
    Peter Poirer et al., Plaintiffs and Appellants, v. John W. Fisher, Defendant and Respondent.
    1. The rules as to variances between the complaint and the facts proved which may be disregarded under the Code—stated.
    2. In an action on contract for the recovery of money, in which the complaint charged the defendant as agent and supercargo for the plaintiff, and with not accounting and paying over; the answer alleged, that the transaction was a joint adventure, and the referee so found; Held, that it thus appearing, the defendant was indebted substantially as alleged in the complaint, the action should not be dismissed for this variance.
    3. It makes no difference in such a case that the defendant had been arrested in the action, on the ground of the alleged agency.
    (Before Bosworth, Oh. J., Moncrief and White, J. J.)
    Heard, May 14;
    decided, June 1, 1861.
    Appear from a judgment entered upon the decision and report of John P. Crosby, Esq., as Referee, dismissing the complaint, with costs.
    The complaint avers, that the parties to this action entered into an agreement, that the plaintiffs would charter a vessel, purchase a cargo for her, .and advance or pay the price of it, and send the vessel to Guadaloupe, and the defendant would go “in the vessel on such voyage, as agent and supercargo thereof, and as such agent or supercargo, would take charge of and sell” the cargo, and “account for and pay over to the plaintiff the proceeds;” it being further provided, that he should receive a portion of the net profits as his share of the adventure. That accordingly, the plaintiffs chartered a vessel, and a cargo having been purchased, she was dispatched therewith to Guadaloupe. That the defendant went out in her, as such agent and supercargo, in charge of, and there received and sold the cargo, and collected the proceeds; and although he has remitted a portion thereof to the plaintiffs, yet he has not fully accounted for the proceeds, and that he is indebted to the plaintiffs on account thereof, in the sum of $2,500; for which sum the complaint prayed judgment.
    
      The answer puts in issue every allegation of the complaint, and then proceeds to state the contract substantially in the same terms, except that the enterprise was on joint account; that a vessel was chartered, and a cargo purchased and shipped; that the defendant went out in her with the cargo, and received and sold the same, and that he is ready to account therefor.
    The plaintiffs caused the defendant to be arrested and held to bail in the action.
    The Referee, to whom the cause was referred, found that the parties entered into an agreement to charter a vessel for a voyage to Guadaloupe, to purchase a cargo therefor, consisting of guano, horses, carriages, lumber, &e., the defendant to go out in the vessel in charge of such cargo, and there receive and sell the same, and collect the proceeds thereof, for which services he was to make no charge, but iu lieu thereof he was to have a share in the net profits of the adventure, that is to say, one-third of the °net profits arising from the purchase and sale of the guano, and one-half of the net profits arising from the purchase and sale of the residue of the cargo, and the losses, if any, were to be borne by the plaintiffs and defendant, as joint owners, in the same proportion.
    That the plaintiffs accordingly chartered a vessel and a cargo consisting of guano, horses, carriages, lumber, &c., was purchased and shipped on board thereof, for which the master signed bills of lading acknowledging the receipt thereof, and undertaking to deliver the same to the defendant, &c., at Guadaloupe.
    . That the vessel sailed for Guadaloupe, with the cargo on board, and which the plaintiffs had caused to be insured. The defendant went out in the vessel in charge of the cargo. Shortly before sailing, the plaintiffs delivered to him the bills of lading, also invoices of the cargo, with a letter of instructions.
    That the defendant received the cargo at the port of destination, and there, by himself and his agents, sold the same and received the proceeds thereof. That the gross proceeds of the cargo amounted in all to the sum of $13,651.34; and he paid various sums for commissions, for selling the cargo and expenses, (as shown by his account sales,) which left a balance of $12,446.76, as the net proceeds which he received.
    That the cargo was all purchased by and in the name of the plaintiffs, except nine horses and a small bill of lumber, amounting to $52, which the defendant purchased.
    That there was a net profit on the adventure amounting to $327.56, which was received by the defendant, and that he has not paid to the plaintiffs their proportion thereof.
    That the defendant was, at the time of the commencement of this action, indebted to the plaintiffs upon the transactions aforesaid, in the sum of $1,470.84, with interest thereon, besides their share of the said net profits, but that such indebtedness did not arise in a fiduciary capacity as alleged in the complaint, and that no sum whatever was or is due to them in a fiduciary capacity.
    At the hearing before the Beferee, the plaintiffs’ counsel moved to amend their complaint, by making it conform to the facts as proved. The Beferee denied the plaintiffs’ motion; to which ruling and decision the plaintiffs’ counsel duly excepted; and he granted the defendant’s motion to dismiss the complaint; and reported as a conclusion of law that “the plaintiffs have failed to show any cause of action against the defendant, as charged in the complaint, and that the defendant is entitled to a dismissal of said complaint, together with his costs of this action.”
    Judgment was entered upon the report of the Beferee in favor of the defendant, and the plaintiffs now appealed.
    E. H. Owen, for appellant.
    I. The Beferee erred in dismissing the complaint.
    1. Having found that the defendant was indebted to the plaintiffs upon the transactions “ embraced within the issues found by the pleadings,” he should not have disjnissed the complaint.
    
