author: Balcom, J.

text:
    Luther French v. Philip E. New
    After a submission, in writing, to arbitrators, of matters in reference to a lease under seal, the arbitrators were informed by the parties that they need not make an award in writing; that they (the parties) merely wanted to know how much the award was, that they might insert the amount in a writing they had drawn up. The arbitrators agreed to award that the defendant should pay the plaintiff $260, and so informed the parties. Held that the award was void, for the reason that, not being in writing, it did not discharge the covenants of the lease under seal not yet broken; and hence that it was ho bar to an action by the lessor to recover damages for a breach of the covenants in the lease, and the rent reserved therein.
    The doctrine of estoppel does not apply to such a case. The fact that one of the parties has prevented the arbitrators from making a valid award, will not deprive him of the right to show the invalidity of the one they did make.
    A verbal agreement of the parties to a submission that the award shall not be in writing, and that they will abide by a verbal award, has the effect to change the submission from one under seal to a mere verbal one.
    A verbal award will not be .valid unless a verbal submission of the matters on which the award is made would be binding upon the parties.
    This action was brought upon a lease of a farm and certain personal property, to recover damages for the breach of covenants in the lease and rent reserved therein for. the use of the farm. The lease was under seal. The defense to the action was that the claim for damages and rent had been submitted to arbitrators, who had made an award which •destroyed all rights of action oh the lease.
    The cause was tried at the Saratoga circuit in October, 1854, when the plaintiff was nonsuited. A new trial was denied, at the general term of the Supreme Court in the fourth district, and judgment was there rendered in favor of the defendant. (See the opinion of the Supreme Court, 20 Barb. 481.) The plaintiff appealed from the judgment to this court.

      A. Pond, for the plaintiff.
    • Merrill & Gowen, for the defendant.
   Balcom, J.

The lease was for the term of three years. It expired on the first day of April, 1852. The annual rent was $425, and was payable one half on the 1st day of January, and the other half on the 1st day of April in each year. The defendant did not-pay the last two installments of the same. The lease bound the defendant to leave, at the expiration thereof, eight acres of rye growing on the farm, which he did not do; and the plaintiff proved that by reason thereof he sustained damages to the amount of $25.

According to the arbitration bonds, the parties were to submit the controversy between them to the decision of Messrs. Taylor, Green and Rowley, as arbitrators, (after hearing the testimony of the parties,) “in reference to a certain lease,” (which was the lease in question.) The bonds required the arbitrators to make their award in writing, which should be subscribed by them and attested by a subscribing witness, and ready to be delivered &c. on or before the 18th day of April, 1852; to the end that all matters in controversy, in that behalf, between the parties, should be finally concluded pursuant to the provisions of the statute for determining controversies by arbitration.

The arbitration was had on the 27th day of March, 1852, which was four days before the lease expired, or the right of action accrued thereon for the last installment of the rent reserved therein, or for the neglect of the defendant to leave eight acres of rye growing on the farm. The plaintiff’s claims against the defendant, which he presented to the arbitrators, were for one year’s rent of the farm, and for clover seed, timothy seed, wood, oats, stock &c. The defendant also presented claims before the arbitrators; but the case does not show what they were, except that he claimed he paid too much rent for the farm.

While the arbitrators were deliberating upon the matters submitted to them, the parties agreed as to the manner in which the defendant should pay whatever award should be made against him ; and with the view of carrying such agreement into effect, they executed bonds to each other, providing for the payment of - such award, whatever it might be, in a certain way and by installments; but it does not appear that those bonds were ever delivered. They recited that the parties had entered into a bond to submit their matters in contro*versy to Emerson, Green and Taylor as arbitrators, when the truth was they had submitted the same to Eowley, Green and Taylor to determine as arbitrators.

The arbitrators (Eowley, Green and Taylor) were informed by the parties that they need not make an award in writing ; that they (the parties ) had a writing drawn up, and merely wanted to know how much the award was, and “ that they could fix the award on the instrument as they had agreed.” The arbitrators agreed to award that the defendant should pay the plaintiff $260, and so informed the parties, when the plaintiff said he desired to see his lawyer, which he did, and his lawyer immediately served a revocation upon the arbitrators of the submission of the matters to them as arbitrators, and he paid the fees of the arbitrators; and the plaintiff refused to abide by the verbal award, and, the arbitrators did not make one in writing. The defendant offered to prove that he had tendered full performance of the award according to the bonds the parties had signed providing the manner for the payment of an award to be made by Emerson, Green and Taylor; which offer was rejected as immaterial.

■ The- verbal agreement of the parties that.the award should not be in writing, and that they would abide by a -verbal award, had the effect to change the submission, from" one under seal to a mere verbal one; because the Verbal agreement was acted upon, and that under seal was abandoned. The verbal award, therefore, was not valid unless a verbal submission of the matters, on which the award was made, was binding upon the parties.

The principal thing submitted to the arbitrators was the lease of the farm, which was under seal and contained covenants not broken, to wit, the one to pay the last half year’s rent, and the one to leave eight acres of rye growing on the farm on the first day of April, 1852. And it is clear that those covenants could not be discharged by a verbal agreement. (See Delacroix v. Bulkley, 13 Wend. 71; 3 Kern. 556; 1 Seld. 537.)

Nothing was done towards discharging the covenants, not broken, contained in the lease, that amounted to an executed verbal agreement; for the plaintiff did not even say he would perform the award, after it was stated to the parties. The verbal submission of the matters to the 'arbitrators was an agreement by the parties to do that which the- arbitrators should direct, and when they made their decision, that became a thing .to be enforced against thp plaintiff, if binding, as being 7ifs agreement. (See Walters v. Morgan, 2 Cox’s Ch. Cases, 369.)

It requires no argument to prove, that if the parties had verbally agreed with each other, to do precisely what the arbitrators decided they should do, it would not have bound them. Such a verbal agreement would have been a nullity. “A verbal submission is valid in all cases where the subject matter is such that a verbal agreement directly between the parties in the terms of the award, would prevail. But where the law, as for instance, the statute of frauds, requires a contract to be in writing, ■ there both the submission and the award must be in writing.-’ (Caldwell on Arbitration, Vermont ed. 1853, p. 36, n. 1; see McMullen v. Mayo, 8 Smedes & Marsh. R. 298, and Walters v. Morgan, supra.) The same proposition is stated by Mr. Hill, (2 Hill, 272, n. a,) as follows: Thus it has been said, that where, from the subject of arbitration, a writing is necessary to pass the right to the thing in demand, or to defeat or destroy the demand, the submission and award to be available as a bar to that demand, must be in writing.”' (Also see Russell on Arbitrators, Law Lib. 4th series, vol. 38, p. 95; Mayo’s Heirs v. ChileS, 3 Monroe, 258.)

The opinion of the Supreme Court concedes thee general rule to be as above stated, but avoids it by misapplying another laid down in Kyd’s Treatise on Awards, and holds, that although a verbal submission of the unbroken covenants contained in the lease, by themselves, would not be obligatory, yet being joined with other things of an unceitain nature, a verbal submission of the whole was binding. The rule so misapplied, is stated by Kyd, when speaking of the subjects of controversy the law permits to be submitted to arbitrators, and his language is, that most of the cases, “ which can not be submitted by themselves, may, when joined with other things of an uncertain nature; because then there is an uncertainty, in the whole' of the disputes; as debt on a bond, whether single or with condition ‘ debt for arrears of rent ascertained by a lease for years; damages recovered by verdict and judgment.” It is evident he did not here refer to the mode of submission; for, before leaving the subject, he remarks as follows: “However, in all cases where the demand arises on a deed, it would seem the submission must also be by deed; because a specialty can not be answered but by a specialty.” ' (Kyd on Awards, 53, 54.)

I have not been able to find the doctrine of the Supreme Court, on this point, laid down in any adjudged case, or in any treatise on arbitration or awards; and I am of the opinion it can- not be maintained on principle, and it conflicts with the well settled rule, already mentioned, “ that a covenant under seal, not broken, can not be discharged by a parol agreement.” (See Suydam v. Jones, 10 Wend. 184.)

I can not see how the doctrine of estoppel is applicable to the case. The fact that the plaintiff prevented the arbitrators from making a valid award does not deprive him of the right to show the invalidity of the one they did make. The legal presumption is that the defendant knew a verbal award would not be binding, but believed, notwithstanding that fact, that the plaintiff would abide by such an one.

If the foregoing views are correct, the award wab void; for the reason that it did not discharge the covenant to pay that portion of the rent of the farm not due at the time the same was made, or the one, not then broken, that the defendant should leave eight acres of growing rye upon the farm on the 1st day of April, 1852.

