text:
    Edward Brown and Daniel Brown v. Wells H. Bowen.
    Where persons are in the actual use and occupation of premises on which mills are located, and they and those under whom they claim have been in possession thereof for a number of years, and an adjoining proprietor erects a dam below such mills, upon the same stream, by means of which the water is set back upon the wheels in such mills, thereby reducing the power thereof and injuring the mills, an action will lie for damages by the mill-owners.
    In case of adjoining proprietors of land over which a stream flows, each has the right to use the waters of the stream on his own premises, for any purpose for which it may be legitimately used; and neither has the right by any erection on his own premises to interfere with the enjoyment of the water by the other.
    The only exception to this rule is, that where both parties draw water from the same dam, each has. the right to continue to use the water, whatever the effect may be on the other; unless such other has acquired by grant or prescription the right to an exclusive use, or to use whenever there is not enough water for both.
    The occupant of premises injured'by the setting back of water upon the land may recover damages against the wrong-doer, to an amount sufficient to indemnify him for the injury to such interest as he had in the premises.
    An action will also lie hy the reversioner for the injury'done to the inheritance.
    Where the plaintiffs, in an action for such an injury, allege in their complaint that they are joint owners of the property, they are bound to prove it.
    Where the defendants, in such an action, occupied premises adioining those in the possession of the plaintiffs, and never made claim to the latter; Held, that the law would presume the plaintiffs were lawfully in possession, and entitled to recover damages for the injury sustained by them.
    Where the plaintiffs, to prevent the defendants from alleging title to the premises, showed that the defendant’s ancestor, under whom they claimed, was present when one of the plaintiffs purchased the premises, and that he did not claim that he owned the land, but said he had come to buy it;. Held that this, although very loose evidence on which to rest an estoppel, was some evidence, and sufficient, had it been submitted to the jury, to-support a verdict finding the estoppel.
    Where the judge charged the jury that the defendants, were estopped from setting up and relying upon their title to the premises as a defence to the action; Held that under this charge the jury were not at liberty to consider the question of ’estoppel as a question of fact, but were bound to consider the case on the assumption that as matters of law the defendants were estopped from asserting title to the premises; and that in this respect the court erred in its charge.
    That the question belonged to the jury, and should have been submitted to them as a question of fact.
    Facts necessary to establish an estoppel in pais.

      In the absence of proof of the effect of the admission on the party setting up the estoppel, it is for the jury to say whether, on the facts, the several essential parts of the estoppel are proved. *
    Where, in an action to recover damages of the defendants for flooding the water hack upon mills in the occupation of the plaintiffs, by means of a dam, it was shown that the defendants and their ancestor had omitted to assert title to the premises in question, although knowing the premises to belong to them, and that the plaintiffs had purchased them, and were making valuable permanent improvements thereon in the belief that they owned them; Held that this silence—this omission to assert title—clearly constituted an estoppel, and that no evidence could do away with the force of it.
    A new trial will not be granted when it is seen that the facts cannot be changed, and the fact proved is conclusive of the case.
    Where the plaintiffs consented to the building of a dam by the defendants on the condition that the work should he so done as not -to injure the plaintiffs, hut the work was so imperfectly executed that the current of the stream was impeded, and the water did not flow off, but set back unon the plaintiffs’ wheels; Held that the condition on which the consent was given not having been performed, the consent or license was no longer , binding on the plaintiffs, and the dam from that time became a nuisance, and the defendants liable for the injury it caused the plaintiffs.

      Held, also, that the consent of the plaintiffs, and rendering aid in the work, .could only operate against them by way of estoppel; and that it could not thus operate, because of the express condition on which such aid and assent were given.
    This action was brought by the plaintiffs, claiming that the defendants, by building a wing dam in the Otselic river, flooded water back upon the plaintiffs’ grist and saw-mills, so as to greatly injure them. (Other causes of action were set forth in the complaint, which, on trial, were dismissed by the court.) The defendants denied the complaint, answering separately; the defendant, Wells H. Bowen, in his answer, denying that the plaintiffs had rightful possession of the premises injured, or that they owned the same or had legal title or lawful right to use the same, and claiming that they belonged to the defendants. He also denied the causes of action set forth in the complaint, and claimed that ¡the wing dam complained of was built by the plaintiffs, or by their assistance and consent.
    Upon the trial, the plaintiffs, to show their title to the premises in question, gave evidence of a deed of the premises from Luther Bowen to Samuel and William Messenger, .dated September 14, 1829; second, a deed from Columbus C. Burr to John F. Cooper; third, a mortgage from John F. Cooper to Amos Taggart; fourth, a statute foreclosure under said mortgage and sale to Mark H. Sibley; fifth", a deed from Mark H. Sibley to Edward Brown, one of the plaintiffs, and a warranty deed of one-half of the premises from Edward Brown to Daniel Brown, the other plaintiff. The defendants "proved a mortgage from Samuel and William Messenger of the same lands, dated September 14,1829, to Luther Bowen; a foreclosure of said mortgage, and 'a sale of said premises to Luther Bowen, April 29, 1834; that Luther Bowen was in possession in 1835 or 1836, and after said foreclosure; that said Luther Bowen was deceased, and that the defendants were two of his heirs-at-law.
    Upon the trial, the defendants moved for a non-suit, which motion was denied. . The evidence being closed, the defendant requested the court to charge the jury as follows:
    1. That no cause of action is found against James K. Bowen, and that he is,'therefore, entitled to a verdict. The court refused so to charge, and the defendants excepted.
    2. That no cause of action being found against James K. Bowen, or if the jury shall so find, the= plaintiffs’ cause of action being a joint one against both defendants, fails as to both, and both are entitled to a verdict. The court refused so to charge, and the defendants excepted.
    3. That the defendants were not estopped by any acts of theirs, or those from or under whom they claimed. The court refused so to charge, and .the defendants excepted.
    4. Thatif the plaintiffs consented to, or assisted in building said wing dam, or if either of them so consented and assisted, the plaintiffs cannot recover in this suit.
    5. That if the plaintiffs are entitled to recover at all, it is not in this form of action, but is for the breach of' the contract, or directions for the building of the dam. The court refused so to charge, and the defendants excepted.

      6. That the defendants, or either of them, had a right to , protect their own banks and keep the water in its natural or former channel, although the same might injure the plaintiffs. The court charged as hereafter stated, and the defendants excepted to the charge as delivered, and also for the court not charging as requested.
    The court thereupon charged the jury as follows:
    1st. That upon the evidence the jury, (if there was no further evidence than that referred to by the court,) should find in favor of the defendant James K. Bowen.
    2d. That if the jury found a verdict in favor of the said James K. Bowen, they might still find one against the other defendant, and that discharging one defendant would not necessarily discharge the other. To which charge, and each and every portion of the same, the defendants excepted.
    3d. That the defendants were estopped from setting up and relying uj)on their title to the premises as a defense to this action, so far as relates to the damages to the mills by the wing dam; to which charge the defendants excepted.
    4th. That the defendants, if the waters of the Otselic had within twenty years changed their channel and were injuring their lands, had a right to turn these waters back into their former channel,' provided that in so turning them back they did no unnecessary injury to the plaintiffs; but that if, in bringing them back into their former position and situation, they unnecessarily .threw back-water on to the plaintiffs, 'they were liable in this action. To which charge, and each and every portion of the same, the defendants excepted.
    5th. That under the facts as found in this case, the plaintiffs were entitled to recover for none of the causes of action set up in the complaint, save that for the injury done by this wing dam to the plaintiffs’ mills.
    Under this charge of the court, the jury found a verdict in favor of the defendant James K. Bowén, and against the defendant Wells H. Bowen, in favor of the plaintiffs, for five hundred and fifty dollars. Judgment being entered against the said Wells H. Bowen, upon the verdict, he appealed to the general term of the supreme court, which affirmed the judgment, and he appealed to this court.

