Opinion
May 18, 1906.
James Breck Perkins, for the appellant.
Lewis E. Carr, for the respondent.
It is conceded by counsel on both sides that the trial presented only questions of fact for determination. After a careful examination of the evidence and the briefs of counsel I am satisfied that with one exception the referee's findings are sustained by sufficient evidence. The exception relates to the item of thirty-five dollars for services of one Aschman as a chemist, rendered to said J.G. Ward Sons before the transfer and which was not stated in the liabilities of the corporation. The defendant guaranteed to protect the plaintiff from all obligations not stated. That amount, which was paid by the plaintiff July 23, 1902, should have been allowed to the plaintiff.
The plaintiff also claimed to recover $150, the value of a horse which was not turned over to it. It appears that this horse was bought by J.G. Ward Sons in 1901 or 1902 for the sum of $150. It was bought for Ward's daughter and used by his family, although on a few occasions it was used about the factory. The horse was not mentioned in the inventory furnished by Ward and there is no proof that on May 1, 1902, the horse belonged to J.G. Ward Sons, nor any proof of its value on that date. The burden was on the plaintiff to show these facts to entitle it to recover its value. All of the stock of the company was owned by Ward and his family at the time the horse was purchased by the company and no reason is apparent why the company under such circumstances could not purchase it for the daughter.
The plaintiff also claimed that the defendant did not include in its list of liabilities the sum of $5,000 for vinegar which had been paid for in advance by Salmon Co., and which Ward Sons were required to furnish to such firm. It is true that in the financial statement of liabilities furnished by Ward this amount was not included, but in answer to the question: "7. What contracts have you outstanding?" it was said, "According to answer No. 7 we herewith append the following contracts, all due May 17th, 1902, except as specified." Among them was the following: "Date, March 24, 1902, H.H. Salmon Co., New York City, 2,000 Bbls. 45 grain Cider Vinegar at 10½c. F.O.B. New York City, Bbls. free, to be taken by Aug. 1, 1902. (Original selling price 11c., but in consideration of advancing $5,000.00, a deduction of ½c. is allowed March 24, 1902.)" The referee apparently found that that was a statement of a liability. I do not think Upton could have been misled by this statement, for it showed that there was a contract outstanding with Salmon Co. for the sale and delivery to them of 2,000 barrels of vinegar to be delivered by August 1, 1902, and that in consideration of advancing $5,000 there was a reduction made of one-half cent per gallon, and the fair meaning of the language is that the advance was made March 24, 1902. The obligation here was not to pay money, but to deliver vinegar, and, therefore, it was not essential to state the amount of the liability in the financial statement. There is no proof that Upton was in any way misled by the information furnished, or that it was in any way untrue. If he did not know about this liability when he made the contract, the plaintiff should at least have shown that fact upon the trial, and that it was injured thereby. The books of the company had been examined by Ryan, the accountant, who Upton sent to review and examine them. There was an account with the New York office, and in that account that office was credited with $5,055.88 on March 26, 1902, and plaintiff's witness Neville says that credit was the payment by Salmon Co. The referee had a right to assume from all this evidence that Upton had full and accurate information as to the Salmon Co. contract, and as to the obligation of the Ward Company to furnish the vinegar in question to them, and, therefore, that there was no breach as a matter of fact of the defendant's guaranty in respect thereto.
With respect to the claim for shortage of vinegar there was a clear conflict of testimony, and the referee was fully justified under the evidence in finding as he did, that there was no breach of the guaranty in respect thereto.
The other elements of the plaintiff's claim, so far as it furnished evidence in relation to them, seem too plain in favor of the defendant's contention to require any discussion.
At any rate, all the claims of the plaintiff concededly presented only questions of fact for determination, and with the exception of the thirty-five-dollar item above mentioned, where there is no evidence to dispute the plaintiff's contention, I do not think we should say that the referee's determination is not supported by sufficient evidence. The judgment dismissing the complaint need not, however, be reversed to correct the error with respect to the thirty-five-dollar item, for we may modify the judgment in defendant's favor for costs by deducting the amount therefrom if his attorneys, who are entitled to such costs, so stipulate.
The plaintiff also complains of the extra allowance of $500 costs granted by the court to the defendant. Its counsel urges that there were no difficult questions of law involved in the case. That is clearly so, but an allowance does not depend upon whether difficult questions of law have been litigated, but upon the question whether the case is a difficult and extraordinary one. (Code Civ. Proc. § 3253.) It may be difficult and extraordinary because of the questions of fact involved, as well as for any other reason. To my mind this was a difficult and extraordinary case for that reason, and, therefore, we should not interfere with the discretion of the Special Term in granting the allowance. The amount sued for was $48,200, and the complaint was dismissed. The right to have made this allowance to the defendant would not have been affected if the referee had awarded the plaintiff judgment for the $35, as we think he should have done, for that would still have left the defendant entitled to full costs, and consequently to the right to ask for an extra allowance. ( United Press v. New York Press Co., 164 N.Y. 406. )
All concurred, except PARKER, P.J., not voting, and COCHRANE, J., dissenting.
Judgment modified by deducting from the judgment in favor of the defendant for costs the sum of thirty-five dollars and interest thereon from July 23, 1902, upon defendant's attorneys stipulating to such deduction, and as so modified judgment and order affirmed, with costs to the respondent.