author: Rosekrans, J.

text:
    John McGregor and others v. James Comstock.
    An attorney who obtains a judgment has a lien upon it for the amount of his costs.
    If it be solely for costs, the record is notice to all the parties to the action that the attorney recovering the judgment has a lien upon it to the amount of the recovery; and the payment of the judgment to theparty in whose name it was recovered, by his adversary, is in his own wrong, and is equivalent to paying to the assignor a debt which has been assigned, after notice of the assignment.
    The fact that the attorney was not retained by the nominal party whom he represents, but by the real party in interest, can not defeat the lien of the attorney upon the judgment.
    Where a defendant recovers a judgment against the plaintiff" for costs, the payment of the amount to the nominal defendant, by the plaintiff", and obtaining from him a satisfaction of the judgment, with knowledge of the facts, is a fraud upon the rights of the real defendant in interest who has assumed the whole defense of the action, and incurred all the expenses of the litigation.
    Appeal from an order of the Supreme Court, made at a general term, affirming an order of the special term. The order of the special term directed that the clerk of the city and county of blew York do take and remove from the files of his office a satisfaction piece, in this cause, filed August 25, 1858, of the judgment of the Supreme Court, on a remittitur from the Court of Appeals, the judgment roll whereof was filed May 8, 1858; and that the clerk mark the docket of said judgment in conformity therewith. The order also directed that the clerk of Albany county, upon being furnished with a certified copy thereof, should mark the docket of said judgment, May 8, 1858, in his office, as restored to full force. And that he should take and remove from the files of his office any certificate or satisfaction, or other certificate of the clerk of the city and county of blew York, that said judgment is satisfied in his office; leaving said judgment and the docket thereof, in the office of the clerk of Albany county, in as full force and effect as if no such certificate or certificates had been filed. The order also directed the plaintiffs to pay to the defendant’s attorney ten dollars for costs of motion.

      J. Ellsworth, for the plaintiffs.

      Robert O. Embree, for the defendant.
   Rosekrans, J.

The plaintiffs have appealed"to this court, from an order of the general term of the Supreme Court, . affirming an order of the special term directing the cancelling of the satisfaction, on the record, of the judgment obtained in this action by the defendant. Since the appeal was taken, William McGregor, one of the appellants, has died, and the' plaintiffs move to suspend the argument of the appeal until the legal representatives of the deceased can be substituted in his stead. The substitution is wholly unnecessary for the purposes of this appeal, to protect the rights of any of the parties. If the order appealed from should be reversed, it is apparent that the substitution would be useless; and if affirmed, the judgment can be enforced against any property of the plaintiffs, both living and dead, upon which it is a lien, and can be enforced in the same manner as if all were living. (3 R. S. 5th ed. 642, § 30; 649; § 41.) If the judgment shall be satisfied out of the personal property of the remaining plaintiffs, as it could have been before the death of William McGregor, such survivors, if compelled to pay more than their share, can seek contribution from the estate of the deceased. The motion to postpone the argument should be denied with ten dollars costs.

The order appealed from should be affirmed, whether the ¿pplication for the order be regarded as made by the defendant’s attorney, on his own behalf, to enforce his lien as attorney, or on behalf óf his client who was the real party in interest, and defended the action in the name of the nominal defendant for his own benefit. The affidavits upon which the order was granted disclose a case of gross fraud in procuring the satisfaction of the judgment from the nominal defendant, not only as against the real party in interest, but against his attorney. The undisputed facts are these: The plaintiffs had brought an action of ejectment against Benjamin B. Winthrop, and were nonsuited because Winthrop disclaimed to have any thing to do with the lands, and they then brought actions against Winthrop’s tenants, the defendant Comstock being one of1 them. The litigation continued from 1844 to 1848, when this action was finally determined in this court, adversely to the plaintiffs. The defendant had judgment for costs to the amount of $1088.39 on the 8th of May, 1858. James C. McGregor, one of the plaintiffs, was informed of the entering of judgment soon after, and wrote to the defendant’s attorney that it should be paid on the 10th of J une, 1858. The plaintiffs and their attorney knew from the commencement of the action that the nominal defendant was not'the real party in interest, but that Winthrop was. They knew that not one cent of the disbursements, expenses or costs of the litigation had been paid by the nominal defendant, but that all had been incurred by Winthrop and his attorney. They knew that Winthrop defended the action, and Ellsworth swears that Comstock informed him, when Ellsworth obtained his signature to the-satisfaction, that he had never seen or employed the attorney who defended the suit, and that said attorney was not defending Comstock. The allegation ¿f these facts is not denied on the part of the plaintiffs, directly or evasively, and they stand admitted. Winthrop and his attorney resided in the city of Sew York; some of the plaintiffs resided there, most of the others resided in this state and their attorney also, and yet, with a knowledge of these facts, after James C. McGregor had written to the attorney that the judgment should be paid to Mm on the 10th1 of June, 1858, James and his co-plaintiffs sent their attorney to Chattanooga, in the state of Tennessee, a distance of 1000 miles and over, with funds to pay this judgment to Com-stock, or to obtain a satisfaction piece from him without payment, and such satisfaction piece was obtained and put upon record and- the judgment discharged, after the real defendant had issued an execution to enforce the collection of the judgment, and the same had been levied upon the real estate of one of the plaintiffs. The attorney who obtained the judgment has a lien upon it for the amount of his costs. (Rooney v. Second Avenue R. R., 18 N. Y. Rep. 368.) The judgment being solely for costs, the record is notice to all the parties to the action that the attorney who obtained the judgment has a lien upon it to the amount of the recovery, (Haight v. Holcomb, 16 How. Pr. R. 173, 174;) and the payment of the judgment to Comstock was in fraud of the rights of the attorney. Such payment by the plaintiffs was in their own wrong, and was equivalent to paying to the assignor a debt which has been assigned, after notice of the assignment. (Reid v. Dupper, 6 T. R. 361; Bradt v. Koon, 4 Cowen, 416; Welsh v. Hole, 1 Doug. 238; Martin v. Hawks, 15 John. 405.) The fact that the defendant’s attorney was not retained by the defendant in the suit, but by the real party in interest, can not defeat the lien of the attorney upon the judgment. The acquiescence of the nominal defendant in the conduct of the suit by the attorney, for the benefit of the party in interest, would preclude him from, insisting that the lien did not exist, and the opposite party, in the action has no right to question it. ’

