-\1Illawfur'lbm;'nptbnly't6 ;tho"bank !aiid it."! 's:ha.reliolder13,but, ttdlny JotherpetSotHJ Section::5239. asreceiV'er"representelf tlb'e ahd (creditors; The ,question is not one Of discharging sure'ties" norolliability for declaring the:diviJend, but whether; the bank '88 such in"itsentiretygot hack any part of the money so unlawfully lent to Edward A., Sowles, or its equivalent. Olearly it did not. The mit were not, by this transaction, lit'8111essened or mitigMed. ,The report js to be taken as it is applicable to' the case as otherwise ;made. ' In: connection with these plain facts aheady in the case; it shows tht11osstol the bank, a:s'represented by the orator, in consequenoo :ofthis .excessivlolloan,to have been the amount 'oBhat paper at the tiine ,when it:wagi-etiredjwhi:eh was $10 1000, with interest to now,whicbis $290;30 reported by the'master, with interest 1888,whiahis el»'04,-in"allj$14j875;34; As,these fll.O'ts,outsideof the 'report, appear from the case, mride from the :evidence rberore ltIlE! master, the correction of the' amount reported should be made ,without sending the back, to the master. . Kel.se'!lv. Hobby, 16 Pet. 26{1FParks,v.B()()t'h, 102 U.S: 96. EfCceptions overruled, report: ae.. ,oopted':and"oonfirnted, a.nd! dectee thereupon, and upon the pleadings ,andproot&, tHat the defendants·Albert SowlesRlld Burton do pay,to the oratot.$14 j 875.34 j with and that the bill be dismisse<i. as to the other defendauts,without costs. ' . .
.,;'
DUDEN 1/. ttlAL()Y,
S. D. Ne:w Ywk. ,,l'ull414, 1,81lO.) . 1. 'tllat. since the filing, of tba :report, a state having jurisdicJ;ioD bas, in an t.he to real estate, decidtld ,that it was partnership property, tpis will beconcluslve, 'though the master has'found to the contrary. t,; 1N'1'ERES'1'--tJ sttn; :A New¥ork ll'rm" having whicb to ,buy, entered into an agreemenUn Be.lgium, with a Brussels firm, by which thelatte,r agreed tosbip goods to the N,ev/York firm" on the ex,press conditio,,n ',tli,'at, in additi,on to th,e, iilV,aice price,' they should receive 7 per int.erestfrom,the dl!ote of invoice. :a,e/d. t-hatas , tlle Belgium. law allowed an?: stipUlated rl!ote of.interes.t"and as this was rather a mode of':ftXmg the share of the BrusselsD.rm '11l the 'JOint venture; there was no usury agree,menl;. , .
Jb.s, Ql!' ,STATE COURT. . , ' "" .' , Wliere, on exceptions to a master's report in a partnersbip BOCOunting, ittippears
In Equity.' On exceptions to master's report" , BilFby Herman Duden against ,Michael F. Maloy for an accounting of thepll.rtnel'ship ,affail'sof the finn of Duden & Co. For motion to make :theAssociated Lace-Makers'Company thesuitJ',see37 ,,Fedr. :Rep. 9.8., " '; i ," Howa1!d Y. StiUman, ,< ,1,:J.M·.hydrltyifor: defendaaL": '" .,',;:, ,; . '0;,' "
,LAooMBE.Circuit Judge. master has found. upon conBfctmgey. idence; that the factory business was not a partnership enterprise. and that the'land. buildings, and appurtenances formed no part of the assets of Duden', & Co. of New York, at the close of the partnership. Under thes6icircumstanoes. his finding, which also seems in accord with the weight of testimony. would ordinarily be sustained., Mason V.(}r08by, 3!.WOodbo' &M. 258; Celluloid Manufg Co. v. eeUonite Manvf'g Co;, 40 Fed. Rep. 476. Upon the hearing, however,of the exceptions to tbe master's report,the defendant presented a judgment of the supreme court of New York, Westchester county circuit. rendered June 29, 1889;' subsequent to the filing of the master's report. in an action ,wherein ,the, defendant herein ,was plaintiff, and theCOl)lplainant herein ;wasadefenqant.,That actWN:was, brought to try the title to the real 'e'$, tate upon which the factorY:6109d. arid theis$ue raised therein was the. samens that before ,ihe master. ,Of such an action that, court undoubt:.edly had jurisdiction; and that the complainant here (a defendant in that ,Buit) wfls,propedy served,and had opportunity to protect his " is notdisp.llted:. The court that the land, factory. and, apptu· tenances ,wer81partnership property, and assets of the firm of: Duden & Co.Qf New York, at the time oOts · ·'That j u:dgurent isconclllsive in this suit of the facts established thereby. Krekeler v. Ritter, 62 N. Y. &72. This mqybe uufort\luaw for the complainant, who evidently could not have presented to the su, preme court the same case as he did to the master. If, however, he} failed to do so, through hisnegleetj,he should suffer the consequences. and, if the disastrous termination of his litigation io the state court re, suIted from causes which would entitle him to relief, his remedy is by application to that tribuIllllfor'atetl:ial. The assets representing this particular partnership property-viz·· the real estate, and its appurtenances, the money {luefromthe insurance for the buildings which were destroyed by fire, and the good-will, if any, which will fol, 1actorY_into,whosesoevex'h'ands it may notin the'posfS\3Ssion of the complainant. The state court has impounded them pend.ing the trial and final dispositiop. of the Westchester suit. . There isnothing; therefore, to be charged against the complainant onthis nccountlng, "by reason' of' this reversal of the"ma8ter's finding. The state court ra<. celver will no dPllbt hold the property. until after tinal decree on this ac· -counting, ll,ndwill thereupon dispose of the same, in conformity with pr th,epa,rties .as .folmd by sqch decree. The master, however, in stating the accounts between the parties, upon the tbeorythat the. factory at Williamsbridge was an enterprise distinct and apart from thebusiness carried on by the parties as Duden & Co. of New York, .imd :tbllticomplninllntalone was interested therein, has charged to the comiiplraiinant personally. or to the firm of Duden & Co. of Brussels, all theland, factQry buHdings, machinery. appurtenances, labor therein, etc. It now appearing that the factory was a partnership enterprise, all these items Ilhould be charged to Duden & Co. of New York I instead of to Duden & Co. of Brussels l or to the complainant.
