author: Ingraham, J. Weight, J.

text:
    The President, Directors and Company of the Mahaiwe Bank v. Joshua Culver.
    The defendant. J. C., covenanted, upon the plaintiff’s agreeing to give an extension of credit to B. C., on his executing a mortgage for §4,000, that “ if the title of the said B. C. is good (which said J. does not warrant), the same (i. e., the farm) shall bring on foreclosure sufficient, after payment of” certain prior mortgages, ‘‘ to satisfy the said mortgage” to the plaintiff, 8tc. Held, this was an absolute covenant that on a foreclosure the premises should bring enough to pay the plaintiff’s mortgage “ if the title of B. C. is good.”
    And that the covenant meant what is literally expressed, viz: that the farm should bring enough, on foreclosure, to pay the plaintiff’s mortgage, if the mortgagor's title was good, i. e., not in fact legally defective.
    And it being neither averred nor proved that B. C.’s title to the premises mortgaged to the plaintiff’ was defective within the intent and meaning of the defendant’s covenant, it was held that the existence of an adverse . claim to the farm, and the pendency of a suit respecting it, at the time of foreclosing a prior mortgage, did not establish a defect in the title, or constitute any defense to an action on the covenant.
    One Backus Culver was indebted to the plaintiff, upon notes discounted by the bank, to the amount of $4,000. He applied to the bank for an extension of his indebtedness, and proposed as security to give a bond and mortgage on his farm in Amenia. This the plaintiff declined to accept without a covenant of security that the farm was worth enough to pay the mortgage offered. There were at the time incumbrances on the farm,—one mortgage for $10,000, and others. Culver gave a covenant to the plaintiff, signed by the defendant, his son, by which the defendant covenanted with the plaintiff for the consideration of one dollar that the farm was]of sufficient value to pay the previous mortgages, and the one given to the bank if the title of Backus' Culver was good (which the defendant did not warrant); that the same should bring on foreclosure sufficient, after payment of those before the one to the bank, to satisfy the mortgage to the plaintiff. And if, upon the foreclosure of either of said mortgages, there should be a deficiency in the amount applicable to the $4,000 mortgage, with interest and costs, he, Joshua Culver, would pay such deficiency to the plaintiff.
    lío evidence was given on the trial, but the parties admitted that Eliza Davis commenced a suit against the defendant and Backus Culver to recover a portion of the farm as one of the heirs of the previous owner. That such case had been tried, and on the second trial a verdict was rendered for the defendant, from which the plaintiff in that action appealed. That'while the appeal was pending, one of the prior mortgages had been foreclosed and. the property sold for a sum that left no surplus above the mortgage foreclosed, whereupon the suit of Davis was settled and discontinued.
    The special term rendered judgment for the plaintiff for the amount due, and interest, which was affirmed by the general term and the defendant appealed to this court.

      E. More, for the appellant.

      G. Dean, for the respondent.
   Ingraham, J.

The only questions raised in this case are in regard to the construction of the covenant of the defendant; and if the construction contended for by the defendant is the correct one, whether the title to the farm of Backus Culver was defective. The covenant contained two provisions: one that the farm would if the title of Backus Culver to it was good, sell for enough to cover the prior mortgages and the one due to the bank, and the other that if upon foreclosure of either of the mortgages there should be a deficiency in the amount applicable to the plaintiff’s mortgage he, the defendant, would pay such deficiency.

It seems to me hardly necessary to decide whether the defect in the title, was proved, or whether if it had been, it would have affected the defendant’s liability under the first part of the agreement. The latter part of the defendant’s covenant bound him to pay any deficiency that might exist on a sale of the premises under a foreclosure of either of the mortgages. It was not in any manner made depend ant on the previous condition, and it was by no means affected by any defect of title of Backus Culver. The mortgage foreclosure was of a mortgage given by Joshua Culver. His title was undisputed. The title given by the foreclosure was not disputed, and on the sale all claim to the premises was abandoned. There was no necessary connection between the two conditions. The first covenant was as to the sufficiency of the farm to pay all the claims upon it. This was made conditioned on the validity of the title of Backus Culver. The second was an agreement to pay any deficiency on the mortgages. It is undoubtedly a rule in the construction of contracts, that they are to be construed in the light of the surrounding circumstances, with a view to ascertain the intent of the parties. (Waldron v. Willard, 17 N. Y. Rep. 466.) The application of that rule would not help the defendant here. If the condition as to the title could be made applicable to the second provision it would be to excuse the defendant’s liability if from such defect of title, the foreclosure became ineffectual. Where the title given is perfect, and the supposed defect does not in any manner affect the sale, there is no good reason why the defendant should be relieved from liability.

But even under the first provision of the covenant the defendant would not, as this case comes before us, be entititled to relief. The admission shows it is true that a claim had been made for a part of the property, but it also shows that the court had decided adversely to the claim and the claimant had appealed, but that afterwards the claim was abandoned and the action discontinued. It was for the defendant to show the defect in the title. A mere claim by action did not establish it, and it certainly ivas not strengthened by a decision adverse to the claim. Giving the defendant all the benefit he could derive from the construction of the contract as claimed by him, he has not established any right to relief. There is no proof that the title was defective, and the evidence in the admission is that the court held the title good.

The first provision of the agreement may be read so as to contain two stipulations: 1st. that the value of the farm was enough to pay all the incumbrances upon it; and 2d. if the title of Backus was good the same would bring on foreclosure (of Backus Culver’s mortgage) sufficient to pay all. With this construction, there would be no ground for applying the exception to the latter provision.

But under any view of the case there is no evidence from which we could say the title was defective.

The judgment should be affirmed.

Weight, J.

The question in the case is a narrow one, depending on the construction of the defendant’s contract.

The words of the covenant are: “If the title of said Backus is good (which said Joshua does not warrant), the same (that is, the farm), shall bring on foreclosure sufficient after payment of those before the one to the bank, to satisfy the said mortgage to the president, directors and company of the Mahaiwe Bank, with costs of “foreclosure.” The plaintiff claims this to' be an absolute covenant that on the foreclosure, the farm shall bring enough to pay the plaintiff’s mortgage, “ if the title of Backus Culver is good,” and this seems to be the reading of the contract. The defendant, on the other hand, insists that the intent and meaning of the covenant is, that if Backus Culver’s title to the farm is good—that is,'there is no real bona fide adverse claim rendering it uncertain—at the time of foreclosure and sale under any of the mortgages, it shall bring a sum sufficient after paying all prior ones, to satisfy the plaintiff’s mortgage; and that there was no breach of covenant, as at the time the mortgage was foreclosed and sale made, there was a suit pending on appeal, involving Culver’s title to. the farm—a real, bona fide adverse claim—which was then undetermined. But this could not have been the intent or meaning of the parties by the expression, “if the title of said Backus is good (which said Joshua does not warrant).” 'The parties were agreeing for an extension of credit to Backus Culver for one year, and the plaintiff’s bond and mortgage were payable a year after date, and no steps could be taken to foreclose! it until May, 1858,w7hilst the prior mortgages upon the farm were not under the plaintiff’s- control, and for .aught that appears, the very mortgage on which the property was sold was controlled by the defendant himself. It could not certainly, under these circumstances, "have been the intent of the parties, or the meaning of the covenant, that Backus Culver’s title should be good at any time any one of the prior mortgagees might choose to foreclose and sell the mortgaged premises. Again, the parties knew of the particular claim of Eliza Davis, and úndoubtedly the covenant was framed in reference to it. Her suit assaulting Culver’s title to the farm, on the ground of undue influence and essential incapacity of his grantor, had been pending three years, and was undetermined when the covenant was made. Knowing that this pretended cloud was being asserted, the defendant agrees that if the title to his father of the farm that he mortgages to the plaintiff is good (which he' does not warrant), it shall bring on foreclosure, sufficient to satisfy the plaintiff’s mortgage, and all prior mortgage liens. Evidently the covenant means what it literally expresses, that the farm shall bring enough on foreclosure, to pay the plaintiff’s mortgage, if the mortgagor’s title is good. That is, not in fact, legally defective. The answer of the defendant did not aver any defect bf title in Backus Culver, to the premises mentioned in the covenant, and the proof showed that the only person questioning it was Eliza Davis, whose claim within a month after the date of the covenant, was by the judgment of the supreme court, declared to be invalid. 'What was an apparent cloud, when the covenant was executed, and led doubtless to its peculiar frame, disappeared in June, 1857. Judgment went against, her, and in favor of Culver’s title, long before there could have been a foreclosure of the plaintiff’s mortgage. That judgment has never been reversed; and although an* appeal was brought, it was abandoned, and the action discontinued several months before the present action was commenced, and more than a year prior to the trial.