      B. F. Rexford, for the appellant.
    I. The court should have non-suited the plaintiffs.
    1. The plaintiff, Daniel Brown, could not maintain the action, as he received his title in May, 1851, after the building of the dam, and so far as back-water was concerned, the defendants were in adverse possession, and the deed to Daniel Brown, so far as said adverse possession was concerned, was void. (2 B. S. 691, § 6.)
    2. The said plaintiff having given permission to defendant to build the dam, the manner in'which it was built would not amount to a trespass or case, but the action should have been brought upon the breach of the agreement. The plaintiff, Edward Brown, consented to the building of the dam, and if the dam was not built according to the consent, and a different result was produced by the same than was anticipated or agreed upon, no action upon the case or trespass could be sustained.
    3. This permission amounted, in law, to a license to the defendants to build this dam. It was built under the observation and with the familiar knowledge of the said plaintiff, even if he did not contribute to its erection. (The burthen of the proof' is that he did, in fact, assist in its original erection.) The plaintiffs can not, therefore, sustain an action on the case, which is essentially as for a wrong, for the» damages which may have been occasioned by it, at least, until revocation, and this license never was revoked. (Miller v. Auburn, &c., Railroad Company, 6 Hill, 61; Pierrepont v. Barnard, 2 Seld. 279; Jamieson v. Milleman, 3 Duer, 263; Syron v. Blakeman, 22 Barb. 336; Rathbone v. McConnell, 20 id. 317, and ref.; Walter v. Post, 6 Duer, 363, 370, 371; Wolfe v. Frost, 4 Sand. Ch. 91, &c.; Eggleston v. New York, &c., Railroad Co., 35 Barb. 169.)
    The defendants, before building the wing dam, procured the consent of the plaintiff then owning the mills, to its erection, and the same was built under that consent, and to his knowledge. -This estops him and his co-plaintiff, who afterwards purchased the one-half of the mill property, from maintaining an action for the damages. We have here the three ingredients of an estoppel in pais, the consent of Daniel Brown inconsistent with the present cjaim, the acting by the defendants on the faith of that consent, and that they will be injured by allowing the plaintiff to recover notwithstanding that consent. (Welland Canal Company v. Hatheway, 8 Wend. 483; Dezell v. Odell, 3 Hill, 221, &c.; Pickard v. Sears, 6 Ad. & E. 475; Plumb v. Cattaraugus Insurance Company, 18 N. Y. R. 392; Walter v. Post, 6 Duer, 371.)
    n. The court erred in deciding as a matter of law, that “ the defendants were estopped as a matter of law from claiming plaintiffs’ premises, so far as the damage had been done to the plaintiffs’ mill by this wing dam;” and also in refusing to charge as requested, that they .were not estopped, and charging that they were estopped. The effect of all these decisions and of this charge was, to instruct the jury that upon this point there was no question for them to pass on—that “ as a matter of law,” and not as one of fact, or of law and fact, so far as this defense was concerned, the plaintiffs must recover. To warrant such a ruling and such a peremptory charge, “the evidence must either be undisputed or there must be such a strong preponderance that should the jury find against it, a new trial would be granted for that reason.” (Rich v. Rich, 16 Wend. 676; Sheldon v. Hudson River R. R. Co., 29 Barb. 229; Crawford v. Wilson, 4 Barb. 518.) And there is no such undisputed evidence or preponderance of testimony in this case. The evidence shows that Luther Bowen received the legal title to the land by foreclosure of a mortgage, October 3, 1833, and that he went into possession of the same afterwards; that Luther Bowen is deceased, that defendants were among his heirs-at-law, and that the wing dam 'was built in 1850, within twenty years, and before any adverse possession could attach; and the only evidence upon which the estoppel can be predicated is, that Luther Bowen lived there when the premises were bought and improved by the plaintiffs; that one of the defendants had never claimed the land, and that, as the witness Jámes Clarke swears, after the plaintiff Edward Brown had made a bargain for the land, Mr. Bowen came in; that something was said about Mr. Brown having bought it, and Clarke’s “ impression is, that Mr. Bowen said he came to buy the land,” and did not claim to own it.
    1. There was here no act or declaration -of either Luther Bowen or his heirs which could operate as an estoppel. (Thompson v. Blanchard, 4 Com. 310; Carpenter v. Stillwell, 12 Barb. 128; Pickard v. Sears, 2 Nev. & Per. 491; Keane v. Rogers, 9 B. & C. 577; Green v. Key, 3 B. & Adol. 313.)
    2. An act or admission, to operate as an estoppel, must have been intended to influence the conduct of the party setting them up, and the party must have acted upon them. But in this case, there is nothing, to show that Mr. Luther Bowen’s statements were intended to influence or did influence the plaintiffs or either of them; on the contrary, they could not have done it", for, as Clarke swears, the plaintiff Edward Brown, had bought the land before this statement of Mr. Bowen, and admissions after the act are never estoppels. (Pike v. Acker, Lalor’s Sup. 90; Merrill v. Tyler, Sel. Notes, April, 1853, page 47; see also Carpenter v. Stilwell, 12 Barb. 128; same case, 1 Kern. 74; Welland Canal Company v. Hathaway, 8 Wend. R. 480; Dezell v. Odell, 3 Hill, 221.) We say as was said in 1 Kern. 74, there is no room for pretense upon the evidence that plaintiffs in purchasing the property were at all influenced m their actions by the conduct or declarations of the plaintiffs. (And see also Chautauqua County Bank v. White, 2 Seld. R. 253.) Bowen had no conversation with cither plaintiff before the purchase, and the only evidence that Bowen said anything about the premises after the purchase * is in folio 110, in which witness Clarke says: “ It is my impression that Mr. Bowen said he came to buy the land.” The witness only had an impression that Bowen so said; and it is going quite too far to say, that on such evidence, “as a matter of law,” the defendants were estopped from claiming the title to the land. The most that could be claimed for it was, that it was some evidence for the jury. Again, there is no act or admission on the part of Bowen or his heirs, as to the premises besides the building of the wing dam and flowing back the water, except the omission to make a claim, for the land. In 1 Story Eq. Jur. sec. 38, it is said: “If a party having a title to an estate should stand by and allow an innocent purchaser to expend money upon the estate, without giving him notice, he would not be permitted by a court of. equity to assert that title against such purchaser, at least not without fully indemnifying him for all expenditures.” And to sustain this position, Chautauqua Bank v. White (6 Barb. 604); Cawder v. Lewis (1 Younge & Coll.’s Ex. R. 427), are quoted. The case in Barbour only lays down the familiar principle that if a person, being the owner of property, stands • by and sees another sell it as his own without objection, he afterwards will not be allowed to assert his title, and the case itself is reversed. (2 Selden, 236.) In Cawder v. Lewis, Lewis was agent for Cawder, and managed his real estate, which. adjoined real estate belonging to him, Lewis; and Lewis having the management of said real estate, allowed Cawder to build on his, Lewis’ land; and afterwards Lewis recovered from Cawder the land in an action of ejectment. And in an action for mesne profits, Cawder was allowed in equity to set off the value of the improvements. This case is in no way analogous to the present one. Lewis was the confidential agent of • Cawder, and good faith and his duty as agent, required Mm to inform Cawder that he was building tin his, Lewis’ land. It is also said in Story’s Eq. Jur. § 388, “ a court of equity might go further and oblige the real owner to permit the person maMng such improvements on the ground to enjoy it quietly and without disturbance.” But the authorities quoted do not sustain the position. Some of them are cases of a person standing by and allowing a person to purchase land without- disclosing his title; and others are cases in which, after the owner of the title had recovered the land, the person making the improvements was allowed to set off the value of the improvements against the mesne profits, and laying down the same rule, which is laid down in Putnam v. Ritchie (6 Paige’s R. 390.) And we have been unable to find a case which decides that a person ever obtains any title or right to real estate by making improvements on the same by the mere silence of the real owner, unaccompanied by fraud. (See, on the contrary, Miller v Platt 5 Duer, 272, 279, &c.)
    3. The case of Wendell v. Van Rensselaer (1 John. Ch. 354) is cited by Mason, J., in the opinion of the supreme court, and will, probably, be strongly relied on in this court. In'that case Philip Wendell, in 1792, gave a secret deed to the defendant, covering certain lands, but he retained possession of the same, except certain portions which he sold, until his death in 1808; but after the purchase he sold various portions of the premises as his own, among which was the piece in dispute, and which was held by the plaintiff as a bona fide ■ purchaser. It was proved and admitted that the defendant had actual knowledge of some of these sales; that he preserved a studious' silence, and gave no notice to these purchasers or to the world of his title. After this he could not be permitted to start up with a secret deed (of itself of doubtful credit), and take the land from bona fide purchasers from Wendell. Having, for such a length of time suffered the public to deal with Wendell as the real owner, he could not be allowed to question or. disturb any title that had been purchased under his tacit assent. We admit that the case was properly decided, but we claim that on the facts it has no bearing on ours. The court below cites a number of other cases. We admit that each of them was well decided; but in each case there was direct evidence of some affirmative act either of omission or commission, under full knowledge, while in our case there is no proof of either. And this distinguishes our case from them all; we have no such clear and cogent evidence as is required to estop us from claiming our land, or that the injuries, if there were any, were committed on lands belonging to- us, and not to the plaintiff.
    4. Since the registry act, every person buys and makes improvements on land at his peril. The record informs him of the real title, and it requires an affirmative act on the part of the owner of the legal title to give the other any equities.
    5. In this case there is no evidence that Bowen knew that the plaintiffs claimed to hold under any title, or knew that they had made any improvements on the land.
    6. The opinion of the court on this point is based on an erroneous statement of the facts. Luther Bowen was not present when the plaintiffs purchased; he was not present when the plaintiffs made the bargain, for he came in after-wards; and he did not say, in presence of the plaintiffs, at the time they bought, that he came to buy the land. What he did say was after they bought, and Clarke swears only that his “ impression” is he said he came to buy the land, and neither he or Brown swears that Brown was present.
    7. As seen above, there is a difference between the facts on which this estoppel is based, and that on which we claim one in point second, supra. In this, whatever was said was after the plaintiffs bought; in the other, the wing-dam was not built till after the plaintiffs had given the permission for its erection; in the one the estoppel, as claimed, preceded the act; in the other it followed it; in the one it necessarily influenced conduct; in the other it could not have done so. We claim, then, that the evidence, as presented in this case, falls far short of making an estoppel “ as a matter of law,” or any estoppel whatever, and that therefore the judge erred in so deciding and charging the jury. But if we are wrong in this, and the admissions or conduct of Luther Bowen might, under certain constructions of them, amount to an estoppel, then we claim that they should not have been decided “as a matter of law,” or by a direct charge, but should have been submitted to a jury, under the directions of the court. Luther Bowen did nothing whatever to encourage the plaintiff in their improvements on the premises; he only lived near by, and that is all. So far as the,purchase is concerned, he was not present when the same was made, and Clarke only gives his “ impression” as to what he said. And it will be recollected that neither of the plaintiffs, although sworn in the case, before and after this question came up, claim or pretend that they were in any way influenced by anything that Luther Bowen said, or did, or did not do, or that they would not have bought or improved, if he had taken a different course. We say, then, that this 'was, at most, a question for the jury upon the evidence in tho case; and to be left to the jury to say whether, under that evidence,, anything done by the ancestor of the defendants, or by them, was intended to influence the plaintiffs, and whether it did influence them; both of which must concur in order to work the estoppel (Dezell v. Odell, 3 Hill, 221, 222.) This conclusion that these acts relied on were intended to and did influence the defendants was but an inference from the facts proved, none of which facts necessarily (or, as we claim, even presumptively) proved it. In such a case the rule undoubtedly is, that the question is to be left to the jury. And per Cot-t.amv.t?, J: “It may be proper for a court to instruct a jury to find for a plaintiff if the evidence is believed when there is no conflict of evidence, and it directly proves the fact in issue, or when the fact is a necessary and invariable inference of law from what is proved. But if there be any conflict in the evidence, or if it only shows facts from which the main fact is to be presumed or inferred by the jury, the case should be left to the jury, under proper legal instructions.” (Lindsay v. Lindsay, 11 Vermont, 626.) This rule clearly makes this question of estoppel, under the facts of our case, at the most, one for the jury, and certainly not one “ as á matter of law” as held at the circuit. The rule is so held in cases of estoppel in pais by the courts. Thus, in Welland Canal Company v. Hathaway (8 Wend. 483), Justice Nelson, in speaking of them, says: “Such estoppels cannot be pleaded, but are given in evidence to the court and jury, and may operate as effectually as a technical estoppel, under the direction of the court.” In Carpenter v. Stillwell (12 Barb. 136), Justice Basculo, after referring to the rule, in Dezell v. Odell (3 Hill, supra),. says: “Tested by this rule, we think that the facts of the •case, which were proposed to be'submitted to the jury, as the basis of an estoppel, ought to have been submitted.” See the same case in the court of appeals, in 1 Kernan, 73, 74, and 79, where the question is treated as one for the jury, and the rules laid down by the court as to what must exist to constitute an estoppel, show that none existed in this case. In Thompson v. Blanchard (4 Com. 309), the court per Jewett, J., says: “There is, I think, another ' principle which would protect Blanchard from liability to the plaintiff for the value of the clothes which he, in good faith, purchased of Wheeler,- if the jury, upon the evidence, should find the facts to authorize its application, &c. It is •this,” and the judge follows by stating the rule of estoppels, quoting, with approbation, the case of Pickard v. Sears (6 Adolphus & Ellis, 469; S. C. 2 Nev. & Perry, 488.) In Thorn v. Bell (Lalor’s Sup. 436 and 437), it is said, in regard to a state of facts much like ours in principle, from which an estoppel was claimed: “ This is a proper question for a jury; the defendant’s letter is evidence against him, but by no- means conclusive. It can go to the jury,” &c. (See also Hostler v. Hays, 3 Cal. 302; Landis v. Landis, 1 Grant’s Cases, 249.) From these cases, and those cited in them, we think the rule is clearly deducible that in such cases. of estoppel in pais the question is not to be decided “ as a matter of law,” but is, at the most, to be left to the jury, like all other questions of fact, .with such instructions as -the particular case may require, and that in cases much stronger than ours the decision has been that the evidence “ was not sufficient to warrant the judge in directing the jury to find a verdict for the plaintiff,” and that “ if the plaintiff had insisted, it was only some evidence to go to the jury on that question.” (Lewis v. Woodworth, supra.) ■ But the judge, in this case, in three different rulings, held the contrary, and those decisions, as we claim, are erroneous. It cannot be said that this point is unavailable, for the reason that we did not ask to go .to the jury on the question, for the judge himself held that it was not for the jury at all, but was “ a matter of law,” and it is to this that we except. A similar question arose in Traynor v. Johnson, 1 Head (Tenn.), 51, and it was held that “where, on an equivocal state of facts, the court instructed the jury, as a conclusion of law, that there was a waiver, the judgment should be reversed on error.” This, in principle, covers our case. A similar ruling was made in Lewis v. Woodworth, supra, and a new trial was granted, though there was no specific request to go to the jury.
    HI. The court, for the reasons set forth in the last point, erred in refusing to charge that the defendants were not estopped. There was no proof that the ancestors of the defendants had influenced, or intended to influence, the conduct of the defendants. In such a case there is no estoppel. (Dezell v. Odell, 3 Hill, and other cases, supra; also Lewis v. Woodworth, supra.)

