
    Edmund K. Stallo, Appellant, v. George H. Humphreys, Respondent.
    First Department,
    October 25, 1907.
    Principal and agent — exclusion of evidence showing defendant to be undisclosed principal — nonsuit — reasonable inference to be drawn in plaintiff’s favor.
    When in an action to recover the balance due on the purchase price of promissory notes secured by mortgages it appears that the plaintiff transferred the same to one 0. on his representation that he would sell bonds owned by him and pay for them, but that not owning any bonds he entered into an agreement with the defendant to advance money with him to buy the notes as a joint venture, and that the defendant, on O.’s failure to pay his share, advanced the whole consideration and realized on the notes by foreclosure of the mortgages, it is error to strike out the testimony of the defendant, called as a witness by plaintiff, showing his transactions with C.
    Although the plaintiff’s testimony supporting his allegation that the defendant ' agreed to pay for the notes embodies a conclusion, yet where the complaint is dismissed at the close of the plaintiff’s case, all reasonable inferences will be drawn in his favor.
    Appeal by the plaintiff, Edmund K. Stallo, 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 lltli day of February, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the New York Trial Term.
    
      George Edwin Joseph of counsel [Henry C. Quinby, attorney], for the appellant.
    
      Edward B. Otheman of counsel [ White & Otheman, attorneys], for the respondent.
   Clarke, J.:

This is an appeal from a judgment dismissing the complaint upon the trial. The action was brought by the assignee of one Joseph C. Richards. The complaint alleges that on or about the ,15th day of June, 1903, one Joseph C. Richards sold and delivered to the defendant, through one Robert S. Campbell, acting for and on behalf of said defendant, nine promissory notes secured by mortgage oil certain real property in the State of Ohio.,, which notes were of the fair and reasonable value of $15,000, which said sum the defendant agreed to pay, and of which said notes the defendant became the'sole owner and-holder; that of said purchase price the sum of $9,000 was paid, leaving a balance of $6,000 unpaid thereon.

Upon the trial Richards testified that he owned certain notes secured by Cincinnati property of the face value of $18,000 which, with’ interest at the time in question, amounted to $24,0Q0 or $25,000; that he needed money to buy hi a certain manufacturing plant in which he was interested ; that, he had a conversation-With. .Campbell, who was a friend.pf his, in which he told him the situation, and that all'that he had practically available to raise the money needed for this purpose ivere those mortgage notes and that lie was negotiating to get a loan on them from the Oriental Bank; that Campbell said to him, “ Why don’t you sell me those notes and shave them and-1 will buy them % You can get more money that way than on. the loans. If yon buy that factory.you will have to have some working capital to begin with ■; ” that Richards-said- to Campbell, “ I don’t see how you can; you'haven’t got. the money because - it would hayé to be a cash transaction as my option on this .factory is only sixty days ; ” that Campbell said, “ I will satisfy you to-morrow that I can do it.' * . * . * I inherited some bonds from my father which I can turn into cash.” The next day Campbell ■ showed. Richards certain bonds, stating, “ All I have to do' is to convert these bonds into cash. * * "* - It will take - me about.ten or fifteen days to convert these bonds and then I will pay you the • cash.” Richards told him, “ That is all right. As long as you can pay me the cash in-time so that I'can avail myself 'of my option and I have about thirty or forty days to fun on that option.” To which Campbell replied, “ All right; ” that thereafter,,¡Richards indorsed and delivered the notes to Campbell; that subsequently he had received on the purchase pilce of these notes from Campbell' $9,000., and there is still $6,000-due-on the purchase.price. . ..'

So far, then, as Richards’ testimony is concerned, it will be seen that his transactions were entirely with Oámpbell, and that Camp-' bell undoubtedly deceived him, having claimed to have inherited certain bonds which he intended to sell and raise the money quickly to pay Richards, when it is in evidence from the rest of the testimony that these bonds so' claimed to have been inherited were Humphreys’ property which had been delivered by Humphreys to Campbell.

