
    James M. Comey, Resp’t, v. Wallace C. Andrews, App’lt.
    
      (New York Court of Common Pleas, General Term,
    
    
      Filed February 6, 1888.)
    
    1. Referee—Report of—Judgment entered upon—When it mat be REVIEWED UPON FINDINGS OF FACT.
    This action was originally tried before a referee, and a judgment was entered upon his report, from which this appeal was taken. The parties hereto had been associated as members of a co-partnership, which, by the plaintiff, was claimed still to exist. To this claim the defendant opposed an instrument purporting to bé articles of dissolution of the co-partnership. The plaintiff denied that he signed the instrument, and asserted that the instrument, so far as his signature was concerned, was a forgery. Circumstantial evidence, as well as the testimony of the defendant, upheld the authenticity of tne instrument. A further instrument was putin evidence, by the defendant, as a stipulation made by the parties to this action. This did not bear the signature of the plaintiff, but that of the defendant alone. Held (by Van Hoesen, J.), that only where the error of a referee, in deciding the facts, was manifest, were the general term justified in reversing his decision upon question» of that nature.
    "3. Same—Report of—What to contain.
    
      Held, that it was error ror the referee to find matters of evidence; that his office was to find matters of fact and conclusions of law, and not the evidence which, in his opinion, supported them.
    8. Burden of proof—Weight of evidence—The law is lath to presume FRAUD.
    
      Held, that the defendant, having furnished strong presumptive evidence 01 the genuineness of the articles of dissolution, the referee was in error in finding them invalid on the uncorroborated evidence of the plaintiff; that the law was lath to presume forgery or fraud.
    4. Stipulation—Mutuality essential to—What will not operate as estoppel.
    
      Held, that the unilateral instrument put in evidence by the defendant was not binding upon him as a stipulation; that mutuality was an essential element of a stipulation; that neither did it operate as an estoppel upon the defendant.
    
      Everett P. Wheeler, for app’lt; Rufus F. Andrews, for resp’t.
   Larremore, C. J.

It is to be regretted that the learned referee, before whom this case was tried, did not furnish the court with an opinion, or with some memorandum in writing, however brief, giving his views of the evidence and showing by just what process of reasoning he reached the result embodied in his report. As it is, with nothing but the record and the original exhibits before us, his conclusions seem so contrary to the weight of evidence that we are obliged to reverse the judgment on that ground. It is conceded that the plaintiff and defendant were co-partners in trade under the firm name of Oomey & Andrews, from, some time in the year 1868 until on or about the 29th day of September, 1877. The plaintiff contends that the partnership was not terminated upon the day last named, but extended indefinitely beyond, and is, in fact, in existence yet.

The defendant claims that such co-partnership was brought to an end upon said 29th day of September, 1877, by the execution of a written instrument signed by both himself and the plaintiff. Such alleged instrument was produced upon the trial, and is before us. It bears the defendant’s signature, and also what purports to be the signature of the plaintiff. The plaintiff denies that such alleged signature is his, and that he ever signed such an instrument.

There is no subscribing witness, and the decision of this question of fact depends entirely upon the conflicting statements of the parties, with, however, such corroboration as the surrounding circumstances and subsequent admitted facts will furnish. We think upon all the proof in this case, that the weight of evidence is strongly in favor of the contention that plaintiff did sign the instrument, and that he did so intentionally and deliberately. We have compared the disputed signature with several others among the exhibits which are conceded to be the plaintiff’s, and as far as we can judge without the help of experts, the signature under consideration seems to be the work of the same hand as the others.

The defendant gives circumstantially the facts leading up to the execution of this instrument and the circumstances under which it was actually executed.

Furthermore, other papers in the case, confessedly signed by the plaintiff after the disputed instrument, corroborate its genuineness by being apparently given in pursuance of its terms and in conformity with the general scheme of settlement which it contains. This is so with regard to the so-called exhibits 1, 2 and 3, of October 8th, 1885. This is also the case with regard to the receipt of plaintiff for $600, dated April 17, 1882, being exhibit 2, of June 13, 1885.

The general scheme comprehended by the instrument of .September 29, 1877, is: (1) That the partnership shall be dissolved (2) That the plaintiff sells and transfers to the defendant as his sole property all his (the plaintiff’s) interest in all the assets and property of the firm. (3). That the consideration for the above transfer is that plaintiff shall have credit on the books of the firm for his one-half of proceeds of sale of firm property. (4) It is expressed that the object .of the execution of the instrument is to reimburse the defendant for money advanced from time to time for the interest of and in aid of said firm, the business to be wound up as soon as possible and to the best advantage, and final settlement to be had as soon as possible of all accounts.