•The order setting aside the satisfaction piece was proper if the motion is regarded as made on behalf of the attorney who obtained the judgment. I am also of the opinion that, under the circumstances, Winthrop is to be regarded as the equitable assignee of the judgment, as between him and Comstock, and that the giving of the satisfaction . piece by' Comstock was a fraud upon the rights of Winthrop. Comstock was sued as tenant of Winthrop, and Winthrop as his landlord demurred to the declaration in ejectment served upon him. Winthrop assumed the whole defense of the action and incurred all the expenses of the litigation. Comstock paid nothing, and was liable for nothing to the attorney employed to defend. He had no legal or equitable right to the fruits of the judgment. The landlord might have appeared and been made a defendant with the tenant, or been substituted as sole defendant. But if Comstock assented to the suit being continued against him and defended by his landlord, in his name, there was no illegality in the arrangement. A person is not chargeable with maintenance in prosecuting or defending an action of ejectment in the name of another when he has an interest in the lands, legal or equitable. (Wickham v. Conklin, 8 John. 221.) The payment of the judgment to Comstock, with knowledge' of the facts, was a fraud upon Winthrop. The facts disclosed in the affidavits show conclusively that a fraud was intended to be perpetrated. It would be a reproach to the law if such purpose could not be defeated.

In any .aspect of the case, I am satisfied that the order appealed from should be affirmed, with costs. We have not the power to award ten per cent upon the judgment, under subdivision 6 of section 307 of the code, as the appeal is not from a judgment.

Weight, J. also read an opinion in favor of affirmance.

All the Judges concurring,

Judgment affirmed.


source: Caselaw Access Project

author: Marvin, J. Denio, Ch. J.

license: Public Domain

text:
    Joseph Palmer, and Nancy E. Palmer his wife, v. Charles H. Davis and Hugh S. Gilbert.
    A husband ig not a proper party, in an action by the wife concerning her separate property — as upon an award in her favor. Such property is held by her in opposition, and without regard to, marital rights.
    If the husband be joined as á plaintiff, in such an action, the defendant may demur to the complaint, on the ground that it does not state a cause of action in favor of the husband; and as to him, the complaint will be dismissed.
    The defendant may also raise the question on the trial — no cause of action appearing in his favor-r-and procure, as to him, a dismissal of the complaint. But he can not claim a dismissal as to both plaintiffs.
    The wife having no legal capacity to sue, except' by a next friend, previous to the amendment of section 114 of the code, in 1857, the defendant might demur on that ground, where she sued jointly with her husband.
    As that objection appears upon the face of the complaint, it will be waived, if not taken by demurrer, and can not be raised upon the trial.
    The ancient strictness of the common law, touching awards made under submissions by infants and married women, has befen modified, and although such awards, at one time, in favor of infants and married women, were not enforceable at law, the rule more recently established and acted upon by courts of law in England is, that where a party knowingly enters into a submission with a married woman or infant, and an award has been made against him, the court will not set it aside on the ground that the other party is not bound by it.
    The common law disability of a murried woman to bind herself by a submission to arbitration was removed by the acts of 1860 (ehcep. 90) and 1862 (chap. 173.)
    Where a submission recited that J. P. and N. his wife, or one of them, claimed an “interest ” in a specified farm “ or the proceeds thereof,-” it not appearing that this was a claim in fee for life to the farm, but the evidence showed that the claim was for a part of the proceeds of sales made of portions of the land; Held that it was not a submission of the “ claim of any person to any estate in fee or for life, to real estate,” within the exception of the revised statutes respecting arbitrations. (2 R. S. 541, % 2.)
    Appeal from a judgment of the Supreme Court affirming a judgment entered upon the decision and' report of a referee. The action was to recover the amount of an award to the plaintiff Mrs. Palmer. The award was made pursuant to a submission reciting that Joseph Palmer and Nancy E. Palmer his wife, or one of them, claimed an interest in the Huestis farm, or the proceeds thereof, which claim was denied by Davis and Gilbert. Therefore, to avoid litigation and come to an early settlement and determination of such claim, and of all amounts and demands whatever in relation to such purchase and sale, the parties agreed to submit all matters in difference to the determination and award, &c., and they agreed to execute, abide by and perform the award, &c. The award stated the amount received by Davis on account of sales from the Harvey Huestis farm, and of the forfeit to be paid by him on the William H. Huestis farm, making a total of $7444.45 credits were allowed against that sum, leaving a balance of $4316.70. The award refers to an agreement between Merritt H. Smith and Hugh S. Gilbert of the one part, and Nancy E. Palmer of the other part, and declares that by virtue of this agreement one third of such balance belonged to Nancy E. Palmer, and the remaining part to Hugh S. Gilbert and to Charles H. Davis, the assignee of Merritt H. Smith, and who then held the title to' the farms; and the award directed the defendants to pay, within sixty days after notice of the award to Nancy E. Palmer, the sum of $1438.90, in full satisfaction of all her claims and demands upon the Huestis farms, or either of them, or the proceeds thereof, or upon Davis and Gilbert, or either of them, in respect thereto, and that they pay to Joseph Palmer $2475, in full satisfaction, &c. (It had appeared in the award that Joseph had expended this sum, in endeavoring to effect sales of parcels of the Harvey Huestis farm.) Mutual releases &c. were awarded. This action was commenced in December, 1855, and tried in part in December, 1856, and decided in March, 1857. Gilbert did not answer, and made no defense. On the trial Davis’ counsel objected that the action could not be maintained upon the award in favor of Mrs. Palmer, by her and her husband jointly; that she could not sue except by a next friend, and moved that the complaint be dismissed, or that the plaintiffs be nonsuited, The objections were overruled and the motion denied, and the defendant excepted. There were many other exceptions taken by the defendant, during the trial, and numerous exceptions to the report of the refereé, which are sufficiently noticed in the following opinions.