For the foregoing reasons I am of the opinion the judgment of the Supreme Court should be reversed and a new trial granted; costs to abide the event.

Selden, Bosekbaiís and Emott, JJ. and Denio, Oh. J. concurred.

Maevin, J. read an opinion, in which he came to the same conclusion arrived at by Judge Balcom.

Davies, J. delivered an opinion for affirming the judgment, in which Weight, J. concurred.

Judgment reversed, and a new trial granted; costs to abide the event.


source: Caselaw Access Project

author: Denio, Ch. J. Emott, J.

license: Public Domain

text:
    The Trustees of the First Baptist Church in Brooklyn v. The Brooklyn Fire Insurance Company.

    A witness can not be allowed to testify, in an insurance case, what- is meant by s, permanent policy ; it not appearing to be a term of art, or pne employed in any particular business; and it not being shown that the witness has any qualifications for interpreting it, which are not equally possessed by the judge and jury.
    Proof of an admission by the secretary of an insurance company, made the morning after a loss had occurred, that the property destroyed was insured at the time of the fire, is not competent as principal evidence, being the declaration of a third person, who, though an agent of the defendant, was not then engaged in the performance of any act relating to his agency» so as to bring the case within the rule which allows the declaration of an agent, as part of the res gestee.

    Neither is such evidence competent for the purpose of disproving the agent’s denial of the alleged admission; for an issue can not be raised upon an' answer to a question put to affect a witness’ credibility. 9
    Neither is it competent as a contradiction of the secretary’s testimony in which he swore there was no insurance at the time of the fire; where it appears that the testimony attempted to be contradicted was immaterial.
    An agreement by an insurance company to give credit for a portion of the premium, will render the insurance binding without actual payment.
    To constitute a valid contract of insurance, the minds of the parties must meet as to the premises, and the risk; as to the amount insured; as to the time the risk shall continue; and as to the premium.
    In 1846 a verbal agreement was made between an insurer and the insured that until one of the parties dissented, the contract of insurance should be continuous, and the president of the insurance company should from year to year bring the renewal receipts and call for the premiums when he thought proper, after they became due. In 1847 the president offered to the insured a renewal receipt for the year which would end in July, 1848, claiming a premium of $30, instead of $25, the amount previously paid. The insured assented to the change, paid $25 and promised to pay the balance. Beld that the change of premium terminated the arrangement between the parties made in 1846; and that it required a new bargain to effect a continuing arrangement, and to enable the insured to rely upon being called upon on behalf of the company for the premiums, instead of the usual method of taking out renewal receipts each year, as they were needed.

      Appeal from a judgment of the Supreme Court. The action was upon a contract of insurance upon the church edifice of the plaintiffs. It was tried before a jury, at the circuit, and a verdict was rendered for the defendants. Apd from the judgment rendered thereon, the plaintiffs appealed. Several exceptions were taken, on the trial, by the defendants, which are noticed in the following opinions:

       Decided March term, 1863.

   Denio, Ch. J.

This action was brought to recover the sum of $5000, alleged to have been insured by the defendants upon the plaintiffs’ church edifice which was consumed by fire in September, 1848. There was no written contract of insurance existing at the time the church was .burned, but it had been insured one year .from J uly 21, 1855, by a policy issued by the defendants at that date, and tbe instrument contained the usual clause that the insurance might be continued for such further time as should be agreed on, by the payment of the premium and by having it indorsed thereon or a receipt given therefor. It had been continued by a renewal receipt for the following year; and before any further renewal the defendants had increased the premium from $25, the former amount, to $30, all but $5 of which had been paid for a renewal from J uly, 1847, to J uly, 1848. A short credit had been given by the company for the payment of this balance, but tbe plaintiffs’ treasurer had forgotten to pay it, and the renewal receipt for that year had not been delivered; and nothing had been done to procure a renewal for the following' year, during which the loss happened; unless the alleged parol arrangement, upon which the plaintiffs relied, effected such renewal. To establish such arrangement the plaintiffs examined their treasurer, A. N. Lewis, who testified to" a coversatipn -with Mr. Ellsworth the defendants’ president, who called upon the witness at his place of business in the city of New York, two or three days prior to the 21st of July, 1846, when the first year’s insurance would expire. The witness' account of the interview is as follows: “Mr. Ells-worth said, Mr. Lewis, I suppose you know that your policy will expire in a day or two. I told him I did; that I had intended calling at the office to pay the premium and renew the policy. He said, my object in calling is to ascertain whether your board of trustees does not intend to let this policy remain with us permanently; to keep it with our company. I told him we did, decidedly. He said I hoped so, and supposed so.’ I then said I would call at the office and would pay the premium. He said he wished I would not give myself "that trouble; that he would himself call upon me. I told him I wished to be kept insured. He said I need give myself no anxiety about the matter; that I need not call at the office; that he would attend to it himself; •that he would bring me the renewal receipts himself and would collect the premium from me. I said very well, we wish to be kept insured.” Mr. Ellsworth was subsequently examined on the part of the defendants, and denied that at the interview referred to he had used the language mentioned by Lewis, which imputed an arrangement for the indefinite continuance of the insurance and his calling for the premiums in future years. This outline of the case, with such further explanations as may be given, will enable me to examine the merits of the numerous exceptions taken by the defendants in the course of the trial, most of which are now relied on by the plaintiffs to reverse the judgment which was rendered on the verdict for the defendants.

The plaintiffs’ counsel inquired of the witness, Lewis, what was meant by a permanent policy; and he excepted to the ruling -by which the question was rejected. That phrase had not been used in any part of the testimony, and if it had been it would not have been competent for the witness to prove its meaning, as it does- not appear to have been a term of art, or one employed in any -particular business, or that the witness'had any qualifications for interpreting it which were not equally possessed by the judge and jury.

The testimony of A. Gr. Stevens, who was the defendants' secretary at the time of the transactions in question, who had been a witness on a former trial of the cause, was given in evidence by the defendants, he having since died. The following portion of that testimony was permitted to be read against the objection of the plaintiffs’ counsel: “There never was any renewal of the policy in question from the 21st July, 1848—application for renewal thereof or premium paid. Ho act whatever to renew after July, 1848. Ho demand of the premium made nor renewal certificate issued or given after 21st Jnly, 1848, nor any made out before or after that date for the continuance of the policy after that time.” The exception is stated to embrace every sentence of the part extracted. The witness, as secretary, had charge of the company’s office, which was in Brooklyn, and must he sup-posed to have had knowledge of all the books and papers kept there which related to the alleged insurance. He must also be assumed to have spoken only of facts within his own knowledge; for it would be unreasonable to suppose that his denial was meant to embrace facts which were alleged to have taken place between the president and Mr. Lewis, in Hew York. Ho ground for the objection is stated. Lewis had testified to an interview with Stevens at his office, in Brooklyn, in 1847, in which he stated that the latter had given him time for the payment of the five dollars wanting to complete the payment for that year; but it had not been, as I perceive, contended that an agreement for a continuing insurance had been made with him. It was natural that the defendants should wish to put at rest any inference that any thing in the office, or within the knowledge of the secretary, tended to establish the alleged agreement. Strictly, the evidence was unnecessary and immaterial. If the objection had been put on that ground, it is to be presumed that it would have been excluded. Immaterial evidence sometimes has a tendency to prejudice the party against whom it is given, but I can see nothing in this evidence which could possibly have had that effect. If the plaintiffs did not rely upon any thing in the office or within the knowledge of Stevens, and I think they did not, the positive proof of the absence of any such facts could not prejudice them. If, on the contrary, they did insist upon such facts, inferentially or otherwise, it was proper to disprove their evidence.

The defendants’ counsel was also allowed to' read a part of Mr. Stevens’ deposition, in which he statedethat the president had never reported to him the existence of such an arrangement as the plaintiffs attempted to prove, and that he had never heard of any renewal or agreement to renew the policy after July, 1848. The exception based upon this ruling does not specify any grounds. It falls, for the most part, within the same reason which has been given for disallowing the last exception. It may be added that the court will so far take notice of the usual course of business as to assume that the office of an insurance company would contain a minute of all actual contracts of insurance, whether made at the office or by its officers outside of the office. Besides,- the books and registers of the office, for the time to which the controversy relates, were afterwards given in evidence, without objection, and they confirmed what the secretary had sworn to.

