Turner v. Weston

• Decision Date: 24 May 1892
• Parties: TURNER v. WESTON et al.
• Court: New York Court of Appeals Court of Appeals

133 N.Y. 650

31 N.E. 91

TURNER

v.WESTON et al.¹

Court of Appeals of New York.

May 24, 1892.

Appeal from supreme court, general term, fifth department.

Action by Alexander S. Turner against William W. Weston and others for an accounting. From a judgment of the general term, affirming a judgment for plaintiff entered on the report of a referee, defendants appeal. Affirmed.

D. H. Bolles, for appellants.

E. B. Youmans, (Roswell R. Moss, of counsel,) for respondent.

O'BRIEN, J.

The appeal book in this case contains the record of a long and expensive litigation, important to the parties on account of the large amount involved, but which, in the end, turned almost entirely upon the disposition of questions of fact. Those questions seem to have received careful consideration, in the first instance, from the learned referee who tried the cause, and subsequently at the general term. The evidence was conflicting, and the findings of fact sustain the legal conclusions upon which the judgment is based. The powers of this court in such a case are limited to a review of questions of law raised by proper exceptions to some decision or ruling at the trial. It is quite doubtful whether the record presents any question for this court except the sufficiency of the findings of fact to support the legal conclusions. There is no statement that the case contains all the evidence, and it is claimed that there is no proper exception to any finding of fact. The latter, at least, is essential to enable the defendants to raise the question of law here that any of the findings are unsupported by evidence. Porter v. Smith, 107 N. Y. 531, 14 N. E. Rep. 446; Brayton v. Sherman, 119 N. Y. 623, 23 N. E. Rep. 471; Aldridge v. Aldridge, 120 N. Y. 614, 24 N. E. Rep. 1022; Travis v. Travis, 122 N. Y. 449, 25 N. E. Rep. 920. Exceptions appear in the case to the referee's report, which were filed, but they are aimed at his legal conclusions, although there is blended with some of them matters of fact and argument. It is exceedingly difficult to say just what propositions of fact found by the referee it was intended to question. Without holding now that the defendant is precluded in this court from raising the question that any of the findings are without evidence to support them, it is proper to suggest that this practice is not to be encouraged. The exceptions in form should be directed at some distinct and separate proposition found by the referee or court, or at some part of it, in such a way as to enable the appellate court to understand clearly what particular fact found is challenged. Daniels v. Smith, 130 N. Y. 696, 29 N. E. Rep. 1098.

In August, 1863, the plaintiff and one Ross, and the defendants, who were partners, became the owners of a large tract of timber land in Pennsylvania, from which logs and timber could be floated down the Allegheny river to the defendants' sawmills, in this state. The plaintiff and Ross acquired the one-half interest in the lands, and the defendants, as partners, the other half. The respective owners then agreed that the defendants should cut the timber, drive it to their mills, and there manufacture it into timber and shingles, sort, pile, and properly care for the same, in order to prepare it for market, and then to sell it. They were to superintend the work in all its parts, and the sales, for the best interest of all interested; and for manufacturing the lumber and shingles were to charge and receive what their services were reasonably worth at the time. The plaintiff and his partner were to bear one half of the cost of producing the lumber, and the defendants the balance. The net profits derived from the sale of the lumber and shingles were to be divided equally between the defendants' firm and the plaintiff. The defendants immediately entered upon the performance of this agreement, and continued in its performance, rendering to the plaintiff and Ross a statement each year of the expenses and sales. In the year 1869 the plaintiff, by transfer from Ross, became the sole owner of the one-half interest. In the original agreement the parties had designated their joint enterprise and business by the term ‘5 Lumber,’ and after the transfer by Ross to the plaintiff the business was conducted under the same name, and in the same way, except that the annual statements were made out and delivered to the plaintiff, until about the year 1878, when the business was substantially finished. The plaintiff claimed that, since 1869, a large amount of the lumber and shingles produced from the land, and which was the joint property of the parties, had not been accounted for by the defendants, and brought this action to dissolve the partnership, and for an accounting. The answer puts in issue all the allegations of the complaint in regard to a failure on the part of the defendants to account for the proceeds of the undertaking, and also demands that an accounting be had. Besides the facts already stated the referee found that the total amount of pine lumber taken from the tract since 1869, and manufactured, and for the manufacture of which the defendants had charged and had been allowed, was 31,625,284 feet, and the total amount sold by them, and for which they had rendered an account to the joint concern, was 24,832,097 feet; that the amount on hand, unsold, was 92,655 feet, leaving a deficiency between the amount manufactured and the amount accounted for as sold and on hand of 6,700,530 feet; that the natural and ordinary waste and shrinkage arising from defective logs, breakage, errors in measurements, and inaccurate accounts rendered by the...