It was not therefore, averred or proved that Culver’s title to the premises mortgaged to the plaintiff, was defective within the intent and meaning of the defendant’s covenant. The judgment should be affirmed.

All the judges concurred, except Selbest, J., who did not examine the case.

Judgment affirmed.


source: Caselaw Access Project

author: Wright, J. Ingraham, J.

license: Public Domain

text:
    John Bergin v. Douw Wemple, Administrator, &c.
    For work, labor and services rendered to the keeper of a county poor house, by an inmate thereof and his wife, for the benefit of such keeper and in his business, and upon his promise to pay therefor, he is liable.
    The" keeper of a county poor house is not entitled, any more than a stranger, to the labor and services of the paupers therein, for his own advantage, without compensation; and any contract or promise he may make to pay for such labor will be obligatory upon him.
    The jurisdiction of this court extends only to the examination of the legal conclusions of the judge or referee before whom a cánse is tried, from the facts found by him. The court has no power to look into the evidence, or the case at large, for the purpose of reviewing or determining questions of fact.

      Appeal from a judgment of the Supreme Oourt.

    The action was against David Wemple, since deceased, to recover for work, labor and services by the plaintiff and his wife, performed for the defendant and at his request. The defendant answered, alleging that he <was keeper of the poor house of the county of Montgomery from the 17th of April, 1853, to the 1st of February, 1856, and during all which time the plaintiff and his wife were paupers and inmates of said poor house, and were maintained and supported at the expense of the county, and that they occasionally worked and labored in said poor house, and on the premises connected therewith, for the benefit of the county, and under the charge and direction of the defendant as such keeper, which is the labor mentioned and referred to in the complaint; that they were bound and required to perform such labor, and the county of Montgomery was entitled to such labor, without the said county or the defendant, as such keeper, or either of them, being in any way or manner accountable to the plaintiff therefor: For a further answer the defendant alleged that-about the 1st of February, 1856, the plaintiff and defendant accounted together of and concerning the- labor mentioned in the complaint; and the defendant settled with and paid the plaintiff in full for all the labor thus' done and performed by the plaintiff for.the defendant, and which was the ■ same labor referred to in the complaint. The answer further alleged a set-off.
    The cause was referred to Archibald McFctrlan, Fsq., who found due to the plaintiff from the defendant for the work, labor and services claimed in the complaint, with interest on the demand from the 20th March, 1855, the sum of $189.57, and ordered judgment accordingly, for that amount, with costs of the action.
    The referee found as facts: That on the 17th April, 1853, the plaintiff agreed with and hired to the defendant to work for him on the county poor house farm, in Montgomery county, at the price of $5 per month, and be boarded, not specifying the number of months, but to work until the spring work and seeding were done. That Ihe plaintiff commenced working on the same day, and continued to work under this agreement for the defendant, until the 8th of August, 1853. That the plaintiff again commenced work on the same farm for the defendant, at his request, about the middle of December, 1850, and continued to work until 20th March, 1854, without any price being agreed upon for this service, being three months. That such work was worth $2.50 per month, and be boarded, making $7.50 as the value of the .service. That on the 20th March, 1854, the plaintiff and defendant made an agreement by which the plaintiff was to work for the defendant for eight months at ten dollars per month at farming business, and be boarded, and that the plaintiff did work that time for the defendant as so agreed, immediately thereafter, commencing on said 20th March, 1854. That the plaintiff, after working out for the defendant said eight months, continued on and worked for the defendant till the 3d day of March, 1855, being three months and eleven days more, at the defendant’s request, but without any agreement as to the price to be paid for the plaintiff’s work after the expiration of said eight months. That the plaintiff’s services for that time were worth $3 per month and be boarded, making $10.
    That the plaintiff’s wife, Mary Bergin, worked at washing, mending and ironing, and as forewoman of the laundry department of the county poor house of said county, at the request of and for the defendant, which services the defendant promised and agreed to pay, before and when rendered, a reasonable compensation, from 1st April, 1853, till the 31st January, 1856, and that said plaintiff’s wife so worked- and attended to said business on an average at least two days in each week during all that time, being in all 147 weeks, and which services were worth two shillings and six pence per day, besides being boarded; and that the plaintiff’s said wife rendered service and attended to the business of said defendant and said county in each week during the time said defendant was at said poor house, over and above the services so agreed to be paid for by the defendant, and when she was not so engaged more than sufficient to pay and compensate said defendant and said county for her board and clothing, and when not so engaged in the washing department. That the plaintiff had received from the defendant previous to the fall of 1853, in cash, towards and on her claim for these services, $5 at one time, and 25 cents at another time, and in the fall of 1854, $20, in February, 1865, $35, and in clothing $15, making in all $75.25, and no more. That there never has been any accounting together or balance struck between the parties of and concerning the demand claimed in the action; nor has there been a settlement of the account claimed at any time between the parties; nor has the defendant paid the same in full, or any part thereof except the above sum of $75.25.
    The referee further found that the plaintiff and his family, consisting of a wife and four children, were emigrants, and came to this country from Ireland, in 1851. They came from Cayuga county in the winter of 1853, to the county of Montgomery, and went to the poor house in the latter county, and remained there as inmates until the defendant came there as keeper, on the 1st April, 1853. The plaintiff and his wife were each able-bodied, strong and healthy persons, and able to earn their own support and living when the defendant first went to keep the poor house, and were not entitled to remain in said poor house as paupers after the defendant so went there on the 1st April, 1853. Their children were also healthy and robust. The defendant took possession of the poor house and farm, as keeper, on 1st April, 1853, at a salary of $400 a-year; and himself and family to be supported by the county at the county house, and the county to furnish a foreman only to assist him; and he, with that assistant, to work and carry on the poor house farm, and see and attend to the paupers. At this time, the plaintiff and his family were on the emigrant list or book, and were persons admitted by the commissioners of emigration at the city of New York, and were kept on said book during all the time the defendant was keeper, viz: from April 1, 1853, to February 1, ,1856; the commissioners allowing and paying for such keeping, for the plaintiff and wife $1.25 each per week, and for each of the children $1.00 per week, during the whole time. In January,- 1854, the board of supervisors entered into a written contract with the defendant, whereby the board leased to him, for the term of two years from the 1st February, 1854, the poor house farm, and he took possession under the lease on the 1st April, 1854, and continued during the term. By the terms of the lease, among other things, the defendant was to have the avails of the emigrant fund for his own use. The county was also to pay to him for each and every pauper, except transient paupers, the sum of sixty-two cents per week, and for transient paupers the sum of sixty-four cents per week; to be paid quarterly. From 1st April, 1854, to 1st February, 1856, and up to the time the defendant left the farm, the board and keeping of the plaintiff and his family were charged to the commissioners weekly at the prices above stated, and which the defendant received under the contract with the county, and appropriated to his own use; and, during the same time, he charged and received from the county, under such contract, the sum of sixty-two cents per week for the board and keeping of the plaintiff and each member of his family. During the whole time the defendant was at the poor house, from April 1st, 1853, both the plaintiff and his wife were able to, and did by their work earn their living and maintain themselves; and neither the plaintiff or his wife knew that after they were hired by the defendant, in the spring of 1853, they were considered and continued as paupers on the books, and in the said poor house, and for whom the defendant was drawing pay from said county and commissioners of emigration. And that the services rendered for the defendant, and for which the plaintiff seeks to recover, were not rendered by the plaintiff and his said wife, or either of them, as paupers, and to which the county was entitled; but were rendered for the defendant on contracts .made with him, and on his agreeing to pay the plaintiff therefor himself.
    The defendant filed exceptions to" the referee’s conclusions of fact; and also to his conclusion of law from the facts found, that the plaintiff was entitled to recover of the defendant the sum of one hundred and forty-three dollars and seventy-five cents principal, and interest on that sum from March 20,. 1855, making in all $189.57.
    Several exceptions were taken on the trial to the admission of evidence, but no point is now made by the defendant’s counsel in respect thereto.
    "On appeal to the supreme court, the judgment entered on the report of the referee was affirmed. The defendant now appeals to this court.