A portion of Mr. Stevens’ former testimony was to this effect: that the company’s insurances were from year to year, and they were not permanent as to time, but he, the secretary, had individually made arrangements with several persons, whom he named, that he would make out their renewal receipts, when they were due, and would call upon them for the premium; and in such cases he took the receipts to them and got the money within a week or a month afterwards; that in some instances he had left receipts without receiving the premium; and that there were some such cases existing at the time of the fire in question. The plaintiffs’ counsel wished to give this portion of the testimony in evidence, but it was excluded on the defendants’ objection, and the plaintiffs excepted. If the objection depended upon the view of the witness that the cases he spoke of were formal transactions and did not affect the company, I should think the ruling erroneous. But the testimony was objectionable for a different reason. Evidence-of such a loose practice by the secretary with the persons named did not really tend to show that the president had made the arrangement claimed with the plaintiffs’ treasurer. It was not material, upon the question of the authority of the president to make such an arrangement, for his power to do all that he had undertaken to do was expressly conceded. The only agreement which could be deduced from the testimony, if it had been received, would have been that, as the secretary was found making such informal arrangements, it was quite probable that the president had made the one claimed with the plaintiffs, though he denied it. This would not be either a logical or a legal deduction.

The only answer that Mr. Beers, the defendants’ witness, gave to the question (which was allowed against the plaintiffs’ objection) as to how often the plaintiffs’ policy had been renewed, was that it had been renewed twice, in 1846 and 1847.- The plaintiffs had claimed that such renewals had been made; and so far as the matter was material, the answer was favorable to .the plaintiffs.

The plaintiffs’ counsel proposed to prove by Mr. Beers that it was the usage of the company to send notices of the expiration of policies, even where there were agreements for permanent insurance, and the evidence was excluded. It had been proved without contradiction that a notice was sent to the plaiptiffs’ treasurer, in anticipation of the eipiration of the renewal for the year terminating July, 1848. This did not prove or tend to prove that it was or was not a permanent -policy -in the sense in which that term was used in the question, and I do not perceive that the usage suggested would have' had any just influence upon the question. It was established that so far as the office of the company from which the notices were issued was concerned, the insuranee upon the church had not any other character than the ordinary policies, renewable from year to year by payment of premium and renewal receipts. The giving of the notice just before the commencement of the year during which the fire happened, was in conformity with the state of things appearing in the office, and the practice of the company. It was not material what would have been done if another state of things had existed there.

The fire occurred on a Sunday morning. The following Monday morning Mr. Sandford, a trustee of the church, and Mr. Lewis, the treasurer, went to the company’s office and had a' conversation with Mr. Stevens, the secretary. The plaintiffs’ counsel wished to prove that he had admitted on that occasion that the church was under insurance by the defendants at the time it was burned. Mr. Sandford had been examined on a former trial and had given testimony as to what took place at that interview, and had since died. According to this testimony, which the plaintiffs wished to read, Lewis said to Stevens, “I understand that you reject the policy on our house.” Stevens answered, “We do not reject our policies.” Something more was said which the witness stated he paid little attention to. The plaintiffs’ counsel proposed to give this former testimony in evidence, but it was excluded on the defendants’ objection. It would be a sufficient answer to the exception to this ruling, that the evidence did not amount to an admission of an insurance. It was rather a denial that any policy existed. It was excluded, however, apparently on the ground of irrelevancy. But the plaintiffs thereupon recalled Lewis, and- broadly offered to prove by him- that “Mr. Stevens, the secretary of the company, acknowledged [on that occasion] to him and Mr. Sandford, at the office of the company, that the church was insured at the time of the fire.” It appeared that Stevens’ attention had been called to that interview on the former trial, and he had sworn, in effect, that so far from admitting an insurance, he had stated that the church had not been insured since July then last past. The judge excluded the testimony offered to he given by Lewis, and an exception was taken, which presents a closer question than any of the preceding exceptions. As principal evidence it was incompetent, being the declaration of a third person who, though an agent of the defendants, was not then engaged in the performance of any act relating to his agency, so as to bring the case within the rule which allows the declarations of an agent as part of the res gestee. It was not competent for the purpose of disproving Stevens’ denial of the alleged admission, for an issue can not be raised upon an answer to a question put to affect a witness’ credibility. The only question is, whether it was not competent as a contradiction of his testimony in which he said that there was no insurance. There is no doubt but that if a witness testify to the existence of a material fact within the issue, the opposite party may show that he has, out of court, made a contradictory statement as to that fact, with a view to affect his credit. (Patchin v. The Astor Mutual Ins. Co., 3 Kern. 268.) His attention must first be called to the alleged conversation, which was sufficiently done in this instance. But was the testimony to which the alleged contradiction was offered material ? I have already said it was not. It was conceded upon the pleadings and throughout the case, that there was no written contract of insurance for the year in which the church was burnt, and it was not pretended that there was any verbal arrangement made with Mr. Stevens. The only one attempted to be established arose out of the conversation between Lewis and Ellsworth in Hew York, to which Stevens was not a party, and of which it does not appear that he had any knowledge. I think this case does not therefore fall within the rule which has been mentioned, and that the ruling was correct.

"The remaining exceptions relate to the instructions to the jury. The plaintiffs desired them to be charged positively that the church was insured for the year "ending in July, 1848, which was the year prioi to the fire. The fact was not directly material, though it may have been argumentatively. The instruction given was that, if a credit was given for the five dollars, the unpaid balance of the premium, the policy attached for that year. Only $25 of the $30 charged for the premium had been paid. The secretary had, according to the testimony, promised to pay that balance in a short time, and had forgotten it. This amounted to giving credit for that amount, and, if the jury believed the evidence, the insurance, according to- the judge, was perfect for that year. I think there was no error here.

The judge stated to the jury in a general way what was essensential to constitute a valid contract of insurance, namely, that the minds of the parties should meet as to the premises insured and the risk; as to the amount insured; as to the time the risk should continue; and as to the premium. The plaintiffs excepted generally, without indicating what part they found fault with, or that they desired any qualification to be stated. I think the definition given a very accurate one, and that there was no error in laying it down.

The judge charged, in effect, that the verbal arrangement relied on must be understood as a contract to reinsure the church from year to year, at the premium charged in the policy which was running at the time the arrangement was made; and that if a different premium was subsequently exacted, and assented to, it put an end to the prior arrangement, and required a new bargain to effect a continuing arrangement. The plaintiffs do not contend that the effect of the arrangement was that the defendants should perpetually insure them, or that they would through all time be insured by the defendants. As they construe it, and as the reasonable interpretation would be, if the arrangement claimed was made, it was an understanding that until one of the parties dissented, the contract should be continuous, and the president should call for the premium when he thought proper, after it was due. In 1847 the president offered to the plaintiffs’ treasurer, at the place of business of the latter in Hew York, a renewal receipt, for the year which would end in July,-1848, claiming a premium of $30 instead of $25. The treasurer declined to pay the $30, and he swears that the president insisted that it was the same which had been paid the year before, and that it was not intended to change the amount. It -was agreed, as he says, that he should look up the former receipt and go to. the office of the company. This he did, and the secretary refused to renew at less than $30, and the plaintiffs’ treasurer assented to the change paid the $25, which was all he then had with him, and promised to pay the balance. The point of the exception is, that the arrangement of 1846 was for a continuous insurance limited as above stated, at such premium as .should be from time to time charged by the company, and that a refusal by the defendants’ officers to go on at the former rate of premium and the exaction of a higher rate did not amount to a disaffirmance of the arrangement, but only to a modification of it. The judge’s view was that a refusal by the company to renew at the former premium put an end to the arrangement. The question is not free from difficulty. I am, however, led to the conclusion that the arrangement, if one existed, such as was sworn to by Mr. Lewis, was an entire contract embracing all its provisions, and that one of those provisions looked to an insurance at the then existing rate of premium. I,t is clear that the officers refused to insure any longer at that rate, and that Lewis, representing the plaintiffs, agreed to pay the additional amount charged for the year ending in July, 1848 ;v. but he never did make that payment; and he never in any way agreed that in future years he would pay* the increased premium. I think, therefore, that the judge was right in holding that the change of premium terminated the arrangement -between Lewis and Ellsworth made in 1846, and that it required a new understanding to enable the plaintiffs to rely upon being called upon on behalf of the company, instead of the usual method of taking out their renewal receipts as they were needed.

I am, therefore, in favor of affirming the judgment of the Supreme Court.

Emott, J.

