author: Seldbist, J.

text:
    Robbins v. Gorham.
    The summary proceeding for the punishment of a defaulting witness or juror in a justice’s court (2 E. S., 241, 245),-may be had after the .termination of the suit in which the default occurred.
    The justice may issue a warrant to bring the offender before him. A previous summons is unnecessary. A process commanding the officer to attach the defaulting juror and bring him before the justice, is a warrant in substance, and sufficient.
    The validity of a conviction under this statute is not affected hy the omission of the justice to enter in his docket the minute thereof made up by him.
    Appeal from the Supreme Court. Gorham, being a justice of the peace in Chautauqua county, had pending before him an action, of which he had jurisdiction, in which one Cotton was plaintiff and one McCluer defendant, to be tried on the 6th of July, 1855. The parties appeared before him on that day, and the defendant (McCluer) demanded a- trial by jury.

      Gorham thereupon issued a venire, returnable forthwith, and delivered it to a constable for service, who, on the same day, returned it to Gorham, with a return of service upon Bobbins, the present plaintiff, among others, to make a jury for such trial. Bobbins failed to appear, and an entry of his default was made in the justice’s docket, and the cause proceeded, by consent, before five jurors, who, on the 7th of July, rendered a verdict for the plaintiff in that action, upon which judgment was entered.
    On the 9th of July Gorham issued a summons, directed to any constable of the county, commanding him to summon Bobbins to appear before him, at his office, on the 11th of July, at 10 A. H., to show cause why he should not be' fined, according to law, for his non-attendance as a juror in the action before named. The summons was personally served upon Bobbins, by a constable, on the 10th of July, but he failed to appear at the time and place appointed, and Gorham thereupon issued an attachment against him, in the following words:
    “ Chautauqua County, ss: The People of the State of Hew York to any constable of said county, greeting: We command you that you attach Barna Bobbins, and bring him before the undersigned, a justice of the peace in and for said county, at his office, in the town of Pomfret, in said county, forthwith, to answer all such matters as shall be objected against him, for that the said Barna Bobbins, having been duly summoned to attend as a juror before the said justice, at his office in the said town, on the 6th day of July instant, to make one of a jury for the trial of a certain cause, then and there depending before the said justice, in which Benjamin W. Cotton was plaintiff, and Orrin McCluer, Jr., by his guardian, George McCluer, defendant, has refused to attend in conformity to such summons, and a summons having been duly issued by the undersigned, the said justice, commanding the said Barna Bobbins to appear before me, the undersigned justice, as aforesaid, at his office in the town of Pomfret, in said county, on the 11th day of July instant, at 10 o’clock in the forenoon of that day, to show cause why he should not be fined according to law, for his non-attendance as a juror, before the said justice, at his office in said town, on the 6th day of July instant, aforesaid, and the said summons having been personally served upon the said Barna Bobbins, on the 10th day of July instant, by E. W. Meacham, a constable of the said town, in said county, as duly appears by the return of the constable aforesaid, made upon said summons, and the said Barna'Bobbins, not having appeared at the time and place aforesaid, before the said justice, as commanded in said summons, to show cause as aforesaid, and has wholly neglected to attend in conformity to such summons. And have you then and there this precept. Given under the hand of the said justice, this 11th day-of July, 1855.
    NELSON- GORHAM, Justice of the Peace''

    On the 13th of July, Bobbins was brought before the justice, on the attachment, and having had opportunity, showed no excuse for his non-attendance as a juror, and was, therefore, convicted by the justice, and fined $10 for such non-attendance, with $2 costs of the proceedings, which, not being paid, the justice issued an execution for its collection, by virtue whereof a wagon belonging to Bobbins was seized and sold, to recover the value of which this action was commenced before a justice of the peace in Chautauqua county.
    A formal record of the conviction was made up by the justice (Gorham), but no entry of it was ever made in his docket.
    On the trial in the justice’s court, Gorham relied upon the proceedings above stated to justify the taking and sale of the wagon, and gave in evidence the record of conviction, and the various processes issued against Bobbins prior to the conviction, together with his docket showing the proceedings in the suit in which the venire was issued.
    The justice gave judgment for the plaintiff for the value of the wagon, and the Chautauqua County Court affirmed that judgment. On appeal to the Supreme Court, both judgments were reversed, and from that reversal this appeal was taken by the plaintiff—the Supreme Court having made an order authorizing such appeal. (26 Barb., 586.)

      George Barker, for the appellant.

      John H. Reynolds, for the respondent.
   Seldbist, J.

The venire, which constitutes the foundation "of the proceedings against the plaintiff, was authorized by the statute, was regularly issued an'd served, and it was the duty of the plaintiff, in obedience to its commands, to have appeared to serve as a juror1, or to make a reasonable excuse for not doing so. The following is the section of the statute under which the fine was imposed upon him:

“ § 112. Every person who shall be duly summoned as a juror, and shall not appear nor render a reasonable excuse for his default, or appearing shall refuse to serve, shall be subject to the same fine, to be prosecuted for and collected with costs, in the same manner and applied to the same use, as herein-before provided in respect’ to a person subpoenaed as a witness and not appearing, or appearing and refusing to testify.” (2 B. S., p. 2.45, § 112.)

The provisions in regard to defaulting witnesses are as follows:

“ § 85. Every person duly subpoenaed as a witness, who shall not appear, or appearing, shall refuse to testify, shall for feit, for the use of the poor of the town, for every such nonappearance or refusal (unless some reasonable cause or excuse shall be shown on his oath or the oath of some other person), such fine, not less than sixty-two cents nor more than ten dollars, as the justice before whom prosecution therefor shall be had, shall think reasonable to impose.

“ § 86. Such fine may be imposed by the justice; if the witness be present and have an opportunity of being heard against the imposition thereof.

“ § 87. The justice imposing any fine, shall make up and enter in his docket a minute of the conviction and of the cause thereof, and the same shall be deemed a judgment in all respects, at the suit of the overseers of the poor of the town.

“ § 88. Upon the imposition of such fine, and in default of payment thereof with costs, the justice shall forthwith issue an execution to any constable of the county, directing him to levy such fine with costs, of the goods and chattels of the delinquent, and for want thereof, to take and convey him to the jail of the county, there to remain until he shall pay such fine and costs; and the keeper of such jail is hereby required to keep such delinquent in close custody in such jail, until the fine and costs be paid; but such' imprisonment shall not exceed thirty days.

“ § 89. When the money shall be collected on such execution, the constable sháll return the same to the justice, and such justice shall pay over the amount of the 'fine imposed to the overseers of the poor of the town, for the use of the poor.” (2 R. S., 241.)

These, with section 276, hereafter mentioned, are all the provisions of the statute which bear directly upon the case. It is. not denied on the part of the plaintiff that they gave to the defendant authority to issue the venire, the service of which made it the duty of the plaintiff to attend as a juror according to its commands; nor that, on his making default, the defendant had authority to impose a fine upon the plaintiff on account of such default, unless reasonably excused. But it is insisted that the power to do this by summary pro- ’ cess was limited to the time while the suit in which the venire issued was pending, and, if done afterwards, it could only be by action. This position is unsound. There is nothing in the statute to indicate a design that the trial of a cause should be suspended, in order to punish a defaulting juror or witness. Section 83 provides only for securing the presence at the trial, by means of an attachment, of a witness whose testimony is material, and it has no other object. No doubt the justice might impose a fine on such witness, under section 86, during the trial, but the attachment by which he should be brought before the court, under section 83, would constitute no part of the proceeding for the imposition of such fine. Section 83 is a remedial provision for the benefit of the party who obtains the attachment under it, and has no reference whatever to the punishment of the witness. The proceedings, therefore, for the punishment of a defaulting witness or juror, whether summary or otherwise, may as well be had after the close of the suit as before, and at any time before the penalty is barred by the statute of limitations.