      H. C. Adams, for the plaintiff.

      R. H. Cushney, for the defendant.
   Wright, J.

There is nothing in this case that the court can review. Our jurisdiction extends to the correction of errors of law only, and this has been often declared. We have no power to look into the evidence, or the case at large, for any such purpose, but must take the facts found by the subordinate tribunal; and if upon any view that may be taken of them the judgment can be sustained, we have no recourse but to affirm it.

The defendant was the keeper of the poor house of the county of Montgomery, and occupied and worked the farm connected therewith, from the 1st of April, 1853, to the 1st of February, 1856, the first year having a salary, and the two last years working the farm for himself, and boarding and keeping the inmates of the poor house, under a contract by which he was to have the proceeds of the emigrant1 fund for his own use, and also sixty-two cents per week from the county, for each pauper. The plaintiff and his family were emigrants, and, when the defendant entered into possession, inmates of the poor house. Their names were on the emigrant list or book, and were kept thereon by the defendant during his whole service as keeper, and,whilst he had charge of the county house and farm, under his contract, he drew from the commissioners of emigration, for the board and keeping of the plaintiff and his wife, one dollar and twenty-five cents each per week, and for his children one dollar each per week, and -also, from the county sixty-two cents per week for each member of the family. The plaintiff and his wife were healthy and able-bodied persons, and during all the time the defendant occupied the poor house farm were able to, and did, by their work, earn their living and maintain themselves, and were not entitled legally to be considered or treated as paupers. There seems to have been a grave wrong committed by the defendant (without collusion with the plaintiff) in keeping the plaintiff and family as inmates of the county house; but that was a matter between, him and- the county. The case is therefore to be considered as though the plaintiff and his wife were properly inmates of the poor house, during the defendant’s occupation as keeper. It can not be doubted that the paupers might be required to labor to a reasonable extent, and in a proper way, about the establishment; and for such labor and services rendered by direction of the keeper, not" for his individual benefit, no liability would attach to any one. Hence, if the labor and services for which compensation was sought in this action were merely those required by the proper government of the institution, performed in the poor - house and on the premises connected therewith, for the benefit of the county, under the direction of the defendant as keeper, neither the .county or the defendant, could be in any way or manner accountable to the plaintiff therefor.

But no such case is shown. The defendant, it is true, was the keeper of the county poor house, and the plaintiff and his wife inmates therein. The services, however, for which the recovery was had, were performed for the-defendant, and at his request, and under and in pursuance of an express promise of recompense. The fact is found that the services were not rendered by the plaintiff and his wife, or either of them as paupers, and to which, the county was entitled, but were rendered for the defendant on contracts made with him, and on his agreeing to pay the plaintiff therefor, himself. Whilst all of the plaintiff’s labor was performed at the defendant’s request, most of it was under express contracts, fixing the rate of compensation. The wife, also, from 1st April, 1853, to 1st February, 1856, worked two days in each week, in the laundry department of the poor house at the defendant’s request, and upon his promise and agreement to pay for such services a reasonable compensation; and when not so engaged, .during each week, she rendered services and attended to the defendant’s business and that of the county, over and above the services so agreed to be paid for by the defendant, more than sufficient to pay and compensate the defendant and the county for her board and clothing.

Under this state of facts, there could be no question as to the defendant’s liability. It was immaterial that he occupied the station of keeper of the poor house, and the plaintiff and his wife were inmates thereof. The services being rendered for his benefit, and upon his promise to compensate therefor, he is liable. Although the keeper, he was not entitled,, more than a stranger, to the labor and services of the paupers, for his own advantage, without compensation; and any contract or promise to pay for such labor would be obligatory upon him. The defendant’s counsel does not question his liability, if a promise to pay was established; but, insisting that it was not, at least, so far as the wife’s services were concerned, and with a mistaken view of our power, asks us to review and determine this, and other questions of fact upon the evidence. We are driven to repeat, what we have often said before, that our jurisdiction extends only to the examination of the legal conclusions of the judge or referee from the facts found by him. The referee has 'found that the services of the plaintiff and wife were performed for the defendant, under an agreement to pay for part thereof a compensation fixed by the parties, and for the remainder a reasonable compensation; and that such services were worth the sum of $219, upon which claim the defendant has paid $75.25, and no more. We are controlled by these findings, and they fully sustain the recovery. ■

There were various exceptions taken on the trial by the defendant’s counsel to this admission of evidence. They were manifestly frivolous, and no point is now made in respect thereto.

The judgment of the supreme court should be affirmed.

Ingraham, J.

The referee finds that the plaintiff worked for the defendant, at his request, part of the time on the county farm and part of the time on the property of Wemple, at a sum agreed to be paid monthly for his services; that the wife also worked for Wemple, and that during all the time the plaintiff and hi.s family were boarded in the poor house, and the cost of such board charged to the commissioners, and also charged to commissioners of emigration, the plaintiff and his family being emigrants. The plaintiff was paid by Wemple, in part, for his services, which was allowed by the referee. The referee also finds that the plaintiff and his family were able-bodied persons, and that the keeping of them in the poor house was a fraud on the public. •

All the questions involved were questions of fact for the referee, and with his decision we should not interfere. We are asked to review the case upon the facts, and reverse the judgment as being against the evidence. For this there is not the shadow of an excuse. There is ample testimony to show that the plaintiff worked for Wemple; that Wemple agreed to pay a fixed rate of wages, and that he afterwards admitted his liability by payments on account. Throughout the whole case there was no evidence to show that the plaintiff was ever informed that he was working on behalf of the public, but on the contrary the fact of payments on account, and of his being sent to work on the private property of Wemple, is sufficient to contradict such a supposition.

Besides, it would not follow that the commissioners were entitled to the labor of persons paid for by the commissioners of emigration. They received pay for their board, and were not, as of course, entitled to their labor also.

When the referee finds that the plaintiff and his family were kept on the books of the poor house as paupers, and that such arrangement was a gross fraud on the county and the commissioners of emigration, and that the services rendered were not rendered by the plaintiff and his wife as paupers, but on contracts made with the defendant, his findings are amply sustained by the evidence.

There is no reason whatever for interfering with this judgment, and the same should be affirmed.

All the judges concurring, judgment affirmed.


author: Denio, C. J.

text:
    Mary P. Bridger v. Richard Weeks.
    This court has no power to review a judgment where the judge after hearing the evidence on both sides and upon deliberation after the trial is concluded, orders judgment for the defendant, on the ground that the plaintiff has misconceived his remedy and is not entitled to the relief claimed, even if his allegations were all true; hut there is no finding of facts by the judge.
    The code is explicit that in that class of cases the judge must state his conclusions of fact.

      Appeal from a judgment of the Supreme Court, affirming a judgment of \ the special term, dismissing the plaintiff’s complaint, with costs.

      Geo. Miller, for the appellant.

