Shipman v. Glynn (31 A.D. 425, 1898)

Ward J.:

For several years prior to December 2, 1890, Charles Glynn, a son of the defendants, and one McDonald, as copartners, were carrying on a retail coal business at the city of Niagara Falls. At that date Charles Glynn died, and his interest in the copartnership was assumed by Patrick Glynn, and the business was continued-by Patrick and McDonald until on or about the 10th of November, 1891, when the partnership was dissolved. The plaintiffs were wholesale coal dealers, transacting their business at Buffalo, N. Y. They supplied coal to the Niagara Falls concern until the tenth of November aforesaid, when the plaintiff Shipman went to Niagara Falls, saw the defendants and insisted upon their executing a bond and mortgage to secure the plaintiffs for $2,500 for coal sold and delivered to the concern. The defendants testified that they executed the bond and mortgage because of threats made by the plaintiff Shipman to have Patrick arrested for larceny unless they did so. This was denied, by Shipman and by his attorney who was present when the threats were claimed to have been made, and the referee has found with the plaintiffs upon this question, which we regard as conclusive.

The chief controversy xvas over the defense of payment of this bond and mortgage. The evidence of the defendants tended to show full payment; the plaintiffs’ evidence tended to support the opposite conclusion.

The appeal presents questions of fact in which the defendants insist that the preponderance of evidence was so decidedly xvitli them that this court should reverse the judgment; especially do they insist that five notes that were afterwards given by the defendants for an amount which the defendants claim xvas due upon the bond and mortgage, and for the same debt, xvere paid by them before the commencement of the action. Tlieie is some force in this contention, but the plaintiff Shipman gave testimony disproving the payment of these notes, and, as we have reached the conclusion that we must grant a new trial upon exceptions taken to the admission of evidence, xve xvill not discuss the questions of fact further.

Numerous exceptions xvere taken by the defendants’ counsel to the reception of evidence against them upon the trial, which are also urged upon this review, and which xve have carefully examined, "but xve do not find that any of them present reversible error except those which relate to the admission of the plaintiffs’ books of account, which contained the plaintiffs’ charges for coal sold and delivered and credits of payment thereon. Before the books xvere offered in evidence the plaintiffs proved by two witnesses, xvho had dealt xvith the plaintiffs and settled with them to some extent upon these books, that they kept honest hooks. It was also shoxvn that a portion of the coal charged upon these books had been delivered to the defendant Patrick Glynn, who carried on the coal business after the dissolution of the partnership of McDonald & Glynn, from railroad cars that had brought the coal from where it had been mined in Pennsylvania. The only other evidence given by the plaintiffs preliminary to offering the books in evidence, was that of the plaintiff ¡Shipman. He presented at the trial txvo books, one of which he called a “ ledger ” and the other an i