      Amasa J. Parker, for the appellants.

      John H. Reynolds, for the defendents.
   Marvin, J.

The evidence upon the trial was brief, though the exceptions in the case are very numerous, some of which it is very difficult to understand. I shall notice but few of them.

The action was to recover the sum awarded to Mrs. Palmer. The motion to dismiss the complaint or nonsuit the plaintiffs, on the objections that the action should have been in her name alone, and that she should have sued by next friend, was properly overruled. When this action was commenced, the code (§ 114)'was, “Where a married woman is a party her husband must be joined with her, except that, 1st. When the action concerns her separate property, she may sue alone. 2d. When the action is between herself and her husband, she may sue or be sued alone. But when her husband can not be joined with her, as herein provided, she shall prosecute or defend by her next friend.” There is some conflict in the decisions of the Supreme Court in construing this section. In Brownson and wife v. Gifford and others, (8 How. P. R. 389,) it was held by'Justice Habéis, at special term, that the husband could not be joined with the wife in an action which concerned her separate property; and he sustained a demurrer on this ground of a defect of parties plaintiff. The action was purely equitable, arising upon a will. In Rusher and wife v. Morris and wife, (9 How. P. R. 266,) the action was to foreclose a mortgage given to Mrs. Eusher, and the defendant demurred on the ground of defect of parties plaintiff. Justice Bosevelt overruled the demurrer, holding that the husband was properly joined with the wife in the action. In Smith v. Kearney, (9 How. P. R. 466,) the plaintiff was a wife and sued hy her husband as her next friend. Hoeeman, Justice, reviewed the decision last mentioned, .and disapproved it, holding that the husband could not be joined with the wife in an action concerning her separate property. I am inclined to agree with Justices Harris and Hoeemah, that a husband is not a proper party in an action by the wife concerning her separate property; such- property is held by her in opposition and without regard "to marital rights.- The decision, however, in Brownson and wife v. Gifford and others, sustaining the demurrer on the ground of a defect of parties, was undoubtedly wrong. One of the grounds of demurrer allowed by the code (§ 144) is, “that there is a defect of parties plaintiff or defendant.** This ground does not reach a case where there are too many plaintiffs, or too many defendants, but only those cases in which, from the statement of the cause of action, it appears that there are parties omitted,- who should have been made parties plaintiff or defendant. It is the same as nonjoinder of a necessary party, in an action at law) under the superseded system, or the omission of a necessary party in a suit in equity where it was said the suit was defective, and a demurrer could be interposed for want of parties ; or the objection could sometimes be taken in the answer, or raised on the hearing. How this objection of defect of parties must be taken by demurrer, if it shall appear upon the face of the complaint. If it does not so appear, the objection may be taken by answer. (Code, § 147.) If the objection of this defect is not taken by demurrer or answer, the defendant shall be deemed to have waived it. (§ 148.) The language, “ defect of parties,” was taken from the equity branch of the law as administered in the Court of Chancery, and it was happily chosen, in view of the new system. It has no reference to the misjoinder of parties; nor is -misjoinder of parties one of the causes of demurrer under the code. As we have seen, the objection of a defect or want, of parties can not now be raised on the hearing or trial, not having been raised by demurrer or answer, and being deemed waived. But it is provided in the code, (§ 122,) that, “when a complete determination of the controversy, between the parties, can not be had without the presence of other parties, the cour.t must cause them to be brought in.” If there is a misjoinder of parties, that is, if the facts stated in the complaint show no .cause of action against the defendants, in favor of one of the .plaintiffs, the defendants may demur, under the sixth subdivision of § 144, as to such plaintiff,- upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and as to such plaintiff the complaint will be dismissed. And so as to one of the defendants against whom no cause of action is stated. If the objection is not raised by demurrer, or does not appear in the complaint, it may, of course, be raised on the trial, and the complaint will be dismissed as to the plaintiffs in whose favor no cause of action is shown, and so as to the defendants against whom no cause of action is shown. By section 274, “judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants.” How, if the plaintiff has a good cause of action against one or more of the defendants, he is not to be dismissed from the court as to him or them, though he has joined one or more defendants against whom he had no cause of action. So if one is joined as a plaintiff who has no cause of action in connection with his co-plaintiff, the complaint, as to him, will be dismissed, but his co-plaintiff may, if he has a cause of action, recover. These positions are now well understood, and have, received the sanction of the courts; and I may add, that I have always regarded these provisions of the code as the most valuable portions of it, effecting a very salutary reform in the law touching parties to actions. (See Brumskill v. James, 1 Ker. 294; Zabriskie v. Smith, 3 id. 322, 336; The People v. Cram, 8 How. 151); Cowles & Curtis v. Cowles, 9 id. 361; Peabody v. The Washington Mutual Ins. Co., 20 Barb. 342.)

