Berryman v. Graham. with the fact that Graham kept away from the store while the inventory was taken, is very significant. Here was a stock of goods to the value of almost $10,000, which Graham had contracted to sell. He goes to the store and says to Gage, his foreman, take the account at exactly what the goods cost, and then carefully absents himself while the measurements are made and the accounts taken, although he is afraid Just's creditors may seize his goods, and he leaves three clerks, who are now said to be entirely unworthy of credit, to ascertain quantity and price. Porter, whose credit is not in any way impeached, fully corroborates the three clerks, by testifying positively that as soon as the inventory was completed he found short measurements, and that Just complained to Gage both of short measures and unfair prices, and charged Gage directly with having marked up the cost prices. Gage admits that before Berryman took possession, Just said to Gage that the goods were marked up, and Gage said they were not; but Gage does not pretend that he made, or offered to make any examination to satisfy Just that he was mistaken, although they were in the store at the time. If the inventory had been fair and would have stood the test of an examination, there can be no doubt at all that Gage, when his own integrity was directly called in question, would have said: Sir, examine the bills and make the measurements for yourself; I will not rest under this imputation. But he did nothing of the kind; he contented himself with a quiet denial of the charge. It appears from the testimony of some of the witnesses, that Gage was to have the proceeds of the sale after Graham realized a certain amount, and therefore Gage was directly interested in running up the prices. It also appears that when Aitken was writing the inventory, Just charged that the measurements and prices were wrong, and Aitken immediately in two cases made a reduction, without the least examination. The charge made by Just impeached the whole inventory, and Aitken, if it had Berryman v. Graham. been an honest transaction, would have insisted upon an immediate inspection of the goods; this conduct raises a strong presumption that he made the correction for the very purpose of preventing investigation. Graham offered Just as a witness, and Just does not deny in his testimony that he distinctly charged both Gage and Aitken with fraud. The goods really belonged to Graham and Aitken as partners, yet Moore and other clerks in the store were given to understand that they belonged to Gage, and when they were sold to Mrs. Berryman the mortgage was taken by Graham alone, although Graham himself testifies that Aitken then owned and still owns one-half interest in the notes. Graham had a purpose in these things, and they are not explained in a way which is consistent with his good faith. Graham states in his answer to the cross-bill, that he had been offered ten per cent. more for the goods than he received from Mrs. Berryman, but that he refused to sell for want of proper security; yet he sold to Mrs. Berryman for ten per cent. less than he had been offered, and took as his only security a mortgage on property he knew nothing at all about, either as to title, value or encumbrances, and without making the slightest inquiry about it, even of Berryman or Just. The terms of the bargain were half cash, and the balance on mortgage; yet at the mere suggestion of Berryman, Graham consented to take a mortgage for the whole of the purchase price, on this property of which he knew nothing. Nothing but the greatest eagerness to carry to completion a most advantageous bargain would have induced such action on the part of Graham. There is a circumstance in this case which leads very strongly to the belief that Just was in complicity with Graham, and that he was to share in the profits of the sale. The last of the six notes secured by the mortgage in question, was not endorsed by Just until the twentieth day of June, 1867. That note was payable to the order of Just, and therefore could not be negotiated by Graham without the enderse Berryman v. Graham. ment of Just. Why was that last note passed into the hands of Graham without the signature of Just on it? Is it not fair to presume that Just intended to retain some hold on this note for his services in accomplishing the sale? Graham was a business man, and knew it was necessary to have Just's endorsement on it, and although he was on the witness stand he did not explain the omission. What is there to outweigh the positive testimony of four witnesses, who are in a position to know of what they speak, supported so strongly by the circumstances referred to? The only testimony on the other side is that of Gage, Moore, Aitken, and Graham. Moore only speaks of what he did himself; he says he don't know that the goods were marked up; he did not do it. Besides, he was quite deaf and couldhear but little that passed. Gage did not clear up the direct charge of fraud against himself when he might have done so, and neither he nor Aitken pretend to have measured the goods, or to have seen them all measured. Aitken and Graham purposely placed themselves in a position where they could swear they did not see the fraud committed. The complainant insists that Mrs. Berryman should have set up her defence sooner. She was no doubt kept in ignorance by Just, and she did not learn the names of the witnesses by whom she could prove the fraud, until the taking of testimony in this cause. It does not appear that she was in a position at any earlier time to seek for redress. As it cannot be denied that the equity of the case is with Mrs. Berryman, this court should not, unless constrained by very strong evidence to do so, discard the sworn testimony of four disinterested, direct, and positive witnesses, upon whose statements, if true, the clear right of the case can be reached. The weight of evidence establishes the fraud and fixes Graham with a knowledge of it. It would seem from the evidence before us, that the goods were marked up from twenty to forty per cent. above their true value and actual measurement. But if the fraud was perpetrated without Graham's knowl Berryman r. Graham. edge, there has been a mistake in the estimate of the value of the goods according to the contract between the parties, against which equity will relieve, and it should be relieved against under the bill as framed in this case. Read's Adm'r v. Cramer, 1 Green's Ch. 279. The counsel of appellants insist that Aitken was à necessary party to these proceedings, and that they are entitled to the advantage of a want of necessary parties in this cause. It seems clear that Aitken might have been made a party to the bill of complaint; but proper parties are not always necessary parties. As the case now stands, the question whether he was a necessary party does not arise. No objection was made on that ground before the Chancellor, nor was the want of Aitken's presence made a ground of appeal in this case. This court therefore should not permit this question to be raised, unless the party omitted is an indispensable party, and justice cannot be done without him. The complainants in the cross-bill are entitled to relief and to a credit upon the mortgage, as of the date thereof, of the amount at which the goods were estimated in excess of the contract price, to be ascertained under the direction of the Chancellor. In making such estimate, the goods are to be taken at their true measurement, and ten per cent. to be abated from their actual cost price. The case should be remitted with the requisite instructions. The decree was reversed by the following vote: For reversal-BEASLEY, C. J., BEDLE, CLEMENT, DALrimple, KenneDY, VAIL, VAN SYCKEL, WALES. 8. For affirmance-Depue, Ogden, OLDEN, WOODHULL. 4. McLaughlin v. Van Keuren and Schultz. MCLAUGHLIN and others, appellants, and VAN KEUREN and 1. When it is essential to enable the court to make a complete and final disposition of the subject matter of the controversy, a necessary party will be added at any stage of the cause, unless there are cogent reasons to the contrary. And the record will be remitted to the court below for that purpose. 2. The defendants having failed to make the objection of the want of a necessary party below, this question is not entertained on appeal for their benefit, but because the court cannot, with the parties before it, make a decree which will finally and properly dispose of the subject matter in controversy. The opinion of the Chancellor is reported in 4 C. E. Green 187. Mr. Williamson, for appellants. Mr. Jacob Weart, for respondents. The opinion of the court was delivered by On the 23d day of August, 1866, William Van Keuren and Charles Schultz, the complainants, recovered a judgment in the Hudson county Circuit Court, against James McLaughlin, for $3288. An execution thereupon issued against goods and lands, to which the sheriff made return that no goods or lands of the defendant could be found. Prior to the rendition of this judgment, the defendant, James McLaughlin, had conveyed all his real estate to his father, Michael McLaughlin, by three deeds, two of which bear date May 19th, 1866, and the third July 9th, 1866, all recorded July 12th, 1866. The bill in this case was filed by the judgment creditors, to have the deeds, which were absolute on their face, declared to be mere mortgages to secure certain indebted 21 379 56L 399 |