The issues between these parties were succinctly stated by Judge Comstock, in the opinion delivered when the cause was here upon a former appeal. (19 N. Y. Rep. 305.) The theory of the suit, as extracted from pleadings consisting in great part, on both sides, of allegations and denials of the various facts which the pleaders expected to prove at the trial, is that the defendants had made an agreement to renew a policy of insurance from year to year, in consideration of a premium to be annually paid, either party being at liberty to give notice at any time that the arrangement was not to be continued. I quote the language of Judge Comstock. The policy of insurance to which he re fers was a previously existing policy of the ordinary description, by "which the defendants agreed to insure the plaintiffs for one year against loss by the injury or destruction of certain premises, ,to a certain amount, and in consideration of a certain price or premium paid to the insurers. This court has decided, and from its decision we are not to depart, that an agreement by parol.to renew this policy from year to year, in consideration of the premiums to be annually paid,"until one of the parties should signify their dissent to a further continuance of the arrangement, was not void by the statute of frauds, nor by principles of general law, nor invalidated by the express provision of a different character for the renewal of the policy contained in that instrument itself, and was within the power of the company to make. The issue sent back for trial in the court below, was the question of fact whether such an agreement was in existence between the parties at the time of the destruction of the property alleged to have been insured, and the questions now before us are questions of the admissibility of evidence, and the proper rules of law applicable to the' decision of this issue. The policy of insurance, whose indefinite renewal was claimed by the plaintiffs, was dated July 21,1845, and was, as I have stated, originally issued for one year. It insured the plaintiffs against loss by fire during the period specified, on their church building, to the amount of $5000 in consideration of a premium of $25. The contract in regard to renewing this policy is alleged by the complaint, if I understand it, to have been made when- the year was expiring, or had expired, for which it was originally issued. It was an agreement to keep the insurance then in force indefinitely, as I have stated, until one or the other of the parties should signify their intention to put an end to it. The policy was renewed, either under this arrangement or in the ordinary way, in July, 1846, and a certificate of renewal for one year, in the ordi- , nary form, issued. In 1847, the defendants determined that • they would not continue to insure the premises for the same premium. The parties and their witnesses are at variance as to the particulars and the effect of what took place between the persons charged with the matter at this time,. The fact, however, is undisputed that the plaintiffs either paid or agreed to pay the enhanced premium for the coming year. Iso conversation or negotiation is proved to have occurred in July, 1848, at the end of that year. The premises were destroyed in September, 1848.

The most important question in the case arises upon the instructions,of the court to the jury at the trial, as to the effect of this change of the rate of insurance upon such an agreement as that alleged by the plaintiffs to have been made in 1846. After stating, that to make a valid contract of insurance, the minds of the parties must meet upon the subjects of such a contract, including the risk, the amount of insurance, the term of time, and the premium, the judge proceeded to charge that if such a' contract as the plaintiffs claimed could be established, it must be a contract to insure from year to year at the same premium, as there was no provision for a change. That is, as explained by the next proposition stated to the jury, that if the premium was varied, a new assent of the parties to the agreement for an indefinite renewal must be established. The conclusion necessarily followed, and was stated to the jury, that a, change of the premium was a refusal to continue the risk under the agreement of 1846. In response to the plaintiffs’ counsel, the judge stated that the alteration of the premium was a termination of the agreement of 1846. And the judge submitted to the jury the question whether there was then, or subsequetly, an agreement to modify the original agreement by changing the rate of the premium and to continue it in force as then modified. To all this the plaintiffs excepted, and their counsel insists with great earnestness that these rulings and the refusal to hold the contrary doctrine were fatally erroneous.

It seems to me that no such fault can be found with the rule thus laid down as applicable to the issue presented by the pleadings and the evidence. The counsel for the plain-" . tiffs' urges that he should have been, allowed to explain and to recover npon what is styled “a permanent policy;” and again that there might be an agreement to renew a policy of insurance indefinitely at “ the current rate of premiums.” The ideas which these terms and propositions represent, have little to do with the real issue in this case. The phrase “permanent policy” was introduced at the trial by a witness for the plaintiffs,"who was not an officer of the defendants or of any other insurance company, and not. familiar with their contracts or usages. But the action was not brought upon an original parol agreement for the insurance of these premises, such as would seem to be intended by this expression. The original agreement between them was an ordinary policy of insurance, for a definite time, and at a specified rate. The plaintiffs allege, not that the defendants made a new parol contract of insurance, indefinite as to time and price, or to last indefinitely, notwithstanding any variation in any of its terms, but that they made an agreement to renew this previously existing contract, from year to year, until one or the other of the parties dissented. The parol agreement alleged, had reference, clearly and exclusively, to the previous written contract, and was for the renewal of that contract; and it seems to me to be merely stating it over again, or stating its legal effect, to say that when the insurance company refused to continue to insure the premises of the defendants at the rate which was fixed by the policy to which the first agreement referred, they refused to, continue the risk under the agreement to renew that policy. The question then arose at once, and was • distinctly and fairly submitted to the jury, whether, when this change of the terms of the original contract was made, the agreement testified to by the plaintiffs’ witnesses to continue the former contract, was continued or renewed as to the new one. The' premium or rate of insurance in such a contract is certainly one of its terms. The minds of the parties must meet upon it as well as upon the residue of the contract, and when they have met and formed the contract for a. definite period and then renewed it, and they afterwards modify the original contract in such a particular, they must certainly, expressly or impliedly, agree to the indefinite renewal of the substituted agreement, in order to continue it in like manner as the first, unless it was a part of their original agreement that the contract of insurance should continue at whatever rate. As I have said, I do not find any such contract as this alleged in the pleadings or testified to by the witnesses. The original contract was a definite one in this as in other particulars, and the plaintiffs rely upon its renewal. There is nothing in the evidence as to a contract to renew the policy at what is called the current rate of insurance. In truth, every contract of fire insurance is special. No two risks are precisely alike. There are classes of risks of more or less hazard^ arising from the nature or the situation of the property insured, but after all the contract is special in each case. I do not say that parties might not agree expressly upon an insurance for a definite or indefinite time, at what might he the current rate of such insurances. It would not he impossible, but it would certainly' be difficult to explain and apply such a term in such contracts. But unless ii were made expressly a part of the agreement, such an element would be foreign to the nature and subject of the contract, and to the ordinary method of the business of insurance against fire. It'may be that a parol contract of insurance might be sustained for an indefinite time and at an indefinite rate of premium, and perhaps such a contract might be sustained, notwithstanding the existence of a written contract, definite as to both time and rate of premium. But there is no such question in this case. The issue here is upon' the continuance of the original agreement between these parties, and when that was changed, as it admittedly was, by a change of the premium, all that the ■plaintiffs could ask, and perhaps more than they could demand under their present pleadings, was to have the question submitted to the jury, whether the alteration was accompanied by an agreement- to renew the insurance from year to year, without prepayment and without notice, under the new premium as had been agreed under the old.

There were various offers made at the trial to prove the practice.of the defendants in their insurances of other parties. The answer to these'propositions is that the question in this case is not of the powers of the defendants, nor of their usages, but of the actual agreement made by the officers of the company with' the' plaintiffs in particular. Evidence of what took place with other parties could not prove a contract with the plaintiffs, and we are asked here to establish and not to interpret such a contract.

The questions and offer to prove what was the meaning of the words “permanent policy,” were inadmissible or immaterial for reasons which have already been in part suggested. The witness of 'whomitwas proposed to ask the question was not shown to be in any way competent to answer it, the inquiry was not material to the real issue in the case, and the definition sought to, he given was accepted by the court, if it was necessary or proper to adopt any definition of the phrase.

The plaintiffs offered to show that it was the usage of the company in cases of agreement for permanent insurances, similar to the one in the present case, to serve notices of the expiration of thé policies. The defendants had proved without objection, that notice had been given by them in 1846 and 1847 to the plaintiffs, that the policy held by the latter would expire on a certain day when the year for which it was originally made, or during which it had been renewed, would terminate. If it had been intended to show that such notices were usually given by the company to parties who had an understanding or arrangement that their policies should be renewed from year to year, the offer should have been more explicit, and it should not have contained the assumption that the plaintiffs had effected with the defendants an agreement for a permanent insurance. In truth, however, the whole question was one not to be determined or affected by the dealings of the company with other parties. There could not be a custom as to such a matter. Known and recognized usages and customs may be proved to explain or qualify what is doubtful or equivocal in a contract, but not to explain an act such as giving notice of its termination. If it had appeared that there were contracts with other persons for renewal of their policies from year to year until forbidden, which was not proved, and as we have seen was not evidence in itself, and if it had then appeared that such persons were notified that their insurance would terminate at the close of every successive year, this would not have affected the question of the existence of such an arrangement with the plaintiffs. What the defendants chose to do with other parties was immaterial to the plaintiffs, and as I have said, this was the whole scope of the offer. It was not a case of a custom or usage, in any proper sense, but simply an offer to prove how the defendants dealt with other persons than the plaintiffs.