"DUDEN' ·· MALOY·.
409
Whatevet'profit or lOBS there Was from the factory business sbould also, be included with the other accounts of the' firm. This disposes of the first and second exceptions. The third exception deals with the good-will of the New·York store. The witnesses who testified to its value seem to have been in some confusion as to' the identity of the business firiIl, whose good-will they were estimating. Therefore, without now passing upon the two points suggested in the opinion which the master has filed with his report,'-viz.,that, . by continuing in the lace business on bis own account, the defendant hl1S in fact secuted his share of the good-will, and that the articles of copartnership preclude him from claiming anything except a share of the profits, not including therein 'anything for good-will,-the .case is sent back to the master to take such' adlditional testimony as either party may offer within 30 days, and to report specially upon the whole case,inaoSWer to these questions: First.'\Vhat, if anything, was the value oithe good-will of Duden & Co. of New York, on the day the defendant joined it? Seeond. What, if anything, was the value,of the good-will of Duden & Co. of New York, on the day the defendant left it? Upontbe filing of that special report, to which either party may present exceptions, the points raised by the thirdexeeption will be disposed of. The master has found that:defendaut is indebted to the partnership firm $4,268.67, and that the said firm owes Duden & Co. of Brussels $371 97·. To these findings the defEmdant has excepted. (Fourth and seventh exceptions.) The master's decision was reached upon confilicting testimony, and with the witnesses before him. No sufficient ground is shown for setting it aside. Mason v. Crosby, 3 Woodb. & M. 258; Bridges v. Sheldon, 18 Bllttchf. 507, 7 Fed. Rep. 17. The .fourth and seventh exceptions are therefore disallowed; but the master will reporti·what modification, if any, should'bemade in these figures' by reason of -theeireumstance that the factory,has now been adjudged to be a partnership enterprise. .:' :Thefifth exception is disallowed. The reasoning of the master in sUpport of his finding as to the payment to the .book-keeper is conclusive.: : The sixth exception is disallowed. It is in no sense au exception to the repol't. " . , ·lI'he' maater,has found Duden & Co. of New York, of w.hichbothparties were members, indebted to Duden &: Co. of Brussels, of which CQnlplainant only was a member, in the amount of 8371,470.97, which. inreferred to as .interest charges. To this defendant insisting either that there should not be allowed anything by way'of interest to Duderi & Co. Of Brussels; or that they should not be interest attherate of 7 per cent. during the years 1880""1883. He'futther contends that interest bas been charged upon. interest and tipon1 pfofits. Tbeorigin ofthis item is as follows: According to com. 'plainant)& stor-y, Duden & Co.' of New·York had no capital withwhtch to buy goods. An oral agreemeritwas therefore ;·madlkin '.:Belgi'tlq) ,between the Brussels house and the New York house, complainant and
<ieten8hntrrbeing' lher
the ''Brussehi;
qt]
to, the!,
prk.