      B. Jennings, jun., for the respondent.
   Denio, C. J.

This case was tried before Mr. Justice Brown without a' jury. The plaintiff and the defendant are the grantees of the same person, the plaintiff’s deed being the earliest in date, and the defendant’s the last recorded. The action is brought to set aside the defendant’s deed, or to deprive the defendant of his priority under the recording act, on the ground that he took his conveyance with knowledge of the plaintiff’s deed; and furthermore that he obtained that conveyance by means of a gross fraud practised upon the common grantor. Judge Brown decided against the plaintiff on the ground that she had misconceived her remedy and was not entitled to the relief claimed, even if her allegations were all true. But there is no finding of facts. There is an opinion of Judge Brown contained in the return and printed in the case,containing the reasons of the learned judge in support of the conclusion to which he arrived.It dqes not state whether the allegations of fraud, or of notice to the defendant of the plaintiff’s prior deed are established or not, but it is determined that even assuming them to be established, the plaintiff can have no redress in this action. We are not entitled to review a judgment presented in such a shape, as we have very often decided. It was the more necessary to have the.facts ascertained; for the evidence upon the disputed points was very conflicting. The judgment was not in the nature of a non-suit, for the judge heard the evidence on both sides, and the decision was made upon deliberation after the trial had been concluded. We cannot say what facts upon the two points were really established. It is enough, however, that the code is explicit that the judge in this class of cases must state his conclusions of fact. The judgment must be affirmed.

All the judges concurred. Judgment affirmed.


author: Selden, J. Ingraham, J.

text:
    Caleb Whiting v. David Barney and others, ex’rs, &c.
    The rule which protects professional communications of clients to their attorneys or counsel, from, disclosure, should only be held to extend to such communications as have relation to some suit or other judicial proceeding, either existing or anticipated. Per Sbides, J.
    Where both parties are present, at the time when a communication is made by one of them to his attorney or counsel, there is nothing confidential in the communication.

      Appeal from a judgment of the Supreme Oourt.

    This action was brought to set aside á bond and mortgage as usurious and void. The complaint alleged that on the 25th day of June, 1857, the plaintiff loaned of David Barney, deceased, the defendant’s testator, $866. That at the same time said deceased agreed to loan to the plaintiff the full sum of $600, for which the plaintiff, together with his wife, agreed to execute a mortgage upon certain real estate, to secure the plaintiff’s bond, which was to be given conditioned to pay a like amount. That as a condition of such loan, it was agreed that said David Barney, deceased, should receive the sum of twelve per cent as interest. That for said $366, the plaintiff gave his note, with sureties. That afterwards, and on the fifth day of November, 1857, said David Barney advanced the further sum of $150, and no more, and thereupon the plaintiff gave the mortgage aforesaid, which is now sought to be set aside. The defendant’s answer admitted that David Barney, deceased, lent to the plaintiff $366, June 25th, 1857, and took from him the joint note of the defendant, Samuel Barney, and Miles Abbott. That in October thereafter, said David Barney loaned to the plaintiff the further sum of one hundred and fifty dollars, for which sums the plaintiff proposed, at some time thereafter, to give a mortgage, and take up said securities. That he afterwards applied for a further loan, and that he gave to said David Barney, deceased, the mortgage mentioned in the complaint, sending it to him by mail, and authorizing him to endorse the balance of principal upon the mortgage, after computing the interest on the said note and money, or to send him the balance in money. That said David Barney did endorse the balance of the principal, after computing the legal interest, and that such balance was $74.07. They denied the usurious agreement charged in the complaint. On the trial, the plaintiff introduced in evidence the testimony of witnesses taken on a former trial, under the following stipulation: “It was stipulated by the parties in open court, that the testimony heretofore taken in this action, as found in the printed case, be used on the trial of this action, except the testimony of the witness, John P. Hulbert, as follows:” It appeared that Hulbert was a practising attorney, residing at Auburn; that he was the general legal adviser of David Barney up to a short period before his death; his adviser in relation to most matters of business; at times both as to his investments and the collection of money; that he occasionally placed demands in Hulbert’s hands for collection, and sometimes directed him to look for investments for him, Barney; that Hulbert did about all his law business, and his business pertaining to the completion of loans, &c. That on the 25th of June, 1857, the plaintiff and Barney came to his office together. B. remarked that he and Mr. Whiting (the plaintiff) would like to see Hulbert alone, there being other people in the office, at the time. That the three then went .into an adjoining room, and had a conversation on the subject of a proposed loan of money from Barney to the plaintiff, and the terms, amount, condition and manner of effecting the same; Barney and Whiting both speaking on the subject, and addressing their remarks to each other and to Hulbert. The defendants objected to the testimony of Hulbert, taken on the former trial, as to what was said during that conversation, by the parties, on the ground that it was a privileged communication. The court sustained the objection, and excluded the testimony; and the plaintiff excepted. The judge before Whom the cause was tried, found as a fact that the bond and mortgage mentioned and described in the pleadings in this action, were not made, executed and delivered upon the usurious agreement alleged and set forth in the plaintiff’s complaint. And as a conclusion of law he found that said bond and mortgage were valid, binding and legal between the parties thereto, their heirs, executors, administrators and assigns, and he decided that the defendants were entitled to judgment for a dismissal of the •complaint with costs.
    Judgment of dismissal being entered, the plaintiff appealed to the general term, which affirmed the judgment.

      S. Giles, for the appellant.

      N. S. Stephens, for the respondent.
   Selden, J.

This case presents but the single question whether the conversation between the plaintiff and the defendant’s testator, in the presence of Mr. Hurlbert, comes within the rule which protects the professional communitions of clients to their attorneys or counsel. Upon no subject are the decisions more directly conflicting than as to the extent of this privilege. To reconcile them is impossible. It is not difficult, however, to ascertain the source of the conflict, nor, as it seems to me, to determine, with reasonable precision, the true limits of the rule. The cases on the subject may be divided into two classes, and a mere cursory examination will show that the divergence between them grows entirely out of a difference as to the real foundation of the rule.

Its origin seems to have been this: In ancient times parties litigant were in the habit of coming into court and prosecuting or defending their suits in person. Subsequently, however, as law suits multiplied, and the modes of judicial proceeding became more complex and formal, it became necessary to have these suits conducted by persons skilled in the laws and in the practice of the courts. This necessity gave rise, at an early day, to the class of' attorneys. To facilitate the business of the courts, it was important that these men should be employed. But as parties were not then obliged to testify in their own cases, and could not be compelled to disclose facts known only to themselves, they would hesitate to employ professional men and make the necessary disclosures to them, if the facts thus communicated were thus within the reach of their opponent. To encourage the employment of attorneys, therefore, it became indispensible to extend to them the immunity enjoyed by the party.

The most instructive case on this subject with which I have met is that of Annesley v. The Earl of Anglesea, before the Barons of the Irish Exchequer (17 How. St. Trials, 1139). The case was most extensively and ably argued, and very elaborately considered by the court; and the conclusion arrived at, as to the true origin of the rule in question, may be best stated in the language of Mr. Baron Mountenay, who says, at page 1240: “Mr. Becorder hath very properly mentioned the foundation upon which it hath been held, and is certainly undoubted law that attorneys ought to kéep inviolably the secrets of their clients, viz: That an increase of legal business, and- the inability of parties to transact that business themselves, made it necessary for them to employ (and, as the law properly expresses it, ponere in loco suo) other persons who might transact that business for them. That this necessity introduced with it the necessity of what the law hath very justly established, an inviolable secresy, to be observed, by attorneys, in order to render it safe for clients to communicate to their attorneys all proper instructions for the carrying on of those causes which they found themselves under the necessity of entrusting to their care.”

