Legal Opinion

Calkins v. . Smith

New York Court of Appeals

Decided May 5, 1872PublishedCited by 12 opinions

Appeal from the judgment of the General Term of the Supreme Court in the eighth judicial district, affirming a judgment in favor of defendant, entered upon the decision of the court upon trial at circuit without a jury.

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Appeal from the judgment of the General Term of the Supreme Court in the eighth judicial district, affirming a judgment in favor of defendant, entered upon the decision of the court upon trial at circuit without a jury. The alleged cause of action arises out of the following facts : On the nineteenth day of April, 1861, Charles W. Grannis, James Calkins, Gustavus A. Scroggs and Eollin Ger-main formed a copartnership, under the name of Germain & Co. On the twenty-fourth day of May, 1862, Eollin Germain made two promissory notes, bearing date on that day, payable to the order of Germain & Co.,…

1Opinion of the Court

Eabl, O.

I propose to consider in this case but one question, which I regard as decisive of this appeal. When Ger-main indorsed the name of Germain & Oo. upon the notes, without the knowledge or consent of his copartners, to pay his private debt, he undoubtedly committed a fraud upon them; and if the defendant aided in this fraud by transferring the notes to a bona, fide holder, who could enforce them against all members of the firm, he was also guilty of a fraud, and liable to the copartners of Germain for all the damage he occasioned to them. But the fraud was not upon the firm. It was upon…

2Cited by12 opinions

  1. Oil & Gas Ventures-First 1958 Fund, Ltd. v. KungDistrict Court, S.D. New York · 1966
  2. M.I.F. Securities Co. v. R. C. Stamm & Co.Appellate Division of the Supreme Court of the State of New York · 1983
  3. Cotzhausen v. JuddWisconsin Supreme Court · 1877
  4. Lester v. HawkinsCourt of Appeals of Texas · 1915
  5. Bird v. LanphearAppellate Division of the Supreme Court of the State of New York · 1896

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