Clark v. Brooks

By the Court.—Daly, F. J.

The plaintiff brought his action for the dissolution of a copartnership, existing between himself and the defendants, in the Express, a daily newspaper, and for the taking of an account, claiming that he had an interest of one-sixth. The defendants insisted that his interest was only one-sixth of two-thirds, and, upon the defendants’ application, it was ordered that the point in dispute should be tried by a jury.

The trial was a long one, and fills a volume of more than four hundred printed pages. It was most exhaustive in respect to the subject-matter. Great latitude was allowed to the defendants upon the cross-examination of the plaintiff Clark; in the examination of their own principal witness, James Brooks, and by the admission of a large amount of testimony, much of it under the plaintiff’s exception, consisting of newspaper extracts, and the evidence of many witnesses relating to the speculations of the plaintiff in stocks, and as to his management of the money article in the Express, and there was an extensive examination of the books of account and business transactions of the newspaper, extending over the whole time of Clark’s active connection with it, a period of more than seven years. Great attention was paid by the jury to the testimony during the whole investigation. The pertinent and suggestive questions put by them, especially during the examination of the books of account, and in respect to details in the business management of the paper, exhibited so much intelligence and practical business knowledge, that I was induced, in my charge, to make especial reference to the attention they had shown, to the intelligence manifested by their inquiries, and to say that I doubted whether a better jury could have been found for the discharge of the duty imposed upon them.

Forty-one exceptions were taken by the defendants during the progress of the trial, embracing exceptions to the admission or to the rejection of testimony, or to the ruling of the court upon questions of law, but one of which is considered, in the opinion of my colleague, as a ground for granting a new trial, and that was allowed upon the settlement of the case under peculiar circumstances. Bo memorandum of this exception was-to be found in my own notes, nor in those of any of the counsel upon either side, nor in the notes of the stenographer. It was to the admission of declaration made by Clark to his attorney, Mr. Bangs, which, from my familiarity with the rules of evidence, I would have supposed I could not have admitted under an exception, but for the fact that it was the impression of the two counsel for the defendants that I did, and I allowed it in deference to their better recollection. Begarding it, therefore, as testimony erroneously admitted under exception, the question arises, whether the reception of it constitutes, in a case like this, a sufficient reason for ordering the cause to be tried over again.

This was an equity suit, in which the defendants were not entitled, as a matter of right, to a trial by jury, but in which the court, in the exercise of its discretion, directed certain facts to be ascertained by the verdict of a jury, and in such a case new trials are not granted with the same facility, nor, in all instances, for the reasons which would be sufficient in an action at law.