Humphreys, the defendant, was called by the plaintiff, and he testified that he had a conversation with Campbell in regard to certain promissory notes' secured by mortgages on property in Cincinnati ; that Campbell told him some man find notes, which were approximately worth $24,000 and was willing to sell them, if he could get cash quickly, for the sum of $20,000, “ and he was very anxious to have me go- into the transaction with him on account of the $4,000 profit, which he thought would be very speedily taken on my foreclosing this mortgage; ” that he came to an agreement with Campbell as to their respective interests in these notes if purchased. Humphreys agreed to put in $7,500 and Campbell agreed to put in' the same and lie was going to get somebody else to put in $5,000, and Humphreys agreed, if Campbell could not get the other man to put in $5,000, that he would put up an extra $5,000, making $12,500, which was to be his share, and Campbell’s was to be the balance.-

Humphreys gave Campbell certain bonds and subsequently received the notes which had belonged to Richards and brought suit thereon and foreclosed the mortgages in Cincinnati. Humphreys testified that he supposed at the time that Campbell had an interest in the purchase of these notes. “ The fact turned out that I furnished all the money, but at the time the transaction was started he agreed to furnish part of it, $7,500. That was the only relation he had to the transaction, as a proposed joint purchaser with me. At the time when these mortgage notes came into my possession I didn’t know whom the notes then belonged to and he did, and he was to do the transaction under an arrangement that he was to put up part of the money.”

From this evidence it appears that Campbell deceived Humphreys as well as Richards, the result of the transaction being that Humphreys received possession of and exercised control over Richards’ notes and brought actions and foreclosed mortgages under them, and that Richards received only $9,000.

Hpon this state of the proof, and before the plaintiff had rested, the learned court struck out Humphreys’ testimony and then dismissed the complaint.

■ The appellant in his brief claims that the complaint was broad enough to include an agency of any description, whether arising out of the ordinary one of principal and agent or out-of that -of a joint venture or out of that of partnership, and also that Humph-, reys, the defendant, was an undisclosed principal in the transaction, but. had identified himself and confirmed, his relations ■with the' .enterprise' by his own testimony. . .

The respondent claims that there was. an absolute failure ;of proof that Campbell was acting as defendant’s agent at the time of the alleged - purchase from BichardSj-Or that Campbell agreed to pay' Bichards any sum whatever for the notes. - It is true that the evidence to sustain the allegation in the complaint of the agreement to 'pay $15,000 for the notes is weak, consisting of tile statement by Bichards, I received on the purchase price of these notes $9,000 and there is .still $6,000 due on the purchase price.” This testimony embodies a conclusion of the witness rather- than a statement of fact as to the agreement, but so far as this point is concerned it should be -pointed out that the dismissal was not at the close of the plaintiff’s case and that no such ground -was taken upon the trial, and that upon a dismissal under such circumstances all reasonable, inferences are .to be drawn in favor of the plaintiff. What occurred was that the learned court struck out all of Humphreys’ testimony upon the-ground that it contained no proof that Campbell was Ins agent in the transaction, and' as there was no proof of any direct dealings between Humphreys and Bichards, that.there was nothing to sustain the allegations-of a sale by Bichards to Humphreys. ' -

It appears to me that the action of the learned court in striking, out the testimony of Humphreys was not justified. Upon his own statements lie had obtained possession- of and exercised dominion' over notes, which were the .property of Bichards, and upon liisbwn statement this was in the prosecution of an agreement for a joint venture or a-partnership between himself -and Campbell for the purchase of said notes.- If there was a joint venture or a partnership why then it must follow that each of' the .parties to that joint undertaking in the .prosecution -thereof' was the agent of the- other-.

If we look at the transaction by which' Bichards’ notes got- into Humphreys’ possession through the agency of Campbell as a case of undisclosed principal, still it follows that the testimony of the .principal Humphreys should not have been stricken out. Upon this record it is impossible to pass upon the ultimate rights and obligations of the parties because by the action of the court in striking out Humphreys’ testimony, in view of the fact that Richards had had no personal transactions with Humphreys, it became impossible to prove the case.

As we are of the opinion that it was error to strike out Humphreys’ testimony, we think this judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, P. J., Ingraham, Laughlin , and Houghton, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  