Conrow v. Little

• Decision Date: 08 October 1889
• Parties: CONROW et al. v. LITTLE et al.
• Court: New York Court of Appeals Court of Appeals

115 N.Y. 387

22 N.E. 346

CONROW et al.

v.LITTLE et al.¹

Court of Appeals of New York.

Oct. 8, 1889.

Appeal from supreme court, general term, second department.

Jas. R. Marvin, for appellants.

Henry Parsons, for respondents.

DANFORTH, J.

The plaintiffs were manufacturers and dealers in paper, under the firm name of ‘Conrow Brothers,’ and the defendants Little and Demorest printers, under the name of ‘J. J. Little & Co.’ The other defendant did businessas a publisher of books under the name of ‘Branscom, Manager.’ His fraud was the occasion of the controversy, but he makes no defense, and the issue is between the other parties. It was tried at special term, and from the findings of the trial judge, and from uncontradicted evidence, it appears that in August, 1884, the plaintiffs agreed to manufacture for, and sell and deliver to, Branscom, at such place as he might direct, and to such parties as he should employ to print his book, such paper for printing purposes as he might require, to the value of $7,000. He was negotiating with J. J. Little & Co. to do this printing, and so informed the plaintiffs; but Little & Co. refused to enter into an agreement to that effect ‘until they were assured by plaintiffs that they would furnish the paper to Branscom and deliver it to Little & Co. for the printing of the books.’ On the 9th or 10th of September, Theodore Conrow, one of the plaintiffs, knowing of this negotiation, called with Branscom upon Little & Co., and stated to them that the plaintiffs had sold to Branscom the paper for printing the books by Little & Co., and that they would deliver it to them for that purpose. Thereupon Little & Co. entered into an agreement with Branscom to do the type-setting and electrotyping for the books, and print the same upon the paper so to be delivered to them by the plaintiffs for that purpose, and Branscom was to pay Little & Co. cash for the work. The plaintiffs fulfilled their agreement with Branscom, delivered to him, or on his account, paper of the value of $3,589.50, and besides loaned and advanced to him $4,096.07, making a total indebtedness of $7,685.57. Included in that was the price of 150 reams of paper that the plaintiffs, under their contract with Branscom, delivered directly to Little & Co. on the 21st, 22d, and 23d days of October, 1884, and the bill therefor, under date of October 23d, was made out and given to Branscom, and stated the delivery of the paper to J. J. Little & Co. Immediately upon the making of their contract with Branscom, Little & Co. proceeded to execute it, and before the 29th of October, in composition and electrotyping, printing and otherwise, did work on account of the books to the amount in value of $950.24. In doing this they actually used 4 out of the 150 reams, and still retained 146 reams. No part of the debt due them has been paid.

It appears that Branscom fraudulently induced the plaintiffs to enter into their agreement to supply him with paper by delivering to them as genuine a note of $7,000, dated August 9, 1884, purporting to be made by the ‘Mississippi Mills,’ payable six months after date to the order of Col. Ed. Richardson, and to be indorsed by him; and on the 9th or September, 1884, Branscom gave a note of $5,000 of like tenor to Little & Co., which they received on account of printing. It turned out, however, that both notes were forged. On learning that fact, and on the 31st of October, the plaintiffs commenced an action against Branscom in the superior court of New York city, for the recovery of the sum of $7,685.57, alleging the fraud practiced upon them to induce the sale of goods and loan of money, and claiming judgment for this sum. On the 1st of November they obtained an attachment in that suit from one of the justices of the court against the property of Branscom, and it was levied upon money of Branscom on deposit in the National Shoe & Leather Bank. On the 18th of November $2,915, part of the money so levied on, was drawn from the bank by plaintiffs on Branscom's check, made and given to them on that day, and applied on account of the money theretofore loaned by them. The sheriff also, on the 5th of November, levied on the 146 reams of paper then in the hands of Little & Co. In July, 1885, the attachment suit was discontinued, but in the mean time, on the 6th of December, 1884, the present action was begun. The plaintiffs alleged that Little & Co. claimed a lien upon the 146 reams of paper for the sum due them, viz., $956.25, and asked for judgment; that the defendants acquired no lien upon, or right to, said paper, and that the plaintiffs have judgment against them for its possession and return, or for the value, viz., $1,445.40. The defendants set up their lien and the attachment proceedings, and upon trial asked for a dismissal of the complaint; but the learned trial judge denied that application, and directed judgment according to the prayer of the plaintiffs. Concerning its correctness the judges of the court below differed, but a majority were for affirmance.

Upon the facts found we think the judgment should have been the other way. First, as between Conrow Brothers and Little & Co., the question is, which of two innocent persons should suffer from the fraud of a third? It is plain that, except for the intervention of the former, and their assurance that they were to manufacture the paper for Branscom, and that it would be forthcoming when required, the latter would not have undertaken the work which Branscom wanted. It is true this assurance was given in ignorance of Branscom's fraud, but it was the occasion of the defendants' agreement; and, if the plaintiffs are now permitted to take away the paper delivered in apparent fulfillment of...