Where an issue of fact is joined in an action of law, the verdict of the jury, if not disturbed, is final, and the judgment of the court is given in accordance with it. For this reason it has been deemed more important that courts should, upon .such trials, enforce the principle that the rights of parties are to be determined strictly by legal evidence, and the most effectual means of enforcing it is to order a new trial, if improper evidence is submitted against the remonstrance and objection of the party complaining. Hence it has been held in this State, that a new trial will be granted in an action at law where erroneous evidence is admitted under exception, unless it is shown that the verdict was not affected by it. That it will not suffice that the party excepting was not probably injured by it, but it must be shown beyond a doubt that he could not have been prejudiced by it (Anthoine v. Coit, 2 Hill R. 40; Gillett v. Mead, I Wend. 193; Clark v. Vorce, 19 Id. 232; Farmers’ Bank v. Whinfield, 24 Id. 419 ; Clark v. Crandall, 3 Barb. 613; Dresser v. Ainsworth, 9 Id. 619 ; Boyle v. Coleman, 13 Id. 42 ; Williams v. Fitch, 18 N. Y. 546; Erben v. Lorrillard, 19 Id. 299). This, in most cases, it is difficult to show, as it is generally impossible to say what effect the evidence may or may not have had upon the minds of the jury, and it is for this reason that it has been held, that the proper course in such a case is to grant a new trial (Marquand v. Webb, 16 Johns. 89 ; Osgood v. The Manhattan Co. 3 Cow. 612). But even upon this point the authorities in this State are by no means harmonious, for it has also been held that though such evidence was objected to, a new trial would be denied, unless there should be strong probable grounds for believing that the merits had not been fully and fairly tried, and that injustice had been done (Crary v. Sprague, 12 Wend. 47; Northrup v. Wright, 24 Wend. 223; Depuyster v. Columbian Insurance Co. 2 Cai. 90). And Judge Wright, in Forrest v. Forrest (25 N. Y. 510), says that it is hardly the rule now in courts of law that a new trial must be granted, because evidence has been received that ought to have been rejected, for that “latterly even these courts undertake to judge for themselves as to the materiality of evidence found to have been improperly admitted or rejected, and when satisfied that no injustice has been done, and that the verdict would have been the same with or without such evidence, they have refused a new trial.” The same want of agreement exists in the English courts. In the Common Pleas, a new trial will not be granted for the admission of improper testimony, if there is enough evidence in the case to warrant the verdict, and if, in their judgment, the evidence improperly admitted, ought to have had no effect (Doe v. Taylor, 6 Bing. 561; Horford v. Wilson, 1 Taunt. 14; Nathan v. Buckland, 2 Moore, 153). While the King’s Bench has refused, after mature consideration, to follow the rule of the Common Pleas, and declare that they will not undertake to determine such a question, as they cannot say what effect the evidence may have had upon the minds of the jury, and that, if they refused to grant a new trial, when inadmissible evidence has been received under exception, it might cause the rules of evidence upon trials to be less carefully considered (Crease v. Barrett, 5 Tyrwh. 475; De Rutzen v. Farr, 4 Ad. & E. 53). The rule of the King’s Bench has hitherto been the prevailing one in this State, while, in most of the other States of the Onion, the rule of the Common Pleas, after a full examination of the subject, has been adopted as the one which the result of experience has shown to be the best adapted for the attainment of the ends of justice (Hamblett v. Hamblett, 6 New Hamp. 333; Deerfield v. North-wood, 10 Id. 269; Prince v. Shephard, 9 Pick. 176; Thompson v. lothrop, 11 Id. 336; Thorndike v. Boston, 1 Met. 242; Page v. Homan, 2 Shep. 478; Commonwealth v. Shephard, 6 Binney, 283 ; Steelman v. Steelman, 1 Harr. 66 ; Barringer v. Nesbitt, 1 Smedes & Marsh, 22 ; Carrol v. Mays, 8 Dana, 533).

But the strict rule which has been applied in courts of law, has never been recognized in courts of equity. Where "a trial by jury has been directed in a suit in equity, to ascertain certain facts, the trial is simply for the information of the court, with whom the ultimate decision of the case rests, and it is not therefore necessarily conclusive. The court, says Mr. Gresley, in his work upon Equity Evidence, “ may, if it thinks fit, make no use of the verdict, but treat it as a nullity. It will often pay no heed to the most flagrant misdirection on the part of the judge, or mistakes as to the admission of evidence, if the court, is satisfied that the verdict is as it ought to have been, upon the evidence which is sound, and it may either send the case back to another jury, or decide it even in the teeth of a verdict” (Gresley upon Evidence in Courts of Equity, pp. 527, 528). Although a court of equity would have been satisfied if the verdict had been the reverse of what it is, it will not, for that reason, send the case back for another trial. There must be something which shows that the verdict is clearly wrong—something which satisfies the court that it cannot be right (Northern Bridge and Road Co. v. London & Southampton Rail Co., 11 Simmons, 42). The test in every case is the satisfaction of the conscience of the court, and this standard, as Mr. Gresley has remarked, being itself so vague, the rules in equity, for granting a new trial, are necessarily indefinite. The only general rule to be obtained from an examination of the cases, is, that whether the error complained of was the admission of improper testimony, or the rejection of that which was proper, or misdirection on the part of the judge, another trial will not be ordered, unless the court, taking the whole of the evidence together, and connecting it with the judge’s charge, thinks that injustice has been done by the error committed, and it is dissatisfied with the verdict (Head, v. Head, 1 Turn. & Russ. 141; Baxter v. Ray, 2 Russ. 63; Winchelsea v. Wanchape, Id. 446, 454; Slancy v. Wade, 7 Sim. 595 ; Northern Bridge Co. v. London & Southampton Railway Co., Id. 42; O’Connor v. Cook, 8 Ves. 532; Warden of St. Paul’s v. Morris, 9 Id. 165, 169 ; Pemberton v. Pemberton, 11 Id. 52 ; Booth v. Blundell, 19 Id. 503; Bateman v. Willoe, 1 Sch. & Lef. 201; Tatham v. Wright, 2 Rus. & Myl. 1; Apthorpe v. Thomas, 2 Paige, 482 ; Murlock v. Murlock, 1 Edw. c. 18; Paterson v. Ackerson, Id. 96; Lansing v. Russell, 13 Barb. 520; Trenton Banking Co. v. Russell, 1 Green, c. 511; Lyles v. Lyles, 1 Hills, c. 76; Gilman v. Cameron, 1 Geo. Decis. 142; Clayton v. Farrington, 33 Barb. 146 ; Forrest v. Forrest, 25 N. Y. R. 512).

