Leonard v. Poole

• Decision Date: 04 June 1889
• Citation: 114 N.Y. 371,21 N.E. 707
• Parties: LEONARD v. POOLE et al.
• Court: New York Court of Appeals Court of Appeals

114 N.Y. 371

21 N.E. 707

LEONARD

v.POOLE et al.

Court of Appeals of New York, Second Division.

June 4, 1889.

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

April 11, 1887, this case was first tried at special term, Judge TRUAX presiding. The facts then found were identical with those found on the last trial, except he had a finding of fact (No. 33) which read: ‘That the transactions carried on resulted in a loss.’ As matter of law it was then held: (1) That the action against Elmore A. Kent was barred by the statute of limitations; (2) that Abram Poole was liable to account to the plaintiff. Upon that decision an interlocutory judgment was entered appointing a referee, before whom Poole was ordered to account. He appealed to the general term, where the interlocutory judgment was reversed. 23 Jones & S. 213. The action was again tried at special term, Judge FREEDMAN presiding, who dismissed the complaint upon the merits, with costs, (no opinion,) which was affirmed by the general term, (no opinion.) From this judgment the plaintiff appeals to this court. No exceptions to the rulings on the trial, or to the findings of fact, or to the refusal to find facts, are argued by the appellant orally or on his brief. Between August 13, 1879, and February 9, 1880, Elmore A. Kent and Abram Pool were partners under the name of E. A. Kent & Co., and engaged in buying and selling produce on commission at New York and Chicago. Between the same dates Henry C. Butcher, Howard Butcher, and Henry P. Darlington were partners under the name of Washington Butcher's Sons, and engaged in the same business at Philadelphia and Chicago. Between the same dates Darius Miller and Nathan G. Miller were partners under the name of D. & N. G. Miller, engaged in the same business at New York and New Britain, Conn. Between the same dates James R. Keene was engaged in business at New York. These firms and said Keene executed and delivered to E. A. Kent & Co. the following contract on the day of its date: ‘The undersigned, each for himself, and not for the others, hereby agree to form a pool or combination for the purpose of buying and selling one hundred and twenty thousand tierces of lard, and to receive and pay for the amounts set opposite their respective names, to-wit: James R. Keene, forty thousand tierces; Washington Butcher's Sons, forty thousand tierces; D. & N. G. Miller, twenty thousand tierces; E. A. Kent & Co. twenty thousand tierces; and the said parties, each for himself, authorizes and empowers E. A. Kent & Co., in consultation and with the approval of Jas. R. Keene, N. G. Miller, and Henry C. Butcher, parties hereto, to purchase and sell, at their discretion, or that of a majority of them, the aforesaid quantity, (one hundred and twenty thousand tierces,) each agreeing to be responsible for the amount set opposite their respective names, and no more; any profit or loss arising from said purchases and sales to be divided, pro rata, among the subscribers hereto. And the said parties hereby agree to furnish, on demand, to E. A. Kent & Co. a margin of not less than one dollar per tierce for each and every tierce purchased, and further additional margins, if required by any decline in the market value thereof. And whereas James R. Keene is the present owner of fifty thousand tierces of lard, Washington Butcher's Sons of forty thousand tierces, and D. & N. G. Miller of sixteen thousand tierces, now, for and in consideration of the sum of one dollar to each of the aforesaid parties paid by E. A. Kent & Co., and for other valuable considerations, receipt of which is hereby acknowledged, the aforesaid James R. Keene, W. Butcher's Sons, and D. & N. G. Miller, agree and bind themselves to hold, tie up, and effectually withdraw from market, so that the same cannot so sold during the continuance of this agreement without the written consent of all the parties hereto, the aforementioned number of tierces of lard, to-wit, James R. Keene, 50,000; W. Butcher's Sons, 40,000; D. & N. G. Miller, 16,000,-and from time to time, when demanded by E. A. Kent & Co., to furnish the said E. A. Kent & Co. with evidence satisfactory to them that the said number of tierces of lard are withheld from market, and in possession of the aforesaid parties, respectively. And it shall be the duty of said E. A. Kent & Co. to obtain such evidence of possession whenever required by either of the parties hereto. It is further understood and agreed that this agreement, in all its provisions and requirements, shall remain in full force and effect until the aforesaid one hundred and twenty thousand tierces of lard have been accumulated and sold, unless sooner dissolved by the consent in writing of all the parties hereto. New York, August 13, 1879. JAMES R. KEENE, 40,000 tierces of lard. WASHINGTON BUTCHER'S SONS, 40,000 tierces of lard. D. & N. G. MILLER, 20,000 tierces of lard. E. A. KENT & Co., -- tierces of lard.’

The court found that at the date of this contract it was agreed between the signers that E. A. Kent & Co. were not to be interested as principals in the transaction, but were to make the purchases and sales as brokers. The court also found that, shortly after the above contract was executed, the following contract was executed and delivered by the signers thereto to E. A. Kent & Co., the existence of which was unknown to James R. Keene: ‘For and in consideration of the payment to us, the undersigned, one-half each, by E. A. Kent & Co., of any and all profits realized from the purchase and sale of twenty thousand (20,000) tierces lard, or any part thereof, E. A. Kent & Co.'s shares of a total of one hundred and twenty thousand (120,000) tes. lard, as set forth in a certain agreement made on the 13th day of August by and between E. A. Kent & Co., D. & N. G. Miller, Washington Butcher's Sons, and James R. Keene, we, the undersigned respectively, D. & N. G. Miller and Washington Butcher's Sons, hereby guaranty and assume all loss, as against said E. A. Kent & Co., on ten thousand (10,000) tes. each, arising from said transactions. WASHINGTON BUTCHER'S SONS. D. & N. G. MILLER. Witness: E. A. KENT.’

For the purpose of carrying out their contract Keene, Washington Butcher's Sons, and D. & N. G. Miller furnished large sums of money to E. A. Kent & Co., with which they, from time to time, between August 13, 1879, and January 31, 1880, bought and sold, on the produce exchanges of New York and Chicago, futures and options in lared; and also bought large quantities of lard, some of which was, from time to time, sold....