The three instruments, also above referred to, exhibits 1, 2 and 3, of October 8, 1885, were transfers of plaintiff’s right in and to certain pieces of realty in which the firm had an interest, which were recorded. The receipt of April, 1882, reads as follows:

“Received, New York, April 17, 1883, of W. 0. Andrews six hundred (600) dollars, in full of account and settlement.
(Signed) J. M. COMEY.”

Defendant claims with regard to this, that it was given after all the affairs of the firm had been settled up, and, as expressed in the receipt itself, in full of account and settlement between the parties, under the former instrument of dissolution of September 29, 1877. All these instruments, to which reference has been made, taken together, would seem to bear out defendant’s contention. But plaintiff’s answer to the final receipt is another charge of fraudulent alteration of the instrument itself. He testifies that although he received the $600 at the time named, and although the signature to the receipt is genuine, yet that when he signed such receipt it ended with the word “ dollars,” and that the words “in full of account and settlement” have been added by the defendant since it was signed.

Here again we think the weight of evidence is strongly in favor of the defendant’s version of the transaction. He gives the circumstances with enough particularity to show that the incident made an impression on his mind, but still, without sufficient minuteness of detail to make exact recollections, seem phenomenal or suspicious. Also, as far as we can judge from an actual inspection of the receipt itself, without the aid of experts, there is nothing to lead one to believe that the words in question were inserted after the signature had been made. They are in the same handwriting; apparently made with the same pen and ink, and follow along in the same line, after the word “dollars,” as if written at the same time.

Plaintiff, in order to make out his case, has been obliged to accuse the defendant of forging his signature to one important instrument, and fraudulently altering another after its execution. The law is lath to presume either forgery or fraud, and, as before shown, the admitted facts and surrounding circumstances do not seem to us to support plaintiff’s accusation, but rather to corroborate the defendant’s testimony.

When we turn to the referee’s action on this subject, w'e find in the fifteenth and nineteenth matters of fact, found at plaintiff’s request, that he has fallen into error, both as regards form and substance. He has found matters of evidence in both of such findings. A court or referee is to find matters of fact and conclusions of law, not the evidence which in his opinion supports them. He has also found that the burden of proof was upon the defendant to establish the validity of these papers, and that the settlement claimed to have been made under them, was actually made, and that defendant has failed to prove such validity and such settlement. In this, we think he clearly erred.

The burden of proof doubtless was upon the defendant in the first instance, but he made out a strong presumptive case, by the production of the instruments themselves, and his own oath as to the genuineness of the signature and the circumstance attending their execution. To offset this presumptive case was simply plaintiff’s uncorroborated denial, and we are obliged to hold that the weight of evidence is so clearly in favor of the defendant upon such points that findings fifteen and nineteen are error.

The referee, in his sixteenth finding, also fell into an inconsistency that would in itself be error if any practical result had followed from it. This concerns the instrument of dissolution, which plaintiff denies that he ever signed. The referee finds that although plaintiff never signed it, yet as. the defendant has signed it and has offered the paper in evidence he is bound by the final clause thereof, to wit:

“The business to be wound up as soon as possible and to the best advantage, and final settlement to be had as soon as possible of all accounts, as a stipulation, which would remove any question which might have existed prior to that date, as to the statute of limitations upon the accounts of the co-partners.

Such finding is clearly erroneous. It is difficult to perceive how a purely one-sided instrument can be given effect as a stipulation, and how the referee could hold that the plaintiff was a stranger to the instrument and yet that the defendant was bound by its terms. Mutuality is fully as essential an element of a stipulation as of a contract. Possibly the idea which the counsel for the plaintiff, and the referee, had was that the production of this instrument by the defendant, signed by himself, although they claimed that plaintiff had nothing to do with it, would yet operate as, against the defendant, as an estoppel, and would preclude him on such ground from raising -the statute of limitations. But I do not think that even this theory would be tenable.

It might be claimed that, although the instrument of September 29, 1877, wrought the technical dissolution of the firm, yet an accounting would nevertheless be necessary, because this instrument provided not for the payment-to plaintiff of a gross sum as the consideration thereof, but of a portion of the proceeds to be realized upon the sale, by defendant, of the firm’s assets. But defendant contends, and produces the receipt of April 17, 1882, in support of such contention, that a settlement was had between the parties at or about that date. If this act be true, and, as before shown, the weight of evidence upon the present trial is strongly in its favor, it would dispense with any accounting. The alleged fact of a settlement out of court, having been agreed upon and consummated will be the first thing to be determined upon the new trial to be ordered in this case.