Applying this rule to the present case, there is no ground for a new trial, as all that was given in evidence, by proving what Clark said to his attorney, Mr. Bangs, was substantially established and afiirmed in every material particular afterward, by the testimony of James Brooks himself, so that the evidence could have had no injurious effect upon the result, or operated in any way prejudicially to the defendants. This is even the rule in courts of law, in which a new trial will not be granted, if facts are clearly proved by competent testimony, and the jury have found in accordance with them, though in a certain stage of the case improper evidence may have been admitted, establishing or tending to prove the same facts (Mayor v. Wittberger, Geo. Dec. Part 11, 20; Primee v. Shephard, 9 Pick. 176; Thompson v. Lathrop, Id. 336 ; Emmon v. Lord, 6 Shep. 351; Hutchinson v. Moody, Id. 393; Bunting v. Allen, 3 Harr. 299: Steelman v. Steelman, 1 Id. 66; Barrington v. Nesbitt, 1 Smedes & Marsh, 22).

The plaintiff, to show that his interest was that of one-sixth, relied upon a written paper, Exhibit C, signed by James Brooks, in which it is declared that he was the owner of two-thirds of the Express, and that he would, on the 1st of January, 1856, sell to the plaintiff one-sixth of his interest in the paper, thereby reducing his own interest in it to one-half, for the sum of $13,333^-; $2,500 of which was to be paid upon the delivery of this memorandum, and which $2,500 James Brooks admitted that he had received. This memorandum of an agreement, thereafter to be executed, was dated the 30th of November, 1856, and would have been conclusive upon the point in dispute, but for the fact of the existence of another paper, bearing the same date, a copy of which the plaintiff served with his complaint, which was signed by James Brooks, and which transfers to the plaintiff one-sixth part of James Brooks’ interest in the paper, which is declared by it to be two-thirds of the whole.

It lay with the plaintiff to account for the conflict between these two instruments, by one of which one-sixth of the whole was to be, and, by the other, one-sixth of two-thirds was transferred, both being of the same date. The plaintiff testified, that after making up the account in January, 1860, he told James Brooks that he wanted something more than the first memorandum, and suggested that thele should be a formal bill of sale, and that he would give Brooks a chattel mortgage, securing him for the balance which was due him, and to which Brooks assented. That accordingly he went to his lawyer, Mr. Bangs, to get a mortgage and a legal bill of sale from James Brooks drawn, to be executed in place of what he regarded as an informal memorandum. That he gave Bangs the memorandum, Exhibit O, and instructed him as to what he wanted ; that Bangs drew a paper, as the plaintiff supposed, in accordance with the memorandum, and with the instructions that had been given. That Bangs gave him the paper and he gave it to Brooks, and told him it was the bill of sale that Bangs had drawn, and asked him to examine it; that Brooks returned it to him in a few days, and that he kept it in his desk for three years, not being able to get it executed. That, at the end of that time, having paid up the residue of the purchase money, he desired to have a formal article of copartnership executed, which was agreed to by the defendants, and that in December, 1862, he went to another lawyer, Mr. Lawton, and employed him to draw the articles, at the same time giving him the paper which Bangs had prepared without examining it, and requested him to make a copy of it, that it might be executed. That he received the draft of the articles of copartnership, and the copy of the bill of sale, and on the 30th of January, 1863, the articles were signed by himself and James and Erastus Brooks, and the bill of sale was executed by James Brooks and witnessed by Erastus Brooks. This bill of sale, Exhibit A, is the one already referred to as transferring only one-sixth of two-thirds. It was shown to have been copied by Lawton’s clerk, from another paper, but the clerk could not say from whom he had received the original paper. The articles of copartnership which took effect from their date, the 1st of January, 1863, declare that the plaintiff and James and Erastus Brooks are the owners of the Express ; James Brooks of the one-half, Erastus of one-sixth, and the plaintiff of one-sixth; and that as such owners and proprietors they had therefore published the Express under the name of J. & E. Brooks, and that they had for the purpose of continuing the paper and carrying on the business establishment thereof, agreed to become copartners under the name of J. & E. Brooks & Co. The plaintiff also testified that the paper prepared by Bangs, the original of Exhibit A, was destroyed by him, together with an unexecuted mortgage prepared by Bangs, upon clearing out the papers from his desk, some -time between the execution of the articles of copartnership and the commencement of this suit, that is, between the 30th of January and the 1st of July, 1863. That he destroyed them with other papers supposing them to be of no further use; and that he never discovered that Exhibit A was different from Exhibit C, until his attention was called to it, after the commencement of this suit. That he supposed the mortgage was the same as Exhibit A, upon the supposition, that if Bangs made a mistake in the one, he continued it in the other.