The- expressions, “ to be prosecuted for and collected,” in section 112, and “ before whom prosecution therefor shall be had,” in section 85, give some countenance to the idea that an action is to be resorted to for the purpose of collecting the fine; but the provisions, taken together, show that this view is fallacious. The fine might be imposed under section 86, which does not contemplate the presence of any plaintiff or prosecuting party. There is no reason for a distinction, in that respect, between a case where the delinquent is present voluntarily to show cause, and one where he is brought in by process for that purpose. There could be no plaintiff, because the statute gives no right of action to any one. A right of action must be absolute, and not contingent, when the action is commenced ; but under this statute everything is contingent until judgment is given. If a cause of action could be found in the statute, it is given to no one, and- there could be no plaintiff. “ The poor of the town ” are not a corporation, and no right is given to the overseers of the poor until after the fine is imposed. If the overseers of the poor were to be the plaintiffs (and there certainly could be no other), the declaration in section 87, that the “ minute of the conviction” “ should be deemed a judgment at their suit,” would be senseless. So if the conviction was to be had only in a regular action, the direction to the justice to enter in his minute of the conviction “the cause thereof" would be superfluous, as the cause would appear in the pleadings. The minute directions of section 243, as to what the justice should enter on his docket during the progress of the cause, would also apply, and would render the minute of the conviction useless. The person charged is also allowed to excuse himself by his own oath, always allowable in summary proceedings, but a privilege not given to a party in any action until nearly thirty years after the passing of this act. I conclude, therefore, that the proceedings for the imposition of the fine were designed to be summary, and to be instituted by the justice without the presence of a prosecuting.party.

With, the jurisdiction to impose the fine, although the statute is silent on the subject, there is given by implication the means indispensable, to its "exercise. (1 Kent's Com., 464; Stief v. Hart, 1 Comst., 30.) The fine cannot be imposed-unless the party “ be present and have an opportunity of being heard ” (§86), and no processus mentioned in immediate connection with these proceedings by which that presence can be secured. It could not be the intention of the legislature that the punishment of a person, guilty of a willful disobedience of legal process, should depend upon his voluntary appearance before the court to receive such punishment. The power to punish, of necessity, gives the power to bring the delinquent before the court for punishment. If no suitable process were in use, and none pointed out by statute, I think it would be the duty of the court to' devise one for the purpose. (Dudley v. Mayhew, 3 Comst., 9; Ewer v. Jones, 2 Salk., 415; Foliamb's case, 5 Coke, 115, a; Bac. Ab., Courts, E.) But the refusal to obey the venire was a contempt, within the common-law' definition of that term (Bouv. Law Dic.; Shaw v. Shaw, 25 Law R., 106), although not a “ criminal contempt," as defined in the statute (2 R. S., 273, § 274), and I regard the case as provided for by section 276, which is as follows: “Mo person shall be punished for á contempt before a justice until an opportunity ' shall have been given him to be heard iri his defence; and for that purpose a justice may issue a warrant to bring the offender before him” This section was, no doubt, designed more immediately to apply to the contempts mentioned in section 274; but the general terms in which it is expressed are broad enough to embrace the present case, and were, doubtless, made thus general for the purpose of embracing this and other like cases, if any should occur within the jurisdiction "of a justice. If that be not so, then the statutes make no express provision, and the justice might, with propriety, adopt that as a course pointed out by the legislature in a case precisely analogous. This he has done. The process by which Robbins was brought before him was, in substance, a warrant. Whether the command to the officer be to “attach,” or to “take,” his duty is the same.

The previous summons was proper, but not necessary. If Eobbins had appeared in pursuance of it, the matter might have been legally disposed of upon such appearance; but without his presence no action could be taken upon it, and its effect was that of a notice, and nothing more.

The justice imposed the fine and made up a minute of the conviction, as directed by section 87, but did not enter it in his docket. The judgment was complete and valid when it was pronounced and the minute made up, and its validity was not affected by the failure of the justice to enter it in his docket. (Hall v. Tuttle, 6 Hill, 38; Walrad v. Shuler, 2 Comst., 134.)

The defendant, therefore, not only had jurisdiction to impose the fine, but his proceedings throughout, with the single exception of his failure to enter the minutes of the conviction in his docket (which, although a fault, is not fatal), have been in strict accordance with the statute. The judgment of the Supreme Court should be affirmed.

. All the judges concurring,

Judgment affirmed.


source: Caselaw Access Project

author: Seldeh, J. Denio, Ch. J., (dissenting.)

license: Public Domain

text:
    Griswold v. Haven et al.

    One of a firm of warehousemen falsely represented to a person who advanced money on the faith of such representation, that the one to whom the money was advanced, and to whom he had given receipts in the firm name, had on storage with the firm a certain quantity of grain. The innocent partners are bound by the representation, and responsible for the money advanced.
    Where an agent or partner makes a representation of a fact outside the terms of his power, and which, from its nature, rests peculiarly within his knowledge, upon the faith of which another party acts, the principal or firm is precluded from controverting the fact so alleged. .

      Accordingly, when the party advancing the money, having demanded the grain, brought his action, not for damages for the fraud, but as for a conversion of the grain represented by the receipts, the plaintiff was held entitled to recover, though evidence was improperly received showing that such grain never had an existence.
    The criterion of value and measure of damages, it seems, is the market value of ordinary merchantable grain, of the kind alleged to have been in store.
    Appeal from the Supreme Court. The complaint averred that the defendants kept certain stores at the Atlantic Dock in Brooklyn, known as John Wright & Company’s stores, in which they received grain and kept it on storage for compensation that, in .the months of May and June, 1848, the defendants gave put certain storehouse receipts, whereby they represented that they had received on storage, on account of Ford&_Spp,A_,835 bushels of mixed corn, 6,531 bushelá of rye and 1,203 bushels of wheat, amounting in gross to the value of $6,000: that the plaintiff and his then partner (whose intérest had been .assigned to the plaintiff), loaned and advanced to Ford & Son, upon the aforesaid receipts and upon the credit " of said grain, the sum of $4,865, and thereupon took a transfer and assignment of'said receipts from Ford & Son, and became the owners of and were entitled to said grain; that they demanded the grain from the defendant, who refused to deliver it. The prayer for judgment was, that the grain be delivered to the plaintiff and for damages for the refusal to deli- • ver, or for judgment for the value of the grain and for damages, or for such other or further judgment, &c.
    Upon the trial it appeared that the receipts described in the complaint were signed by John Wright, one of the (defendants, who had charge of the Brooklyn stores, in their firm name,"and that he went with' one of the firm of Ford & Son ®to the plaintiff: introduced him as a person having grain in store who wanted an advance upon it, and stated, in reply to ■ the plaintiff’s'inquiry, that the grain was in good order and all right; whereupon Ford assigned the receipts, and the plain-.. tiff made the advance requested.

      The defendants gave evidence, under an exception by the plaintiff, tending to show that no such grain as was described and represented in the receipts had'ever been received in store, but that the issuing of such receipts and the obtaining the advance thereon was a fraud on the part of Wright.
    The defendants moved for a nonsuit, which was denied, and they took an exception. The plaintiff had a verdict for the amount of the advances, with interest. Upon appeal, the court, at general term ordered a new trial, and the plaintiff appealed to this court.

      S. P. Nash, for the appellant.

      Skeffinton Sanxay, for the respondent.
   Seldeh, J.