To the same effect is the language of Mr. Justice Paddock, in the case of Dixon v. Parmelee (2 Verm. R. 185), where, in considering this question, he says: “And this distinction seems to give a clue to that which is said to be the origin of the law, which is that, in early days, suitors brought in person their complaints before the king, and afterwards his courts; that, as business increased, the administration of justice approximating to a science, and the necessity of forms sensibly felt, it became absolutely necessary that there should be a set of men to stand in the place of suitors, called attorneys, and manage their causes, to encourage which, and bring the same into practice, it also became necessary for courts to adopt a rule by way of pledge to suitors, that their secret and confidential communications to their attorneys should not be drawn from them, either with or without the consent of such attorney."

If this was the true foundation of the rule, it would follow that the protection is confined to communications made with a view to the conduct of a suit, or some judicial proceeding, and it goes most forcibly to confirm and strengthen the direct authority to which I have referred, that in the earlier cases, and while the origin of the rule was most likely to be kept in view, the doctrine would seem to have had this application. The earliest cases to be found on the subject are said to be those of Berd v. Lovelace (Cary’s Rep. 88); Austin v. Vesey (id. 89); and Kilway v. Kilway (id. 126), in each of which the witness was excused from testifying, on the ground that he was the solicitor in the cause. In another case in the same report, viz: Denio v. Codington (p. 143), the excuse allowed was" that the witness had been of counsel touching the matter in variance.

In Waldron v. Ward (Stiles, 449), the ground of privilege was the same. Sergeant Maynard there proposed to examine a witness as to some matter “whereof he had been made privy as of counsel in the cause.” But the chief justice would not permit the examination, saying that the witness was notboundto “ disclose the secrets of his client’s cause.”

So in Sparks v. Middleton (1 Keble, 505), Mr. Aylet "who had been, as the report states, ‘1 counsel for the defendant,” being called as a witness, was excused from testifying, the Court of King’s Bench holding “that he should only reveal such things as he either knew before he was of counsel, or that came to his knowledge since, by other persons.” Although it is not in terms stated, yet the plain inference from the report is, that Mr. Aylet had been counsel in the cause. The language used, “counsel for the defendant,” and “before he was'of counsel,” would scarcely be otherwise appropriate. • Thus understood, the case holds that communications from his client to Mr. Aylet before the "latter was actually employed as counsel in the cause, were not protected.

A precisely similar decision was made nine years after-wards, by the same court, in the case of Curtis v. Pickering (1 Vent. 197.) One Baker, who had been solicitor for Pickering, was called to testify concerning an erasure in a will, supposed to have been made by Pickering. Objection was made that having been retained' as solicitor, he could not be examined. But the court held that it appearing that Pickering had made the discovery to him “ before such time as he had retained him,” he. might be sworn.

It is to be observed in regard to these two cases, that in neither is it said that the communication was not confidential, or not made to the witness in consequence of his professional character, but the decision is placed upon the sole ground that it was made before the witness was retained in the cause.

That the opinion of Lord Hardwicke was in accordance with these cases, is shown by the case óf Vaillant v. Dodermead (2. Atkyns, 524), where the witness demurred to certain interrogatories, on the ground that he knew nothing of the matters enquired about, .except what had come to his knowledge as clerk in court. The demurrer was overruled, and the first reason given by Lord Hardwicke was, that it appeared “ that the matters enquired after by the plaintiff’s interrogatories 'were antecedent transactions to the commencement of the suit, the knowledge whereof could not come to Mr. Bristow as clerk in court, or solicitor.” No notice is taken in this case of any distinction between clerks in courts, and solicitors.

But, to come down to a later period: In the case of Wadsworth v. Hamshaw, before Chief Justice Abbott, (2 Brod. & Bing. 5, in note,) one Hughes, an attorney, being called as a witness by the plaintiff, stated that the defendants “ had called upon him to advise them professionally, respecting the dissolution of their partnership.” The counsel for the defendants objected; but the chief justice, without hearing the counsel on the other side, held “ that the communication was not privileged, and that the protection was only extended to those communications with an attorney which related to a cause existing at the time of the communication, or then about to be commenced.” He also cited a case tried at the Midland circuit, in which the evidence of the attorney in the cause, called to prove some communication of his client, being rejected, the court upon application granted a new trial; expressly holding 11 that no professional communication was protected, except such as related to a cause.” This case is important, as giving not only the opinion of Chief Justice Abbott, but of the whole court of Kings Bench, in a case involving no other question.

This question came again before the same judge, in the case of Williams v. Mundie. (1 Ry. & Moo. 31.) The action was assumpsit, for goods sold; and the defendants’ attorney being called by the plaintiff, to prove that the defendants were partners when the goods were sold, stated that, “prior to the commencement of the action and to the period when the goods were supposed to have been sold, he had been consulted by some of the defendants in relation to a partnership then about to be entered into by them.” The,; evidence was objected to, but the chief justice said: “ I think this evidence admissible. . The rule I have invariably laid down in cases of this kind is, that what is communicated for the purpose of bringing an action or suit, or relating to a cause or suit existing at the time of the communication, is confidential and privileged; but what an attorney learns otherwise than for the purpose of a cause or suit, I think he is bound to communicate.”

Precisely the same doctrine was laid down by Best, Ch. J., in the case of Broad v. Pitt (3 Car. & Pa. 418; 1 Moo. & Mal. 233, S. C.); and, in a note to the case in the latter volume, the true basis of the rule is very justly stated, as follows: “ It would seem that the rule is not (as it is often put) founded on a consideration of the importance of the communications made to attorneys, nor on any purpose of protecting the general business which attorneys are em¿ ployed to carry on. The object of the rule appears to be the proper conduct of judicial investigations, to which the full and' free disclosure of the client, to his professional advisers, is essential.”

That Lord Kenyon also was of this opinion is shown by his remark in the case of Duffin v. Smith (Peake N. P. C. 103), that “ when any thing is communicated to an attorney by his client for the purpose of his defense,” he ought not to divulge it.

In a case before the Lord Chief Baron, at the York summer assizes, viz., Hargreave v- Hutchinson, Lord Lyndhubst said that it had been held by the judges (meaning, I suppose, the twelve judges), after consideration, that the rule was that a communication to an attorney is privileged if an action he fending or contemplated.”

Looking, then, at the authorities thus far noticed, at the doctrine thus enunciated, traced, as it is, to a reasonable and certain origin in the early periods of the common law, we should say that there could be very little doubt as to the true limits' of the rule. But unfortunately there is another class óf cases still more numerous, which indicate a different doctrine, viz: that the privilege has no special relation to suits in court or judicial proceedings of any kind, but extends to every case where a member of the legal profession is consulted or employed professionally. We must, of necessity, decide which of these two classes of cases we will follow. They are directly antagonistic, and can not both be right.,

It is a marked fact, and one of great weight upon this question, that very few of the cases which give the more extended scope to this rule, refer to its origin, or to any principle of policy upon which it is supposed to rest. They seem to assume that it is because the communication is confidential that it is protected, and hence great difficulty is experienced in finding any limit to the privilege.

It is said that in one case the court, led, as it would seem, by the idea that the betrayal of confidence had something to do with the nile, would not permit a trustee for the plaintiffs and defendants; who had been employed by them in the purchase of offices, to be examined, and on the ground that he should not be allowed to betray a trust., (See 2 Stark, on Evidence, 322.)

In the case of Wilson v. Rastall, (4 Term R. 753), a leading case on this subject, it was seriously insisted that a confidential communication to a friend, relying upon his secrecy, was protected. Lord Kenyon, in delivering his opinion said : But in order to show that the privilege extends beyond the case of an attorney and client, a hard case has been pressed upon our feelings, of confidence reposed in a friend. But if a friend could not reveal what was imparted to him in confidence, what is to become of many cases affecting life.

This remarkable uncertainty as to the rule, has followed this question into the courts of this country. In Holmes v. Comegys, (1 Dall. 439), it was contended that communications to a confidential agent or factor, and in Caps v. Robinson, (2 Wash. C. C. R., 389), those to a confidential clerk, were protected.