The plaintiff then called Bangs. He- remembered the plaintiff calling upon him, but could recollect only one interview. He was asked what transpired, to which the defendant objected ; the objection was overruled and the defendants excepted. The witness then stated that the plaintiff brought him a paper, and was about to state what occurred between the plaintiff and himself, when the defendants objected ; the objection was overruled, and the defendants excepted. Bangs then testified that the plaintiff exhibited to him the paper as containing the terms of arrangement for the purchase, by him, of an interest in the Express. That he could only state the substance of the instructions he had received. That they were substantially that the paper brought by the plaintiff had been in existence for some time, and that nothing had been executed to carry it out; that the plaintiff wanted a paper executed to carry out the one shown by him to the witness, and that his instructions were to draw such a paper. That Clark said something about the property of the Express consisting of subscription lists, type, &c., and that they agreed that the larger part of the property of a newspaper establishment was somewhat indefinite. This was the whole of the evidence of what the plaintiff said to Bangs, and for the admission of which,' the defendants ask to have a new trial. Bangs further said upon the direct that he drew a paper for the plaintiff, but he had no recollection of delivering it to any one, although he had no doubt that he did. That he recollected that the paper shown to him by the plaintiff was a blue one and a short one, but he did not remember its contents, but this latter evidence, even if it had been excepted to, was admissible, the question being, how these two conflicting papers, of the same date, came to be executed.

The witness was cross-examined by the defendants, and the result of it was this: that he tried to he a careful man in drawing papers, but he had made mistakes. Would not say that he had in this instance, for he did not know. It was always a rule with him to read a paper to a party after it was drafted, to see if it expressed what the party meant, but he had a doubt whether he had read the paper he prepared in this instance to the plaintiff, as,he had no recollection of delivering it. He had not the slightest recollection of the details of it. Exhibit C he did not recognize, nor Exhibit A, but he may have seen it. He then read both papers, and said that he had drafted a paper like Exhibit A. That, as nearly as he could recollect, the paper he drew corresponded in substance with Exhibit A. That he prepared a paper, which, according to his recollection of its contents, corresponded substantially with Exhibit A. That it was his impression that the paper which the plaintiff showed him was not left with him ; that his recollection was, that he became acquainted with its contents, and then drafted the paper which he drew.

The substance, then, of this witness’s testimony was, that the plaintiff had brought a paper to him, of the details of which he had not the slightest recollection, and that he drew a paper from it for the plaintiff, the contents of which to the best of his recollection, corresponded with Exhibit A. So far, therefore, as his general testimony went, it was as favorable for the defendants as for the plaintiff. x

