
    Wright Duryea and William Duryea, App’lts, v. William Vosburgh, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 25, 1888.)
    
    1. Principal and agency—Proof of agency—Evidence — Admissibility of.
    On the trial of an action to recover from the defendant $6,000 and interest belonging to plaintiffs, on the ground that defendant having, as their agent, undertaken to purchase of one Peck property for them, deceitfully obtained out of the purchase money they paid Peck, said $6,000, and wrongfully as against them appropriated the same to his own use, the defendant claimed that he acted as agent of Peck, and received the $6,000 under an agreement with Peck by which he was to have all above a certain amount that he obtained for the property. Held, that the value of the property was a proper subject of cross-examination, tending to explain the motives of the parties to the contract.
    2. Same.—Evidence—What Competent to show motive and animus of witness.
    It was competent to show that the suit was not commenced until after defendant had left the business with plaintiffs and had started a rival concern. It had a bearing in showing the motive of bringing the suit and the animus of the witness, one of the plaintiffs.
    3. Same—Competent to show that he had property to sell previous TO SALE IN QUESTION.
    It was competent for defendant to show that he had the property for sale sometime previous to the sale to the plaintiff, and had made efforts to effect a conveyance.
    
      4. Same—When fkatjdulent intent in issue—qkeat latitude allowed.
    The fraudulent intent of defendant being in issue, the surrounding circumstances , were all proper to submit to the jury upon that question. Upon such an issue great latitude is permitted in proof of surrounding circumstances.
    Appeal from a judgment in favor of the defendant, entered upon a verdict of a jury rendered at the Kings county circuit, and from an order denying a motion for a new trial upon the judge’s minutes.
    
      O. N. & E. T. Payne, for app’lts; D. W. Northrup, for resp’t.
   Pratt, J.

This is an action brought by the plaintiffs against the defendant to recover from him the sum of $6,000 and interest belonging to them, on the ground that defendant having, as their agent, undertaken to purchase of one E. S. Peck, property for them, deceitfully obtained out of the purchase-money they paid Peck said $6,000, and wrongfully, as against them, appropriated the same to his own use.

The defendant claimed that he had been authorized by Peck to sell, and that if he succeeded in selling, he should receive all he obtained over $45,000. The sale was made to the plaintiff for $51,750.

The issue, therefore, was, was Vosburgh the agent of the plaintiffs to buy, or was he selling for Peck under their agreement ? Such an issue involved the intent of the parties and a wide range of circumstances. We will first notice the exceptions taken during the trial.

Proof as to the value of the property was received under -objection ; we think this was a proper subject of cross-examination tending to explain the motives of the parties to the contract, and even if it was immaterial it was harmless to the plaintiff.

We also think the objection to the evidence that suit was not commenced until after Vosburgh had left the business and had started a rival concern, was properly denied. It had a bearing in showing motive for bringing the suit and animus of the witness.

The evidence of Peck as to the influence on his mind of Vosburgh’s threat to wind up the business was properly excluded. The motives of this witness in that regard were wholly irrelevant and immaterial, and the same may be said of the exception to the question whether Peck would have sold for less than $51,000 in case Vosburgh had not intervened. The motives and mental operations of Peck were not in issue, and were not binding upon either party. The question was, whether Peck had authorized Vosburgh to sell, not what his motives were in making the sale.

The exception to the paper E (A), also to the denial of defendant that he had ever agreed were not well taken. The paper formed a part of the negotiation prior to the sale, and was shown the plaintiff, and was material for the jury in weighing the probabilities of the case.

The denial was direct to evidence introduced by the plaintiff. The question was leading, but it was within the discretion of the trial judge to permit it.

It was also competent for the defendant to show that he had the property for sale sometime previous to the sale to the plaintiff and had made efforts to effect a conveyance.

This evidence, in connection with the proof that Peck had made engagements with gentlemen for Vosburgh to see them in reference to selling this interest, had a direct tendency to prove that Vosburgh was acting for Peck and to contradict Peck in his statement that he had not authorized Vosburgh to sell.

The fraudulent intent of defendant was in issue and the surrounding circumstances were all proper to be submitted to the jury upon that question; upon such an issue great latitude is permitted in proof of surrounding circumstances.

This proposition is too plain to require citation of authorities.

There was great conflict in the testimony, but we cannot say that it so greatly preponderates in favor of the plaintiff as to warrant setting aside the verdict.

It is plain that Vosburgh was to receive no benefit from the fact that the plaintiffs were to come into the firm. They were not expected to increase the capital and were unacquainted with the business; on the other hand, Vosburgh was to lose an active partner who had been brought up in the business. Besides, it is not claimed that the plaintiffs, were to pay Vosburgh anything for his services as agent.

It is probable the jury did not credit the evidence of Peck and with his testimony discredited, it is difficult to say that the probabilities of the case were not on the side of defendant.

The judgment must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.  