    IV. The court further erred in refusing to charge that “if the plaintiff consented to, or assisted in building said wing-dam, or if either of them so consented and assisted, the plaintiffs cannot recover in this suit.” This proposition was based on an abundance of testimony in the case, and has reference to the dam as it was actually constructed, and needs no authorities to support it; several having direct reference, however, to it, are found in point first, and sustain our exceptions. (See also Dorrance v. Simons, 2 Root, 208; Stevens v. Stevens, 11 Metcalf, 251.) For this reason alone a-new trial should be granted. It cannot be contended that there was no refusal to charge, as here requested, nor any exception to the refusal. It is true that there is no such statement at the close of the request, nor was it necessary, when it appears that there was no such charge made as was requested, and it is stated that the defendants excepted not only to the charge as delivered, but “ also for the court not charging as requested.” ISTow it is clear that this request was made. The charge is given in the bill; this proposition was not charged; there is no pretense that the charge embraced more than is contained in the bill; on the contrary, it is expressly stated that the court “ charged the jury as follows,” meaning that the charge as printed is the whole of it, so that here is a clear case of the court not charging as requested in this fifth proposition; and it is as clearly stated that we excepted “for the court not charging as requested.” And it is the height of hypercriticism to say that this refers only to the request in the sixth proposition; the exception, by its natural construction and meaning, is to all the refusals to charge; the sentence says we excepted to the charge as delivered, that is to the whole of it, and not to any one point; and for not. charging as requested, that is to all the omissions or refusals, and not for any one of them. It is certain that we made this réquest; it is equally certain that the court did not charge the proposition (but did charge the reverse, under our exception), and as certain that we excepted “ for the court not charging as requested.” We do not think this court will, by any technicality or constrained construction, deprive us of our exception, but looking at the question in a common sense manner, will say that it sufficiently appears that it was taken, and we are to have the benefit of it.

      D. Pratt, for the respondents.
    I. No regular deduction of title from the original source of title was made by either party upon the trial. As a simple matter of evidence, it is submitted that the preponderance ivas against the claim of title set up by defendant.
    1. Although Luther Bowen, the ancestor of defendant, had the prior possession, yet he went out of possession as early as 1835, and never afterwards claimed any interest in the premises upon which plaintiffs’ mills were built.
    2. Burr went immediately into possession, and he and those holding under him have been in possession ever since.
    3. The defendant, also occupying adjoining premises, had never, until the trial, claimed any title or interest in the premises or Avater privilege, but on the contrary, according to his own' testimony, he claimed the right to shut back the water, because the plaintiffs consented, as he alleged, to the building of the dam.
    4. The defendant was not, therefore, precluded by the ruling of the court from claiming the benefit of a clear and admitted title to the premises, but was simply deprived of the benefit of an inference to be drawn from the possession of his ancestor.
    II. The issue was not one bringing the title directly in issue. It could only come in question collaterally, as bearing upon defendant’s liability for flowing the plaintiffs’ land, and thereby injuring their mills.
    1. An equitable estoppel may be properly applied in one form of action, and not in another, although, brought under the same circumstances and growing out of the same transaction. For instance, a party may be estopped from sustaining trespass, when he could not be from sustaining ejectment. (Dewey v. Bardwell, 9 Wend. 65.)

      2. In this case, the question is not whether the defendant might not sustain ejectment, but whether the plaintiffs, having had the peaceable possession of the premises, and built valuable mills thereon, the defendant can indirectly destroy them, and then avoid liability by setting up an interest in himself in the property.
    3., Indeed, it is doubtful whether such a defense is available at all under the circumstances, even if the question of estoppel were wholly waived. Suppose the heirs—and there seem to be at least three—should bring ejectment and recover, could the plaintiffs escape liability for mesne profits, by showing injury to the premises by the wrongful action of one of the heirs.
    HI. It is submitted, therefore, that, taking into consideration the proof of title as it stood when the question of estoppel was raised,, and the purpose for which the claim was made on the part of the defendant, the ruling of the court was clearly right, in holding the defendant estopped “from claiming the plaintiffs’ premises, so far as damages to the mill by the wing dam” was concerned.
    1. The evidence was sufficient to estop him, had the question arisen upon the direct issue of title in an action of ejectment.
    (u.) The premises, when the plaintiff purchased, had been held under a claim of title some eight years by the vendor and those under whom he held, without question or challenge by Luther Bowen.