In the present case the defendant could have demurred sucessfully to the complaint upon the ground that it stated no cause of action in favor of Joseph Palmer, and as to him the complaint would have been dismissed, assuming that I am right in the position that he was not, as husband, a proper party. They could also have raised the question on the trial, no cause of action appearing in his favor, and procured, as to him, a dismissal of the complaint; but they did no such thing. . They insisted upon a dismissal as to both plaintiffs. She had no legal capacity to sue except by a next friend, and the defendants were authorized by subdivision 2 of section 144 to demur on this ground. As this objection appeared upon the face of the complaint, and was not taken by demurrer, it was waived, and could not be raised upon the trial.

The defendants also objected that as Haney E. Palmer was a married woman, the submission of the matters in controversy by her was void, and asked that the complaint be dismissed for this reason, and excepted to the decision of the referee denying the motion. I think the referee did not err in this decision. It is undoubtedly true that at common law, owing to the peculiar relations between husband and wife, and the disabilities imposed upon the wife, her submissions to arbitration were generally void. Her deeds and contracts being void she could not bind herself to perform an award, and there was a want of mutuality. (Rumsey v. Leek, 5 Wend. 20; Watson on Arb. 69; Russell on Arb. 20 et seq.) As by the common law the husband was entitled to the chattels and choses in action of his wife, he could submit disputes relating to them to arbitration. (Watson and Bussell, sup.) In the case under consideration, the submission was binding upon Joseph Palmer, and there was therefore sufficient mutuality. Besides, in this case the claim submitted was made by Palmer and wife, or one of them, and no claim was made by Gilbert and Davis. True, if the submission by the wife was void she would not be bound by the award, but might pursue her claim in court.

The ancient strict rule of the common law, however, touching awards made under submissions by infants and married women, has been modified; and although such awards, at one time, in favor of infants and married women, were not enforceable at law, and the Court of Chancery in an old case set aside an award in favor of an infant, on the ground that it was not equitable or reasonable, and that there was no mutuality, (Russell on Arb. 290, citing 1 Cas. in Chancery, 279; and see Biddell v. Dawse, 6 B. & Cress. 255,) the rule more recently established and acted upon by courts of law in England is, that where a party has knowingly and voluntarily entered into a submission with a married woman or infant, and an award has been made against him, the court will not set it aside on the ground that the married woman or infant is not bound by it, as the party knew beforehand that they could not be bound by it, and therefore has all the consideration for his agreeing to his submission for which he stipulated; and if he did not mean •to be satisfied with such effect as the award would have upon them, he ought not to have consented to the reference. (Russell on Arb. 22, 290, 637; In re Warner, 2 Dowl. & R. 148; Wriqhtson v. Bywater, 3 M. & W. 199; Jones v. Powell, 6 Dowl. 483.)

In equity, a married woman having a separate estate is regarded as competent to act concerning such estate, as though she was a single woman. ' This was not so at law, and as neither of the acts of 1848 or 1849, concerning the separate rights of married women, removed the common law disability of entering into a contract of submission, as in this case, I prefer to put this case, as to the award binding the defendants, upon the authorities referred to. The objection is to the submission, and is made upon the strict ancient rule of the common law, that there was no mutuality, as Mrs. Palmer, being a married woman, had no power to bind herself by the submission. This disability has been since removed by the acts of 1860 (ch. 90) and 1862 (ch. 173.) There was no difficulty, at the time this action was brought, in Mrs. Palmer’s maintaining, by her next friend, this action upon the award, provided it was valid. And by an amendment of the code, (§ 114,) in 1857, a next friend was dispensed with.

The submission in this case was not under the revised statutes relating to arbitrations. (Vol. 2, p. 541.) It was a common law submission. Hor was the submission respecting the claim of any person to any estate in fee or for life to real estate. The submission recites that Joseph Palmer and Haney E. Palmer his wife, or one of them, claim an “interest in the Huestis farm or the proceeds thereof.” This was the claim submitted—an interest in the farm or the proceeds thereof. It does not appear that this was a claim in fee or for life to the farm. And the ■ evidence showed that the claim was for a part of the proceeds of sales made of portions of the farm, and that a written agreement touching the rights of Mrs. Palmer had been previously made. It is not necessary to inquire what the common law is relating to arbitrations as affecting real estate; nor whether our statutes have changed the common law touching the matter.

The exceptions of the defendants to the decisions upon the questions raised concerning the. claim submitted, were not well taken.

The judgment should be affirmed.

Denio, Ch. J.

In determining whether the submission to arbitration in this case was valid as against the plaintiff Haney E. Palmer, it is material to observe that the matter submitted did not embrace a claim against her, but only the claim which she and her husband, or one of them, had preferred against the defendants. There could not, therefore, by any possibility, have been an 'award for the payment of money or the delivery of any property by her to the defendants, or either of them. The only determination which could have been made to her prejudice was that she had no claim against the defendants, or one for only a smaller amount than that which she set up. It should further be premised that the demand in question arose out of property which she owned in her own right, and which it is to be intended she held under the statutes of 1848 and 1849, which allow married women to hold property and to dispose of it as if she were unmarried. It appears, further, that the defendants were bound to her under contracts, to which no objections are taken, to account to her respecting'certain sales already made, of real estate in which she was interested. The power .of Mrs. Palmer over these claims was at least as good as though they Represented property held to her sole and separate use, in respect to which property a married woman has long been regarded in the light of a feme sole. In regard to claims arising out of such a state of facts, I am of opinion that a married woman may become a party to any agreement, not otherwise unlawful, for the determination of a controversy whether a particular claim set up by her is valid, and what sum is owing to her on account of it, provided her claim, exists. (Hulme v. Tenant, 1 Brown’s Ch. R. 16; Billing’s Law of Awards, 27.)