      2d. It was immaterial whether such sum was due in a fiduciary capacity. Ho such issue was raised.
    3d. If, however, that question be within the issues and material, the testimony clearly establishes that such indebtedness is fiduciary, and the Referee erred in finding the contrary.
    1. It is admitted by the answer, and also found by the Referee as a fact, that the defendant did go out in the vessel, in charge of the cargo, to receive and sell the same at a foreign port for account of the parties interested. He was a supercargo, or, in other words, an agent. (Story on Ag., § 33, note 3.)
    2. “Fiduciary” means “in trust, in confidence.”
    The cargo was placed under the defendant’s charge, “in trust and confidence,” that he would receive and sell and faithfully account.
    3. He has violated such “ trust and confidence” by wrongfully appropriating proceeds which belonged to the plaintiffs.
    The contract was fiduciary and his indebtedness equally so. (Burr. Law Dict., “Fiduciary ;” Stoll v. King, 8 How. Pr. R., 298 ; Republic of Mexico v. Arrangois, 11 Id., 1 and 576 ; Frost v. McCarger, 14 Id., 131.)
    4th. The fact that the defendant was interested in the cargo did not alter the case.
    His rights and authority as part owner were suspended and modified by the agreement under which the property was shipped, and in his new character of supercargo. He parted with the possession and control of the property in transitu, and his functions as supercargo did not commence until the arrival of the vessel at Guadaloupe. (Catlett v. Pacific Ins. Co., 1 Paine’s C. C. R., 619 ; Same parties, 1 Wend., 561.)
    II. There was no material variance between the averments and the facts proved, and the variance, if any, did not mislead the defendant to his prejudice. (Code, §§ 169, 170 ; Catlin v. Gunter, 1 Kern., 368 ; Cotheal v. Talmage, 1 E. D. Smith, 573 ; Harmony v. Bingham, 1 Duer, 209 ; Fay v. Grimsteed, 10 Barb., 321.)
    1st. The facts as proved corresponded with the allegations, so that there were sufficient averments upon which to base a judgment. (Code, § 275 ; Bate v. Graham, 1 Kern., 237 ; Emery v. Pease, 20 N. Y. R., 62 ; Hall v. Gould, 3 Kern., 127 ; Marquat v. Marquat, 2 Id., 336.)
    2d. But if there was any variance, the Referee should have granted the motion to amend, and his refusal may be reviewed on appeal. (Code, § 169 ; Russell v. Coun, 20 N. Y. R., 81 ; Roth v. Schloss, 6 Barb., 308.)
    III. The Referee erred in allowing leading questions to be put to the defendant on his cross-examination in his own behalf.
    
      H. Andrews, for respondent.
    It is sought to obtain a judgment against defendant for an alleged breach of trust, in neglecting and refusing to pay over to the plaintiffs, money alleged to have been received by him as their agent.
    For such alleged breach of trust, the plaintiffs caused the defendant to be arrested and to give bail.
    The complaint falsely states, that, as their agent, thb defendant is indebted to the plaintiffs.
    There is upon the evidence no dispute as to the defendant being a partner, or joint owner with the plaintiffs in the cargo.
    Such being the agreement, the defendant might lawfully retain the whole proceeds of the cargo in his hands (except as to the 50 tons of Guano for which he was the plaintiffs’ agent), and not be liable to arrest. (Goodrich v. Dunbar, 17 Barb., 644 ; Angus v. Dunscomb, 8 How. Pr., 114 ; Cary v. Williams, 1 Duer, 667.)
    It is admitted that, before the action the defendant had paid over to the plaintiffs more than the net proceeds received by him on the sale of the 50 tons of Guano, as to which he was their agent.
    Hence, the form of action chosen, and the allegations contained in the complaint, were wholly unsustained by the proof.
    Where the allegations are wholly unsustained by proof, a referee cannot permit an amendment. (Walter v. Bennett, 16 N. Y. R., 250.)
    And his refusal being matter of discretion, is no ground for exception. (Russell v. Coun, 20 N. Y. R., 81.)
    If ever there has been a wholesome exercise of discretion as to amendment, it has been in this case, which shows conclusively, that a gross fraud has been practised on the Judge who granted the order of arrest on affidavits and complaint, (sufficient on then face,) but, in fact, false.
    It is an attempt by sharp swearing at the commencement of a suit, to force defendaht into an immediate settlement upon plaintiff’s terms.
   By the Court—Bosworth, Ch. J.