      (b.) At the time of the purchase by the plaintiff, and before the conveyance was executed, Luther Bowen, the pretended owner, was present, and was informed that the plaintiff, Edward Brown, had made a bargain to purchase, and he made no claim of title to himself.
    (c.) He lived in the immediate neighborhood from that time to his death in 1850, witnessed the erection of expensive buildings upon the premises, and never intimated any claim to them.

      id.) The defendant at the same time occupied adjoining premises, and never, for anything that appears, made any claim, until the trial, of any interest in the premises occupied by the plaintiffs.
    2. It therefore comes clearly within the cases holding that where a person looks on and suffers another to purchase and expend money on land, without making known his claim, he will not afterwards be permitted to assert title against such innocent purchaser. (Wendell v. Van Rensselaer, 1 John. Ch. 344; Storrs v. Barker, 6 id. 166; Lee v. Porter, 5 id. 268; Niven v. Belknap, 2 John. 573; Town v. Needham, 3 Paige, 545; Dougrey v. Topping. 4 id. 94; Lowry v. Tew, 3 Barb. Ch. 407; L'Amoreux v. Vischer, 2 Com. 278; Thompson v. Blanchard, 4 id. 303; 2 Dever. 179; 4 id. 472; 10 B. Monroe, 261; 10 Ad. & El. 90; 6 id. 469; 11 N. Hamp. 201; 3 S. & R. 278; 2 aryland, 380; 28 Maine, 127; 14 Mass. 437; 4 Barr, 193; 17 Conn. 355; 2 Smith’s Leading Cases, 660.)
    3. It does not come within the principle that the party must have intended to mislead, or that the other party must have relied upon his admissions, but upon the broader and more enlarged equity, “that where a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to be silent.” (Per Thompson, Ch. J., Niven v. Belknap, supra; Roberts on Frauds, 130; 1 Fonblanque’s Equity, 161.)
    4. The cases cited would warrant an estoppel, if, as before suggested, the issue had been a direct one,upon title- in an action of ejectment; but in a case like this, where the title arises only incidentally and is asserted only to avoid responsibility for damages which the plaintiffs actually suffered at the hands of the defendant, there, can be no question.
    5. The objection which was taken for the first time upon appeal, that the question should have been submitted to the jury, can not be sustained.

      (a.) The facts upon which the estoppel was based were not disputed. Whether Bowen did or did not say, at the time of the purchase, that he came to buy the land, was entirely immaterial. The important question was: Did he know that the plaintiff was about buying the land, and thus knowing, allow him to complete the purchase'without making any claim of interest in himself?
    (5.) The effect of an estoppel being the exclusion of testimony, its existence must be a question of law for the court, and not for the jury. (5 W. & 8. 209.)
    (c.) If the facts are disputed, they should be submitted to the jury, but no exception will lie, unless the court bo asked to submit the questions of fact. (Winchell v. Hicks, 18 N. Y. 558.)

      (d.) In this case the defendant not only did not ask to have the facts submitted to the jury, but the exceptions, both during the trial and to-the charge were not calculated to raise or suggest to the judge any such question.

      (e.) An exception, to be available, must present the distinct point to be passed upon to the court alone, and in distinct propositions. (5 Seld. 463; 3 id. 266; 2 Kern. 313; 1 id. 161; 28 Barb. 157.)
    6. An equitable estoppel is available in an action at law.

      (a.) Courts of law have long applied the principle to actions concerning personal property, and there is nothing in the nature of real estate 'which should deprive it of the benefit of those salutary principles which are constantly applied by courts of law to other kinds of property. Protection against fraud is equally necessary, whatever be the interest at stake. (2 B. Monroe, 254; 22 Wend. 67, 378; 17 Conn. 345; 4 Barr, 193; 14 Mass; 437; 28 Maine, 127; 2 Smith's Leading Cases, 651.)

      (b.) Under the code the old distinction between the forms of action at law and in equity, are abolished, and it is the constant practice sanctioned by this court, for parties to avail themselves of equitable defenses to actions at law, or equitable answers to legal defenses.
    IY. The objection made upon the trial that the plaintiffs consented to the construction of the wing dam was not sustained. The legal presumption is' that the jury found in favor of the plaintiffs’ version of the matter, and that was that they consented to the construction of the dam, if no water should be shut back to the injury of the plaintiffs.
    1. The defendant had the right, without any consent, to build a dam upon his own land, provided he did not flow the water back to injure riparian owners above.
    2. It would be strange that the plaintiffs’ consent for the defendant to do just what he had the right to do, without it, would enlarge that right.
    3. Besides, it does not appear that the dam necessarily caused the water to flow back. It does not appear that by clearing out and widening the channel the back flow would not be entirely obviated.
    4. Moreover, there is no exception to the refusal to charge according to the fourth proposition, and the charge, as given upon that point, was quité too favorable to the defendant.
    V. The remaining exceptions taken on the trial are so palpably frivolous that it is not deemed necessary to notice them.
   Mullin, J.

The plaintiffs at the time of the erection of the dam by the defendant, were in the actual use and occupation of the premises, on which the mills in question were located, and they and those under whom they claimed, had been in possession of the same for quite a number of years prior to the erection of said dam. It was proved that the defendant erected the dam, and that by means of it the water had been set back upon the plaintiffs’wheels, thereby reducing the power thereof, and injuring the plaintiffs’ mills. It cannot be denied that if these were the only facts in the case, the plaintiffs would be entitled to recover. Each of the parties had the right to use the waters of the stream on his own premises, for any purpose for which it might be legitimately used, and neither had the right by any erection on , his own premises to interfere with such enjoyment to the prejudice of such other. (Angelí on Water-Courses, § 340.) The. only exception to this rule, that now occurs to me, is that where both parties draw water from the same dam, each has the right to continue to use the water, whatever the effect may be on the other, unless such other has acquired by grant or prescription, the right to an exclusive use, or to use whenever there is not water enough for both.

The learned author says (§ 340, cited supra): The maxim sic utere tuo, &c., applies as well to setting back the water of a watercourse above the owner’s land in the natural channel of the stream, as it does to an actual overflow of land. * * ' * No single proprietor without consent, has a right to make use of the flow in such manner as will be to the prejudice of any other, and1 that he has no more power to apply it to a purpose which occasions a return of the water on the land above, than he has to cause a diminution of the quantity below. He cannot alter the level of the water either where it enters or where it leaves his property.

Bayley, Justice, in Saunders v. Neuman, says: If a person stops the current of a stream which has immemorially flowed in a given direction, and thereby prejudices another, he subjects himself to an action.

. Any impediment, say the supreme court of Pennsylvania, in the stream caused by the defendant’s dam, by which the plaintiff’s mill is stopped from grinding in any state of the water, or is made to grind slower or worse than it otherwise would, is an injury for which the plaintiff would be entitled to damages. But it is unnecessary to cite authorities; the principle has been recognized too long to admit of controversy at this day.

The acts done-by the defendant being prima facie actionable, it is necessary, in the next place, to ascertain whether the plaintiffs could, under the circumstances, maintain an action for the damages resulting from the injury. Before the code, the remedy of the injured party was by an action on the case. (Angelí on Water-Courses, § 395.) That form of action could be maintained by his tenant in possession, and by the landlord or reversioner. (Same section.) Title was not necessary, unless the plaintiff sought to recover full damages for the injury to his property. From the very nature and necessity of the case, a temporary occupant must be entitled to sue; and as such occupant could only recover damages sufficient to compensate him for the injury sustained, ah action must also be given to the reversioner, or the party sustaining perhaps the largest amount of damages would be left remediless.

It follows that the plaintiff would be entitled in this case to damages to an amount sufficient to indemnify for the injury to such interest as he had in the premises. But the plaintiffs in their complaint allege that they were joint owners of the mills, and they were bound to prove it. Possession is grima facie evidence of ownership ■ of real estate. In 1 Cowen & Hill’s ¡Notes, 353, it is said: “ The mere possession of property, however recent, will enable the occupant to recover or defend against a stranger.in ejectment, trespass,” &c.

But the defendants showed title in their ancestor subsequent to the deed from their ancestor to Messenger, and no title is shown out of him. It appears, however, that several persons were in possession after Luther Bowen left possession in 1835, and before the defendants went in. The defendants occupied the premises adjoining, and never made claim to the premises occupied by the plaintiffs. Under these circumstances, it seems, to me that the law will presume the plaintiffs lawfully in possession, and.entitled to recover damages for the injury sustained by them.

