Hannigan v. Morrissey

• Decision Date: 21 April 1891
• Citation: 27 N.E. 402,127 N.Y. 639
• Parties: HANNIGAN et al. v. MORRISSEY et al.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 639

27 N.E. 402

HANNIGAN et al.

v.MORRISSEY et al.

Court of Appeals of New York, Second Division.

April 21, 1891.

Appeal from superior court of New York city, general term.

John W. Boothby, for appellants.

James C. Foley and M. A. Kellogg, for respondents.

HAIGHT, J.

This action was brought to recover pay for goods sold and delivered. A portion of the claim is admitted. The controversy is over an item of $1,394.72, for goods sold to the defendant James C. Allen before he had entered into copartnership with the defendant Morrissey. It appears that the defendant Allen and Morrissey were each engaged in the dry-goods business; one having a small store upon Third avenue, in the city of New York, and the other at Greenpoint. Desiring to unite their business, they entered into a copartnership, taking a store on Third avenue. The articles of copartnership provide that the parties are to contribute in goods and money to the partnership business, as the books of the firm will show. The referee has found that it was mutually understood and agreed that the firm should assume and pay the debts and liabilities of each of the parties then owing by them, respectively, for the goods so contributed to the firm, and ordered judgment for the plaintiffs. The general term reversed the judgment, and ordered a new trial. TRUAX, J., in delivering the opinion of the court, says that there is no evidence to sustain this finding. The order reversing the judgment and granting a new trial does not state that it was made upon a question of fact. We must therefore assume that it was made upon question of law. Code, § 1338. If, however, there is no evidence to sustain the finding, it would be a ruling upon a question of law. Id. § 993. The question we are therefore called upon to review is whether there is any evidence to sustain the finding of the referee. It is true, as stated by the general term, there is no direct testimony from either party of any such express agreement, but that there was such an agreement is not dependent upon the testimony of either of the partners. It may be established the same as any other agreement, from such facts and circumstances as will raise an implication that such an agreement was made, and, as bearing upon such implication, the contermporaneous acts and subsequent conduct of the parties become material. There is nothing in the articles of copartnership, or the books kept by the firm, that bears upon the question. The husband of the defendant Morrissey was her authorized agent, and as such conducted the business on her part, and took charge of the financial affairs of the firm. It does appear that the understanding was that each of the partners should take an account of his stock in his old store, ascertain the value thereof, and deduct from such value the amount that he owned upon it for its purchase, and that the surplus should be regarded as his capital in the firm. Neither of the parties appear to have had any other capital than that represented by their stock of goods. Neither partner, by the articles of copartnership, was permitted to draw more than $20 per week. This sum was doubtless intended for the personal expenses of themselves and their families. It would not go far in the...