James Brooks testified, that about the time referred to by Bangs, a paper corresponding with Exhibit A, was brought to him, together with a chattel mortgage, by the plaintiff. That he told the plaintiff that there was no use in his giving a chattel mortgage, that they could get along amicably; that he, the plaintiff, was paying the purchase money, and would pay it in due time, and that he would have his conveyance in legal time. That they were trusting each other, and that he, Brooks, did not see any necessity for drawing pap'ers in a legal form because they could get along as partners, so that the fact of the preparation and existence of these papers was established also by the testimony of Brooks. He also proved that the paper under which they were doing business, when the interview occurred with Bangs, had been in existence for some time, and that nothing had been executed to carry it out until January, 1862. He said it was signed by him in January, 1856. That it was a memorandum of the arrangement made in these words : “ I will sell and deliver to Clark one-sixth of my two-thirds interest, giving him the assets for his share.” That it was the proposition contained in Exhibit A; so that, for all that appears from this portion of the testimony of Bangs, this may as well have been the paper which the plaintiff brought to Bangs, and to which he referred as Exhibit C. Bangs did not swear that the paper brought to him was Exhibit C, for he had not the slightest recollection of its contents; nor did this inadmissible testimony in any way tend to prove it to be so ; nor did it in any way conflict with, or contradict, the testimony of Brooks. It could, therefore, in no way have operated to the prejudice of the defendants. What was said about the property of the Express, consisting of subscription lists, types, &c., and of the indefinite character of such property, was entirely immaterial, and had no bearing upon any question involved in the case.

Two facts in the testimony of Bangs, one of which was admissible, even if it had been excepted to, and the other of which was brought out by the defendants upon the cross-examination of the witness, may have had an influence upon the jury. He testified that the paper brought to him was of a blue color, in this respect corresponding with Exhibit C ; and that it was his impression that the paper was not left with him ; that he became acquainted with its contents,’ and then drew the paper which was the original of Exhibit A. The jury may possibly, from this circumstance, have inferred that Bangs, not having Exhibit C before him, and remembering that the interest of James Brooks was two-thirds, and that the sale was to be made by him, may, by mistake, have drawn the bill of sale and the mortgage for one-sixth of two-thirds only. These two facts, I say, may, in connection with other testimony in the case, have led the jury to that conclusion; but every other part of Bangs’ testimony was as favorable to the defendants as to the plaintiff, or if it had any tendency either way, it was toward producing the impression that the paper brought to him stated the plaintiff’s interest to be as it was expressed in the original of Exhibit A.

This will suffice to show that the reception of this testimony had no injurious effect upon the defendants. The same general remark may be applied to the other exceptions. They are too numerous to go over in detail, and I will advert only to those which are contained in the appellants’ points. The questions put to Bangs (fols. 515, 517), as to what he would have done in the cases suggested, were inadmissible, as calling for the opinions and conjecture of the witness. The issues to be tried were framed by the questions. Any pertinent evidence was admissible under them, and upon the trial of them the court had nothing to do with amending the pleadings. Exhibit 0 was admissible as doenmentary evidence directly bearing upon a fact involved in the issues. The manner in which Clark’s interest was to be paid for was immaterial; the question being what his interest was. The exception (at fol. 1195) referred to in the defendants’ points, was taken by the plaintiff. The witness afterward testified fully as to the conditions which were inquired about by the question put at fol. 710 ; and the same remark applies to the next question, fol. 711. The question at fol. 1079 was unnecessary and immaterial, as Exhibit 1 showed where the profits of the first six months came from, by deducting the expenses during that period from the next, and they were specifically stated in figures in the exhibit. There was conflicting evidence upon the question, whether the plaintiff used the character and credit of the newspaper in private trade and business. The plaintiff testified that he did not write the money article referred to by General Dix, and he denied that he ever made the statements sworn to by Coekroft, Lawrence, Cohen, &c. It was, therefore, for the jury to judge of the question of relative credibility, and their finding upon the point is conclusive. And upon the other branch of the question, there was no evidence sufficiently certain to warrant a finding that the partnership was deprived of any of the skill, industry, time, and attention of the plaintiff by his speculating in stocks. The appellants’ points state that some of the exceptions to the charge of the court were well taken. They are not pointed out; and I find none, in my judgment, were well taken. This embraces a review of all the exceptions relied upon or stated in the defendants’ points. And I will now add, that I heard the evidence in this case; that, since the argument, I have read the whole of it carefully over, and collated and compared different parts of it, and my conclusion is, that the weight of the testimony is in favor of the verdict.

Beady, J., concurred.