There are many other questions of evidence in the case which I do not propose to discuss. They have been consid- ' ered at large by Judge Denio, and in his views in regard to them all the Judges concur. The judgment should be affirmed with costs.

Judgment affirmed


author: Wright, J. Emott, J.

text:
    Hiram McIntosh v. Charles Ensign and others.
    A plaintiff is not now to be nonsuited because he has brought too many parties into court. If he could recover against any of the defendants, upon the facts proved, had he sued them alone, a recovery against them will be proper, although he may have joined others with them in the action, against whom no liability is shown.
    Where the complaint was against five defendants as common carriers, and the proof tended to establish a cause of action against two of them, and there was no proof whatever that the other three were liable jointly or otherwise; SeU that although' the plaintiff had joined with the two liable, others against whom no liability was shown, it was not error in the judge, upon the request of the two, to refuse to direct a verdict, or order judgment, in their favor.
    Appeal from a judgment of the Superior Court of Buffalo. The action was brought to recover a threshing machine and two wagon gearings, which the defendants, in September, 1856, received to carry on their vessel from Buffalo to Milwaukie, and which they failed to deliver. The defendants, Ensign and Holt, appeared and answered. The other defendants, Merchant, Marsden and Moses, were non-residents, not served with process, and did not appear or answer.
    On the trial, evidence was given by the plaintiff tending to prove that in 1856 there was a line of propellers, known as the People’s Line, for the carriage of goods and merchandize between Buffalo and Milwaukie, and the propeller Cuyahoga run in the line. In September of that year, the plaintiff, who lived in Allegany county, desired to send to Milwaukie a threshing machine and two wagon gearings. On reaching Buffalo with the property, it was left with the agent of the People’s Line to be • carried, who gave receipts for it, as follows :
    BECEIi t A.
    “Received, Buffalo, September 26, 1856, one threshing machine complete, with two wagon gearings, to be forwarded to Milwaukie, for thirty-five dollars, on board propeller Cuyahoga. Williams.”
    beceipt B.
    “Received, Buffalo, September 26, 1856, from J. McIntosh, thirty-five dollars for L. F. on one threshing machine, complete machinery to Milwaukie, on propeller Cuyahoga, including two wagon gearings. Williams.”
    These were afterwards admitted by Ensign to be the defendants’ receipts. At the time the receipts were given the Cuyahoga lay near the dock, and the property was left as near tne boat as it. could be got, and close to the office. Williams marked most of the things for Milwaukie ; and after he had signed the papers, the plaintiff’s agent inquired of him if there was - anything further for him to do, about getting the property on board, and Williams said there was not, and that McIntosh need have nothing further to do with the property until it got to Milwaukie.
    It was proved that the property was not delivered at Milwaukie-, but was carried on the propeller Pittsburgh, another boat of the People’s Line, and left at Waukegan by mistake >; that the plaintiff never received it; and that its value at Buffalo and at Milwaukie was equal to the amount of the verdict afterwards rendered. It was proved, also, that Williams, Tanner & Co. were agents for the People’s Line of propellers in obtaining freight for them, and that the propeller Cuyahoga was run in that line ; and it was admitted that the defendants, Ensign and Holt, were, at- the time in question, part owners of the propeller Cuyahoga. When the plaintiff rested his case, the counsel of the defendants, Holt and Ensign, moved for a nonsuit on the ground that they were only part owners of the propellers. The motion was denied.
    After the defendant Ensign had been sworn on behalf of himself and Holt, and given evidence tending to contradict the plaintiff’s evidence in some particulars, the case was rested, whereupon the counsel for Holt and Ensign requested the court to direct a verdict or render or order judgment in their favor: 1. Eor the reason that there was no proof of any contract on the part of the owners of the propeller Cuyahoga to carry or deliver the property. 2. For the reason that there was no evidence of any contract on the part of or to bind the defendant Holt, and that therefore judgment could not be obtained against either Holt or Ensign. The court refused to so order or render judgment, and to so direct a verdict, separately as to each of said grounds therefor, urged by said counsel, and the counsel excepted to each of such decisions. The counsel for Holt and Ensign then requested the court to direct a verdict, or order a judgment in favor of the defendant Holt, for the reason that there was no evidence of any contract on the part of, or to bind him. The court refused, and the counsel excepted.
    The jury rendered a verdict in favor of the plaintiff against the defendants for $413,27, on which judgment was perfected, and on appeal the judgment was affirmed at a general term. The defendants, Hnsign and Holt, then appealed to this court.

      Geo. B. Hillard, for the appellants.

      A. P. Laning, for the respondent.
   Wright, J.

The only allegation of error made by the appellants’ counsel is in the court refusing to nonsuit or direct a verdict or judgment in favor of the defendants, whose liability was established by the evidence, on the ground of a misjoinder of defendants in the action. The plaintiff complained against five defendants, alleging a joint liability. The facts proved tended to establish a cause of action against the defendants Ensign and Holt, who answered, but against the other defendants no liability whatever was shown. The court deeming that upon the proof the plaintiff would have been entitled to recover against Ensign and Holt, if he had sued them alone, refused to take the case from the jury and order judgment in their favor. *

The general rule of the common law undoubtedly was, that in an action on an alleged joint contract the plaintiff must have recovered against all the defendants, or been defeated. The recovery must have been against all, or neither. If too many persons were made defendants, the plaintiff would have been nonsuited on the trial, if he failed in proving a joint contract. (1 Chitty’s Pleadings, 31.) But that is not the present rule. A plaintiff is not now to be nonsuited because he has brought too many parties into court. . If he could recover against any of the defendants upon the facts proved, had he sued them alone, the recovery against them is proper, although he may have joined others with them in the action against whom no liability is sho-wn. (Code, § 136, 274; Brumskill v. James, 1 Kern. 294; Marqual v. Marquat and wife, 2 id. 336; Harrington v. Higham, 15 Barb. 524; Parker v. Jackson, 16 id. 33.) It will be observed that tne question did not properly arise in this case, whether in a suit alleging a joint liability, where the proof established a case of joint indebtedness only, a several judgment might be rendered against one or more of the defendants named in the complaint. It may be conceded that under such circumstances a joint judgment could only be properly rendered. Here the complaint was agfainst five defendants as common carriers, and the proof tended to establish a cause of action against two of them, and there was no proof whatever that the other three were liable jointly or otherwise. The contract was to carry the property to Milwaukee oh the propeller Cuyahoga, which ran in the People’s Line of propellers from Buffalo. Through the agent of the line at Buffalo the contract was made, and the property received into its possession for transportation. Ensign, one of the defendants sought to be charged, admitted this to be the defendants’ contract, and it was further admitted that both Ensign and Holt were part owners of the vessel on which the property was agreed to be shipped. The evidence was abundant to charge Ensign, and tended to establish Holt’s liability, as part owner and jointly interested with Ensign in the business of the People’s Line. There was no proof, that the other defendants, or that any other persons, were interested with - them in the business of this line. It is. true that it might be implied, from the admission that Ensign and Holt were part owners of the propeller Cuyahoga, that there was another owner or owners of that vessel; but it was not necessarily to be implied that they were interested in the business conducted by the freighting establishment known as the People’s Line.

I can not doubt that the plaintiff, upon the facts proved, could have recovered against Holt and Ensign had he sued them alone, and hence, although he had joined others with them in the action against whom no liability was shown, it was not error in the judge, upon their request, to refuse to direct a verdict or order judgment in their favor.

The judgment should be áffirmed.

Emott, J.

The plaintiff sued five persons as common carriers in an action founded upon their contract to transport certain property from Buffalo to Milwaukie. He might have framed his action in tort and held them liable upon their common law liability and duty. But his complaint alleges an express understanding on their part, to transfer and deliver the property in question, and its breach by their failure to do so, and asks for damages for their non-performance of the contract. The plaintiff’s action is therefore subject to the rules which govern actions upon contracts, and if his recovery is obnoxious to any objections founded on -these rules, he must fail, notwithstanding that the alleged breach of contract was also a wrong, and that he might have avoided any such difficulties by suing in tort.