This case presents two questions: 1. Whether, under the facts<disclosed, the firm of Haven, Sloat & Co., are liable at all to the plaintiff; and, 2. If liable, whether that liability can be enforced in the present action.

o.The principles upon which partnerships are held responsible for the acts of one of the partners, are analogous to, and in most cases identical with, those upon which employers are bound by the acts of their agents. The defendant, Wright, is to be regarded as the general agent of the firm as. to all matters within the' scope of the partnership business, and the liability of his partners in the present case depends mainly upon a question arising upon the law of principal and agent, which has .been discussed in several recent cases, and especially in the cases of Mechanics' Bank v. New York and New Haven Railroad Company (13 N. Y., 599), and Farmers' and Mechanics' Bank v. Butchers' and Drovers' Bank (16 N. Y., 125), S. C. (14 Id., 623.)

In the former of these cases, the plaintiff sought to recover for a fraud committed by Robert Schuyler, who was the agent of the Railroad Company for transferring its stock. The ■.alleged fraud consisted in issuing to one Kyle a spurious certificate for eighty-five shares of the capital stock of the Company, and thus. falsely representing that Kyle was the owner of such stock, when in truth he owned no stock, and was not entitled to the certificate. Kyle had borrowed money of the plaintiff, and assigned the certificate as security.

olt was a suificient'answer to the action, that Kyle, to whom the certificate was issued, being privy to the fraud, had, of course, no claim against the Company, and that his' assignees could have no greater rights than himself. ■ But the learned judge who delivered the only opinion which has been reported in that case, seems to have put the decision upon other grounds. He assumed that the principal is never bound by the act of his agent, unless he has in reality authorized it, or has, by his declarations or conduct, given to the agent- a semblance of authority for its performance. The act must, he insisted, in all cases, be brought within, the actual or apparent powers of the agent. ■

This is, doubtless, a sound general rule, but there are, I apprehend, some exceptions. It is admitted in that opinion, that the principal is responsible for a false representation by his agent, not authorized by or known to the principal, if such representation is made in connection with an act which the principal has authorized. But this, it is said, is “ because the fraud enters into and is a part of the authorized transaction.” This reasoning was not, as we have seen, necessary to the conclusion at -which the court arrived. ° There is a class of cases to which it does not, in my opinion, apply, viz., cases where the act of the agent, so far as the party dealing with him has any means of discovering, is within the power, but where, by reason of some fact known to the agent and concealed or misrepresented by him, it in reality exceeds his power. Take, for example, the case of a forwarder who carries on his business through an agent. Such agent would, from the nature of the business, have power to give written acknowledgments of the receipt of property to be transported; but would, whether specially restricted or not, have no authority to give such an acknowledgment when no property had been received; and every person dealing with him would be bound to take notice of this, limitation of his powers. Suppose, then, a dealer in produce to apply to a banker for the discount of a draft drawn against property alleged to have been delivered to this.agent to be transported to market, and to produce the written statement of the agent, addressed to the banker himself, acknowledging the receipt of such property, upon the faith of which the draft should be discounted. «Here the act of the agent, the facts being known, would be within neither the real nor apparent powers of the agent. And yet to hold the principal not liable, would, I think, do great injustice, and would seriously disturb a very extensive system of trade, o The question is, who is to bear the consequences of this false and fraudulent representation of the agent ?

In the opinion in the case of The New York and New Haven Railroad Company (supra), it is argued, in reference to cases of this sort, that “ a man can no more enlarge than he can create a power by* any representation which he can make.”

■ This is, no doubt, strictly true. But the answer is, that in the case supposed, and others of that class,»the fact, misrepresented forms no'part of the power itself. ° The precise extent of the power admits of no doubt. It is known to all the parties concerned. »But there is a fact dehors the power, well known to the agent, but misrepresented by him, which prevents his having a right to act. <> Who, in justice, should be responsible for this fraud of the agent ? It seems to me eminently a case for the application of Lord Holt’s rule, thafcwhere one of two innocent parties must suffer from the fraud or misconduct of a third, he who has reposed a trust and confidence in the fraudulent agent ought to bear the loss. (Hern v. Nichols, 1 Salk., 289.) The existence of any such rule was, as I understand, virtually denied in the opinion referred to, in the case of the New York and New Haven Railroad Company. This denial was essential to the maintenance of the principles there laid down, as the rule, if admitted, would embrace many cases which could not be reconciled with those principles. It would seem, however, too reasonable in'itself, and too well established by authority, to be shaken. It has been quoted and adopted by many eminent judges, as well as by nearly every elementary writer upon the law of principal and agent, since the days of Lord Holt. One or two only of these authorities will be referred to here, for the purpose of bringing out a single idea.

The liability of principals for the negligence and for the frauds of their agents rests upon the same grounds. The language of Lord Holt, in Hern v. Nichols, was evidently the result of a settled opinion, as he had previously laid down the same rule in reference to the liability of a principal for the negligence, of his agent. In the case of Lane v. Cotton (12 Mod., 472, 490), he says: “ For when a trust is put in one person, and another whose interest is intrusted to him is damnified by the neglect of such as that person employs in the discharge of that trust, he shall answer for it to the party damnified.” Paley, in his work on Agency (p. 294), treats of the liability of principals for the negligence and frauds of their agents, in the same section, and places the language just quoted from Lord Holt at its head. Mr. Justice Btiller, also, in the case of Fitzherbert v. Mather (1 T. R., 16), adppts the same classification and confirms the rule in the following emphatic terms: “It is the common question every day at Guildhall, where one of two innocent persons must suffer by the fraud or negligence of a third, which of the two gave credit?” Again, Mr. Ohitty says: Though a principal is not in general liable, criminally, for the act of his agent, yet he is civilly liable for the neglect, fraud, deceit or any other wrongful act of his agent in the course of his employment, though, in fact, the principal did not authorize the practice of such acts.” (3 Chitty’s Com. Law, 209.)

If this classification is correct—and it is concurred in by all elementary writers —then0the idea that the responsibility of a principal for the frauds of his agent rests in all cases upon the ground that he has in some way, either actually or apparently, authorized the fraudulent act, or has received the benefit of the fraud, and therefore adopted it, must be given up. o It would be a very artificial and unnatural mode of reasoning that should apply that doctrine to the principal’s liability for the negligence of his agent; and this liability and that for fraud belong to the same class, and rest upon the same reason, n That. reason is, that every person employing an agent is under obligation to pay some regard to the diligence, skill and integrity, of the agent he selects, and to his fitness to perform the duties with which he is charged. The decision of this court in the case, of the Butchers' and Drovers' Bank (supra), was placed explicitly upon this ground, and can be sustained upon no other. The act of the teller in that case in certifying the checks was wholly unauthorized. There was not even a semblance of authority, if the holder was bound to ascertain whether the drawer had funds to meet them. The court, nevertheless, held the bank liable, and every judge who wrote in the case (except Judge Comstock, who dissented), concurred in the rule laid down in the case of the North River Bank v. Aymar (3 Hill, 262). This rule is restated in the case of the Butchers' and Drovers' Bank, as follows: “Where the party dealing with an agent has ascertained that the act of the agent corresponds, in every particular in regard to which such party has or is presumed to have any knowledge, with the terms of the power, he may take the representation of the agent as to any extrinsic fact, which rests peculiarly within the knowledge of the agent, and which cannot be. ascertained by a comparison of the power with the act done under it.”

It is insisted in the present case that the decision in the case of the Butchers' and Drovers' Bank proceeded upon some principles applicable solely to negotiable paper, and which have no application here. This certainly is not the case in respect to the opinion published in 16 Hew York Reports (p. 125); arid although the reasoning of Judge Denio (14 N. Y., 623), is based mainly upon rules drawn from the law of negotiable paper, yet the opinion of Judge Cowen, in the North River Bank v. Aymar, which the Chief Judge especially commends, argues the question throughout upon the law of principal and agent, and not at all upon principles peculiar to negotiable paper. He also cites Lord Holt’s rule, in the case of Hern v. Nichols, as the basis of the defendant’s liability.