I observe that the statute respecting arbitrations (2 B. S. 541, §-1) excepts married women from the category of persons who may enter into submissions under that statute, classing them with infants and persons of unsound mind. So far as there was a necessity for an enabling statute to sustain this submission, the plaintiff would not be aided by the provisions of the revised statutes. But if such a submission as this would be valid at common law, as I have supposed, there is nothing in the statute to forbid it. (Burnside v. Whitney, 21 N. Y. R. 148.) The same answer .may be given to the objection that this submission was unlawful by the second section of the statute of arbitrations, which forbids a statutory submission of the claim of any person to any estate in fee or for life to real estate, if such had been the character of the claim in this case; but as I understand the evidence, the controversy related to the liability of the defendants to account for the proceeds of real estate which had been sold by them under a former agreement between the parties.

The exceptions founded on the refusal of the referee to rehear the matters determined by the arbitrator can not be sustained. Ho sufficient ground was set up in his answer to enable the defendants to impeach the award as the result of corruption, or such gross misbehavior as would be evidence of fraud.

It is objected that the plaintiff should have sued by next friend, and not with her husband. Such was the law when this action was commenced, but by the code as it now exists. she might sue alone. (§ 114.) But I think the objection was waived by the omission to demur. One of the causes of demurrer which is deemed waived by not being thus objected to, is that the plaintiff has not a legal capacity to sue. As the law was when the pleadings were put in, Mrs. Palmer could only sue by a next friend. By herself she had not a standing in court which would enable her to maintain an action. But the defendant elected to answer on the merits, and thus precluded himself from taking the objection at a subsequent stage of the case.

I am, therefore, of opinion that none of the defects averred exist in the record, and that the judgment should be affirmed.

All the Judges were for affirmance, Emott, J. on the grounds stated by Demo, Oh. J.

Judgment affirmed.


author: Marvin, J. Selden, J.

text:
    Bissell v. Pearce.
    A mortgagor of chattels has no right to pledge the property to another person, or otherwise to create a lien upon it, to the prejudice of the mortgagee’s rights.
    Where chattels were mortgaged to the plaintiff, in February, 1859, and the mortgage was duly filed in the town clerk’s office, and in April, 1859, the mortgagor pledged or created a lien upon, a portion of the property, in favor of the defendant, for the expenses of keeping the mortgaged property ; Held that in the absence of any attempt to impeach the-mortgage for fraud, the plaintiif’s lien by virtue of it, was prior and paramount to that of the defendant.
    The law, in the absence of any special agreement, will not give to a farmer who pastures horses, for hire, a lien upon the horses, for the price of keeping them.
    The certificate of the town clerk in whose office a -chattel mortgage is filed, staling that a paper is a copy of the original mortgage, is no proof of the existence of the mortgage. That must be produced and proved, or its non-production accounted for, so as to authorize secondary evidence.
    Nor is the certificate of the town clerk any evidence that the paper purporting to be a copy of the mortgage is a copy. The mortgage, and- its contents, must he proved by common law evidence.
    Action for the conversion of a horse, tried by the court, without a jury. The pleadings are sufficiently noticed in the opinion of Marvin, J. in connection with a question made upon them. The plaintiff claimed the horses as mortgagee, his brother Edwin being the mortgagor. He put in evidence, under objection and exception, a paper purporting to be a copy of a chattel mortgage, dated January 5, 1858, filed in the office of the town clerk of Hartland, Niagara county, January 6, 1858. This mortgage recited an indebtedness of • $813, to secure the payment of which sum, in. one year, the horse in question, and other property, were mortgaged. He also proved another mortgage, executed by Edwin to the plaintiff, dated January 13, 1859, reciting an indebtedness of $485, upon the balance of a debt which Edwin owed to the plaintiff, to secure the payment of which, the horse and other property were mortgaged. No time for the payment of the money is specified. The court found these facts: The mortgages were given for a valuable consideration. On or about December 2, 1858, Edwin left the horse in question, and other horses, with the defendant, to be kept and fed through the winter, or until the spring of 1859, upon the agreement that Edwin should pay the defendant seven shillings per week for each of the horses during the time they should be kept by the defendant. The plaintiff knew that Edwin did not have the horses in his possession after December 1, 1858, and that they had been left somewhere to be wintered, and he did not seek for or demand the horses, until they had been wintered, and until three of them had been obtained from the defendant by Edwin. The mortgage was due before November, 1858, and the plaintiff, as between him and Edwin, was then the owner of all four of said horses, and the plaintiff allowed Edwin to keep the horses after the title became vested in the plaintiff; and on or about January 20, 1859, the plaintiff demanded the horses of the defendant under and by virtue of the mortgage of January 13, 1859, and the defendant refused to deliver up the horse until the keeping of the four horses had been paid for, to wit, $67 That when this demand was made the defendant had no knowledge of the first mortgage, nor had he any, until after this action was commenced. In April, 1859, when the other horses were taken away, it was agreed that the other horse in question should be left with the defendant as security for the keeping of all the horses. The court refused to find that the horses were left with the defendant upon an agreement between him and Edwin that they should remain with the defendant as security for their keeping, and the defendant excepted. As conclusions of law, the court decided, 1st. That the first mortgage was not canceled by the giving of the second one; 2d. That the plaintiff could claim under the first mortgage as against the defendant in this action; 3d. That the facts set up in the answer did not constitute a counter claim, and therefore a reply was not proper; 4th. That the contract, as. found, is no defense in this action; 5th. That the concealment of the mortgage and of the plaintiff’s title, from the defendant, is no defense in'this action; 6th. That the plaintiff is entitled to recover against the defendant, the value of the horse; 7th. That the plaintiff is entitled to judgment for $121 and costs; to each of which conclusions a separate exception was taken. Some exceptions were taken by the defendant, to the'admission and rejection of evidence, which are sufficiently noticed in the opinions.