The complaint alleges a joint liability of all the defendants, and such is the nature of the engagement alleged to have been made. That it was a joint and not a several agreement of all the parties who made it with the plaintiff, whoever these parties were, and these parties were jointly responsible to the plaintiff with whom they contracted. Ensign and Holt, two of the defendants, appeared and answered, putting in a simple general denial of the complaint. The other three defendants were non-residents. They dp not seem to have been served with process, or to have been otherwise brought in, and they did not appear or answer. At the trial, the delivery of the goods on board the propeller Cuyahoga at Buffalo to be carried to Milwaukie, was proved, and it was shown that they were not delivered according to' the agreement by which they were received on the vessel. It was admitted that Ensign and Holt were part owners of the vessel. The contract was made with the plaintiff by an agent-of the vessel, and there was sufficient evidence that this person was authorized to make the contract which he did, and to. bind the owners of the vessel thereby. It was thus the contract of Ensign and Holt. But it was proved that there were other owners of the vessel who were of course also bound by the same agreement upo,n which Ensign and Holt were liable.

The misjoinder of parties who are not jointly liable in an action on a joint contract would have been fatal to the plaintiff, before the code. Hpon the facts which appeared at the trial the plaintiff would have been nonsuited, although the three defendants who were misjoined had not appeared, and even if they had been served with process and had suffered default. (19 John. 109; 1 Chit. Pl. 32; Bull. N. P. 129.) But the code (§§ 136, 274) has abrogated this strict and technical rule. The 136th section is to the effect, that where the action is against two or more defendants,- if all of them have been served, judgment may be taken against any or either of them severally where the plaintiff would be entitled to judgment against such defendant or defendants, if the action had been against them or any of them alone.” By the ■ 274th section, in an action against several defendants, the court is authorized in its discretion to render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper.- In Harrington v. Higham, (10 Barb. 524,) the Supreme Court held that where, in an action alleging a joint liability against three defendants, it appeared that two of them were served and the third was not, the two who were liable could not take advantage of the non-liability of the third. In Parker v. Jackson, (16 Barb. 33,) an action was brought against two members of a firm upon a promissory note signed with the firm name. It appeared that one partner had used the firm name without authority, and therefore the other partner was not liable. Upon this provision of the code, however, the court held that the plaintiff might have sued the partner who signed the note alone, and therefore he could have judgment against him, while the other defendant was discharged. In Brumskill v. James, in this court, (1 Kern. 294,) two parties were sued as partners on a promissory note given in the name of the firm; one of them was shown to be the wife of the other and therefore not a partner. It was held, notwithstanding, that the action could proceed and judgment be had against the defendant who. was liable. These were cases of joint contract, and they were alleged to be joint in the, complaints founded upon them. The construction placed upon the code as intending to change the rule to which I have referred, is decisive of the present case, and it is a reasonable and satisfactory one. The only difficulty in extracting the rule upon such a question arises from the infelicity of language which as usual characterizes ‘this section, The code speaks of taking judgment against a part of the defendants severally, and of rendering judgment against one or more of the defendants, leaving the action to proceed against the others, whenever a several judgment would he proper. It seems to have been supposed by the defendant’s counsel here, that the use of the word several, confined the operation of the section to cases where, although too many parties were made defendants, the liability of the others, if there were more than one who were proper parties, was several in its character. But what is meant evidently is not a several hut a separate judgment. The inconvenience arising from the rule of the common law, that where the subject of the suit was a joint contract, the recovery must he against all the defendants or neither, was what these provisions designed to remedy. Their true construction is, that when in an action upon a joint .contract one or more of the defendants is proven not to be liable, and one or more of the others to be liable, a separate judgment may be given against those who are liable, whether their liability be joint or several, and the other defendants may be dismissed. The test is whether the plaintiff can recover in the action against any of the defendants if they had been sued alone. This test is to be applied to this action as it stands, and to the pleadings as they exist. In the present case the plaintiff would have been entitled to recover upon the present pleading against Holt and Ensign jointly, if the other three defendants had not been sued with them. He will not therefore he defeated, as the case now stands, because he has joined these three persons who-were not liable, but he will have his judgment against those who are liable, and the others may have judgment against him. Hor will he he defeated, because if he had sued Holt and Ensign alone they might have pleaded the nonjoinder of other parties in abatement. They have not done so, and they stand on the record jointly liable to the plaintiff, while it is immaterial in this action whether others could have been sued or not. Merchant, Worden and Loomis, although alleged to have been jointly liable with Holt and Ensign, are to be struck out of the case,. because no such liability is proved. This leaves Holt and Ensign liable and without any defense or objection on account of parties or otherwise, and it leaves them where they can not escape a judgment against them which is separate although it may not be properly several.

The judgment should be affirmed with costs.

All the Judges concurring,

Judgment affirmed.


author: Davies, J.

text:
    Jacob Elkin v. The People.
    An indictment for a conspiracy to cause one L. to be arrested for the crime of larceny, averred, that in pursuance of the conspiracy, the defendant caused and procured one W. to appear before a police justice and complain of L. for larceny, and falsely swearing that L. had stolen money from her. The conspiracy was sought to be established by the act of procuring W. to make the complaint and falsely swear to the larceny committed. Held, that the facts did not show that W. in so swearing committed the crime of perjury, and consequently the defendant was not guilty of the offense of subornation of perjury ; and it followed that no felony being established, no merger of the misdemeanor in it did or could take place.
    An indictment for a conspiracy, which avers that the accused, with another person, conspired unlawfully and maliciously, to procure a third person to be arrested for the offense of larceny, well knowing that he was not guilty of said offense, follows the statute, substantially, and contains all the needful averments to sustain a conviction.
    Error to the Supreme Court. The plaintiff in error was indicted and convicted in the Hew York General Sessions, of a conspiracy to cause one Jacob Laube to be arrested for the crime of larceny. "It was averred in the indictment that in pursuance of the conspiracy, he caused and procured one Josephine Westendorff to appear before one of the police justices in Hew York, and complain of Laube for larceny, and falsely swear that Laube had stolen money from her. The ‘naked record was taken by writ of error to the Supreme Court, and the convict there sought to reverse the judgment upon the alleged imperfection of the indictment. The judgment being affirmed, he brought error to this court.

      S. 3. Stewart, for plaintiff in error.

      A. OaTdey Hall, for the people.
   Davies, J.

The conspiracy was sought to be established, by the act of procuring Josephine to make the complaint and falsely to swear to the larceny committed. It is contended on behalf of the plaintiff that this state of facts shows that he has been guilty of the crime of subornation of perjury, and that the conspiracy, being only a misdemeanor, is merged in the higher crime of subornation of perjury, being a felony.

It is by no means clear that the crime of subornation of perjury has been committed by the plaintiff, even though he had done all that is alleged against him in the indictment. If, as is contended for by the counsel for the plaintiff, it is not averred in the indictment that the police justice had lawful power and authority to entertain the complaint of Westendorff, to administer an oath to her, or to do any other lawful act in the premises, then clearly the facts stated do not constitute the crime of subornation of perjury. This crime could not be made out without showing such a state of facts as would convict the party suborned of the crime of perjury, and it can not be contended that enough is alleged to show that Westendorff, in swearing falsely before the police justice, committed the crime of. perjury. To-sustain the charge of conspiracy,'some act,jbesides the agreement of the conspirators was necessary to be averred, and proved; and therefore, it was necessary to make the allegations contained in the indictment, that some act was done in furtherance of the conspiracy. This act was to procure Westendorff to make the complaint and falsely swear to the larceny as the foundation for the arrest of Laube. These facts.do not show that Westendorff, in so swearing, committed the crime of perjury, and consequently the plaintiff was not guilty of the act of subornation of perjury. It follows that no felony being established, no merger of the misdemeanor in it did or could take place. As I read the indictment, the plaintiff conspired, unlawfully and maliciously, to arrest Laube, on the crime of larceny, well knowing that said crime had not been committed by him. The "gravamen of the offense, that if two or more persons shall conspire falsely and maliciously, to procure another to be charged or arrested for any offense, they shall be deemed guilty of a misdemeanor, clearly imports that the false and malicious intent or state of mind applies to the act of making the charge or causing the arrest. This state of mind does not refer to the act of conspiring, but to the fruits of the conspiracy. The indictment in - this' case, therefore, follows the statute, in averring as I think in substance it does, that the plaintiff with' another person, conspired, unlawfully and maliciously, to procure said Laube to be arrested for the offense of larceny, well knowing he was not guilty of said offense. They therefore falsely procured him to be arrested for said offense, upon an untrue allegation of his guilt, and which they knew to be untrue, and therefore it was false. It seems to me that all the needful averments are proved in this indictment, and that, the conviction should be sustained, and the judgment appealed from be affirmed.

Rosekkans, J. also delivered an opinion for .affirmance, and all the judges concurred in that conclusion.

