the answer Of Stewart,
or established by the proofs or can be Judcaly de
duced from both.
If any agreement between those firms is established
be deduced, what the agreement Was IT an
absolute agreement the part Of Stewart Wright TO
purchase interest absolute the 2S5 bales of
cotton which had been bought by Ogden Co without
reference TO its quality its being Of grade known
in the market as " fairS was il conditional agree
ment that s an agreement TO purchase or to take an
interest II the cotton was Of the grade called far as
8 Is the within the statute OF Frauds that il
agreement TO purchase on the part Of Stewart Wright
in the cotton, is admitted by the established by
the proofs yet there being written evidence Of such
to purchase or of such sac the plaintiff cannot
recover.
In the have taken of the will be necessary
to examine only the first and the last OF these questions
and perhaps only the first II Is conceded that the
binary partnership business Of Stewart Wright did not
extend to this transaction so that Wright could bind
Stewart the firm without Stewards authority and
sent What is the evidence, them OF an agreement by
Stewart Wright to take an interest in the adventure
to purchase an interest share the cotton or of sale
Stewart Wright Of a share interest by Ogden Cor
There no written evidence The evidence Of witnesses
what passed in conversation between plaintiff
nd Aaf.n SAINT &c n hn MID Iharn vpG m
entry Of the transaction in Stewart Wrghts books.
No invoice, bill or memorandum of the transaction
were furnished by Ogden Co to stewart Wright. Og
den Co paid for the cotton the 23d March, 1874, but
called upon Stewart Wright for their share of the
cost price The witnesses three Wright and Durham
for Plaintiffs Joyce for defendant Notwithstanding Stew
arts objections Wright was admitted witness The
code has no application to the question Of Wrghts admis
sibty, for the proofs taken and closed i'll 1916.
Wright had permitted the bill to be taken against him
CONF ssed November. 1874 In December 1874, Ogden
Co executed to Wright written instrument release,
upon separate compromise, pursuant TO the Act for
the Relief Of Partners and Joint Debtors claws Of 1888
243 exoncrapg him from all individual liability incurred
by OF his connection with the firm OF Stewart
Wright, or by reason of any liability with the said
Stewart, Of and concerning the transaction as to the
cotton. II Is claimed that this made Wright com
petent witness. ] think it did not The very question
in the case was, whether Wright had entered into
consent of Stewart. Stewart did not consent to the
adventure Wright s,Jod confessed individually liza
authority from his partner II the plaintiffs did not
coed in this suit the statutory exoneraton would have
effect. The plaintiffs could, Notwithstanding the nstru
ment Of cxoneration, and on Wrights confession
/ the whole amount from Wright the ground
that it not partnership transaction of Stewart
| Wright but individual transaction of Wrights The
statute of 1888 confined to joint actually existing debts
The object of this suit, and OF introducing Wright
witness was establish the debt be JOINT think
Wright inadmissabe witness and that his test
mopy must be considered out OF the case, and would
hardly be considered that the testimony Of the other
witnesses proves any agreement OF Stewart
Dunham says the conversation between plaintiff aud
Wright that Stewart in the portion Of the
he.
anything that was said (Stewart is partially deai.)
Joyce says-Paint came 10 Stewart Wright place OF
business with sample Of cotton and proposed 70 Stewart
TO take an interest IN lot, OF which that was
sample, and that all three-the plaintiff. Stewart and
wrght-went into the office o. counting room together,
and he (Joyce) remained outside, and heard
DO not think that these witnesses prove the
agreement on the part Of Stewart Now, let look at
the bill and answer. The bill alleges that Ogden Co.
had purchased the cotton, and that Stewart 4 Wright
hearing Of the purchase and that Ogden Co. intended
ship requested OF Of the plaintiffs (cther Ogden
or iewn) half share or interest In the cotton TO which
Ogden Co. agreed, and that thereupon Ogden Co be-
came Jointly interested with Stewart Wright in said adj
venture Of cottonStewat Wright being entitled
half Of the profits any and liable to half the losses
This is the way N which the agreement alleged the bill
The answer OF Stewart alleges that Stew art Wright
cotton brokers and not cotton buyers denies the author
~ Of Wright 10 bind Stewart in the transaction; and
the request OF stewart Wright for halt share nte
rest in the cotton, and the consent of Ogden Co. upon
which u is alleged in the bill partnership in the slip
mcnt Of cotton created between Stewart Wright
/ aud ogden Co, the answer allegcs-Ihat at about
! the time mentioned in the bill he (Stewart) was
"A al colt
which Ogden Co. about to make 10 Liverpool con
sistng OF large number of balcs-say about 2s5-of
which over nine tenths were what Is termed round
bales but that be never consented 10 take any interest
therein otherwise than condtonaly, and upon the in.
duccments a false reprcsenaions-that j. 10 say Levin
the represented the cotton TO be- all OF one uniform
quality, known In the trade the grade "far quality
then Worth IN the market II 10 square bales from &C
pie por H. that he exhibited a sampe which was az
that quality and stated that each bale Mas an average
equal 70 such sample in style quality and value that such
statement WIS Intentionally false tina, Levin thereupon
aNgaF u.EU a..
10 which be replied That the the cotton was equal 10
that sample h. would be interested, otherwise not
and that he tsewarD " did not. in any other
way consent 10 take such an interest Now
/ Is this admission of the agreement set up in the
bir think not II Is only admis- that he stew
art) was willing, aud said he willing enter into an
agreement, and Nn Wright in taxing share interest in
the cotton II the cotton equal 20 the sample II does
not appear from this statement the that there
was meeting 81 minds, and the bargain concluded And
such meeting Of minds and definite agreement scarcely
follows from the allegations the bill Tho request 10
have ntercs, according 10 the bill was made either to
Ogden or LEVIN 10 only 81 the Sellers by both a the
buyers. Is probable that thereupon-
proposition accepted BY both the sellers, acgcdf
but Il an agreement or sac u alleged IN the bill with
sufficient certainty, J think that such agreement =
not admued Ny the answer or established BY the proofs
\ 10 authorize the judgment at special term.
In this view ~ the Is unnecessary examine the
question q the application Of the statute OF frauds But
viii say, that do not see Why the i not within the
statute. Admit the PLAINTIFF case, and " len Co had
bought the cotton when stewart Wright agreed 10 take
the interest in a. Ogden 90. did not buy i "a the
agents Of stcwar, Wright, with the oni funds q the
two firms, Or a. partners q stewart Wright that par
tiCular adventure. As between the two frms Ogden A
Co the owners Of the cotton when the alleged agree
mcnt made. that Stewart a Wright should have
share or interest whether Ogden Co had actually rad
for the cotton not whether bad been then actua
N delivered board the ship between the par
tics from whom Ogden Co had bought, and Oricn Co.
The delivery board the ship delivery 70 Ogden
Co and not to stewart Wright To bold that
delivery 10 stewart Wright BY Ogden Co. 81
take the out % the statute would my opnon be
palpabc evasion Il the statute The Judgment spc
eai Term should he reversed and there should be
4 trt WITH IN ia Tho