JSTo doubt the negotiable character- of the paper was essential to the plaintiff’s right of action, both in the case of Aymar and that of the Butchers' and Drovers' Bank, because the only representation by the agent was in assuming to be authorized to execute the paper, and this being made primarily to another party, himself cognizant of the fraud, would, aside from the negotiable words; have afforded no ground of action to the plaintiff. The cases would then have been precisely like that of the New York and New Haven Railroad Company. But by means of the negotiability of the paper, a direct privity was created between the maker of the paper and the holder. The law merchant gives effect to a negotiable instrument, according to its terms. As those terms import a dealing between the maker and each person to whom the instrument may be transferred, it is so treated. Hence any representation upon the face of paper of this description, is considered as made directly to every one who may become its Iona fide holder. (Polhill v. Walter, 3 B. & Ad., 114.) The mere assumption by a partner ' or agent of power to execute such paper, is a virtual representation to all who may take it of the existence of every fact essential to the power. In no other respect was the negotiability of the paper of any importance in the two cases referred to.

' These cases, therefore, must' be considered as establishing the doctrine, that where the authority of an agent depends upon some facts outside the terms of his power, and which, from its nature, rests particularly within his knowledge, the principal is bound by the representation of the agent, although false, as to the existence of such fact. - There is no difference in this respect between the liability of the principal for the fraud of his agent, and that of a partnership for the fraud of one of its members. Judge Stoby, in treating of the liability of partnerships in such cases, says: “ The whole doctrine proceeds upon the intelligible ground, that when one of two innocent parties must suffer by the act of a third person, he shall suffer who has been the cause or the occasion of the confidence and credit reposed in such third person.” (Story on Part., § 108.) / Mr. Collyer, also, places this language of J udge Sturt at the head of the section in which he treats of this class oj liabilities, and expressly applies the principle to the case of negotiable securities, fraudulently issued by one of the partners. (Collyer on Part., Perkins’ ed., p. 401, §§ 445, 447.)

It is clear, therefore, that cases like those of the North River Bank v. Aymar, and The Farmers' and Mechanics' Bank v. The Butchers' and Drovers' Bank, as well as that entire class of cases in which it has been held that a partnership is liable to a bona fide holder upon a negotiable note fraudulently issued in its name by one of the partners, all depend upon one common principle. > The mode in which the liability is enforced in all these cases is by estoppel in pais. ° The agent or partner has in each case made a representation as to a fact essential to his power, .upon the faith of which the other party has acted, and the principal or firm is precluded from controverting the fact so represented. The applicability of the doctrine of estoppel to cases in all respects parallel to these, is asserted by Judge Denio in the case of The Genesee Bank v. The Patchin Bank (3 Kern., 309). The ground .of liability and mode of enforcing it, by estoppel, in the case of the certified checks, was precisely the same as if the teller, instead of writing the word “ good ” upon the face of the checks, had simply answered verbally to the inquiry of a person, about to take the checks, that the bank had funds of the drawer to meet them, and the action had been brought by the person to. whom such statement was made. The teller would be the proper source of information on the subject, and whether bound to answer such inquiry or not, if he chose to do so, the bank, upon the principles which have been adverted to, would clearly be bound by his answer, and would be estopped from controverting it ■ by proof. I see no. way. in which the present case can be distinguished in principle from such a case, or from the class of cases to which I have referred. The plaintiff knew the extent of Wright’s powers, that is, that he had no right to give the receipt or make the representation, unless the grain had been actually received; but he could ascertain-the fact'whether it had been so received only through Wright himself. A personal examination of the warehouse would not have enlightened him, as it could not be distinguished from other grain of the same sort. If, then, the firm is not liable, there is no security in dealing with property represented to be in the hands of warehousemen or forwarders.

There are some English cases which have been frequently cited in opposition to the doctrine adopted in this case, and which, although briefly commented on in the case of The Butchers' and Drovers' Bank, it may be well again to noticq, as a more extended analysis will show, I think, that they are of very little weight as opposed to that doctrine. The first of these cases is that of Grant v. Norway (10 C. B., 665). The master of a ship, owned by the defendants, had signed and delivered a bill of lading, in the usual form, for goods which had never been shipped. The plaintiffs, upon the faith of this bill of lading, and upon its deposit with them, had made advances to the parties appearing by the bill to have shipped the goods. Upon discovering that no goods had been shipped, they brought their action against the owners of the ship.

¡Now, upon the principles maintained here, this was a very plain case. The parties to whom the bill of lading was .given had, of course, no right of action, because they were cognizant of the fraud, and the plaintiffs had none, .because no representation was made to them. Had the bill of lading been a negotiable instrument, .the plaintiffs would have been in precisely the same position as persons who become honafide indorsers of the negotiable note of a partnership fraudulently issued by one of the partners. A privity between the parties would then have existed through the negotiable character of the paper, and the defendants would have been estopped by the act of their’ agent from setting up that no goods had been shipped.

The case was argued before three judges only, and it appears from the course of the argument that, while the attention of the Chief Justice was wholly given to the question whether the act of the agent was within his powers, that of Creswell, J., was directed mainly to the view of the case which I take. For the latter judge not only distinguishes the case from that of Hern v. Nichols, upon the precise ground taken here, as is shown by the language quoted from him, in the case of The Butchers' and Drovers' Barde, but subsequently he puts this case: “ Suppose this were not the case of an indorsee of a bill of lading, but that of the owner of the goods, who really sent them by a carrier for the purpose of their being shipped, and the master gives a receipt to the owner of-the goods, but the carrier fails to deliver them ; in that case the owner would be induced, by the captain’s receipt, to abstain from pursuing the thief; but is the indorsee of the bill, under the circumstances supposed, in the same position as the original owner of the goods ?”

This • supposition clearly shows the judge who made ■ it to have, for the moment at least, adopted the views which I have presented, for he puts the case in the precise form to obviate the objections, which I say existed, to a recovery by any one against the owners of the ship, viz.: the want of any representation at all to the plaintiffs, and the knowledge by the party to whom the representation was made, that no goods had been shipped.

The opinion of the court, which was delivered by the Chief Justice, is not in conflict with these views, though it does not support them. It purports to establish two points, in which I entirely concur, viz.: 1. That the master had no„authority to sign a bill of lading for goods not shipped; and 2. That persons dealing with him were presumed to know that his powers were thus limited. But, as to the question whether a false representation that the goods had been shipped, made by the master directly to an innocent party, who should act upon such representation, would bind the owners, the opinion is entirely silent. This is a view of the case which the Chief Justice evidently had not considered:

In the subsequent case of Coleman v. Riches (29 Law & Eq. R., 323), the point here discussed forced itself upon his attention. The defendant, Riches, was a wharfinger, his business being in charge of one Board, as his agent. The plaintiff, Coleman, was a dealer in produce, and in the habit of buying gram to be delivered at the defendant’s wharf, and paying for it upon the receipt of Board, the agent. The plaintiff purchased a quantity of wheat of one Lewis, and ordered it delivered at the defendant’s wharf. .He afterward met Lewis and Board”, the agent, together, and Lewis stated, in Board’s presence, that he had delivered the wheat, at the same time, producing and delivering to the plaintiff Board’s receipt. The action was against Biches, for the misrepresentation of his agent, contained in the receipt.

Upon the argument the Chief Justice, among other things, remarked, that “ the misrepresentation was in fact made by ■Lewis, though Board enabled him to make it, and was present' when he made it;” and thereupon Creswell, J., said: “Biches or his agent made the representation as to the receipt to the party who delivered the goods, and not to the buyer.”