tW¥'
goods of their own in stock; goods from the
for Jor·.:: T,\:lese shlp.. ,mna.eruponr ,shquld re'" interest :from:t11e!datetof: ,;r£he ,Belgian law,allow,ed partietJ:to stipulat& not.'!"Iuch Il-n t would for·itny. tater ofihterest,Lbut,' a"e11 not be 'wAsinokproperly only: a, J.lnodeci>fibing: t!w'shars::Q'f DU<l6lh&; 00. Of :Brus!!ela;in the joipt From the" earliest, rlealhigiS. rbetweenthe ,twohcmlles,. at thiS ,rate and interest at />8.111e waaallGwed to(the:New"Y!Gll:khoUIlIl:oo/all itsrernitmncC¥J, andbalanewt $1atedperiQds.,',"Balanee-sbeets ,anq 'tlccoQnts reritislio'1wihgrthese the BruaseJs ,to the New York Do\.tse., (Jrhlil ,defeJ!u:lant,fWh0J deflies.:that he eVer'rapprovedsuch oliarges,!$iyeJ's!thathe: p,o'es,not remem!Jer'sucha(lQol,mUl,andinsists that he had in New York nu :means 6frllemfy.hlgthem:,WlLlthe partner who, byth:e rtlom)S:.ofti the !&glflexdent, with tile <Iuty' himself,'ior !Under jUllt, true, Ilnd. cdrreeti poois' of'8ccoun1,iin which, books allthetraos8(}tioIJ,s of such copartnempip csliallr:be:properly 'entered.1' There, being, a, direct collflict O'f as.tol1lhis·;oral agreement. the master's Jinding,' whicb,is in abeard.with 'the:corhpll1.inant?s story ,aDd ,with. the accounts, :will be suetained.' ,See ca'e/i,eitedfBilFa. , ,'fhe, ieighth andllitith. ex.ceptionaare the New:Yoik:mtirket1'landi also the',New ll{ork-house,.· &iudl paid ,fOl" by· the·BrWisels 1
:f"'I"
'
I
"The: Rnd' twelfth lemeptions are, disallowed. ,'They .to be, not' eXceptibn$' ,to,the report; but to' the' mental processes by which he reached hie conclusion. , " :: Theeleverltli' ,exceptiomie al£1o disallow:ed. It does llotappel'lT, in febdant'silD'gPmentl"lilpoi:I what:ground'the decision of themlilstei.ia claimed to be erroneous. In stating the Rssets, he has deducted (rom ..being ,the aDimmt:,ofa,.pllyment tlleiCtisl):iu'Dand,the made, after diseolution, of additional duties upon goods imported ,before diS$oiution':J i :lb.'s theigoddst 1hems6ttea" wtheirfprooeeds,figure l\tDdng the RsSetS",the ,allowance ,o{rthelmasle.. seems to .be' COllect. iis. disallowed.:, ·It .reads ," . j ':'(16)' .bat' the ,fourid,contrary; to' the;ptelimitlarlYreqnlsi. aDd! ti) hia .dtaf;treport.
Reb
objection",; a1hf:: pamy, DlJWil-lmllke liis iobJelltwn$; T.ne;. C¥$e
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CoGGSWELL 11. BOlIN.
llALrorOtiS PROSECUTION-AD'VtOE OP COtiNSlll...
Where one states fully to. his counsel bis, claim, and under such adviQe commences suit, he.fs not
is that be bas 8, oase, for malicious proaeeution.
Motion for aNew Trial. . Suit for mlilicious 'Bohn. '. ..
, 'by' 0; 'Coggswe1l against' Conrad , , ' " ; ': , for plaintiff. ' &&ymour, for defendant ."
NEr..sdN, J.Thiscasewas fairly'tried at the .June term, and resulted .There is nothing to indicate that the not give the case due consideration, and if the piainti1fwRs en':' titled to a verdict 'it, was given for an amount large enough. I think thCi' jury was right in not this plaintiff, who was under a large salliry, anything tor loss of time. The jury u,ndoubtedly thought $1,500 ,too attorney's fee.s· in the suit ofBohn v. (Joggswell, but allowed a Jair cOmpenSation, and also a just sum for traveling and expenses in Minne80tapreparing his defense. If dllfendant in this case stated fully to his counsel. his claimiIlthesuitagainst Cog-gswell, and was advised that he had a case,and the suit was commenced under such advice, his defense was complete, and the plaintiff was entitled to nothing. Evidently, th!;' jury' did not believe he did. The law' was correctly given on this branch of the case, and, as the testimoI}Y of himself and counsel was not in entire harmony, lcannotlll\Y that the jury erred., Motion for anew trial, denied.
in a snl!lll verdict for the plaintiff.
----"-COFFIN"
al.. fl.
erTY 01" PORTt.AND.
oouri. D. IfldlMus.
SePtember
26. 1890.)
: "'". . '," ' . ' , 'IVl'Ote to.the defend'"!t cit)" : ,IWlil will take your · · · .bOnds' *' .. ' *. at psr .yoll to 'fnl'IIl8b us wntten opinion 'Of your city attol'lley .,. to ,legality of bonds, "etc: :Hew" tbat the W,KI' on an opinion of theci,ty that the bonds and the Clty was not bOund by itealiCeptanoe. .'.' . ". . "',' .' . .' any
. ' ,
,
'OD
"oD 'the passaJte or'adollttou of orreeQliltiou, t'iie yeallabli l1ays sballbe tall:en and entered ' 11 the t.6kil1g of a vote ,by yeas aml»ays is. aoolldltion,prec!tdjlnli t.o the ,QIaD oV qoUDOu., " f., ',' : .'
"
, Cla1l'J1OOl & Ketcham,
to'
for plaintiffs.