The plaintiffs, to prevent the defendant from alleging title to the premises-, showed that the defendant’s father was in the office at the time Edward Brown, one of the plaintiffs, purchased the premises on which the plaintiffs’ mills are located, and something was said in presence of Bowen, about Brown having bought the land. The witness’s impression was that Bowen said he had come to buy the land; he did not claim that lie owned it. This is very loose evidence on which to rest an estoppel; but it cannot be said that it is not some evidence, and sufficient had it been submitted to the jury, to support a verdict finding the estoppel. The court was not requested to submit the question to the jury, and at the close of the plaintiffs’ case, and after the defendant had put in their documentary evidence, “the court decided that as the evidence then stood, the defendants were estopped as matter of law from claiming the plaintiffs’ premises, so far as the damage had been ■ done to the plaintiffs’ mills by the dam.” To which ruling the defendants’ counsel excepted. At the time this decision was made, no question could be submitted to the jury; the defendants had not as yet given any parol proof, and I cannot discover that the learned judge decided anything. It was an intimation to the defendants’ counsel that if they did not give evidence that would do away the plaintiffs" evidence on the subject of estoppel, he .would hold them estopped. The direction affected the rights of neither party, and unless the question is presented again in some other part of the record, the defendant must fail in attacking the judge on this branch of the case. But the judge did charge that the defendants were estopped from setting up and relying upon their title to the premises as a defense tc the action; to which charge the defendants’ counsel excepted, Under this charge the jury were not at liberty to consider the question of estoppel as a question of fact. They were bound to consider the case, on the assumption that as matter of law, the defendants were estopped from asserting title to the premises. In this the court erred. The question belonged to the jury, and should have been submitted to them as a question of fact. But the defendant acquiesced in its being withheld, but insisted the instruction was wrong as a legal proposition. There ivas no dispute about the facts, and ordinarily it would be a question of law whether the facts proved, established the proposition, to establish which they were proved. And it was due to the court that his attention should have been called to the distinctions, if any, which made it peculiarly proper to submit the question whether or not an estoppel was proved to the jury. To establish an estoppel in pais, it must be shown: 1st. That the person sought to be estopped, has made an admission or done an act, with the intention of influencing the conduct of another, or that he had reason to believe - would influence his conduct, inconsistent with the evidence he proposed to give, or the title he proposes to set up. 2d. That the other party has acted upon, or been influenced by such act or declaration. 3d. That the party will be prejudiced by allowing the truth of the admission to be disproved. (Plumb v. Cattaraugus County Mutual Insurance Company, 18 N. Y. 392.) In the absence of proof of the effect of the admission oh the party setting up the estoppel, it is for the jury to say whether on the facts the several essential parts of the estoppel are proved. It is quite probable that had the attention of the court been so called to the reasons why in this case the question should be given to the jury, he would have submitted it to them, as I think it was proper for him to do’.

It would seem that the attention" of neither court nor counsel was drawn on the trial to the important estoppel that was proved in the case. Which was, the omission by the defendants and their ancestor to assert title to the premises in question, although knowing the premises to belong to them, and that the plaintiffs, or one of them, had purchased them, and was making valuable permanent improvements thereon, in the belief that they, and not the defendants or their father owned them. That this silence—: this omission to assert title—constitutes an estoppel, there can be no dispute. (Wendell v. Van Rensselaer, 1 J. C. R. 344; Town v. Needham, 3 Paige, 545; Storrs v. Barker, 6 J. C. R. 166; Thompson v. Blanchard, 4 N. Y. 303.)

No evidence can be given that can do away with the force of the estoppel, and a new trial will not be granted, when it is seen that the facts cannot be changed, and the fact proved, is conclusive of the case.

Unless some error can be found, other than the omission to submit the question of estoppel to the jury, the judgment should be affirmed.

If the defendants were estoppéd, then the plaintiffs were entitled to damages as owners of the premises.

The appellants’ counsel moved for a non-suit on five grounds.

1. That no cause of action had been proved against James K. Bowen, and he should be discharged.

2. A joint action for the matters sued for cannot be sustained, even though separate actions might be brought.

3. The deeds under which the plaintiffs claim are void, because Luther Bowen or the defendants were in the adverse possession.

4. There is no evidence that the plaintiffs’ deeds cover the premises in question.

5. The plaintiffs gave permission to building the dam, and cannot, therefore, maintain trespass or trover.

The motion was overruled, and the defendant’s counsel excepted.

But two of these grounds are relied on by the appellants in this court. Those are the' 2d and 5th, and these alone require attention.

1. Edward Brown is the person who made the purchase of the premises some time prior to 1847, and went on and improved them by erecting buildings thereon. In 1847, he sold half to the other plaintiff, and from that time they had been in partnership. In 1850, the wing dam in question was built. It was by means of that erection the plaintiffs were damnified. It is a mistake, therefore, to say that the plaintiffs did not jointly sustain injury. There was no separate injury.

2. That the dam was built with the consent of the plaim tiffs.

It is true the dam was built with the assent of the plaintiffs, and it is quite probable one of them may have aided in the work. But it is to be .borne in mind that the defendants needed no consent from the plaintiffs to authorize them to build a dam on their own side of the river on their own land, provided that such dam caused no damage to the plaintiffs’ property. If a temporary suspension of the mills was necessary in order to enable the defendants to perform the' work, the plaintiffs’ consent would be needed. If the defendants proposed to so build the dam as to set the water back on the plaintiffs’ wheels, it is difficult to comprehend why the plaintiffs should not Only consent to the erection of the dam, but aid in the work, without consideration or even a motive for so doing. The probability is, and the jury have found the fact to be, that the consent and aid of the plaintiffs were given on the condition that the work should be so done as not to injure the plaintiffs. There would not seem to be any difficulty in so doing it, had the defendants been disposed to- so do the work. By clearing out the new channel into which the water was thereafter to flow, back water could have been as effectually prevented as by continuing it in the old channel. The work of clearing the new channel was only partially carried out, and the result was as might have been anticipated it would be; the current was impeded, the water did not flow off, and, as a consequence, set back on the plaintiffs’ wheels. It is quite obvious, also, that the mischief would be constantly aggravated. The earth and stone brought down by the current would have a tendency to deposit itself as soon as the force of the current was lessened, and thus in a short time the bed of the stream filled, and the injury from back water permanently increased. The condition on which the consent was given not being performed, the consent or license was no longer binding on the plaintiffs, and the dam from that time became a nuisance, and the defendants liable for the injury it caused the plaintiffs'.

It is said that the remedy of the plaintiffs is an action for breach of the agreement by the plaintiffs to so build the dam as not to injure the plaintiffs. Technically there was no such agreement; although, doubtless, the law might imply one if it was necessary to prevent injustice, but the parties did not understand that the rights of either party rested in agreement. The acts and assent of the plaintiffs might be considered a parol license on condition, which condition has never been performed, and hence the license fails. But the "facts proved do not even make a case of parol license. A licence is a bare authority to do a certain act, or series of acts, upon another’s lands without possessing any interest therein. (Angelí on Water-Courses, .§ 285.)

The consent, then, of the plaintiffs, and rendering aid in the work, can only operate against them by way of estoppel; and it can not thus operate, because of the express condition on which such aid and assent were given. It seems to me, therefore, that the non-suit was properly refused.

If the foregoing views are correct, they dispose of all the questions presented by the appellant’s counsel.

My conclusions then are:

1. That on the evidence the plaintiffs are owners of the mills in question.

2. That by the wrongful acts of one of the defendants, injury has been done to said plaintiffs.

3. That if, on the evidence, ownership by the defendants is proved, yet the plaintiffs are entitled to recover on their presumed lawful possession of the mills, even if such possession is to be presumed to be as tenants of the defendants.

4. But the defendants are estopped from disputing the ownership of the plaintiffs, by reason of their omission to assert title to the lands, knowing that the plaintiffs were acquiring title to them and making expensive improvements thereon, as owners, in ignorance of any claim thereto by the defendants.

5. That the foregoing ground of estoppel is so clearly established, and so conclusive on the defendants, that it would be useless to send the-case back for a new trial.

6: But if the judges are of opinion that the case must rest here on the ground of estoppel taken in the court' below, and that the others not being suggested, these cannot be considered here, then I am of the opinion that although technically it was the duty of the defendant to have requested the court to submit the question of estoppel to the jury, yet the evidence is so slight on the question that I would be-in favor of ordering a new trial on that ground alone.

7. Not discovering any answer to the other ground of estoppel, I am in favor of affirming the judgment, with costs. t

All the judges concurring, judgment affirmed.


source: Caselaw Access Project

author: Mullin, J.