It is ouly where the allegation of the cause of action is unproved, not in some particular or particulars only, but in its entire scope and meaning, that a complaint can be dismissed for a failure of proof. (Code, §§ 171, 147.)

When a plaintiff proves the substance of the allegation of the cause of action; though he may fail to prove some particular or particulars of it, the variance is to be disregarded as an immaterial variance, unless the defendant shall prove at the trial, to the satisfaction of the Court, that the alleged variance has actually misled him, and in what respect it has misled him. (Id., §§ 169, 145 ; Catlin v. Gunter, 1 Kern., 368.)

Where an answer has been interposed, the plaintiff is entitled to any relief to which the facts proved entitle him, provided such facts are embraced within the issue, and the relief to be granted, be consistent with the case made by the complaint. (Id., §§ 275, 231 ; Marquat v. Marquat, 2 Kern., 336, 342.) The matters in a complaint which do not tend to show a right in a plaintiff, may be disregarded as surplusage, if there are other facts which make out a cause of action. (Id., 342.)

The difference between the allegations in the complaint essential to a cause of action, and the facts as found by the Eeferee, is slight. The complaint alleges an agreement between the plaintiffs and the defendant, whereby the plaintiffs were to hire and charter a vessel for a voyage, and purchase a cargo, and the defendant was to go in the vessel on such voyage, as agent and supercargo thereof, and whereby the defendant was to have a specified part of the net profits, and pay over the residue of the proceeds of the cargo to the plaintiffs.

The Eeferee has found an agreement between the plaintiffs and defendant to charter a vessel for the voyage; purchase a cargo; that the defendant should go out in the vessel in charge of such cargo; that he was to have a share in the net profits of the adventure, and that the losses, if any, were to be borne in the proportions, that any profits made were to be shared.

It is found that the plaintiffs chartered the vessel, that a cargo was bought, the vessel sailed, the defendant went in the vessel in charge of the cargo, and sold it and received the proceeds; that the plaintiffs purchased nearly all the cargo, and paid for the whole of it except $1,288.-83, which sum was paid by moneys advanced by the defendant; that the defendant still holds $1,470.80, besides interest, proceeds of the adventure, to which the plaintiffs are entitled.

These facts entitle the plaintiff to a judgment for the $1,470.80, and interest.

But the Eeferee dismissed the complaint on the ground that the defendant, though indebted in this sum, was not indebted in a fiduciary capacity. There is no allegation in the complaint, in terms, that the defendant is indebted in a fiduciary capacity.

We infer from the ease, that the defendant was arrested and held to bail; and that the Eeferee, being of the opinion that the facts as he found them would not warrant an arrest on the ground that the defendant was indebted in a fiduciary capacity, held, as a logical and legal sequence, that no recovery could be had in this action against him.

If the defendant had not been arrested and held to bail, it is not clear that the Referee would have felt any difficulty in giving judgment for the plaintiffs.

If a complaint, besides alleging the existence of a debt owing by the defendant to the plaintiff, should aver that it was fraudulently contracted, and state the facts relied on as establishing the fraud, proof of the existence of the debt would entitle the plaintiff to judgment, though no evidence should be given that it was fraudulently contracted. All the allegations as to the fraud form no part of the essentials of the cause of action. The plaintiff' would be entitled to judgment, although the defendant might have been unjustly arrested and held to bail.

There may, possibly, be some ground for saying, that the facts, if true as stated in the complaint, make a case triable by a Jury, being an action for the recovery of money only within the meaning of § 253 [208] of the Code, and that the right to costs would follow as a matter of course. (Id., § 304, sub. 4.)

And that the facts as proved make a case triable by the Court, (Id., § 254 [209],) and that the costs would be in the discretion of the Court. (Id., § 306, [261].)

The complaint avers, the duty of the defendant to account to the plaintiffs, that he has been requested to account for the proceeds of the cargo, &e., and that he has neglected and refused to account. The answer alleges that the defendant was at all times ready to account, that he has often offered to do so, and the plaintiffs have always refused to come to an accounting.

The Referee’s finding of facts does not, in terms, dispose of this issue. Without expressing any opinion in regard to the views last suggested, we are quite clear, that whether the defendant has or has not been held to bail, cannot affect the question whether the plaintiffs are entitied to recover in this action, and that on the facts found it was erroneous to dismiss the complaint.

The judgment must therefore he reversed, the report of the Referee set aside, and a new trial granted, rvith costs to abide the event.

Ordered accordingly.  