These remarks recognize most distinctly the real difficulty in the case, which was, to make it appear that the false representation had been made by the agent, Board, to the plaintiff. To establish this, the counsel argued that, as Biches knew that the receipts were given for the purpose of being taken to the plaintiff, they were to be regarded the same as if given directly to him. But to this Jervis, Ch. J., and Williams, J., replied, in substance, that they were unable to see how it could be made out that the representation was made to Coleman, the plaintiff

It is quite apparent, therefore, that if the agent of Biches • had made the false, representation, as to the delivery of the wheat, directly to the plaintiff Coleman, the action would have been sustained. This inference is strengthened by what is said by the Chief Justice in his opinion, in which he admits that if Biches had agreed with Coleman, that such; receipts should be given, the case would have been different. He did not, of course, mean an agreement that the agent should give receipts for wheat not delivered. ' The receipt would still have been, if the supposed agreement had existed, without even the semblance of authority, a mere false representation by the agent. The only difference the agreement could make would be to create such a privity of dealing between Riches and Coleman as to cause the receipts, although given in the name of the vendor of the wheat, to be treated as if given directly to Coleman, the purchaser. This coincides with the view which I have taken of the present case. These two cases .have been dwelt upon thus at length, because, although frequently cited and relied upon 'in opposition to the position taken here, I think, when closely examined, they tend rather to Confirm it than otherwise. 01 have no hesitation, therefore, in holding that, under the circumstances of this case, the defendants were bound by the representations of Wright—I mean the verbal representations, and not the representations contained in the receipts. Although he may not have been bound to answer the inquiry as to the wheat, yet a warehouseman cannot but be considered as acting in the proper line of his business in answering such inquiries respecting the property he has in store; and if he consents to answer, is bound to answer truly. It cannot bé material whether he is questioned on the subject at his warehouse, or elsewhere—the inquiry being addressed in the way of business, by one known to be about to act on the information which may be given in reply. As a matter of evidence, bad faith would be much less readily attributed to one'answering such inquiries away from his place of business, if the case were open to a presumption of mistake; but whatever circumstances may attend the inquiry, absolute good faith must be alike required in the answer.; ...

The" only refnaining question is, whether the plaintiff can enforce his claim-in the present action, the complaint in which does not. purport to claim damages for the fraud of Wright, but for the- conversion by the defendants of property belonging to the plaintiff. Although an actual conversion is not averred, yet a demand .and refusal, which are evidence of a conversion, being alleged, a conversion forms the gist of the action. There would,- no doubt,/be an incongruity in permittiñg a recovery in such an action for property shown never to have had an existence. But the plaintiff in this case objected upon the trial to all proof on that subject. If this objection was well taken, the case, as now situated, is to be disposed of as if no such evidence had been received. A new trial cannot be properly granted upon evidence which was objected to, and improperly admitted. The defendant’s counsel is, as I think, wrong in assuming that it appeared from the plaintiff’s own showing that the grain had no existence.. „ •

Were the defendants, then, estopped, by the representations * of Wright that the grain was in store, from proving the con-1 trary upon the trial? The only elements of an estoppel in pais are, the assertion of a fact by one party, and such action " by the other party, in reliance upon the assertion, that he will be injured and virtually defrauded, if the fact asserted is ,dis- . ' proved. It would seem difficult to imagine a case more directly - within the doctrine than the present. If the firm is bound at all by the representations of Wright, it would seem, upon ,• principle, that it must be estopped from proving the contrary.

The case of Austen v. Craven (4 Taun., 644), is relied upon to show that an action of trover would not lie in such a case. But that case differed essentially from this. It was founded upon a mere executory contract for the delivery of a certain quantity of sugar of a certain description. The party under whom the plaintiff claimed had never been entitled to any specific .sugar, and this necessarily appeared in the case. When the plaintiff’s counsel attempted to argue from- the defendants’ admission, that the sugar must have been separated from the bulk of the stock, GriBBS, J., interposed, saying: “Their language is explained by the other evidence.” It is obvious, therefore, that the case was decided upon the ground that, taking the whole evidence together, the defendants had not admitted the possession of any specific sugar to which the plaintiffs’ assignor had title. The opinion of Mansfield, Oh. J., shows that this was the ground of the decision. The present case is entirely different. Here the representation of Wright, if taken as true, showed the defendants in possession of certain specific grain delivered to them by Ford. There was no such difficulty as existed in Austen v. Craven.

The case of Harding v. Carter (Park on Ins., 40), is far more like the present. The defendants in that case, who were brokers, had written to the plaintiff, the master of a ship, that they had effected two policies of insurance, one on his account, the other on account of the owners, naming the underwriter. The ship was lost, a_nd the defendants then produced a different policy, with another underwriter, and only insuring the ship, in which the plaintiff had no interest. The plaintiff, therefore, brought an action of trover, for the policy described in uhe letter. In defence it was said, as it is here, that trover could not be maintained for that which never existed. But Lord Mansfield, before whom the case was tried, “ would not suffer the defendants to contradict their own representation,” *tnd the plaintiff recovered. As this case cannot be distinguished from that before us, and as I think it clearly right, I do not hesitate to follow it.

.The difficulty suggested in regard to proving the value of property which has had no existence, is more imaginary than real. The same difficulty would exist in an action to recover for the fraud. The plaintiff in such an action could recover no more than the value of the grain. As the quantity was specified in the receipts, it was his own folly if he advanced more than its value. The market price of ordinary merchantable wheat, &c., would be the criterion of value and the measure of damages.

It is not necessary to notice the other technical points raised upon the argument. The order for a new trial should be ¡reversed, and final judgment should be rendered for the plaintiff upon the verdict.

Denio, Ch. J., (dissenting.)

There was sufficient evidence for

the jury to have found, if the case had been submitted to them, that the receipts upon which the plaintiff advanced his money were false and fictitious, and that they were fabricated to enable Wright, and the person calling himself Samuel Ford, or one of them, to defraud the plaintiff.

There being no such wheat delivered to the defendants or héld in store by them as the papers professed to represent, the first question is, whether this action can be sustained, even upon the assumption that the defendants are legally responsible in some form for the acts of Wright. Whatever the form of this action might have been called, when pleadings were technical, it is quite clear that the complaint presents a case of an alleged tortious interference by the defendants with the rights of property of the plaintiff as the owner of a quantity of wheat. It contains the elements of replevin in the deiinet, to 'which it is also assimilated by the prayer that the grain may be delivered to the plaintiff. It also contains, argumentatively, the elements of an action of trover, for it alleges property in the plaintiff, possession by the defendant, and a demand and refusal, which is the usual evidence in such cases of a conversion. It does not allege that the storehouse receipts were false or fictitious, but it relies upon them as though, they were valid, and sets out a title under them as operative papers.

