Weber v. Weber

• Decision Date: 02 December 1890
• Citation: 125 N.Y. 18,25 N.E. 1068
• Parties: WEBER v. BARRETT et ux. BARRETT et ux. v. WEBER.
• Court: New York Court of Appeals Court of Appeals

125 N.Y. 18

25 N.E. 1068

WEBER

v.BARRETT et ux.

BARRETT et ux.

v.WEBER.

Court of Appeals of New York.

Dec. 2, 1890.

Appeal from supreme court, general term, fifth department.

Action by John B. Weber, as surviving partner of the firm of Smith & Weber, against Joseph Barrett and Hester Barrett, his wife, to foreclose a mortgage by defendants to plaintiff. Another action, brought by the defendants against the plaintiff to have the bond and mortgage on which the action to foreclose was brought canceled, was tried with the first action, and judgment of foreclosure was rendered, from which defendants, Barrett and wife, appealed, and from a judgment of affirmance by the general term they again appeal.

George C. Greene, for appellants.

George Wadsworth, for respondent.

O'BRIEN, J.

The plaintiff is the surviving member of a firm which was composed of himself and one Avery L. Smith, deceased. This action was brought to foreclose a mortgage given to the firm by the defendants, who are husband wife, to secure the payment of their bond of $3,000 dated September 12, 1883, payable in two equal annual payments from the date thereof, with semi-annual interest. The defense alleged that both the bond and mortgage were given without any consideration, and were procured from the defendants by the plaintiff or his firm by fraud, duress, and undue influence; and, further, that both instruments were given by the defendants to Smith and Weber for the purpose of compounding a felony committed by one John W. Rumohr, in feloniously stealing, taking, and carrying away from the store of the firm a large equantity of goods. The court at special term found that at the time of the execution and delivery of the bond and mortgage by the defendants they were indebted to the plaintiff's firm in the sum of $2,450, with interest from December 1, 1882, for goods taken from the store of the firm and applied and converted by the defendants to their own use; that there was no fraud, duress, or undue influence in procuring the mortgage, and that it was not given to compound or settle a felony; that there remained due thereon the sum of $1,772.62, for which the usual judgment of foreclosure and sale was directed. It appeared from the proofs at the trial that the defendants are husband and wife, and were engaged in the retail grocery business in Buffalo, in the name of the wife, in at least two different places in that city. The management of the defendants' business was intrusted to the husband, Joseph Barrett, who bought or gave orders for such goods as were needed at the store under his charge. Rumohr was a nephew of Mrs. Barrett, and a clerk in the wholesale grocery house of Smith & Weber, entering upon the duties of that position about April 1, 1882. About three months thereafter, in pursuance of a preconcerted arrangement between himself and Joseph Barrett, he commnced to steal goods from the house in which he was a clerk in order to supply the defendants' retail stores. This continued from time to time, on about 40 different occasions, until they were discovered about a year thereafter. In general, the manner of operating was this: After the close of the store, about 6 o'clock in the evening, the proprietors and clerks left, but Rumohr would return and meet Barrett there with his horse and wagon, and with him take such goods as they wished from the store, and put them in defendants' stock. The goods were not charged to any one on the firm books, but Rumohr kept an account of them in his private diary, and Barrett paid to him, from time to time, a sum about equal to half their value, which the young man appropriated to his own use. On some occasions Rumohr would erase charges made upon the firm books for goods purchased by defendants in the regular way and carry the amounts...