license: Public Domain

text:
    William Roach v. The New York and Erie Insurance Company.
    A condition, annexed to a policy of insurance, that no suit or action against the insurers, for the recovery of any claim upon the policy, shall be sustainable in any court of law or chancery, unless commenced within six months next after any loss or damage shall have occurred, is valid; and if an action is not commenced within that time it will be barred.
    Appeal from a judgment of the general term of the supreme court in the eighth district, affirming a judgment rendered.in favor of the plaintiff at the circuit, held by Justice Davis, in the county of Niagara, in January, 1858.
    The action was on a policy of insurance, issued by the defendant through its agent, James W. Reed, to the plaintiff, wherein the defendant agreed to insure the plaintiff against loss by fire of certain buildings owned by him, situate in Lockport, Niagara county, for the term of one year from the 20th day of July, 1854, for the sum of $400, in consideration of a premium paid by said plaintiff therefor.
    It is claimed by the plaintiff that the policy was renewed for the term of one year from the 27th July, 1855, by a certificate of renewal, dated the said last mentioned day, signed by the secretary, and president of the defendant, and by said Reed as agent, for which renewal the plaintiff paid said agent the sum of four dollars.
    The genuineness of this paper is not denied, but it is-claimed by the defendant that at the time said certificate was issued, the said Reed was not agent, such agency having been terminated in the May preceding.
    On the trial the plaintiff proved the execution and delivery of the policy, the agency of Reed, by proving his appointment, which was in writing, under the seal of the company, and dated the 18th of November, 1853. The plaintiff also proved several letters written to said Reed by the secretary of the company recognizing him. as agent. the last of the .letters bearing date the 2d of May, 1855.' The destruction of the property by fire on the 24th of May, 1856, was also proved, and that proofs of the loss required by the by-laws of the defendant were delivered to the defendant within the time limited.
    On the part of the defendant it was proved that said Reed, in May, 1855, returned to the defendant all the blank policies and certificates of renewal, as it was supposed, that had been issued to him, and the defendant never heard of him again in relation to business, nor of the renewal of the plaintiff’s policy.
    The defendant offered to prove that Reed resigned and relinquished his agency, and'the same ivas accepted by the defendant, in May, 1856. The evidence was objected to by the plaintiff’s counsel, and the objection was sustained and the evidence excluded, to which the defendant’s counsel excepted.
    It was conceded that this action was commenced April 15th, 1857.
    It was provided by the fourteenth condition annexed to the plaintiff’s policy, that no suit or action, if any, against said company for the recovery of any claim upon, under, or by virtue of said policy, should be sustainable in any court of law or chancery, unless commenced within six months next after any loss or damage should have occurred; and if brought after that time, the lapse of time should be taken and deemed conclusive evidence against the validity of the claim.
    The proofs being closed; the defendant’s counsel requested the court to direct the jury to render a verdict in favor of the defendant, on the ground that the action had. not been commenced within six months after the occurring of the loss. The court declined so to charge, and the defendant excepted.
    The defendant’s counsel requested the court to charge the j ury, that the omission to bring the action within six mouths should be deemed and taken as conclusive evidence against the validity of the plaintiff’s claim. The court refused so to charge, and the defendant’s counsel excepted. The court thereupon directed the jury to render a verdict for the plaintiff' for the amount claimed and interest, to which instruction the defendant’s counsel excepted. The jury rendered a verdict in favor of the plaintiff for $328.
    The defendants appealed to the general term of the supreme court, in the eighth district, where the judgment was affirmed, on the ground that the condition limiting the right of action to six months from the loss was against public policy and void.
    The defendants appealed to this court. The case was submitted by

      Ely & Farwell, for the appellants.

      J. L. & J. H. Buck, for the respondent.
   Mullin, J.

The only question for our consideration on this appeal is, whether the condition annexed to the policy requiring an action to recover the amount of a loss to be brought within six months from the time the loss occurred, is valid? If it is, the action is undoubtedly barred, and the judgment must be reversed.

At the last March term of the court, we held in the case of. Ripley v. The Ætna Insurance Company that a condition precisely like the one in this case, except that the right to bring the action, was limited to one year, was valid. And that the action not having been brought within the year, ivas barred, and the judgment which was for the plaintiff in that case was reversed.

That case is decisive of this. The judgment must therefore be reversed, and a new trial ordered, with costs to abide the event.

All the judges concurring, judgment reversed.

        Ante, p. 136.


author: Emott, J.

text:
    George Pollen and Robert Colgate v. Thomas O. Le Roy and David Smith.

    The plaintiffs agreed to sell and deliver to the defendants a quantity of soft English lead, of the “ Walker, Parker & Walker brand,” to arrive by the Providence, from Newcastle. The lead arrived at New York on the 6th of July, 1853. On that day the plaintiffs notified the defendants of its arrival, and requested them to receive and remove it. The defendants objected to the lead, and declined to consider it theirs, or at their risk. On the 7th, the plaintiffs again notified the defendants that lead was discharging from the vessel, which they claimed to be such as the contract of sale called for, and offered it to the defendants, who declined to receive or pay for the lead, or to have anything to do with it. Held., that this was a sufficient offer of performance and tender of the lead by the plaintiffs; and that they were not required to make or attempt a manual delivery of the whole quantity of lead, or of any part of it.
    And the plaintiffs having, upon the refusal of the defendants to receive and .pay for the lead, given them notice that they (the plaintiffs), should sell the lead for their account, and hold them responsible for any deficiency on the re-sale, and for the expenses of keeping and re-selling the article; held,, that assuming that the lead offered, was of a character to satisfy the contract, the plaintiffs were authorized to sell the same, in the ordinary way of selling metals by a broker, for the highest market price, without notice to the defendants of the time and place of sale. And that having so sold the property, they might recover of the defendants the difference between the contract price, and the proceeds of the sale, together with all expenses necessarily incurred.

      Held, also, that in an action brought for that purpose, evidence of the re-sale of the property, and of the resulting loss, together with the expenses, was properly admitted; and that in the absence of any other evidence upon that subject, the jury were properly instructed to make that the measure of damages, if they should find for the plaintiff.
    The difference between the agreed price of an article, and its market value at the time of delivery, is the actual damage sustained by a vendor upon a refusal by the vendee to accept the property sold, and the vendor may ascertain or liquidate this amount by a re-sale; taking all proper measures to secure as fair and favorable a sale as possible.
    Although the law regards the vendor, if in possession of the goods, as the agent quoad hoc of the .vendee in such a case, yet it is no part of such an agency, or of the duties involved in it, to notify, the principal of the time- and place at which the goods are to be sold, or exposed for .sale.
    The ordinary usage of the trade being to effect sales of pig lead through the negotiation of brokers, a vendor is bound to adopt that method, upon 're-selling the goods because of the refusal of the vendee to accept them.
    Where an ambiguity exists in a bought and sold note, from its describing an article which does not exist, evidence by an expert to show how the article mentioned therein is ordinarily spoken of, in trade and conversation, is ■ competent in explanation of the ambiguity. ,

    Where a sale was concluded by a bought and sold note in writing, containing all the elements of a contract, the nhmes of the parties, price, description of the article, time of delivery and time of payment; Held, that it was not competent to vary this by asking a witness “ what conversation ■ passed on the subject of this sale, prior to the actual delivery to the respective parties of the salé note.” That the question was too broad, and the answer would have introduced matter, both irrelevant to the issue, and improper in itself.
    The plaintiffs agreed, through a broker, to sell and deliver to the defendants “ 150 tons soft English lead of W., P. & W. brand,” to arrive by a speci- . fied vessel. The defendants, on the arrival of the lead, refused .to receive it, on the ground that it was not the brand called for by the bought and sold note. There being some evidence tending to prove that lead of the brand “ W., P. & W.” had been seen in the New York market; Held, that this rendered it proper to submit to the jury the question whether such a brand was in existence, so as to enable the plaintiffs to comply literally with the contract.
    And the jury having by their verdict determined that no such article existed • in the trade, as the contract between the parties described, and that there was no firm of W., P. & W. in existence; Held, that the lead on board the vessel having been manufactured by a firm, two of whose members - were named W., and one F., known as 11W., P., & Co.,” and being the only firm composed of individuals of those names, engaged in the business, and such lead being branded by them, “ W., P. & Co., the contract was satisfied by a delivery of that lead. ’
    ’ Where a contract for the sale of lead, required that it should be “ soft English leadHeld, that it was not erroneous to leave it to the jury to say whether by " soft English lead,” was known in commerce soft lead made in England, no matter from what ores.

      Appeal from a judgment of the Superior Court of the city of New York.

