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Bannerman agt. Quackenbush et al.

If this be so, we see no sound reason why the rule should not apply so as to allow full commissions on receiving and paying out the income, notwithstanding the trustee has received full commissions on a former accounting for receiving and investing the principal. It is not necessary to express any opinion as to which is the better law - the decision of the court of appeals or the rule laid down by the surrogate in his opinion because the former is necessarily controlling of our action.

The decree of the learned surrogate must, therefore, be so far modified as to allow full commissions upon the income received and paid out, and with such modification affirmed, without costs to either party.

DANIELS, J., concurred.

N. Y. COMMON PLEAS.

WILLIAM J. BANNERMAN, plaintiff and respondent, agt. JOHN E. QUACKENBUSH et al., defendants and appellants.

Amendment of pleadings — When and to what extent allowed · Code of Civil Procedure, sections 451, 1932, 1934, 1935-Factors-Who are- Distinction between brokers and factors and their rights and liabilities — Offset.

The court may on the trial allow the pleadings to be amended by striking out the words "and son" in the title of the action and inserting in place thereof the name of the son.

Where a broker has possession of goods to be sold, and sells them in his own name, he is a factor, and any offset existing against the latter may be set up to a claim made by the true owner of the property to recover the contract-price, provided the vendee purchased in good faith and without notice of the true facts.

The distinction between brokers and factors and their rights and liabilities, considered.

Perhaps, in the case put, the true owner might reclaim his goods from the vendee, if the right to do so is exercised within a reasonable time. But the right may be lost by delay or by bringing an action to recover the price.

Bannerman agt. Quackenbush et al.

General Term, June, 1885.

Before DALY, C. J., LARREMORE and VAN HOESEN, JJ.

M. L. Hollister, for appellants.

A. T. Johnston and E. J. Phillips, for respondent.

DALY, C. J.-The court had jurisdiction to allow the words "and son" to be stricken from the title and to direct that the name of Abraham Quackenbush be inserted. The action was brought against the defendants as copartners; and where that is the case the Code provides (sec. 1932) that if the summons is served upon one or more, but not on all the defendants, the plaintiff may proceed against the defendant or defendants served, unless the court shall otherwise direct, and if he recovers make the final judgment against all the defendants jointly indebted, upon which judgment the execution issues in form against all the defendants (secs. 1934, 1935), but is not enforced against a defendant who has not been served with the summons, except that it can be collected out of the property jointly owned by him with a defendant who has been served. The answer in this action is by J. E. Quackenbush, one of the partners, from which it may be assumed that he was the only one served in the action; and the amendment appears to have been made for the purpose of having the name of both parties inserted in the summons and complaint instead of J. E. Quackenbush and son, as it was in the summons and complaint, which amendment may be made under section 451, and which in fact the court under the Code, when the true name becomes known, orders to be made upon such notice and such terms as it may prescribe. The cases to which the counsel for the appellant refers are cases where a new defendant is sought to be brought in merely by an amendment, which can be done only by service upon him of a supplemental summons, or, in other words, where defendants are attempted to be added without the service of process

Bannerman agt. Quackenbush et al.

by simply amending the pleadings, which cannot be done. Such was not the nature of the amendment here. It did not, and could not, authorize an individual judgment against Abraham Quackenbush, the judgment in the action being one that could be collected only out of the property jointly owned by him and the partner who had been served.

Before passing upon the exception taken to the judge's charges, it will be necessary to consider the case presented by the evidence. It appears that the firm of J. E. Quackenbush & Son, who are hardware merchants, had an order from Italy for thirty shears, an article manufactured by the Renz Hardware Company, a manufacturing company at Bridgeport, Connecticut, having an office for the transaction of business in this city. The defendants sent a letter to the company's office, asking at what price they would supply the quantity of shears wanted, payment to be made in ten days. This was followed by further correspondence, until finally J. E. Quackenbush & Son sent a letter stating that the company might furnish the shears required at the company's price; and the company on January 26, 1883, delivered the shears at the store of J. E. Quackenbush & Son, with a bill made out in the name of the Renz Hardware Company, in which it is stated that the articles which are enumerated in the bill were sold to J. E. Quackenbush & Son, "terms cash within ten days from date." This is the transaction as it appears by the documentary evidence that is, the letters between vendor and vendee and the bill delivered with the goods and it agrees with the other evidence given by the defendant; but the account of the transaction given by the plaintiff's witness Schram conflicts with this documentary evidence. He testifies that on January 25, 1883, the day before the goods were delivered, he went to the defendants' store, where he saw Abraham Quackenbush, the son, and told him that the company could not give ten days' time; that the defendants could have the shears, but not without cash upon delivery; that Abraham Quackenbush said that they could not do that; that