Judgment affirmed.


author: Balcolm, J.

text:
    Robert Martin and others, adm’rs &c., v. David Cope.
    S. and 0. entered into an agreement in writing, by which S. agreed to sell to 0. his house, farm and premises, &e. all the tools belonging to the saw mill, all the apparatus belonging to the grist mill, “ together with all the fixtures belonging to the fulling mill and carding machine, together with every article attached to the freehold.” It was proved that a. building on the farm, which had been used in the wool-carding and cloth-dressing business, was called and known, at the date of the contract, as the fulling mill and carding machine. But the building had not been used for that business for several years, and the carding machine itself had been taken from the building, and stored in the grist mill. JHeld that S. intended to sell, and G. intended to purchase, by the contract, not only the fulling mill and carding machine building, but ail the machinery on the farm, which had been used in such building as fixtures; and that such machinery was what they meant by the .words “ fixtures belonging to the fulling mill and carding machine.”

      Sold, also, that the judge erred, in charging the jury that if before the contract was made there had been a permanent removal of the carding machine from the carding machine building, upon an abandonment there of the carding business, tlie machine ceased to be a fixture, and became mere personal property, and did not pass to 0. by the contract.
    That he should have submitted to the jury, upon the evidence, the question whether the words “ carding machine and fulling mill,” as used in the contract, did not mean the building on the farm, in which the business of carding wool and dressing cloth had been carried on; and if so, whether the phrase “ fixtures belonging to the fulling mill and carding machine” did not mean the carding machine and other machinery that had been used in said building, though detached and stored elsewhere, at the date of the contract.
    This action was brought in the Monroe county court to recover the value of a carding machine. It was commenced on the 9th day of February, 1843. The general issue and' the statute of limitations were the defenses pleaded. The action was removed into the Supreme Court on the • 1st of July, 1847. It was tried at the Monroe circuit in January, 1857, when the jury ^rendered a verdict in favor of the origi nal plaintiff, (Joseph Sibley, since deceased,) for $837.43 damages. The defendant made a motion for a new trial, at a special term of the Supreme Court, which was denied. He appealed to the general term of that court, and judgment was rendered against him on the verdict, with costs. Joseph Sibley afterwards died, and his administrators were substituted plaintiffs in the action. The defendant appealed-to this court.

      Joseph A. Stull, for the plaintiffs.

      George G. Munger, for the defendant.
   Balcolm, J.

Joseph Sibley, now deceased, and the defendant entered into a contract, in writing, under seal, dated the 7th day of October, 1836, by which, the former for a sufficient consideration, agreed to sell to the latter, his house, farm and premises, situated in the towns of Chili and Biga, containing about three hundred and forty acres or upwards, with the crops growing on the same; all the lumber for the house ; all the tools belonging to the saw mill ; all the apparatus belonging to the grist mill; together with all the fixtures belonging to the fulling mill and carding machine, together with every article attached to the freehold. Sibley subsequently gave a deed to the defendant for the property, pursuant to the contracts.

It is apparent from the language of the contract that it was not written by a lawyer, or any person acquainted with the law of fixtures. It was conceded on the trial that it was drawn by Josiah Howell, who, at the time, lived in the neighborhood of the property, but had since died. It was proved that a building on the farm, which had been used in the wool-carding and cloth-dressing business, was called and known, at the date of the contract, as the fulling mill or carding machine, or the fulling mill and carding machine. But the building had not been used for that business for several years prior to that date; and the carding machine itself had been taken from the building, before the contract was made,'and stored in the third story of the grist mill on the farm. The judge charged the jury, in substance, that if before the contract was made' there had been a permanent removal of the carding machine from the carding machine building, upon an abandonment there of the carding business, the machine ceased to be a fixture, and became mere personal property, and did not pass to the defendant by the contract or deed. To which' the defendant’s counsel excepted.

The meaning of the contract can not be satisfactorily ascertained without the aid of extrinsic evidence; and such evidence .establishes, or at least strongly tends to establish, that the words, “fulling mill and carding machine,” were used in the contract to designate the building in which the carding machine in question and the fulling mill had been situated and used; and that the former had been removed and stored in the- grist mill, upon the same farm, prior to the making of the contract; and by assuming that the words “fulling mill and carding machine,” were employed to designate the building I have mentioned, the presumption is that the phrase “fixtures belonging to the fulling mill and carding machine,” as used in the contract, means the carding machine itself and other machinery that had been used in the carding machine and fulling mill building, and belonged therein when in their proper place. This interpretation of the contract is the only one that is consistent with the conduct of the parties. For the defendant assumed to own the carding machine in the fore part of the year 1837 or 1838, and disposed of it in one of those years; and Sibley did not bring this suit until February, 1843. And it is probable if Sibley had not intended to sell the carding machine itself to the defendant, it would have been expressly reserved in the contract, for the inference is quite cogent that Howell would have thought it necessary to reserve it expressly, to prevent it passing by the general language of the contract. It seems to me Sibley intended to sell, and the defendant intended to purchase, by the contract, not only the fulling mill and carding machine building, but all the machinery on the farm, which had been used in such building as fixtures; and that such machinery is what they meant by the words “fixtures belonging to the fulling mill and carding machine.” In other words, they supposed they correctly described the machinery that was formerly attached to and used in such building, when they designated the same as fixtures belonging to the same. It is not improbable that the. defendant contemplated putting the carding and fulling works into operation again, at the time he contracted for the premises, and regarded the machinery which had been" detached from the building, as fixtures belonging to the same. For these reasons I am of the opinion that that part of the charge of the judge, above mentioned, misled the jury, and that he should have submitted to the jury, upon the evidence, the question whether the words, “carding machine and fulling mill,” as used in the contract, do not mean the building on the farm in which the business of carding wool and dressing cloth had' been carried on; and if so, whether the phrase, “fixtures belonging to the fulling mill and carding machine,” does not mean the carding machine in question, and other machinery that .had been used in said building, though detached from it and housed, or stored, in some other place on the farm, at the date of the contract.

If these views are correct, the judgment of the Supreme Court should be reversed, and a new trial granted, in the action, costs to abide the event.

Bosekbans, J. delivered an opinion in which he came to the same conclusion.'

Denio, Ch. J., Emott and Davies, J.J. concurred.

Wright, J. read an opinion in favor of affirming the judgment, in which Marvin, J. concurred.

Selden, J. having been counsel in the cause, took no part in the decision.

Judgment reversed and a new trial granted; costs to abide the event.


author: Mullin, J.

text:
    Chauncey Rose, executor &c. v. The Rose Beneficent Association and others.
    Whatever may have been the practice of the English court of chancery, as to allowing “ trustees’ costs” to parties to actions for the construction of wills, or relating to charities, other than trustees or others suing or defending in autre droit, it was not the rule in the state of New York; such parties being allowed their taxable costs, and no more.
    The code certainly has not enlarged the rules relating to costs, in such cases, if it has not restricted them.
    Accordingly, where, in an action brought by an executor, for a construction of the will of his testator, the judgment rendered gave to the defendants their costs, to be paid by the executor out of the estate; Meld that the defendants were entitled to no more costs than had been allowed them; and a motion for an extra allowance to them out of the fund in the , hands of the executors, to indemnify them for- costs, counsel fees and disbursements not covered by the allowance of costs in the cause, was denied.
    This action was commenced-in the Supreme Court by the surviving executor to obtain a construction of the will of his testator, John Eose.
    By the will, a large share of the testator’s property was devised for the purpose of establishing and endowing an associaton for the care and education of certain children designated therein. Another portion of his property was given to the American Colonization Society, and it was to determine the validity or invalidity of these bequests that the action was commenced.
    These bequests were held invalid, by both the special and general terms, and the judgment of the general term was affirmed in this court.
    The appeals to the general term from the special term, and the appeal to this court, were not prosecuted by the executor, but by the counsel for the association and colonization society.
    The counsel for these appellants now move that an extra allowance out of the fund in the hands of the executor be made to them, to indemnify them for costs, counsel fees and disbursements not 'paid by the. allowance of costs in the cause. The judgment in this court and the judgments in the courts- below gave" the defendants their costs, to be paid by the executor out of the estate.
    The counsel for the next of kin resists the motion on several grounds: 1st. Because costs having been allowed, by the judgment, no other or different relief can now be granted, except upon a rehearing of the cause.
    2d. The code of procedure has abolished all former rules and statutes allowing or regulating costs, and no costs can now be granted except such as are allowed by it.
    3d. That costs as between attorney and client could only be allowed in favor of a trustee.