Furthermore, outside of the questions already discussed, it seems that, according to the books of the firm, which, during the whole period of its active business, were kept by the plaintiff, the partnership comes out in debt, not to the plaintiff, but to the defendant. Plaintiff is obliged to allege payments outside of those contained in the books in order, even on his own theory, to bring defendant out a debtor. He testifies that firm moneys in considerable amounts were paid to the defendant directly, and that of such payments, no memoranda were made in the books. His explanation is given at page 28.

“ Q. Why did you not keep an account on your books of those amounts which you have testified to went into the .¡lands of the defendant? A. He, Mr. Andrews, said he would keep account of it, and not to put it on the books, and when he said that I never put it on my books.”

This statement may of course be true, but, taken in connection with all the other facts in the case, the court or referee, upon a new trial, might reach the conclusion that the books of the firm were not only correct, but complete, even if it was found that the alleged instruments of settlement were forgeries, and that no settlement ever took place.

The judgment must be reversed and a new trial ordered, with costs to abide the event/

Halt, J., concurs.

V an Hoesen, J.

It is well settled that the findings of a referee or a single judge, upon disputed questions of fact, ought not to be set aside by the general term merely because the judges would not have found the facts in the same manner. If the case be a doubtful one, if the conclusions might well be either way, the general term must not disturb the judgment, even though the judges are of opinion that a different decision would have been more in the interest of justice.

The reason of this is that those who simply read the testimony cannot possibly measure the intelligence, the candor, and the character of a witness as well as those who hear and see him as he is under examination. It is only where the error of the referee in deciding the facts is manifest, that the general term should reverse his decision. Greene v. Roworth, 3 N. Y. State Rep., 568, and cases there cited.

Is the error of the referee in this case manifest? Must we say, after allowing for the opportunities that he had of seeing the witnesses, after allowing that it is his province to determine the credibility of the witnesses to weigh the evidence and draw inferences and conclusions from it, that it is evident that his decision cannot be right? I think we must so hold, though I believe that the referee made an honest, faithful effort to reach the true conclusion. His error arose, in my opinion, from giving too great weight to the charge that the signature of the plaintiff to the agreement of dissolution, dated September 29, 1877, is a forgery.

The signature looks to me very suspicious. It is unlike the other signatures of the plaintiff; it appears to have been built up by the process sometimes called painting, and it is blotted, as if the writer, conscious of the imperfections of his imitation, had sought to conceal by blurring the defects of his handiwork.

Of course, if the crime of forgery were fastened upon the defendant, it is easy thereafter to believe him guilty of the many rascalities that the plaintiff charged upon him. But though the signature to the agreement of dissolution was so badly written as to excite suspicion, the only evidence that it was a forgery was given by the plaintiff himself; and to his testimony not much weight can be allowed. There are many strong circumstances in the case that tend to prove very satisfactorily that the signature is not after all a forgery.

I have said that not much weight is to be given to the plaintiff as a witness, and I will now give my reason for making that observation. The plaintiff, when first cross-examined, testified as follows: “I know H. C. Johns; the

partnership did not have a note of his; the defendant did not give a note of his to me to collect; I did not know a man named Haller or Relien, or any similar name; the defendant did not give me a note of $779 to collect, made by Heller or a person of any such name; he gave me no note to collect, except the Harris note.”.

A paper was afterwards introduced in evidence, signed by the plaintiff. It was dated June 26,1878, and acknowledged the receipt “for collection” of the Harris note, of a note for $314.50, dated September 19, 1877, signed by H. C. Johns, and of a note, dated December 1, 1877, for $779, signed by A. Heller. These notes were all received from the defendant “for collection” by the plaintiff. When confronted with that receipt, the plaintiff said, “The Johns” note I have, and I produce it; it is the Johns note referred to in the receipt. The Heller note was destroyed in the hotel fire when I lost my papers.

Nothing was ever received on those notes, as far as I know.” These notes the plaintiff had denied all knowledge of, and yet he confesses that one of .them was in his possession, and he knew just when and where the other had been destroyed. There was a reason for his denying all knowledge of those notes; they were partnership property (the Harris notes certainly were), and yet the plaintiff took them from the defendant “ for collection,” in June, 1878. If the dissolution occurred in September, 1877, this transaction would have been perfectly natural, but if the partnership was still in existence, why should the plaintiff give to the defendant a receipt that acknowledged the defendant’ s sole ownership of the notes, and his own undertaking to “collect” them—an undertaking that implied the obligation to account to the defendant for their proceeds.

Now whether the plaintiff was untruthful, whether he was merely forgetful, his testimony, if not impeached, is so untrustworthy that it must be closely scrutinized when it relates to a fact that is prejudicial to his interests in this action. If he can forget notes that he has in his possession, when his attention is poindedly called to their existence, it is not at all unlikely that he should forget having signed a paper which he never had in his possession.