      C. G. White, for the plaintiff.

      E. F. Bullard, for the defendant.
   Marvin, J.

Waiving, for a moment, the consideration of the questions raised by the exceptions, and excluding the first mortgage, and stating the case most favorably for the defendant, it will, in short, be thus: Edwin B. Bissell, the owner of the four horses, sold and mortgaged them, with other property, (another horse,) to the plaintiff to secure the payment of $485, the balance of a debt then owing by him to the plaintiff, the sale &e. to be void on the payment of the debt, no time for payment being specified. The mortgage was executed January 13, 1859, and duly filed. Edwin had previously, near the 1st of December, delivered the four horses to the defendant, upon an agreement that the defendant should keep and feed them during the winter, at the rate of seven shillings a week for each horse, which sum Edwin agreed to pay. The defendant was a farmer. . In April, 1859, Edwin applied to the defendant, for the horses; and not being prepared to pay the defendant for their keeping, it was agreed between them that he should take one of the horses, and leave the one in question in this action, as security for the payment for the keeping of the four' horses. In J une, the plaintiff, under and by virtue of the mortgage, demanded the horse of the defendant, who refused to deliver him until payment should be made for keeping the four horses, $67, and therefore the plaintiff brought this action. The defendant had no knowledge of the mortgage until the demand was made. I have said that the mortgage of January, 1859, was duly filed. The case does not furnish any evidence upon this question. Nor was any point made upo it at the trial, or on the argument here. It is stated in the opinion delivered in the Supreme Court that the mortgage was duly filed. It seems to have been so assumed. The findings of fact by the court are silent upon this question, and as it is a rule of this court that the appellant must make his case and have it settled, with such a statement of facts as will show, necessarily, that the law is in his favor, otherwise every intendment, not absolutely unanswerable in itself, will be against him, (Grant v. Morse, 22 N. Y. Rep. 323,) and as there is no finding in this case that the mortgage was not filed, it will be assumed and intended' that it was properly filed.

This statement of the case is its best argument, and a decision, affirming the judgment, must follow, unless some of the exceptions are material and valid.

The defendant was a farmer, and the law, in the absence of any special agreement, gave him no lien upon the horses, for the price or value of keeping them. There was no special agreement until April, creating a pledge or other lien upon the horse in question, and this agreement was between Edwin A. Bissell, the mortgagor, and the defendant, and in hostility to the rights of the plaintiff, as mortgagee or owner of the horse. The plaintiff’s rights were not affected by this agreement. Edwin had no right to pledge the horse, or otherwise create a lien upon him to the prejudice of the plaintiff’s rights.

Let us examine the exceptions. The plaintiff offered in evidence a paper, purporting to be a copy of a chattel mortgage, dated January 5, 1858, with a certificate attached, stating that, “the foregoing is a true copy of an original chattel mortgage, placed on file in the clerk’s office of the town of Hartland, ¡Niagara county, and state of ¡New York, on the 6th day of January, 1858, at 7 o’clock, p. m. (Signed) H. Gr. Dean, town clerk of Hartland.” The defendant’s counsel objected on the ground that there was no proof of the genuineness of the signature of the clerk, or of the execution of the original mortgage. The objections were overruled, and the “paper” admitted in evidence, and the defendant excepted. The statute of 1833, ch. 279, relating to the filing of chattel mortgages, requires, under certain circumstances, that the mortgage, or a true copy, shall be filed in certain offices specified, generally a town clerk’s office, and the officer filing the same is required to indorse thereon the time of receiving the same, and to deposit the same in . his office. ( §§ 1 and 2.) The next section relates to a renewed filing within thirty days next preceding the expiration of a year from the previous filing, “together with a statement exhibiting the interest of the mortgagee in the property claimed by him, by virtue of the mortgage.” The fifth section is, “A copy of such original instrument, or of any copy-thereof, so filed as aforesaid, including any statement made in pursuance of this.act, certified by the clerk or register in whose office the same shall be filed, shall be received in evidence, but only of the fact that such instrument or copy, and statement, was received and filed according to the indorsement of the clerk or register thereon, and of no other fact; and in all cases the original indorsement of the clerk or register, made in pursuance of this act upon such instrument or copy, shall be received in evidence only of the facts stated in such indorsement.” It is the copy of the mortgage filed, or any copy thereof filed, including any statement made by the mortgagee in pursuance of the act, which is to be received in evidence, when certified by the clerk. But evidence of what ? The statute answers, of the fact, only, that such instrument, or copy, and statement, were received and filed according to the indorsement of the clerk thereon, and of no other fact; and so also as to the original indorsement by the clerk, it is to be received in evidence only of the facts stated in such indorsement. Such evidence is no proof of the existence of the mortgage. That must be produced and proved, or its non-production accounted for so as to authorize secondary evidence, hi or is the certificate- of the clerk any evidence that the paper purporting to be a copy of the mortgage, is a copy. The mortgage and its contents must be proved by common law.evidence. The statute relates to the filing of mortgages or copies, and renewed filing, and statement, and requiring the clerk to file the instrument, and" to indorse thereon the time of receiving it. The. instrument filed, whether it be the original mortgage, or a copy, and the statement made exhibiting the interest of the mortgagee, &c., upon the copy of the mortgage filed, within the thirty days next preceeding the end of the year from the first filing, are to be received in evidence when certified by the clerk, and to prove the fact only that they were received and filed according to the indorsement of the clerk thereon; and so as to the original indorsement of the clerk, which will always appear upon the instrument so produced and certified. If the mortgagee’s claim rests upon the mortgage alone, the contingency for re-filing a copy not having happened,-and the mortgage is produced in court, having upon it the original indorsement, made in pursuance of the act, no certificate is required. As I understand, the “paper” purporting to be a copy of a chattel mortgage, was admitted in evidence, as evidence of an executed mortgage. This was erroneous.

