John J. Joslin, Appellant, v. David Cowee, Respondent

John J. Joslin, Appellant, v. David Cowee, Respondent. (Argued February 13, 1874; decided March 24, 1874.) This court upon a second appeal, where the same facts are presented, will not review the grounds of the former decision to pass upon a question which was then involved in the case, although not suggested hy counsel upon the prior argument. Counsel may act as such at the same time for both parties to a transaction, and the fact that a contract is drawn by and under the advice of one, who at the time is counsel for one of the parties, when such fact is known to the other party; does not, in the absence of evidence of fraud or unfairness, invalidate or affect the contract. This was an action to recover damages for the alleged conversion of a quantity of wool, placed by the firm of Gay & Joslin, in the hands of H. Rankin & Go. for sale on commission, and purchased by Alden, Frink & Weston upon a credit induced by fraud, with a fraudulent intent not to pay, and assigned by the latter firm with other property, to the possession of defendant under an assignment for the benefit of certain creditors. The defence was that the vendors’ factors, Rankin & Co., had, after discovery of the fraud, on behalf of their principals, affirmed the sale by accepting an assignment of the vendee’s claim to any surplus coming to him under the assignment. The said assignment contained a clause in substance that the acceptance thereof should not preclude Gay & Joslin from claiming and commencing proceedings to recover the wool. This is the second appeal herein. The case upon the first appeal is reported in 52 New York, page 90, where it was held that the acceptance of the assignment of the surplus with knowledge of the fraud, was .an affirmance of the sale and precluded the plaintiff from rescinding it. It was claimed upon this appeal that the assumed fact upon which the former ruling proceeded, i. e., that' H. Rankin & Go. had knowledge of the fraud when they took the assignment, was controverted upon the second trial and shown not to exist. The referee found that said factors took the assignment with knowledge that Alden, Frink & Weston bought the wool and procured its delivery when their paper was lying under protest, and when they were unable to pay for it and were hopelessly insolvent; that at about the same time judgments on confession for large amounts were rendered against them on which executions were issued, and that they had given chattel mortgages to various creditors, and three days after the purchase made the assignment to their creditors and had entirely stopped business. The referee found that Rankin did not have absolute knowledge when they took the assignment, that the wool was purchased by Alden, Frink & Weston with an intent to defraud or with a preconceived design not to pay, but that they had good reason to believe that the purchase was fraudulent. Held (Grover, J., dissenting), that from the facts found, Rankin & Co. when they took the assignment of the surplus as security, were in law chargeable with knowledge of the fraud, and that the attempted reservation in the assignment of the right to reclaim the wool, showed that they acted in view of the fact that a fraud had been committed. It was also urged, that the acceptance of the assignment by Rankin & Co. did not bind their principals, Gay and Joslin, because said factors had an interest adverse to their principals. Held (Grover, J., dissenting), that, although not suggested on the former appeal, yet it was involved in the ease and the same facts were then presented in reference thereto as appear now, and that the grounds of that decision would npt be reversed. The assignment of the surplus to Rankin & Co. was drawn by, and under the advice of, an attorney, who was at the time counsel for the creditors, and drew the assignment from Alden, Frink & Weston. This was known at the time to. Rankin & Co., and they were present when the assignment to their principals was drawn. No fraud or unfairness was shown. Held, as above. E. F. Bullard and Samuel Hand for the appellant. John B. Gale for the respondent. [MAJORITY — Andrews, J.,] Andrews, J., reads for affirmance. All concur, except Grover, J., dissenting. Judgment affirmed.