These cases could never have arisen but for the fact that the courts, whenever they have extended the privilege to communications other than those which related to some existing or prospective judicial proceeding, without taking the trouble to recur to the origin of this rule, hate assumed that the idea of a betrayal of confidence, or a breach of that obligation which all men recognize, to preserve inviolate a secret confided, lie at its foundation. It is upon this assumption, mainly, if not entirely, that the courts have ever extended the privilege beyond what was necessary to accomplish its original objects, as here set forth, viz: to protect those having business before the courts in the employment of skilled men to transact it. The language of the judges in many of the cases prove that in making their decisions, this idea was prominent in their minds.

The authoritative weight of this class of cases, there-' fore, depends in a great degree upon the correctness of this assumption. It can hardly require argument to prove that the social obligation, faithfully to guard against revealing that which is communicated in confidence, cannot by possibility, have any logical connection with the rule in question. ■ That obligation relates solely to a voluntary disclosure, and can have nothing whatever to do with the policy of the law, in its efforts to ascertain truth, and administer justice. It is dishonorable in one to whom a secret has been confidentially confided, voluntarily to reveal it; therefore, the law when engaged in ferreting out this very secret, should not compel its disclosure. Is this sound reasoning? Ho one will so pretend, and yet palpable as is the distinction, its disregard through the inadvertence of the' courts, has had a great deal to do with the wide departure in the class of cases under consideration, from the rule as originally laid down. I do not mean to say that the courts have deliberately placed their decisions upon this obviously untenable ground, but that their language often shows that the idea of violation of trust was prominent in their minds, and influenced their conclusion.

It is strongly corroborative of the view here maintained, that whenever any judge has directed his attention specially to the origin of the rule, he has in general admitted it to be as here stated. Thus in one of the cases relied upon to support the extended rule, viz: Greenough v. Gaskell (1 Myl. and Keen, 98), Lord Chancellor Brougham, in the course of a-very elaborate opinion, says: “The foundation of this rule is not difficult to discern. It is not (as has sometimes been said), on account of any particular importance which the law attributes to the business of legal jirofessors, or any particular disposition to afford them protection. * * * But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations, which form the subject of all judicial proceedings.”

But notwithstanding this distinct recognition by the chancellor of the true basis of the rule, which if admitted, necessarily admits the privilege to communications having some connection with judicial proceedings, he nevertheless in that very case, allows the protection to cover communications not made in reference to any such proceeding, either past, present or future; the statement of the witness being merely that they “ were received by him in- his capacity of confidential solicitor for Dannall, for whom he had he&iiprofes'sionally concerned for a number of years.” How such a conclusion could be deduced from a rule founded upon such a reason, I am unable to see; and the learned chancellor would himself, I think, find it difficult satisfactorily to explain. The question was precisely the same as that in the case <?f Annesley v. The Earl of Anglesea, supra, the opinion of both courts as to the true basis of the rule was the same, and yet the conclusions arrived at were directly opposite. I think very few, upon a critical examination of the two cases, would hesitate to concur with the Irish barons. It may not be improper to say, that Lord Brougham, in recurring to the origin of the rule, was giving history, a'matter in respect to which he was rarely mistaken. His deductions from the rule involved a different mental process.

I will here refer to two other cases, as they seem to me specially worthy of notice, viz: Mills v. Griswold (1 Root, 383), and Calkins v. Lee (2 Root, 363). The question in botli these cases was whether a witness is obliged to disclose, upon his oath, what the defendant had told him in confidence, and upon a promise to keep it secret.

In the first case, the court said: “The'distinction is, where the communications are necessary, in the course of business, as of a client to his attorney, he may not disclose them. But where the communications are voluntary, as in the present case, his oath obliges him to tell the whole truth.” In the other case it said: “ If it is a voluntary communication, and the adverse party is interested in the testimony, the witness must testify.”

In these two cases the court, without expending any learning upon the origin or history of the rule, and without being confused by any considerations as to the violation of confidence, and of the solemn promise of the witness not to disclose, with that plain and unerring good sense ■which has so often distinguished the courts of that state, went at once to the very pith of the rule of exemption. They seem to have seen that it was only because the necessity of employing attorneys to transact the business of courts, in a measure compelled the reposing of confidence in them, that communications to them were protected.

There are many other considerations, as well as cases, which if adverted to would throw light upon this subject. But it seems to me that enough has been adduced to make it clear, that the privilege in question is not founded upon any idea- of the sacredness of confidential communications, whether made to an attorney or to any other person; nor npon any peculiar policy of the law which distinguishes the general business of an attorney from that of any other class in the community; but it was the result of that rule of the common law, which excused parties from testifying in their own cases, and of the necessity, for' the convenience of the public, as well as the benefit of suitors, of having the business. of the courts conducted by professional men.

Whether, therefore, the recent' legislation in this state, compelling parties to testify as witnesses in their own suits, should be deemed to have removed the whole foundation of the rule, and terminated all necessity for its continuance or not, which' may admit of some doubt, it MIoavs from the views here expressed, if correct, that the protection should only be held to extend to such communications as have relation to some suit or other judicial proceeding, either existing or contemplated.

The judgment of the supreme court, at general and specal term, should be reversed, and there should be a new trial, with costs to abide the result.

Denio, Ch. J. and Weight, Johnson and Muelin, J. J., were also for reversal, on the ground that both parties being present, there was nothing confidential in the communication.

Ingraham, J.

Upon the question as to the admissibility of the testimony of Hurlbert as to what passed between ■ the plaintiff and Barney in his presence, thé decision must depend upon the fact of the attorney being the counsel for both parties. If he was only the counsel of Barney, then the decisions settle that the disclosures being made in the presence of a third party, they are not privileged. (Griffith v. Davis, 5 Barn, and Ad. 502; Shore v. Bedford, 5 Man. and Gran. 271; Weeks v. Argent, 16 Mees. and Wels. 816.) In Coveney v. Tannahill (1 Hill, 33, 40), Bronson, J. says, in commenting on Robson v. Kemp (5 Esp. R. 52): “It may have been thought important that the witness had acted as attorney for both parties; for where an attorney is called in by one party to witness a transaction in the way of business with a third person; I cannot think his mouth is closed either to what he saw or heard. It is not in the nature of a confidential communication between an attorney and client.”

I do not think the witness can be considered in any other light than as the counsel of Barney. He wanted the advice, and the object of consulting the counsel was to ascertain if the- arrangement could be made legally, so that .he (Barney) could get twelve per cent, on the loan. A part of the transaction was the taking of the note and payment of the money, and leaving the note in the possession of the counsel until it was endorsed and delivered, and the deposit of extra interest was made with the counsel. This was a fact within the knowledge of all the parties, and which, under all the cases, would not be privileged.

This evidence offered was an examination of a witness as taken on a former trial. The stipulation to admit such evidence, expressly excluded the testimony of this witness. There was no ground on which it could have been received, even if the court had ruled that it was not privileged; unless with the consent of the adverse party.

The objection to this evidence when offered, was solely on the ground that it was privileged, and we can only conclude that the other objections were waived, and the parties had agreed to submit the question solely on the points stated on the trial. . As the objection was not made in the court below, the defendant cannot now avail himself of those grounds to sustain the exclusion of the evidence.

The judgment should be affirmed.

Hogeboom and Davies, JJ. were also for affirmance.

Judgment reversed.


author: Wright, J. Johnson, J.

text:
    Oswin Welles and others v. Peter S. March and Israel Coe, impleaded with Matthew H. Nace.
    The authority of each of several partners, as agent of the firm, is necessarily limited to transactions within the scope and object of the partnership, and in the course of its trade or affairs.
    A general assignment to a trustee, of all the funds and effects of the partnership, for the benefit of creditors, is the exercise of a power without the scope of the partnership enterprise, and amounts, of itself, to a suspension or dissolution of the partnership.
    Ho such authority as that, in one of several partners, can be implied, from the partnership relation.
    And if one partner executes such an. assignment, without the consent or authority of the rest, it will be void, and will not operate to pass to the assignee the title to the firm property.
    But where H., who had been the active partner in a firm, absconded,leaving it largely insolvent, first writing a letter to C. his partner, in which he declared that he could not manage the debts of the firm; that he would he far out to sea before 0. could receive the letter; that he was going to California, where he would start again in business with $2,100 of the funds of the firm, which he had taken with him; adding, “ I hereby assign you my interest in the business of H. & Co.,” &c.; also " Take charge of every thing in our business; close it up speedily,” &c.; Held that this, under the . circumstances, was a full assent on the part of H.., and an authorization to C.to execute an assignment of tho partnership property, and rendered an assignment executed by C. a valid and operative instrument, as against him, H.

