APPEAL by the plaintiff, Isaac Burr, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 18th day of May, 1910, upon the verdict of a jury, and also from two orders entered in said clerk's office on the 18th day of May, 1910, and the 20th day of July, 1910, respectively, denying the plaintiff's motions for a new trial.
Ralph Royall, for the appellant.
Frederick M. Harris, for the respondent.
The plaintiff was engaged in the produce business at Berkshire, Tioga county, N.Y. , and brought this action to recover the sum of $3,928.70 of the defendant, on the theory that defendant received five consignments of butter from him for sale and received said amount on the sale thereof over and above his commissions and the freight charges paid by him thereon, and
converted the same to his own use. The answer interposed was a general denial.
On the trial plaintiff gave evidence tending to sustain the allegations of the complaint and the action was defended on the theory that the defendant purchased the butter of the plaintiff and was given credit therefor. At the close of the evidence one of the attorneys for the plaintiff moved for a direction of a verdict on the ground that the only question in the case was whether the transactions constituted an agency, a sale or a partnership, and that as he viewed the evidence there was no dispute concerning 'the material elements of the relations of these parties.' The motion was denied and appellant excepted. The court instructed the jury that the theory of plaintiff was that the butter was consigned to the defendant as a commission merchant for sale, and charged that if it was so consigned the defendant in selling it acted in a fiduciary capacity, and was liable for conversion for a failure to transmit or account for the proceeds of the sales, less commissions and the amount paid for freight or express charges thereon; and further instructed the jury that the claim of the defendant was that if on receipt of the butter he found it satisfactory it became his property and that he became liable to the plaintiff, as a purchaser, for the price received, less one-half of the profits on the sale, after deducting the cost of the butter and the freight or express charges thereon. The court further charged the jury that in the one case, namely, if the butter were received for sale on consignment there was a fiduciary relationship between plaintiff and the defendant and the latter was liable to arrest; but that if they found that the transaction was as claimed by defendant, he was not a fiduciary and, therefore, not liable to arrest and the plaintiff was not entitled to recover in this action, but would be entitled to recover the amount due him in another form of action; and the court specifically instructed the jury that they were to determine merely the question as to whether the defendant acted as agent, or trustee, or in a fiduciary capacity for the plaintiff, and if they found that a fiduciary relationship did not exist then the defendant was entitled to a verdict, but if such relationship did exist the plaintiff was entitled to recover. Counsel for the plaintiff at the close of the
charge requested the court to instruct the jury that if 'defendant acted as what is commonly called a commission merchant that that is an agency in the sense of the agency alleged in the complaint and which the plaintiff has to prove.' This request was declined and no exception was taken thereto. One of the attorneys for the plaintiff then requested the court to instruct the jury that if the defendant was to remit after deducting commissions that established an agency and plaintiff was entitled to a verdict. This request was also declined and appellant excepted. The court at the request of the attorney for the defendant instructed the jury that if the relationship of the parties constituted a mere agreement for a division of the profits and there was no agency or trusteeship or fiduciary capacity existing between them, the defendant was entitled to a verdict; and that if they were copartners or it was a joint venture the defendant was entitled to a verdict. The court also instructed the jury at the request of one of the attorneys for the plaintiff that even though they found that the agreement was one for a division of the profits, they might find that it was a fiduciary relationship and that the division of the profits was a circumstance to be considered in determining whether or not there was a fiduciary relation.
According to the testimony of the plaintiff his action was based on five consignments of butter on which he received from the defendant accounts of sales under dates of January 7, February 5, March 4, April 5 and 7, 1909, which showed a balance due to him from the defendant of the amount for which the action is brought less the sum of $137; and he showed by other evidence that the books of the defendant showed that the butter was sold for $274, more than the amount reported in these statements. The agreement of the parties was, according to the testimony of the plaintiff, in effect, that defendant was to receive for his commissions one-half the profits on the sales, and on that theory the plaintiff would be entitled to $137, more than the amount showed to be owing to him by the statements made by the defendant. The plaintiff testified with respect to the agreement between himself and the defendant, that in or about the month of May, 1900, he bought out the
business of one Waldo, at Berkshire, who had theretofore had business relations with the defendant, and shipped butter to the defendant on the same day without negotiating any contract with him; that shortly thereafter he was accompanied to New York by Waldo, and by him introduced to defendant, and that Waldo stated to defendant that plaintiff wished to continue the business with defendant which had theretofore been carried on by Waldo, and on the same basis, but the only statement with respect to what that basis was was that it was a 'joint account,' that is, that they were to share equally in the profits after deducting the cost of the butter and the transportation charges; that he did not expect that defendant would remit the money he received from his customers, but expected that he would pay within a reasonable time; that he expected the defendant would guarantee the sales and would bear any losses of collections on the sales; that he expected to bear one-half of any loss in case of sales for less than the cost of the butter and the transportation charges; that defendant rendered an account on this basis for all the butter shipped to him by the plaintiff and never made any claim against the plaintiff on account of any loss on collections, and never reported a sale at a loss; that there was no express agreement concerning credit, but the course of business between the parties had been for plaintiff to draw a draft on defendant for three or four months with respect to each account of sales, to enable the defendant to collect on the sales, which draft defendant would accept, and that this course was pursued with respect to the first four shipments in question, but that the defendant refused to accept the draft for the fifth shipment. At the time each shipment of butter was made to the defendant plaintiff transmitted to the defendant a statement showing the quantity of butter and the purchase ...