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Bannerman agt. Quackenbush et al.

the shears were for export; that he did not want to pay the money before he got it from his customer, and to send the goods to them on Thursday; that they would then send the bill to the office of the company and have it signed, and on Saturday following they would go to their bank and get the money, and that the company might send up about noon on that day and get a check for the amount of the bill. The bill delivered on the following day with the goods, however, states the terms to be cash "within ten days from date," and whether the terms of the sale were cash on delivery, modified by an understanding that payment might be made the day after the delivery, or the terms were cash within ten days, as stated in the bill of parcels, was a question for the jury.

Whatever may have been the fact in this respect, it appears that before making the purchase Abraham Quackenbush bought for $100 of one W. F. Swords, of Connecticut, a promissory note of the company for $467.51, given by the company to Swords for goods received, and which note, when purchased by Quackenbush, was past due, and had been protested for non-payment.

Quackenbush testified that he bought the note for $100, intending to use it in payment of the bill for the shears, thinking, as he said, that "if he could make any money by it, well and good." That his object in buying the shears was that "he had a place to put them," and that if he had "no where to place them" he would have bought neither them nor the note. On the morning after the delivery of the goods the attorney of the defendants went to the office of the company, and, seeing the treasurer, told him that he came to pay the defendants' bill and offered in payment of it the $467.51 note and the residue of the amount in cash. The treasurer refused to take the note, said that the goods did not belong to him and that he wanted the cash as had been agreed upon. The treasurer, as the attorney testified, was very angry, declared that it was substantially a fraud, and spoke of an arrest, and about an hour after, he sent Schram, the clerk, to

Bannerman agt. Quackenbush et al.

the defendants with a bill for the shears, made out in the name of the Renz Hardware Company, but having at the end of it a direction to the defendants to pay the amount to the plaintiff. Schram saw the elder member of the firm, J. E. Quackenbush, and presented the bill to him, who said "we have made payment in another way before this." Schram said that they knew that, but that they did not want to receive the note in payment of the goods; that they wanted cash, stating that the goods belonged to the plaintiff. Schram said something further about an arrest to which Quackenbush replied: "Well, go ahead; we are prepared." These 300 shears formed part of a 1,000 shears which the plaintiff about ten months before had bought of the Renz Hardware Company, who were the manufacturers of them; there was no question in the case as to the integrity of this purchase. The 1,000 shears were delivered to the plaintiff at his place of business in Brooklyn; he gave his checks for them, which checks it was shown had been paid. When the Renz Hardware Company received the order for the goods, they inquired of the plaintiff if he had them on hand, advising him of the order they had received, and he replied that he would fill the order and pay the company a commission upon the sale, but that he did not want to give any time, and it further appeared that the goods were taken from the Renz Hardware Company's office in this city when they were delivered to the defendant. Upon this state of facts, the judge charged the jury that if they found that the plaintiff owned the property, but that the defendants had no notice whatever of the fact, but acted in good faith without knowledge, notice of the plaintiff's title or of any circumstance calculated to put them upon inquiry, the jury should allow as an offset to the plaintiff's claim the note for $467.51 with interest, and render a verdict for the plaintiff for the balance then remaining, and in concluding his charge finally instructed the jury as follows: "If the defendant J. E. Quackenbush had knowledge on the day he received the goods, or the day following, that the goods belonged to the plaintiff VOL. II 38

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