Notwithstanding the decision of the court was erroneous, and the exception well taken, the evidence was entirely immaterial, and the judgment should not be reversed on account of this error. The plaintiffs title was perfect under the mortgage of January 13, 1859, and by virtue of which he claimed the horse, and the evidence received, of the prior mortgage, could npt possibly affect the case, or prejudice the defendant. The defendant was a witness in his own behalf, and on cross-examination was asked if he wrote, in a letter to Edwin B. Bissell, “If you had called on your way back from blew York I would not have kept the horses.” An objection was overruled and the defendant excepted. The witness answered that he thought he did write something to that effect. There was no error here. The question was put upon the cross-examination of the defendant, and was proper as testing his recollection, and as a foundation for impeachment, if the evidence was material. But I do not see that it was at all material whether he so wrote or not.

The defendant offered to prove that Edwin B. Bissell, at the time he got the horses in April, fraudulently stated to the defendant that he owned' all the horses; and that he concealed the fact of the mortgage held by the plaintiff, and by these fraudulent acts he obtained possession of two of the horses. The evidence was excluded, and the defendant excepted. The same evidence was offered to affect the credibility of Edwin B. Bissell, and also to show fraud between him and the plaintiff. This was excluded, and the defendant excepted. The fraud of Edwin could not affect the plaintiff’s title; nor could such representation and concealment tend to prove fraud.in the plaintiff, if or do I think the evidence proper for the purpose of impeachment, or to affect the credibility of Edwin B. Bissell, of whom no such questions had been asked. These questions were proper to be put to the witness Borst, and the evidence at best would have been mere heresay. There was no ground for these ex- • ceptions.

There are some exceptions to the findings of facts by the judge, upon conflicting evidence, which this court will not examine, and some exceptions to conclusions of law, none of which are well taken. Some of the findings of fact, and some of the conclusions of law, are quite immaterial. It was not error to refuse to find a fact as requested, and if the weight of evidence was in favor of the requested finding, the exceptions would not be available in this court. The court decided that the facts set up in the answer did not amount to a counter-claim, and that a reply was not proper. Exception. • The answer referred to, states that the horses were owned by Edwin B. Bissell, and then sets forth special agreements between the defendants and Edwin for the keeping of the horses and for a lien, &c. and demands judgment that the horses be sold for the payment of the lien, which facts, if true, constitute a perfect defense in the action; for the title of the plaintiff was directly in issue, and without proving title, general or special, in himself, and the right to the possession of the horse, the plaintiff could not recover. This answer was certainly unnecessary, as the plaintiff in his complaint necessarily alleged title in himself, and the denial answer put this allegation in issue. The facts stated in the answer were in no sense a counter-claim.

In conclusion, this case is the ordinary case where one unfortunately purchases or receives property from one having no title, and the true owner comes and demands his property of the possessor, and upon a refusal to deliver, brings his action for the conversion of the property. And unless the defendant was prepared to impeach the title of the plaintiff, he should have surrendered the horse and taken his remedies against his bailor.

The judgment should be affirmed.

Selden, J.

Although it may be doubted whether all the conclusions of the court ■ at special term in this case were correct, still I see no sufficient ground for a reversal of the judgment. The court has found that the agreement that the horse in question should be left with the defendant as security for the keeping of all the horses, was made in April, 1859, and expressly refused to find, that any agreement for a lien was made at the time when the horses were-left with the defendant in December, 1858. This court can not look into the evidence to see whether this refusal was right or wrong, but must take the facts as they are found. The defendant, therefore, can claim no lien prior to April, 1859, and as the' second mortgage to the plaintiff was executed in February, 1859, and was duly filed in the town clerk’s office, and as no attempt was made to impeach this mortgage for fraud, the plaintiff’s lien by virtue of it was prior and paramount to that of the defendant. Hence all the evidence offered, and the decisions made, in reference to the first mortgage, were wholly immaterial, and could in no way affect the plaintiff’s right to recover under the second mortgage, which was in no manner invalidated.

Whether the court was right or not, therefore, in admitting ' the copy of the first mortgage in evidence, or in holding as a conclusion of law that the plaintiff could claim as against the defendant under that mortgage, is of no importance' in the case,

The proof offered of the fraudulent representations made . by the mortgagor as to the ownership of the horses, and of his concealment of the existence of the mortgages, was clearly inadmissible.

The plaintiff was in no respect responsible for those representations. The only point upon which any doubt can exist, is that arising upon the admission of parol proof of the contents of the letter written by the defendant to the mortgagor. If the evidence thus obtained had been in any degree material, or could in any manner have affected the judgment rendered, I should be inclined to hold its admission erroneous. But it is obvious that it could have no such effect.

The judgment should therefore be affirmed.

All the Judges concurring,

Judgment affirmed.


author: Balcom, J.