The plaintiff’s counsel does not controvert this view of the effect of the complaint, or the rule that replevin and trover will, in general, only lie for specific personal property; but he insists that the defendants are estopped to deny that the wheat referred to in the receipts was actually on hand in their storehouse when the plaintiff demanded it.. But I am of opinion that the doctrine of estoppel cannot be applied to such a case. The effect of an estoppel in pais is to oblige the party affected by it to respond to the one entitled to the benefit of it, to .the same extent as though the facts actually existed according to the representations made. The judges and jury and sheriff are not required to shut their eyes, and by an effort of the imagination to-produce the circumstances represented by the defendant, and to act in conducting the trial and in the machinery of the process as though these supposed circumstances had a real existence. Replevin and trover will only lie in respect to actual and specific personal property, and Neither of these actions can be sustained to recover for a breach of promise, or for damages arising out of deceit or misrepresen-tation respecting alleged chattels which never had an existence. In Austen v. Craven (4 Taunt., 644), the plaintiff sued in trover for 50 hogsheads of sugar. It appeared that one Kruse had purchased that quantity of sugar of the defendants, to be delivered at a future time, but the contract was executory, no particular hogsheads of sugar passing from the defendants to Kruse; but the latter sold the sugar referred to in his contract to the plaintiff. The plaintiff gave notice of his intended purchase to the defendants, and inquired whether they had 50 hogsheads of sugar belonging to Kruse, and whether he, the plaintiff, might safely purchase them of Kruse and pay him the price; to which they answered in the affirmative, and said they had the. 50 hogsheads, and would deliver them. The plaintiff, accordingly, paid Kruse the money, -but the defendants, on a demand subsequently made, refused to deliver any sugar. The plaintiff’s counsel urged the estoppel in this manner: “It appears by the defendants’ admissions (referring to what they said in answer to the plaintiff’s inquiry), that these goods had been separated from the bulk of their stock, for they said they had the 50 hogsheads belonging to Kruse, which they would deliver to the plaintiff. If they had any 50 hogsheads of that quality in their warehouse, they must, after that declaration, be deemed to have appropriated them to the plaintiff, and could not say they were not his property.” A motion to set aside the verdict and enter a nonsuit was granted. Sir James Mansfield, Chief Justice of the Common Pleas, said: “ Trover cannot be maintained but for specific goods. Any sugars of required quality would have answered this contract. It is a contract for a certain quantity of a specified quality,” &c. The facts constituting the estoppel were of precisely the same character, and just as strong, as those in the case before us. Chapman v. Searle (3 Pick., 38), at first view would seem to be in conflict with Austen v. Craven, but I think it is not in fact. Ludlow was the purchaser of 300 barrels of beef of the defendant, and received from him a bill of parcels and a receipt in full for the price, and a certificate stilting that he (defendant) had received 300 barrels of beef in store for him, Ludlow. The plaintiffs .were Ludlow’s assignees under an , insolvent’s assignment, and they demanded the beef of the 'defendant, who refused to deliver it, when they brought.this action of trover. The defendant, it was shown, had considerable quantities of beef in different parts of Boston. The • defendant, it seems, undertook to prove ¿hat the papers did not exhibit the real transaction; that it was merely a paper arrangement; that no goods were sold and delivered or held by the defendant on storage for Ludlow. The great question was, the court said, whether such parol testimony was admissible; 'and they held it was not. Judgment was given for the plaintiff. They said that, as between the defendant and Ludlow, the writing must be taken to be conclusive evidence of the fact. The case seems to me to have been put upon the rule of evidence referred to, and not upon the effect of an estoppel, though the judge who delivered the opinion did say that the defendant was estopped to deny that he h'ad these goods. What renders it certain, however, that the judgment was put upon the rule of evidence that the writing could not be contradicted, is that it was considered that Ludlow himself might have brought the action. He certainly could have done so if the plaintiff could maintain it, for there was no communication between him an$l the defendants. Besides, they parted with nothing as the consideration of Ludlow’s assignment, and obviously stood only in his place. As between Ludlow and the defendants there was no pretence of any estoppel, except such a one as the rule of evidence referred to always creates. There Is a case of Harding v. Carter, reported in Park on Insurance (p. 4), which seems to be more in point, and, if good law, would change the opinion to which I am inclined. The defendants, insurance brokers, wrote to the plaintiff that they had effected two policies of insurance on his interest in certain property, which they had not done, the letter having been written by mistake by a clerk. Lord Mansfield held the defendants as insurers, and allowed the plaintiff to recover the value of the policies in an action of trover. It seems right enough to hold the defendants in such a case liable as insurers, if the plaintiffs had acted on the letter; but I do not so well understand how they could be charged for converting two policies which the plaintiffs’ evidence showed never had an existence. Unless the case is distinguishable from the general one by considerations connected with the law of insurance, I should be disposed to consider it overruled by Austen v. Graven. It is at 'best only a nisi prius case, and has not found its way into any regular series of reports'.

For these reasons, I am in favor of affirming the order appealed from.

Davies and Wright, Js., also dissented.

Order reversed, and judgment for the plaintiff.


author: Sutherland, J.

text:
    Campbell v. Consalus et al.

    In an action to procure the canceling of a mortgage as having been paid, the pleadings put in issue the fact, but not the amount due: it was deter-" mined that the mortgage was not paid, but the sum of §2,754 was due thereon, and the complaint was dismissed. This adjudication is conclusive upon the parties only of the fact that something was due, but not of the amount.
    It does not affect the principle that the case was tried under a stipulation that it might be decided upon principles of equity, without regard to technical rules or the form of the pleadings, and that the pleadings should be considered as amended to meet the evidence; it not appearing that the mortgagee’s answer was, in fact, amended, or regarded as amended, so as to ask affirmative relief.
    Action to foreclose a mortgage executed by the defendant, Consalus, in 1833, and of which one Linn, who subsequently assigned it to the plaintiff, had been the owner. Upon the trial, before a referee, the plaintiff insisted that the amount due upon the mortgage had been conclusively adjudged by the determination of referees to whom three actions pending between Consalus and Linn were referred in 1853..
    One of the actions was brought for the purpose of having the mortgage and two judgments which Linn held against Consalus declared satisfied, on the ground that they had been paid. The complaint alleged - that they had been fully paid; that Linn had been requested to satisfy the mortgage and judgments of record, and that he had refused to do so. The only relief asked was, that they be canceled and satisfied of record. Consalus did not ask for an account or offer to pay any amount that might be found due on the mortgage. It was not an action to redeem.
    Thé only issue made by Linn’s answer was, whether the mortgage and judgments were paid. No affirriiative relief was "asked in his answer. The three actions were referred to three referees, who, after hearing the evidence, reported that the mortgage and judgments were not paid; that there was $2,754.88 due on the mortgage, and that the plaintiff’s com. plaint should be dismissed, with costs. On this report judgment was entered, dismissing the complaint with costs.
    Pending the trial before the referees, a stipulation in writing was entered into between the attorneys of the respective parties, to the effect that the referees might decide the three suits so referred to them upon principles of equity, without regarding technical rules, and without regard to the forms of the pleadings in the suits, and for that purpose the pleadings might be amended, and should be considered as amended, to meet the evidence in the causesand that the reports which the referees should make should be final and conclusive.
    The referee in this case held the judgment in the former action conclusive only as to the fact that something was due on the mortgage, but no evidence as to the amount. He was of opinion that the mortgage had, in fact, been paid, but deemed himself bound, by the judgment in the previous case, to find that there was due upon it the nominal sum of six cents. The judgment ordered by him was affirmed at general term, in the third district, and the plaintiff appealed to this court.

      William A. Beach, for the appellant.

      E. F. Bullard, for' the respondent.
   Sutherland, J.

When this case was here before (16 1ST. Y., 575), it appeared that the defendant, Hall, held a second' mortgage upon the premises covered .by the mortgage which this action is brought to foreclose; and it was held, that his mortgage having been given prior to the actions of Consalus against Linn, to which he was not a party, he was not estopped from contesting the amount due on the prior mortgage by the proceedings in such actions.

But it appeared on the second trial, that Hall was not a mortgage creditor at all; that he had executed and delivered a satisfaction-piece óf the mortgage; that, on the 20th of Janua.ry, 1853, he took a judgment by confession against Consalus for his mortgage debt; that the mortgaged premises were subsequently sold upon prior liens, and that Hall, under his judgment, subsequently redeemed, and took the sheriff’s deed; and that subsequently Consalus conveyed the premises to him by warranty deed.

Hall, then, at the time of the trial, stood in the position of a grantee of Consalus by grant subsequent to the proceedings in the actions by Consalus against Linn, and, as such grantee, must be deemed to have taken his title subject to the prior mortgage not only, but subject to the proceedings in such actions, and is estopped by them, if Consalus, his grantor, is. This is substantially said, I think, by Judge Selden, in his opinion in this case (16 N. Y.), and would appear to follow from the cases cited by him.