    The action was to recover damages for the non-performance of a contract of sale of certain lead, Brought by the plaintiffs, as vendors, against the defendants, as vendees. The complaint alleged a sale of “one hundred and fifty tons of best English lead, of Walker, Parker & Walker, brand, to arrive by ship Providence from Newcastle,” a notice and a request to the defendants to receive the lead, and their refusal to do so. That upon such refusal the plaintiffs gave notice to the defendants that they would require them to perform their contract, and should sell the lead for their account, .and hold them responsible for the deficiency, and for expenses, &c. That they did so sell, and the deficiency and expenses were $4,923.68, for which they ask judgment. The answer denies the contract alleged in the complaint, and alleges that the lead sold there was soft English lead, branded Walker, Parker & Walker; denies that any such lead was on ship Providence, but avers that the lead she brought was hard and refined; denies that they were ever requested to receive such lead as they bought; denies that the lead on this ship, or which was tendered to the defendants, was soft English lead, branded Walker, Parker & Walker, or was such lead as the defendants had agreed to purchase, or was manufactured by Walker, Parker & Walker, or was of their brand. Alleges that the lead which arrived by this ship and was tendered to the defendants was branded Walker, Parker & Co., which Avas an inferior brand; denies damage by the plaintiff, and counter-claims damage for a breach of the contract by the plaintiff. There is a reply denying the other matter of the answer.
    At the trial the plaintiffs proved a sale note, signed by Turrell Brothers, brokers: “ Sold T. O. LeRoy & Co., for account of Pollen & Colgate, one hundred and fifty tons soft English lead, of Walker, Parker & Walker brand, to arrive per Providence from Newcastle, at six and five-eighths cents per pound, cash.” They gave evidence that no lea.d branded Walker, Parker & Walker was known in market; that there was lead branded “ Walker, Parker & Co.,” and “Walker, Parker & Co., Newcastle-upon-Tyne,”' and “Walker, Parker .& Co., London.” There was also evidence that these brands or marks indicate different qualities. of metal, and on the other hand that they indicated only the place of manufacture of lead of the same quality, made by the same house, having establishments in different places. This lead arrived July 7th, 1853, and the evidence was that it-was marked “ Walker, Parker & Co., Newcastle-upon-Tyne.” The plaintiffs- proved the re-sale and quality of the lead, under objection and exception by the defendants. They proved the -account of the re-sale of the lead, and its delivery to the defendants, thé defendants objecting that it was incompetent and irrelevant because there had been no notice of the sale and no tender. Certain testimony of members'of the firm of Walker, Parker, Walker & Co., and persons in their employ, taken by commission, was read. One of these witnesses testified that the lead oij this shipment Avas branded Walker, Parker & Co., and not Walker, Parker, Walker & Co., because the pigs were cast shorter than usual, to suit the American market, and were too short to be branded Avith the full name of the firm, and that there was no difference in quality in lead marked either way. This was objected to and overruled, and the defendants excepted. The same witness -testified that his firm was thé only house in this trade of the same or a similar name, and no lead known in trade as that of Walker, Parker, Walker & Co., except this. To this the defendants objected and excepted. He testified that the description “soft English lead, Walker, Parker & Walker brand, from NeAvcastle,” would designate, AAÚth the same certainty; soft lead cast by Walker, Parker, Walker &tCo., ■ with the brand Walker, Parker & Co., as the soft lead cast by them marked Walker, Parker, Walker & Co., and that there is no difference in the market value of these brands-This was objected to and the defendant excepted. Similar objections were taken to similar testimony, and other exceptions. • ’ .
    The .plaintiffs rested, and the defendants moved for a non-suit, because the agreement was for lead of a particular kind, which was not on the ship Providence. 2d. Both parties were mistaken as to the lead on the ship, if there was no lead of that brand,' and there was, therefore, nothing for the contract to operate upon, and the plaintiffs cannot recover by showing the delivery of another article. 3d. There is no evidence of damage, because the re-sale was made privately and without' notice to the defendants. 4th. That the plaintiffs, by taking the lead and selling it, rescinded the contract, and can bring no action founded on it. 5th and 6th. Repeating the allegations of non-performance of the contracts. The non suit was refused and the defendants excepted.. The defendants then gave evidence on the points to which the plaintiffs’ evidence was addressed, and also to prove that this firm used foreign as well as English ores. One of the defendants -was called and testified that he had a conversation with Turrell before the sale note was delivered, and was asked what conversation passed on the subject of this sale, prior to the actual delivery to these parties of the' sale note. The question was objected to and excluded, and the defendant excepted. A manufacturer of white lead was called, and among other things was asked “ wdiat kind of lead is required to make white lead?” The question was "objected to and excluded, and the defendant excepted. The same witness testified to receiving this lead and rejecting it because of the mark not being Walker, Parker, Walker & Co. He was looking to buy for one Stearns. He was asked if Stearns had arranged to purchase this lot of the defendants. This evidence was objected to and excluded, and the defendants excepted. Pollen, one of the plaintiffs, was sworn, and asked how the lead manufactured by the Walker house was known in market; how it was generally spoken of by persons who alluded to it. The question was objected to and the objection was overruled, and the defendant excepted. The witness answered, “ wre generally speak of it as the Walker lead.” A witness testified that he had bought lead marked Walker, Parker & Walker. There was evidence given by the partners of the English house that Pollen & Colgate had not paid for the lead, and that this suit is prosecuted for their benefit. At the close of the testimony the defendants again moved for a non-suit, on the ground that there was evidence of the existence of the "lead called for, and because the plaintiffs had no interest in this action. The motion was denied, and the defendants excepted. The defendants’ counsel submitted five propositions, or requests, to charge. The court declined to charge except as in the charge given, and an exception was taken. The court charged, and various exceptions to the charge were taken, which are noticed in the opinion.
    The. jury rendered a verdict in favor of the plaintiffs for $7,580.34, and judgment was entered for that suni, with ¿osts. A motion for a new trial was denied, and the general term affirmed the order and judgment (see 10 Bosw. 38, S. C.), whereupon the defendants appealed to this court.

      William Curtis Noyes, for the appellants.

      George F. Comstock, for the respondents.

       Decided September Term, 1863.

   Emott, J.

The lead which was the subject of the sale by the plaintiffs to the defendants, arrived at New York, on the 6th of July, 1853. On that day the plaintiffs notified the defendants of its arrival, and requested them to receive and remove it. On the same day, the defendants objected to the lead, and declined to consider it theirs, or at their risk. On the 7th, the plaintiffs again notified the defendants that lead was discharging from the vessel, which they claimed to be such as the contract of sale called for, and offered it to the defendants. In answer to this, the defendants verbally declined to receive or pay for the lead, or to have anything to do with it. This was a sufficient offer of performance and tender of the lead by the plaintiffs. They were not required to make, or attempt a .manual delivery of the whole 150 tons of lead, or of any part of it. It was sold on ship board, to arrive at a future day, and it was enough that the plaintiffs notified the defendants of its arrival, and requested them to take it as it was discharged from the vessel. The defendants’ answer, indeed, admits a tender of lead which arrived on the ship Providence, but denies that this lead answered the description of the contract. The plaintiffs allege in their complaint, that upon the defendants’ refusal to receive and pay for the lead, they gave notice to said defendants that they should sell the lead for their account, and hold them responsible for any deficiency on the re-sale, and for the expenses of keeping and re-selling the article. This is not denied by the answer, and the consequent, admission is of the whole of the facts in the case, on the subject of notice of the plaintiffs’ re-sale of the article. At the trial the plaintiffs proved, under objection and exception by the defendants, the re-sale, the expenses of keeping the lead, and the proceeds of the re-sale. This sale was made on the 13th of July, and was for the highest market price on that day. It was made in the ordinary way of selling metals, by a broker, and seems to have been fair in all respects. There was no other evidence given of the value or market price of the article between July 7th and 13th, or upon the question of damages. The defendants insisted, upon a motion for a non-suit, that there was no competent proof of damages, but the court denied the motion, and subsequently instructed the jury that if they found the plaintiffs entitled to recover, their damages would be measured by the loss shown by the result of the re-sale, with the expenses which were proved. Assuming that the lead offered by the plaintiffs was of a character to satisfy their contract, and' that the defendants were therefore in default, the vendors had a right to dispose of the" lead as soon as they could, with due regard to the interests of the vendees, and after having given them notice of their intention, and to hold the latter responsible for the difference between the agreed price, and the sum realized, together with all expenses necessarily incurred. It cannot bo necessary to adduce either authority or argument to support a rule so constantly recognized in the law of sales 'as this is; unless upon some theory that nothing is settled in these days, except what is to be found in a recent decision of this court. But it is strenuously contended that it is a part of this rule that the result of such a re-sale can neither control the question of damages against a defaulting vendor, nor be given in evidence for such a purpose, unless the vendor gives notice to the vendee of the time and place of the proposed re-sale, as well as of his intention to make it. There is not the slightest foundation, however, either in principle or authority for such an addition to the rule as I have stated it. The rule itself is founded upon good sense and justice, and was probably adopted by usage and consent before it was sanctioned by the courts, as was observed in Sands v. Taylor (5 J. R. 395.) A vendor in such a case, may, if he choose, abandon the property, treat it as the vendee’s, and sue the latter for the price. But it can hardly be for the interest of the latter that he should do.so, and especially not in the case of perishable property, when the result might be a total loss to the vendee. Ho may, therefore, sell the property as speedily as possible, and recover the deficiency, together with his expenses, as damages. This rule is the same iu all sales, and in respeet to property of every description. As was said by Best, Ch. J. in Mac Lean v. Dunn (4 Bing. 722), if articles are not perishable, price is, and he adds: “It is a practice founded on good sense to make a re-sale of a disputed article, and to hold the original contractor responsible for the difference.” The difference between the agreed price of an article, and its market value at the time of delivery, is the actual damage sustained by a vendor upon the refusal by a vendee to accept the property sold, and the vendor may ascertain or liquidate this amount by a re-sale, taking all proper measures to secure as fair and favorable a sale as possible. The law regards him, it has been said in some of the cases, if in possession of the goods, as the agent■ quoad hoc of the vendee. But it is no part of such an agency, or of the duties involved in it, to notify the principal of the time and place at which the goods are to be sold, or exposed for sale. Indeed, in a majority of cases such a notice would be entirely impracticable, as it would have been in this. Unless the sale is to be public and at auction, no notice of the time and place can be given. But in very many cases, sales by auction are not the usual, nor are they a favorable mode of disposing of merchandize. There is nothing in the present case to show that sales by auction are customary in trade in metals, and there is every reason to infer1 that such a sale would have resulted much more injuriously to the defendants than the course pursued by the plaintiffs. The ordinary usage of the trade is to effect sales of pig lead through the negotiation of brokers. This usage the plaintiffs were bound to adopt, to obtain the full and fair value of the article. But it was manifestly inrpossible to give previous notice of the time and place of sale thus effected. On the other hand, if the lead had been sent to auction, it is not likely that any notice of the time and place would have saved the plaintiffs from complaint of the enhanced loss which so unusual a mode of disposition would have entailed. That complaint would have been more difficult to answer than the present. There is no analogy in this particular between this case and that of a pledge! The pledgee is not the owner, nor the agent of the owner. He is clothed with the possession and with a right to sell the property, in order to repay himself a debt. Unless he resorts to judicial proceedings to extinguish the right of his debtor, he is bound to give notice to the latter such as would be involved in such proceedings, both to redeem his property by payment, and of the steps by which he proposes to extinguish his title, and satisfy the debt in default of payment. A vendor, on the contrary, is simply an agent, if he elect to become such, of a vendee who refuses to complete his purchase; an agent to sell the property fairly, and to the best advantage. The only requisite to such a sale as a measure of the rights and the injury of the party, is good faith, including the proper observance of the usages of the particular trade.