      Theo. W. Dwight, for the appellant.

      G. F. Comstock, for the next of kin.
   Mullin, J.

The court of chancery in England was authorized by act of parliament to grant costs in its discretion, as well as to amount as to the parties to whom they should be allowed. Buies were prescribed by which this discretion was regulated, and they seem to have been adhered to, with only nowz and then an exception. These rules applied to the cases in which costs would be granted or withheld, and designated the parties to whom costs would he given, whether they succeeded or were defeated in the cause, and to whom a larger amount of costs would be allowed than to other parties in the cause. It will be necessary only to refer to two or three of these rules which have a relation to the question before us. .

One of these rules was, that trustees should, in all cases, unless chargeable with misconduct, be entitled to costs either from-the opposite party, or out of the fund if there was one in court.

Another was, that trustees should be allowed, in addition to the costs to which other parties were entitled, such reasonable counsel fees and disbursements as they had incurred and were bound to pay.

A third rule was, that in actions for the construction of wills, and the regulation of charities, all the persons necessarily made parties were entitled to their costs out of the fund. And in these cases the trustees or executors were entitled to the additional allowances which were denominated trustees’ costs. (Barrington v. Tristram, 6 Ves. 345, and note; 2 Barb. Ch. Pr. 328, &c.; Law of Trustees by Tiffany, 706, 713; Hill on Trustees, 552, 553, 566, 570; 3 P. Wms. 303; 4 John. Ch. 608; 9 Paige, 94; 6 id. 277; Adams’ Equity, 392.)

These allowances were made to trustees, because they were not entitled to compensation for their services, and it was therefore, just that they should be protected against loss in the proper discharge of their duties. (Adams’ Equity, 61.) These rules were adopted and formed part of an equity system, and were the rule of direction in the courts of equity in this state down to the adaption of the code.

It is insisted that these rules are still in force, while the counsel for the next of kin. insist that they are abolished by the code, and the only costs that can now be awarded to a party by the courts of the state are those prescribed in that statute.

By § 303 all statutes establishing or regulating the costs or fees of attorneys, solicitors and counsel in civil actions, and all existing rules and provisions of law restricting or controlling the right of a party to agree with an attorney &c. for his compensation, are repealed.

The costs allowed to trustees and to parties to actions relating to the construction of wills and to charities were never regulated by statute, and hence the repeal of the statutes regulating costs did not reach such costs. And § 303 does not profess to repeal any rule of the courts of equity relating to costs. Indeed the code leaves the power of courts of equity over costs precisely as it was before the code; that is to say, the power-to give or withhold costs, in equity cases, remains with the court as before the code. Sections 304 and 305 enumerate the cases in which costs shall be given to the plaintiff or defendant of course in actions prosecuted in courts of record. All the actions so enumerated are what were known before the code as common law actions. Section 306 provides that in other actions costs may be allowed or not, in the discretion of the court.

Section 307 provides that when costs are allowed, they shall be as in that section prescribed; that is to say, for the services rendered, the compensation in such sections allowed shall be awarded, and no more. A court of equity can not, therefore, increase the compensation for a service to which the code has affixed a value; nor can it allow for services in cases not provided for therein.

But it will be borne in mind that the equitable rule of indemnifying trustees for their counsel fees and disbursements in a cause, has not, by- any of the sections of the code to which reference has been made, been interfered with.

We now come to § 308, which, it is said, does away with the equitable rule referred to. That section provides that in addition to these allowances, there shall be allowed to the plaintiff upon the recovery of judgment by him in any action for the recovery of real property or for the foreclosure of a mortgage, or in any action in which a warrant of attachment has been issued, or for an adjudication on a will or other instrument in writing, and in proceedings to compel the determination of claims to real property, the sum of ten per cent, &c.

The last clause of § 309 provides for a further allowance in difficult and extraordinary cases, when a trial has been had, except those enumerated in the preceding section.

By § 317 it is provided that in an action prosecuted or defended by an executor, administrator, trustee of an express trust Or a person expressly authorized .by statute, costs shall be recovered as in an action by or against a person prosecuting or defending in his, own right, but such Costs • shall be chargeable only upon or collected of the estate, fund or party represented, unless the court”shall direct the same to be paid by_ the plaintiff or defendant personally, for mismanagement or bad faith in such action or defense.

Section 308 gives the extra allowance provided for in that section to ány person plaintiff, on the recovery of judgment in. the actions enumerated, whether he is an administrator or trustee or not.

The equitable rule gave the allowance, or trustees’ costs as they were termed, to the trustee, whether he was plaintiff or defendant; and so long as that class of persons are fairly and jpstly entitled to indemnity it should hot be withheld from them, unless the legislative intention so to do has been clearly .expressed.

It must be conceded that § 308 will give to a trustee plaintiff an allowance beyond taxable costs, and if the court may still award to him counsel fees and ■ disbursements, he may have an allowance beyond what is reasonable or proper. There is no danger, I apprehend, of any injustice being done, as the extra allowance under § 308, or the allowance for counsel fees, can be regulated in reference to each cither, so that no more shall be allowed than is reasonable.

By § 317 costs in actions prosecuted or defended by executors &c. shall be recovered as in actions prosecuted or defended by individuals in their own right. By this language I understand the legislature to mean, that in actions by and against such parties, in what has been heretofore known as actions at law, costs shall follow of course in favor of the successful party, except that costs shall not be allowed against executors or administrators, unless ordered by the court on motion. But in equitable actions costs are to be given or withheld in the same cases, and for the same causes, that they are given or withheld in actions between persons prosecuting or defending in their own» right.' This section also requires that when costs are given against an executor <fcc. they shall be chargeable only on the estate, fund or party represented, unless the testator is charged personally, by reason of bad faith.

This section only adopts and applies the equitable rule against persons suing or defending in autre droit, and extends it to actions at law, and so far as this class of actions is concerned, the same rule has been applied to them by the legislature since 1830.

None of these provisions of the code interferes or does away with the equitable rule in regard to trustees’ costs: 1st. Because they are not specified in any of the provisions of the code; and 2d, those provisions are entirely consistent with the existence of the equitable rule referred .to.

It is true that the code makes provision for an extra allowance in cases in which equity heretofore granted such allowance to trustees and others. But such allowance is not given to a trustee unless he is plaintiff and .recovers judgment. If he is defendant and succeeds in his defense, or if he is plaintiff and is defeated, he is not entitled to any indemnity. It was never the intention of the legislature to compel a trustee to carry on litigation in defense, or for the enforcement of the rights of the person or estate represented, out of his own pocket. Such a rule would put an end to all trusts, for the want of persons to accept the burthens and responsibilities of them. Ho .man would take on himself the care of the estates of others, knowing that he must bear the expenses " of litigation without indemnity.

I entertain no doubt but that it is still in the power of courts having equity jurisdiction to allow to trustees and others, suing or defending in autre droit, such reasonable counsel fees and disbursements, in addition to the costs given by the code, as they may deem sufficient to indemnify them against loss.

Hor do I doubt but that such courts have the power to award costs to any Or all of the persons made parties in actions for the construction of wills, and in relation to charities, as they shall deem proper, the jurisdiction of those courts to award costs not having been interfered with by the code.

Whatever may have been the practice of the English chancery, as to allowing trustees’ costs to parties to actions for the construction of wills or relating to charities, other than trustees, or others suing or defending in autre droit, it was not the rule in this state, such parties being allowed their taxable costs and no more. (Morrell v. Dickey, 1 John Ch. R. 153; Rogers v. Ross, 4 id. 608; Union Ins. Co. v. Van Rensselaer, 4 Paige, 87; Irving v. De Kay, 9 id. 533; Hosack v. Rogers, 9 id. 461; Smith v. Smith, 4 id. 271.)

The code certainly has not enlarged the rules relating to costs in such cases, if it has not restricted them; and it follows that the moving parties in this case are entitled to no more costs than have been allowed them, and the motion must therefore be denied.

This view of the case dispenses with the necessity of examining the question whether we have power after judgment to make the order moved for in this case, without directing a rehearing.

I have not thus far alluded to the case of Downing v. Marshall, decided by this court in December last. That was a case for the construction of a will which had been heard and decided in this court on appeal, and the parties were allowed costs, counsel fees and disbursements in the court below, and the question whether these allowances could he made was presented on the appeal, and they were disallowed, the court holding that there was no authority to make such allowances. Marvin, J. delivered a very able and elaborate opinion, in which he arrived at the same conclusion to which I have come on this motion.

The motion should be denied.

All the Judges concurring,

Motion denied.