The question, and the only question, in this case, is, then, whether Consalus was estopped, by the proceedings and judgment in his prior actions against Linn, from contesting the amount found and reported to be due on the mortgage by the referees to whom those actions were referred.

The referee in. this case does not find the fact, but I assume, and the case shows, that the question whether the mortgage was fully paid, in the prior action of Consalus against Linn, involved the taking of an account between them, and that the question how much, if anything, was aue on the mortgage, was. contested before the referees.

Independent of the stipulation, it is quite plain that the proceedings and judgment in the prior action of Consalus against Linn was not conclusive in this action as to the amount due on the mortgage.

To make such proceedings and judgment thus conclusive, it should have appeared, not only that the amount due on the mortgage was litigated, and found by the referees in such prior action; but it should also have appeared, by the record of the judgment in such prior action, that the amount due on the mortgage was put in issue by the pleadings in such prior action. (Campbell v. Butts, 3 Comst., 173; Manny v. Harris, 2 John., 24; Young v. Rummell, 2 Hill, 481; Burdick v. Post, 12 Barb., 168; Doty v. Brown, 4 Comst., 71; Standish v. Parker, 2 Pick., 20.)

Even an agreement between the parties, that matters foreign to the pleadings shall be given in evidence and decided by the verdict of a jury, will not, it seems, enlarge the operation of a judgment entered, on such verdict by way of estoppel. (Wolfe v. Washburn, 6 Cow., 262; Guest v. Warren, 9 Ex., 379; 2 Smith Lead. Cases, 672.)

How, it is plain that the trial of the issue between the parties, in the prior action of Consalus against Linn, as shown by the record of the judgment in that action, did not directly or necessarily require the referees to find or report how much was due on the mortgage. The question by the pleadings in that action was, whether the mortgage and judgments were paid. If any amount was due on them, the plaintiff was not entitled to the relief he asked for, and the judgment dismissing the complaint was proper. (Beekman v. Frost, 18 John., 544.)

It is true, in this case, in consequence of the nature of the transactions between Consalus and Linn, it was probably necessary to take and state an account between them, which would show how much was due upon the mortgage, in order to determine whether anything was due; but the evidence and inquiry as to the amount due was merely incidental or collateral to the direct issue, whether anything was due. And it would appear, from the cases* before cited, that the principle of res adjudicate;, does not apply to matters arising only incidentally or collaterally. (Lawrence v. Hunt, 10 Wend., 80-83; Sweet v. Tuttle, 14 N. Y., 465.)

This is my view of the question of estoppel, independent of ■ the stipulation.

Now, I cannot see that the question of estoppel is at all affected by the stipulation.

The stipulation does not enlarge, and from its terms I cannot see that it was intended to enlarge or alter the issue raised by the pleadings, or the relief asked for by the complaint in that action.

The stipulation is entitled, in the three actions referred to the same referees. The other two actions were legal actions. Neither the pleadings nor the evidence in the other two actions are in the case. It may be that the pleadings in the other two actions required amending to meet the evidence in those cases; but we have the pleadings and the evidence in the other action, the proceedings and judgment in which are insisted upon as an estoppel. In that case it cannot be said but that the evidence before the referees, which resulted in showing the amount due on the mortgage in their opinion, was incidentally proper, and even necessary, to show whether, anything was due on the mortgage, and, therefore, we cannot say that the parties, by the stipulation, intended that the pleadings in the case might be amended, or considered as amended, to meet the evidence. Ordinarily by an amendment is not intended a reform of a pleading to the extent of adding a new cause of action.

If the stipulation as to amending was intended to apply to the pleadings in the action, the proceedings and judgment in which are insisted upon as an estoppel, and if by it was intended that Linn’s answer should be considered as amended, so as to ask for affirmative relief and allow him to .enter judgment for the amount reported by the referees to be due on the mortgage, why did he accept their report and enter judgment on it, dismissing the complaint merely, and then assign the mortgage to the plaintiff in this action without the judgment, and then the plaintiff commence this action to foreclose the mortgage, not at all founded on the judgment in the prior action, and without alluding in his complaint to that judgment, as determining the amount due on the mortgage ?

In my opinion, these acts of the plaintiff and'of his assignor • go to show that they did not consider the stipulation as giving the force and effect to the judgment of determining the amount due on the mortgage.

As to that part of the stipulation which says that the referees might decide the suits upon principles of equity, without regarding technicalities. If the word equity was used in a technical sense, the provision was useless if intended to apply to the equitable action: if the word was used in a more enlarged sense, and was intended to apply to the equitable action, then the provision must be deemed to mean that the referees might determine the issue between the parties in that action according to principles of equity, &e.

As to the provision of the stipulation that the reports of the referees should be final and conclusive between the parties, that might affect, the question of the right of appeal, but cannot affect the question of-estoppel.

My conclusion is, that the judgment of the Supreme Court should be affirmed, with costs.

All the judges concurring,

Judgment affirmed.


author: Gould, J. Davies, J.

text:
    Smith v. Miller.
    The sheriff holding an execution against H., M. paid him the amount thereof, in the expectation that the plaintiff in the execution would assign him the judgment, but without the plaintiff’s knowledge or any negotiation with him, and'the money was not to be returned if the plaintiff should refuse to assign. The sheriff gave M. a receipt, stating that the money was “to apply on the judgment, which*is not to be canceled except by M.’s order, if the plaintiff will assign the judgment,” which, after a time, he did: Held, that this was a purchase, and not a payment, of the judgment.

      It seems, that an attempted redemption by a judgment-creditor is void, if his affidavit overstates the amount due on the judgment, though the misstatement be casual, and not fraudulent.
    Appeal from the Superior Court of the city of Buffalo. The action was brought to restrain the sheriff of Brie from executing a deed to one Miller, upon his alleged redemption of the land of Milo W. Hill, which had been sold on execution, on the ground that the judgment on which Miller claimed to redeem had been previously satisfied. The complaint also prayed that the sheriff be required to execute a deed to the plaintiff,: who claimed to have acquired a right to such deed, in virtue of his redemption under a judgment assigned to him by Lovell and Coles, the plaintiffs therein. The trial was before the court without jury. The plaintiffs’ title to the Lovell and Coles judgment was proved to have been obtained in this way: Lovell and Coles, having obtained judgment against one Hill, took from him two notes for the amount thereof, payable two and four months from date, both indorsed by the plaintiff, and stated, in their receipt for the notes, that “ when paid they aré to apply on the judgment.” At the time the arrangement was made, it was agreed that if the plaintiff had to pay the notes the judgment should be assigned to him. Hill paid the first note: the plaintiff was charged as indorser upon the second note; paid it, and Lovell and Coles assigned to him the judgment. In the affidavit made when the plaintiff claimed to have redeemed, he stated the sum due to him upon the judgment as the whole amqunt, whereas, in fact,, it was but half that amount. The judge found, as matter of fact, that this misstatement was casual and not fraudulent.
    The right of the defendant Miller to redeem arose in this way: Carter, Quinan & Deforest had recovered judgment against Hill, and an execution thereon was in the hands of the sheriff. Miller paid the amount due thereon to the sheriff, the judge found, as matter of fact, “in the hope and expectation that the plaintiffs therein would assign the judgment to him, but the money was not to be returned to Miller, if Carter, Quinan & Deforest, the plaintiffs in that judgment, refused to assign it. At and prior to the time of payment, nothing had been said to Carter, Quinan & Deforest about assigning the judgment.” Upon receiving the money, the sheriff signed and delivered to the defendant Miller a paper in these words:
    “ Received, Buffalo, Sept. 1,1855, of L. A. Miller, $1,067.77, to apply on judgment of Carter, Quinan & Deforest against Milo W. Hill,"said judgment to be under the control of said Miller, and not to be canceled except by his order, if plaintiffs will consent to and make an assignment of said judgment to said Miller.”
    Upon paying over the money to the plaintiffs’ attorney in the execution, the sheriff informed him that Miller wanted an assignment of the judgment. The attorney replied that he had no authority to assign it, but would correspond with the plaintiffs on the subject. They subsequently assigned the judgment to Miller. The judge held that the payment of the money by Miller to the sheriff extinguished the judgment, and upon his order the plaintiff had judgment that the sheriff convey the land in question to him. Upon appeal, the court at general term reversed the judgment, and the plaintiff appealed to this court, stipulating for judgment absolute against him, if the order for a new trial should be affirmed.