There is nothing in any of the cases which I have found requiring more than this, with the exception of one recent decision of the supreme-court in this state. The rule was stated and approved by Holt, in Langfort v. Tiler (1 Salk. 113; S. C. 6 Mod. 162), without the qualification contended for by the defendants’ counsel; and although in one case at nisi jorius in the English courts, it was denied by Lord Ellenborough (3 Campb. 426), it 'was subsequently fully reinstated. (Boorman v. Nash, 9 B. & C. 145; MacLean v. Dunn, 4 Bing. 722.) In none of these cases was any notice of the time and place of sale given or required. In our own country, in the leading case of Sands v. Taylor (5 J. R. 395) already cited, the re-sale was made by auction, and notice given to the vendee of the time and place of the sale. But there is nothing in the opinions delivered by the judges in that case requiring or insisting upon such a course. The artitle was wheat. No question was made as to the mode of re-sale, and it seems to have been taken for granted that a sale at auction was a customary mode"of disposing of such a commodity. In Bement v. Smith (15 Wend. 493), the rule was extracted from the cases, especially that of Sands v. Taylor.) No such qualification or addition Avas stated, and none such can have been supposed to exist. The superior court of New York, in Crooks v. Moore, upheld a re-sale by a vendor upon a vendee’s default, through a broker'and without notice of time or place, except that the goods would be put in market the next day. The only case to the contrary to which we have been referred is McEachron v. Randles (34 Barb. 301). The judgment of the supreme court in that case can be upheld on other grounds, but the opinion of the learned judge upon that point can not, I think, be maintained upon principle or by the authorities. The evidence of the re-sale and the resulting loss, together with "the expenses, Avas properly admitted in the present case, and as there was no other evidence of damages, the jury were properly instructed to make this the measure, if they found for the plaintiff.

The defendants objected to the admission of evidence offered by the plaintiffs to show the reason why the same lead manufactured by the firm of Walker, Parker, Walker & Co. was sometimes marked with the full name of the firm, and sometimes “Walkers, Parker & Co.,” and that there was no difference in lead with these two different marks. If there had been shown to have been any lead in market of the precise description, or with the brand described in the contract between these parties, this evidence would probably have been immaterial. But the jury have found that there was no such mark or brand of the article known, and at the stage of the case when this evidence was received, there was no evidence tending to show the existence of any such brand of lead. There was no firm with these names in the trade besides the firm of Walker, Parker, Walker & Co., in England, from whose members and employees this evidence was obtained. Under these circumstances the facts to which I have referred were properly received to explain the meaning of the parties, and upon the main issue to which I shall presently refer. Similar considerations will dispose of the objection to the evidence to show how the lead made by this house was ordinarily spoken of in trade and in conversation. This was competent in explanation of the ambiguity which had arisen in respect to the contract, assuming the bought and sold note to describe an article which did not exist.

The defendants’ counsel asked one of the defendants who was a witness, and who negotiated the purchase from the broker, “What conversation passed on the subject of this sale, prior to the actual delivery to these respective parties of the sale note?” This was objected to and excluded. The sale was concluded by a bought and sold note in writing, containing all the elements of a contract: the names of parties, price, description of the article, time of delivery and time of payment. It certainly was not competent to vary this by evidence of what passed in the previous negotiations. Evidence of fraud, or of a warranty, was not admissible under the pleadings in this case. The only issue is the contract and its performance as to the specific article sold and tendered. It may be that evidence of conversation between the parties as to the article intended might be competent in the state of facts which was developed in that particular, although it is not necessary to concede as much as this. But the. difficulty with the question which was excluded in this instance is that it was too broad. The witness was not asked if anything was said in reference to the brand or description of lead, or what was said upon that subject; but he was asked what ■conversation passed on the subject of the sale, before it was concluded. This was too general an inquiry, and does not present the point discussed' on the present argument. The answer would have introduced matter both irrelevant to the issue and improper in itself.

There was no error in rejecting evidence to show that the lead tendered to the defendants was not fit for the manufacture of white lead. No issue was offered or made by the answer or otherwise, upon any warranty or representation to that effect. There is an allegation in the answer that the lead was unfit to make white lead, but neither in the pleadings nor in the proof is there anything to show that it was represented to be suitable for that purpose; and the denial, in the reply, of the averment, in the answer, that it was not fit for such manufacture, did not require the court to receive evidence upon an immaterial issue.

The defendants took a variety of exceptions to the charge of the judge. The principal question in the case, whether there was any such article as lead of Walker, Parker & Walker’s brand, was left to the jury, with instructions that if there was any article of that name ever sold in New York market known among dealers as an article of merchandize, the plaintiffs were bound to deliver that identical article. That such an article must be known among dealers as an article of merchandize, however, and it would not be sufficient to this end if an importer had transferred such lead to a manufacturer, and no other dealers in lead had ever heard of it. The jury were told again that the first' question for them was whether the plaintiffs could have furnished an article of this kind so .as to have -complied with the precise terms of the contract; and again to inquire whether there was an article known in the trade as Walker, Parker & Walker’s brand. . This was the substance of "the instructions to the jury upon the first question submitted to them as to the performance of the contract, and most of these directions were excepted to. That the question whether there was, in fact, such an-article as the lead mentioned in the contract, was a question for the jury, admits of no doubt in the present condition of the cause. When the cause was here before, the court assumed as a fact what indeed there was no evidence to controvert, to wit: that there was no such brand or description of lead as that specified in the contract. Upon that assumption this court held that the question what the parties intended to sell and to buy should have been submitted to the jury. There was some evidence on the present trial tending to prove that lead with such a mark had been seen in the New York market, and this rendered it proper to submit to the jury the question whether such a brand was in existence, so as to enable the plaintiffs to comply literally with the contract. I see no error in the manner in which this question was submitted. The parties entered into the contract, as merchants, and made use of the language “ one hundred and fifty tons soft English lead, Walker, Parker & Walker brand,” as terms of trade and art, to describe the "commodity bought and sold. It is not language intelligible to ordinary persons who are not dealers in the article, and we are to assume that they used it with reference to the trade and the market. The question was not whether pigs of lead had ever been seen by anybody with such a mark upon them, but whether the parties, knew, or should be presumed to have known, such a brand as dealers, and whether the plaintiffs could have procured and delivered it. It was an article of trade tó “’which they referred, and the jury were correctly directed to determine whether there was such an article of trade as lead of the brand “ Walker, Parker & Walker.”

Nor was there any error in the remarks of the judge upon the testimony of the witness Jewett, who swore that .he had seen and bought several thousand pigs so branded. If a number of witnesses have the opportunity and the interest to notice a particular fact if it occurs, and have their • attention directed to it, and they do not have any knowledge of its occurrence, their testimony is more than mere negative testimony,, and is entitled to more weight against a positive statement by another witness.

The jury by their verdict determined, as this court formerly assumed, that no such article existed in the trade, as the contract between these parties described. The court on the former appeal, as I have said, held that in that event, we were bound to ascertain whether the parties did not mean something by the language which they used, and what they meant. This- was the next question left to the jury, and in a manner free from any just exception. The proposition,,that if there was no such brand or mark known in the market, the parties were to be deemed to mean lead of a particular character, to be ascertained by comparison of the phrases-in use in the market, was unexceptionable. It was in. effect-repeating what was held by this court. The judge-recapitulated the facts as to the article of lead known as Walker, Parker & Co.’s brand in the market, and made by the only firm composed of individuals of these names, and he left it to the jury to say, whether lead made by their firm, and branded with their name, would or would not be known as such an article as the contract called for, there being nothing known in market exactly answering its description and calls. I perceive nothing in this but an application to the particular facts disclosed on the trial of the rule given by this court for this part of the case. The jury might properly say upon this evidence that these parties meant by their contract, lead of Walker, Parker & Walker manufacture. If there was no such brand or trade mark known as that specified in their contract, it was not an unreasonable interpretation of their language, to hold that they intended soft English lead, manufactured by the house of Walker, Parker & Walker, who were well known in the trade. It is indeed, very difficult to resist the conclusion that the article offered by the plaintiffs to the defendants, was the very article intended and specified by the contract, and that the language employed in the bought and sold note, and which described no known brand or style of manufacture, was simply a mistake or an incorrect description of what was intended.

The contract required that the lead should be soft English lead. The defendants contended that nothing would answer this description but lead made wholly of English ores. The judge did not reject this definition, but left it to the jury to say whether by soft English lead was known in commerce soft lead made in England, no matter from what ores. This certainly was all that the defendants could ask on this point.

With regard to the' amount of this verdict, that was fixed by a calculation accepted by the court, and given to the jury in the charge without exception. The various principles by which the verdict was to be determined were excepted to, but the amount of the result, if the verdict was for the plaintiff, "was not questioned at the trial. There was no motion to set aside the verdict for éxcessiveness, and the question of correctness in respect to the kind of ton computed,, or the computation made, is not before us. There is no objection to allowing the defendants to apply to the court below to correct any error in this' respect if they see reason to do so. The judgment is not open to any other objection, and should be affirmed, with costs, but with leave to apply to the supreme court to correct the verdict.

All the judges concurring, judgment affirmed..