      Appeal from a judgment of the Supreme Court.

    The action was brought by the plaintiffs, as judgment ■ creditors of the firm of Nace & Co., to set aside an assignment in trust for the benefit of creditors without preferences, _of the assets of that firm. The complaint was framed to set aside the assignment on the ground that it was made to hinder, delay and defraud the creditors of the assignors, and it contained no charge that the assignment had failed for want of power to execute it, or otherwise. The only material issue presented .by the pleadings was one of fraud.
    The cause was brought to trial at the' New York special term, in January, 1858, before Mr. Justice Davies, without a jury. The plaintiffs gave evidence, which they claimed tended to show the assignment to be fraudulent in fact, and rested. The defendants then introduced rebutting evidence. The defendant Coo (who was one of the firm of Nace & Co.) was examined as a witness. He testified that Nace, his partner, absconded on Saturday, the 19th of April, 1856, and that the letter shown to him, of that date, in the hand-writing of Nace, and addressed to the witness, was received by him on the Tuesday following. The counsel for the defendants thereupon offered the letter as evidence of the assent of Nace to the assignment to the defendant March. The counsel for the plaintiffs objected to it on the ground that no assent ivas set up in the answer,, and that it was contradictory to the assignment, and also on the ground that the letter contains no authority. or assent, and the assignment in question was not an execution of any power, except the power which one partner possesses by virtue of his partnership relations, which objection the court over-ruled, and admitted the letter in evidence, the plaintiffs’ counsel excepting. The letter is as follows:
    “ New York, April 19, 1856.
    “Mr. Coe: My dear sir—Judge not harshly of me, although I have involved you, with myself, in considerable difficulty. You will find I have in the concern, paid in cash, over $15,000, which will pay all we owe, with the stock on hand, and leave me a surplus, after paying up Hannah & Shanks and Lockett & Pankey (whom please pay after you pay our debts), about $9,000, say nine thousand dollars, which you will please pay over to my brother W. M, Nace, to whom I am indebted. I have given him a bill of sale of my household goods to secure him also. I will be far out to sea before you receive this. But I can not close without assuring you that every effort of my life shall be exerted to reinstate myself in public confidence. Take charge of every thing in our business; close it up speedily. Nace & Eeinnie owe me about $8,000, loaned in various ways. To prevent embarrassment to our new concern, I have loaned this amount in money, notes, c0c. C. Storm has a mortgage on my house to secure $2,000, which I never received from him or any one. I owe him nothing. I was to get, according to agreement, all the interest of his wife and Mrs. Ann Storm in the concern of Nace & Eeinnie, but have received not the first cent.
    “I take with me $2,100, which is charged on our check books (ours and N. & E.’s). This I will use to start in California, whither I shall sail on Monday, at two o’clock.
    ■ “I hereby assign you my interest in the business of Nace & Co., and Nace & Eeinnie also.
    ■ “ My dear, dear children—God bless them! I shall send to my father to remain until I can claim them again. Great God! hbw can I atone for this act? It may, drive me to self-destruction. I hoped all along to be able to pay Nace & E. out of debt, but the assets will not come in fast enough. Our own debts are maturing, and all I can not manage. Forgive me. You will lose nothing, but it will require much care to get through.
    “Your friend,
    “M. H. Nace.”
    Further evidence was given touching the question whether the assignment was made to hinder, delay and defraud the creditors of Nace & Co.
    The judge found the following facts:
    1st. That the firm of F. H. Boek & Co., on the 12th July, • 1856, recovered two judgments against Matthew H. Nace and Israel Coe; one for $1,074.47 and another for $825.76; that on 16th October, 18.56, they obtained three other judgments against the same defendants; one for $847.01, one for $847.26, and another for $768.76. That on the 15th November, 1856, they recovered another judgment against the same defendants, together with one Charles Trow-bridge, for $1,126.07.

      2d. That during the pendency of the actions in which such judgments were recovered, and on 28th June, 1856, the plaintiffs, Danenhower & Harris, became the owners of the claims on which said judgments were recovered, by transfer from Bock & Go.

    3d. That on 22d August, 1856, the said Danenhower & Harris recovered a judgment against the defendants Hace & Co. for $656.26; on the 30th September, 1856, another for $945.24; and on 20th October, 1856, another for $609.35.
    4th. That Oswin Welles, one of the plaintiffs, on the 28th October, 1856, recovered a judgment against the defendants, Hace & Coe, for $1,729.14.
    5th. That before the commencement of this action, transcripts of all of said judgments were filed in the proper county, and executions issued thereupon respectively, and each returned wholly unsatisfied before the commencement of this suit.
    6th. That from January, 1856 to April 26, of the same year, the defendants Matthew H. Hace and Israel Coe, were copartners ip, trade' in the city of New York, under the name of Hace & Co.
    7th. That all the above mentioned judgments were recovered upon the joint obligations of said copartnership of Hace & Co., incurred by said firm, on and previous to the 19th April, 1856.
    8th. That up to the said 19th April, 1856, Coe had taken no active part in the transacting of the business of the firm.
    9th. That on the 19th of April, 1856,' Hace absconded from the city of New York, and took with him a large amount of the assets of the firm, leaving the letter of that date directed to his partner Coe, offered by the defendants, and read in evidence herein; and that said letter was received by Coe, on the 22d April, 1856.
    10th. That on the 25th April, 1856, the firm of Hace & Co. was dissolved.
    11th. That after such dissolution, and before making the assignment to the defendant March, hereinafter mentioned, Coe sold goods of the late copartnership on credit.
    12th. That on the 12th June, 1856, Coe, one of the partners, executed the assignment to the defendant March, annexed to the complaint, and read in evidence.
    13th. That the letter of the 19th April, was an authority from Mace & Coe to execute the assignment.
    14th. That said assignment was made on the eve of the obtaining of the first two judgments by.Bock & Co., and with the intent to prevent Bock & Co. from getting a preference by execution.
    15th. That after the making of the assignment, the assignee sold most of the assigned property on credit, with the connivance of the defendant Israel Coe.
    ■ 16th. That the assignment to the defendant March was not made to hinder, delay and defraud the creditors of Mace & Co.
    The conclusions of law of the judge were:-
    1st. That the defendant Coe had not the power to make such assignment without the authority of his copartner Macé, and that no interest in the copartnership property passed thereunder, unless there was such an authority; and the fact that said assignment is not preferential, makes no difference in the principle of law applied to this case.
    2d. That the letter of April 19th, 1856, was an authority from Mace to Coe to make the assignment in question.
    3d. That the dissolution of the firm of Mace & Coe on the 25th April, 18.56, did not change the rights and powers of the partners, and the subsequent assignment by Coe was a valid act, notwithstanding such dissolution.
    4th. That such assignment was a valid instrument, and passed the copartnership property to- the assignee.
    The plaintiffs excepted to the last three conclusions of law, and also to the 13th- and 16th findings of fact, and that part of. the 9th finding of fact which finds that Mace took with him a large amount of the assets of the firm.
    Judgment was entered at special term for the defendants dismissing the plaintiff’s complaint. On appeal to the general term from the judgment, the same was affirmed. The plaintiffs then appealed to this court.

      Alex. S. Johnson, for plaintiffs.

      John Sessions, for defendants.
   Wright, J.