      Amasa J. Parker, for the appellant.

      John Ganson, for the respondent.
   Gould, J.

The true construction of the receipt, given by the sheriff to Miller, on receiving from him the amount due on- the judgment of Carter and others, is matter of law and not of fact. And it does not admit of'question (without adding any words to it), that notwithstanding it says the money was “to apply on” the judgment; yet the words, “said judgment to be under the control of said Miller, and not to be canceled except by his order, if plaintiffs consent to and make an assignment of such judgment to said Miller,” show that the payment was intended as a purchase of the judgment, if the plaintiffs would consent to sell.

The plaintiffs subsequently ratified the act of the sheriff in .receiving the money as their agent, and not in payment of the judgment, by assigning the judgment. And there can be no doubt that the assignment was effective as such; that the judgment never was paid, but was purchased. Of course, the purchaser, Miller, so holding it, was entitled to redeem, and he did so. He must prevail.

Judgment of general term (reversing1 special term) should be affirmed, and judgment final rendered against the plaintiff, on the stipulation.

Davies, J.

If the Carter judgment continued a lien upon the lands of Hill after the 1st of September, 1855, then, it must be conceded, the plaintiff’s redemption was ineffectual, and he was not entitled to the relief asked for. It is undeniable that Miller never intended to discharge and satisfy that judgment. The money paid to the sheriff was his money, and he did not, in terms, pay it to satisfy the judgment. Are we to assume that the judgment became extinguished and discharged by a payment made under the circumstances disclosed in the receipt and the testimony of the sheriff? The sheriff says, Miller wanted an assignment of the judgment; that he so informed the attorney for the plaintiffs, who gave him the assurance that, if they had no objection, the assignment would be executed. The money was therefore paid over, with the expectation that the judgment would be assigned to Miller, and was received by the firm of Carter and others with full knowledge of this expectation, and that the money was paid for that purpose. ' They recognized this understanding by subsequently executing the assignment. There could have been no intention on the part of Miller of satisfying the judgment, and it is clear that the acts of the parties negative any such assumption. But it seems to me that the language of' the receipt is conclusive to show that the money was not paid to satisfy the judgment, but for- an assignment of it. It is inartificially drawn, and does not express connectedly what was obviously the understanding at the time, but its true meaning can be easily extracted. The money paid was to “apply on” the judgment of Carter and others, the same.expression as used in the receipt given for the notes of Hill to liquidate the Lovell and Coles judgment. These notes, when paid, were “ to apply on the judgment,” and the judgment was to remain in force until they were paid. An argument might, therefore, with equal propriety, be drawn, that when the notes were paid, the Lovell and Coles judgment was no longer to have any force, and if the judgment was satisfied in the one instance, it was in the other. But further language is used, even more emphatic: “ Said judgment to be under the control of said Miller, and not to be canceled except by his order.”

There is an express stipulation that the -judgment is to remain, and continue to be thereafter, under the control of Miller. This is in hostility with the idea that the judgment was satisfied by the payment of the money to the sheriff. Again, it is expressly stipulated that the judgment shall not be canceled, except by the order of Miller. He thus insured his own security, by the agreement that the judgment was to remain uncanceled, except by his direction. How it is argued that Carter and others were not bound by these stipulations, and they were under no obligations to confirm them. That may be true, but they did confirm them, by accepting the money and executing the assignment; and these acts of theirs are equivalent to an original authority, conferred by them on the sheriff to make this arrangement. It was, no doubt, as competent for them to agree to accept Miller’s money, to apply on their judgment against Hill, and to stipulate that thereafter it should be under his control, and should not be canceled, except by his direction, as it was for the plaintiff in the Lovell and Coles judgment to accept Hill’s notes, to apply on that judgment; and the judgment in the one case was no more canceled than it was in the other. It was the intention of the parties, in both instances, that he who paid the money should have the benefit of the judgment and the lien created by it, for his reimbursement. It is equitable that this should be done, and it is not clear that, if Carter and his co-plaintiff had refused to execute the assignment, a court of equity would not have compelled them to do so, or to return to Miller the money he paid in the expectation that the judgment would be assigned to him. The last clause of the receipt is that in which the obscurity is found: “If plaintiffs will consent to and make an assignment of said judgment to said Miller.” I think the sheriff intended! by this tp avoid any engagement, on his part, that the plaintiffs should make the assignment, but that the receipt was intended to read, and should read, if the plaintiffs consent to and make an assignment of said judgment to said Miller, said judgment is1 to be under his control, and not to be canceled except by his order. As before remarked, the receipt of the money and the execution of the assignment by Carter and others are be deemed, in my opinion, evidences of ratification of the acts of the sheriff, and are as binding upon them as if made by themselves originally. They do not repudiate the acts of their agent. On the contrary, they have ratified and confirmed them. I do not see how this plaintiff can maintain that the judgment was canceled and satisfied by the payment to the sheriff, when the party making it, the one receiving it, and the parties for whose benefit it was made, have expressly stipulated and agreed to the contrary. It follows, from these views, that the redemption of the plaintiff was avoided by the subsequent redemption of Miller, under the Carter judgment, which was then a lien on the premises and in full force.

I have not deemed it necessary to discuss the other point, whether the redemption of the plaintiff was in fact according to law. The statute applicable to this subject (2 R. S., p. 373, § 60, sub. 3), requires an affidavit by the creditor, of the true sum due on such judgment at the time of claiming such right to redeem. A literal. construction of this section of the star tute would show' beyond all controversy that the affidavit made by this plaintiff did not conform to its. requirement in this essential particular. It did not state the true amount due to the creditor making the redemption, but stated what was nearly double the amount due thereon. The plaintiff had paid only one of the notes for $1,557, as the consideration for the assignment of the judgment, and which, with the interest thereon, was all that was due on the judgment. The amount of principal was incorrectly stated in the affidavit, as also the interest due thereon. I do not see how this express mandate of the statute can be evaded, and it is important that it should be adhered to. A junior judgment creditor, coming forward to redeem, as in the present case, might have been deterred from making the redemption by seeing the large sum erroneously claimed to be due the plaintiff, or if he determined, notwithstanding, to redeem,- he would have been compelled to pay the amount stated in the affidavit, while the' true sum was nearly half less. These' considerations, undoubtedly, influenced the legislature in requiring the true amount due each redeeming creditor to be stated in the affidavit made by him. And I do not see upon what ground we are at liberty to depart from the plain language of the statute. If it were necessary to the decision of this case that we should pass upon this question, I am, as at present advised, inclined to the opinion that the affidavit was, in this respect, fatally defective; but, as the case can be disposed of on the other ground, I do not purpose definitely to pass an opinion on this question.

The order of the general term, granting a new trial, should he affirmed, and, in accordance with the plaintiff’s stipulation, there should be judgment final for the defendants.

Denio, Ch. J., did not sit in the case; all the other judges concurring,

Ordered accordingly.