Again he swore positively that there never was a settlement of the partnership accounts after the year 1869. A written settlement dated October 16, 1874, signed by both parties, the plaintiff and the defendant was then shown to him; the signature is undoubtedly his; he admits it; but he says that no such settlement ever occurred, and that his signature was procured by a representation that the paper was of an entirely different, and of a comparatively unimportant nature. The paper acknowledges an indebtedness to the defendant. Why he did not read the paper when his signature was requested, he does not explain, except by saying that he had great confidence in the defendant, and therefore signed anything he presented without taking the trouble to examine it. Explanations of that character are never very satisfactory. They are not so in this case, for the conveyances of which I am to speak hereafter would not, in all probability, have been executed if the affairs of the partnership had remained open, and if the plaintiff had believed that the defendant was largely in his debt.

The agreement of dissolution, dated September 29, 1877, is denounced by the plaintiff as a forgery. It provides, first, for a dissolution of the partnership, and afterwards, for a transfer to the defendant of the proceeds of the Salisbury property, of the Carson property, of the Tallman property, and of certain oil leases in Warren county. It acknowledges an indebtedness to the defendant for moneys advanced in the business of the partnership, it provides for the re-payment of the defendant, and then provides for the speedy winding-up of the business, and a final settlement as soon as possible of all accounts.” Now, that it is a forgery, there is nothing to show, except the suspiciously bad signature—as to which there is room for a difference of opinion—and the testimony of the plaintiff himself.

If it should appear that the transfers, that the agreement provided for, were afterwards executed, there would be the strongest evidence that it was not a forgery, but that it was a contract deliberately made, and with a full understanding of its- contents.

The imperfections of the signature would then be ascribed to nervousness, or to some other cause that temporarily affected the nervous system, and the testimony of the plaintiff that it is a forgery would be rejected. It is proved that three conveyances were executed by the plaintiff, on February 14, 1878; one conveys the plaintiff’s interest in the Tallman farm; another conveys the plaintiff’s interest in the oil leases in Warren and McKean counties; and the third conveys the interest of the plaintiff in the Briggs farm.

The Salisbury farm had been conveyed by both parties to a Mrs. Gray on September 5, 1877, and it was to the plaintiff’s share of the moneys that Mrs. Gray was to pay, that the defendant acquired title by the agreement of dissolution. The Carson" property had been sold to a Mr. Ackerley, and the other properties referred to in the agreement were after September 29, 1877, controlled by the defendant, with the fun concurrence of the plaintiff. Though the parties subsequently had business together, they were not partners. The dissolution unquestionably took effect at the date of the paper that is called a forgery. It has already been seen that in June, 1878, the plaintiff, when entrusted by the defendant with the possession of certain notes, receipted for them as given to mm for the purpose of collection.

Surely, there is strong evidence of a dissolution irrespective of the disputed agreement. The conveyances, the action of both parties, their dealings with each other, not as partners, but as capitalist and “ prospecter ” (to use a word borrowed from the mining camps), show that there was in fact a termination of their partnership relations; and no reason can be given why, if they ceased to be partners, there should have been any hesitation in stating that fact in writing.

The duty of accounting remained, and the collection of the outstanding assets of the partnership was assumed as a duty by the 'defendant. It is said by the defendant that there was nothing coming to the plaintiff out of the assets of the firm, but nevertheless the defendant, in June, 1882, paid to him, or, as he prefers to say, donated to him the sum of $600.

At the time of the handing of the money to the plaintiff, the defendant wrote a receipt, which the plaintiff signed, and which declared the $600 to be in full of all accounts, and in settlement.

The words in full of all accounts, and in settlement,” the plaintiff swears were not in the receipt at the time that he signed it. If this be true, the defendant committed the crime of forgery, for he must have interpolated the words over the plaintiff’s signature. But is it true? Does not the evidence, taken as a whole, show that it is the habit of the plaintiff to charge forgery or fraud whenever he is confronted with a document that presents a barrier to his claims ?

_ I think that in view of the other changes that the plaintiff has made, and which, as I believe, he has utterly failed to sustain, it would be unreasonable to hold that the defendant had committed the high crime of forgery, when the only evidence of his guilt is the accusation of the plaintiff, a party in interest, whose testimony on other points we have felt we could, not rely on. i

The judgment should, in my opinion, be set aside, and the questions of forgery and fraud should be tried by a jury. The accounting should be deferred until a jury has passed upon the validity of the papers that either bar the plaintiff, or else show the defendant to be under obligations to account to him.

Judgment reversed, and a new trial with costs to abide the event.  