The action was brought against the defendants March, Coe and Nace (the two latter composing the firm of Nace & Co.), to set aside an assignment of the copartnership property, on the ground that it was made to hinder, delay and defraud the creditors of the assignors. Fraud was the only material issue presented by the pleadings; and the court found that there was none in the transaction. The case made, justified no other conclusion. The assignment appropriated the firm assets to the payment of all the partnership creditors; and the fact that the instrument was executed with the intent to prevent one of the firm creditors from getting a preference by execution, and thereby secure an equal distribution of the partnership effects among all the • creditors, did not tend to establish the fraudulent purpose alleged.

But one of the partners had absconded, taking with him a large amount of the assets of the firm, and the assignment was made by the other partner. On the ground that the re-assignment was executed by Coe in the firm name, it was first claimed at the trial, that the instrument was invalid, and no interest in the property passed thereunder. The defendant Coe executed it some two months after Nace left, and it was not preferential. But it is urged, however (and this was the view of the court below), that without the consent or authority of his copartner, he' had no power to make even an assignment not preferential; and further (which the court did not agree to), that there was no such consent or authority shown.

The right and power of one partner to make a general assignment of all the funds' and effects of the partnership, to a trustee, for the payment of debts, has undergone much discussion in the courts. The point was distinctly presented to this court in the case of Robinson v. Gregory et al., decided at the last December term. In that case, two of three partners made the assignment, giving preferences, without the knowledge, consent or authority of the third partner, and in his absence from the country; and he never, in writing or verbally, assented to it, but, on the contrary, dissented. We held the assignment invalid; our judgment proceeding upon the ground that it was not competent for the two partners, without the assent or authority- of the third, to make a general assignment of the partnership property to a trustee, for the payment of debts. Our opinion was that no such power could be implied from the partnership relation. Each partner possesses an equal and general power and authority in behalf of the firm, to dispose of the partnership property and effects, for any and all purposes within the scope of the partnership and in the course of its trade and business.' As agent of the firm he may sell or mortgage, pledge, apply or otherwise dispose oi' the firm effects, for partnership purposes; may assign the firm property as a security for antecedent debts, as well as debts thereafter to be contracted on its account; and there -are cases holding that his authority even extends to a transfer or pledge of all the partnership effects directly to a creditor, in payment or for the security of a debt due from the company, though the tendency and ultimate effect of such a transaction may be to destroy the partnership business. (Mabbett v. White, 2 Kernan, 442, and cases cited.) But the authority of each of several partners, as agent of the firm, is necessarily limited to transactions within the scope and object of the partnership, and in the course of its trade or affairs. A general. assignment to a trustee, of all the funds and effects of the partnership, for the benefit of creditors, is the exercise of a power without the scope of the partnership enterprise, and amounts, of itself, to a suspension or dissplution of the partnership itself. It is no part of ttie ordinary business of the copartnership, but outside and subversive of it. Ho such authority as that can be implied from the partnership relation. It is true, that in Robinson v. Gregory, the assignment preferred some $30,000 of partnership debts; but, as the question is one of power in a less number than the whole of the partners to transfer the entire-firm property—not in the course of trade in which the firm is engaged, but in such manner as to terminate the partnership—whether the assignment is with or without preferences,.can make no difference. The assignment in the present case was without preference, but the principle of law to be applied to it is not affected by that circumstance.

If, then, the defendant Coe executed the assignment, without the assent or authority of Hace his partner, it was void, and did not operate to pass the title to the firm property to the assignee named in it; and the judgment dismissing the plaintiffs’ complaint was erroneous. On the contrary, if it appeared from the acts or declarations of Hace, either before or subsequent to the assignment, that he assented to making it, or that it was made by his authority, it was a valid act, and presented an insuperable obstacle to the plaintiffs’ sustaining their action.

On this question the plaintiffs are met by the finding of the court that Hace assented to the making of the assignment, or rather that the letter left with Coe, when Hace absconded, was an authority from the latter to Coe to make it. It is true that the fact of assent is not expressly found; but the acts of Hace, and his communication to his partner, when absconding, is construed as an authority. I think this was the effect of the letter. It was in substance an assent on the part of Hace, and a full authority to Coe to make such disposition of the partnership property as he thought proper. Hace had been the active partner in the concern, and left it largely insolvent. Before leaving he wrote to Coe the letter in question. In it he declares that he could not manage the debts of the firm; that he would be far out to sea before Coe would receive the letter; that he was going to California where he would start again in business with $2,100 of the funds of the firm which he had taken with him, and adds: “ I hereby7 assign you my interest in the business of Nace & Co., and Nace & Eeinnie also,” —“Take charge of every thing in our business; close it up speedily.” This, I think, under the circumstances,- was a full assent on the part of Nace, and an authorization to his partner Coe to make such disposition of the partnership property as should be deemed most expedient to close up the partnership enterprise. “Take charge of everything in our business; close it up speedily;” that is, take upon yourself the entire disposition of the partnership property; close up the partnership enterprise that I have abandoned; and that you may do this effectually, and with power, I assign you my interest in the concern. After this, Nace certainly could not have been heard to object to Coe’s disposition of the firm property on the ground that it had not been assented to or authorized by him.

There is no force in the suggestion that evidence of an assent or authority by the non-executing partner was inadmissible under the pleadings. The complaint treated the assignment as the act of the firm, and no charge was made that it was invalid for the reason that it was executed by one of the partners. It was asked to have the assignment declared void on the ground of fraud, and not because Coe had not the power to make it. The latter ground ivas first assumed on the trial, and was not an issue made by the pleadings. The defendants having this point sprung upon them at the trial, it was quite competent for them to meet it by evidence tending to show that, although the execution of the instrument was the act of one of the partners, it wras assented to or authorized by the other.

Upon the whole, therefore, the legal conclusion of the judge, at special term, that the assignment was a valid instrument, and passed the co-partnership property to the assignee, was correct. The judgment should be affirmed.

Johnson, J.

The ground on which the plaintiffs in their complaint sought to have the assignment .set aside and declared void, was that it was made with intent to hinder, delay and defraud the plaintiffs and other creditors of the firm of Nace & Co. This, the justice, before whom the action was tried, without a jury, found not to be the fact. The alleged invalidity is now sought to be established on the sole ground of a want of power on the part of Coe to make the assignment so as to bind both partners. It was found upon the trial, both as a fact and a conclusion of law, that the defendant Coe who made the assignment in the name, and apparently, on behalf of both copartners, had authority from Nace, the other partner, to make it. Whether he had any such express authority, depends altogether upon the construction of the letter of Nace of the 19th April, 1856. I think that letter contains sufficient authority to authorize the assignment, and make it a valid and operative instrument as against him. In order to determine what .power he intended to confer upon his partner in reference to a disposition of the partnership effects, we have the right to take into consideration the circumstances under which it was written. Nace was then absconding. He had involved' the affairs of the partnership in ruin, and had determined to leave the country, and abandon all control over whatever was left. Under these circumstances he writes to his partner, amongst other things, “ take charge of everything in our business. Close it up speedily." Also, “ I hereby assign you my interest in the business of Nace & Co., and Nace & Reinnie also;” and further: “ Our own debts are maturing, and I cannot manage. Forgive me. Tou will lose nothing, but it will require much care to get through." '

I can not doubt that it was the intention of Nace, by this letter, to give to his partner, whom he was thus forsaking, the entire power, as far as he could, of management, control and disposition of all the partnership effects; nor that such intention is sufficiently expressed in the letter. I do not see how any other construction can be put . upon this, communication, under the circumstances of this case. This disposes of the whole' case, and renders it wholly unnecessary to examine the question as the implied power of a partner, in such a case. The judgment should be affirmed.

All the judges were for affirmance, except Selden-, J., who thought the letter of Nace was not good as an assignment, for want of consideration; and that as a pówer it was only an authority to Coe to wind up the business as a partner. He did not vote. Judgment affirmed.