text:
    David Bush v. James Cole and Jacob Cole.
    Where auctioneers, who were not authorized to sell a house and lot for less than $2800, struck the same off to the plaintiff for $2250; Held, that the contract was not binding Upon the owner, but that the auctioneers were personally bound by it.
    Where auctioneers sell real estate, and sign the contract as agents of an undisclosed principal, if they do so without authprity, they are primarily responsible as contracting parties, and are liable to refund to the purchaser the amount of his deposit and auctioneer’s fees with interest.
    And if it appears that the auctioneers knew they were not authorized to sell the premises for less than $2800, when they struck them off to the plaintiff at $2250, he will also be entitled to recover what the premises Were worth over and above the price he was to pay therefor.
    This action was brought in the Supreme Court to recover damages, for the reason that the plaintiff failed to obtain a title to a house and lot in the city of Brooklyn, which the defendants, as auctioneers, sold to him at public auction. The terms of sale which the defendants read, before offering to sell the premises, were as follows, viz: “ Ten per cent of the purchase money to be paid down, and one thousand eight hundred dollars of the remainder to remain on bond and mortgage upon the premises, if required by the purchaser.” The plaintiff bid §2225, for the house and lot, and the same were struck off to him by the defendants at that price. The plaintiff then paid ten per cent of the purchase price, to wit, §222.50, to the defendants, and received from them a writing, as follows, viz: “Receipt for deposit. Ho. 4134. For §2221o ij. Brooklyn, February 20th, 1854. Received from Mr. David Bush two hundred and twenty-two 50-100 dollars, being ten per cent deposit, according to the conditions, upon his lot known as Ho. 170 Prospect street, Brooklyn, sold this day at auction for §2225; for which a good and sufficient title is to be given, through Henry T. Taber of Brooklyn. This deposit will under no circumstances be paid to either buyer or seller without their mutual consent, and in no case without the production of this receipt. Balance payable on the 30th day of April, 1854, at the office of the auctioneer, 43 Fulton street, Brooklyn-. (Signed,)
    James Cole & Son, Auctioneers.”
    The owner of the premises was John Inyard of Hew Jersey. He refused to convey the same, on the ground that he had not authorized the defendants to sell them; that he had only verbally authorized Taber to sell the same for $2800; and not for a less sum.
    The plaintiff offered to pay for the premises, and take a deed of the same, to the defendants and Taber. The defendants informed the plaintiff that no deed would be given; and they tendered back to the plaintiff the ten per cent of the purchase price he paid them, to wit, $222.50, and also the $10 auctioneers’ fees, which the plaintiff paid to the defendants on the sale. But the plaintiff refused to receive the same.
    The action was tried at the Kings circuit in January, 1858, when, besides the foregoing facts, the following were established; The plaintiff called Taber, who testified that he authorized the defendants to sell, but limited them to the price of $2800, and did not authorize them to sell the premises for less, than that sum. The defendants testified that they were not limited by Taber as to the price; that he never gave them the name of the owner of the premises; that he attended the sale and bid $2200 therefor; that the defendant, who cried the premises, after some time, turned to Tabér, and said; “Have you done, sir?” but he paid no attention to the remark, and the premises were soon struck off to the plaintiff; for $2250. Taber did not notify, the defendants, that day, that no deed would be given, or that the sale would be repudiated.
    A witness for the plaintiff was asked this question: “ What were the premises, Ho. 170 Prospect street, worth in May, 1854?” The defendants’ counsel objected to the same. The judge overruled the objection and the defendants’ counsel excepted. The witness answered “$2700 or $2800.” The plaintiff made searches, and ascertained who owned the premises before he offered to perform the contract of sale on his part; but he did not prove what the expense of his searches was.
    The only damages proved, unless the difference between the value of the premises shown by the plaintiff and the price he was to pay therefor was damages, were the $222.50 per centage on the purchase price, which the plaintiff paid down, and the $10 auctioneers’ fees he paid.
    The defendants acted in good faith in making the sale, unless they were limited by Taber, in selling the premises, to $2800.
    The defendants’ counsel moved for a nonsuit, on the ground that there was no evidence that Inyard was known to the defendants to be the owner of the premises, or. that the fact was made known to them; while by the complaint it appeared that the defendants made the sale under authority from, and by the directions of Taber; and that it nowhere appeared by the testimony that the defendants had exceeded their authority in making the sale. The judge refused to nonsuit the plaintiff, and the defendants’ counsel excepted.
    The judge charged the jury, among other things, as follows : “ That if an auctioneer is instructed not to sell property under a specified sum, and sells it for less, and the owner refuses to convey it on that account, the auctioneer is responsible to the purchaser for the consequent damages. ■ That if there is any thing improper in the limitation, the auctioneer should not act at all. But there was not; as although he could not legally bid himself, or employ other bidders, or as they are usually called, puffers, he might state that he was not authorized to receive any bid for less than the specified amount. That if one acting professedly as owner or without stating any thing to the contrary, should employ an auctioneer to sell property not really his own, it would be a harsh rule, and one not called for by the law, to make the auctioneer responsible to the purchaser because he had not followed the unknown instructions of the unknown owner. [But if the defendants in this case knew that Taber was agent for the owner, they assumed the risk of his not exceeding his instructions and were liable in damages to the plaintiff.”] The defendants’ counsel excepted to the above portion of the charge within brackets. The judge stated to the jury, that in order to raise the question involved in it, he should instruct them to find specifically whether the owner made a limit for the price of the property, and whether, if he did, the limitation was made known to the defendants. The judge further said, that if an owner employing an auctioneer to sell his property for not less than a specified sum, should be present at the sale, and should leave the auctioneer to strike it off for a less amount, he might be deemed to acquiesce in the sale, and the auctioneer would not be responsible if such owner should afterwards refuse to make the requisite conveyance. But in this' case .the owner was not-present, and there was not sufficient in the circumstances to warrant a departure from any instructions given to the auctioneer in behalf of such owner.
    The defendants’ counsel asked the judge to charge the jury that if they should find that Taber had authority to employ an auctioneer to sell, the plaintiff could not recover. That the limitation was not binding on the auctioneers. That when the agent was present, it was the agent’s business to bid up to the limit, and if he had been faithless, his neglect. should not be visited upon the auctioneers, as a matter of law, nor are they obliged to puff the property. The judge refused to charge otherwise than he had done, upon the matter requested, and the defendants’ counsel excepted.
    The jury rendered the following verdict, viz: “We find in answer to the question, did the owner make a limit for the price of the property, and was the limitation known to the auctioneers? Yes; and they do further say, we find for the plaintiff four hundred and eighty-three 83-10p dollars. This includes deposit money and auctioneers’ fees and interest.”
    The case did not show what any portion of the charge was, except that above set forth.
    The defendants’ counsel made a motion for a new trial, at a special term of the Supreme Court, on a case containing the exceptions, which motion was denied. A judgment was rendered on the verdict, in favor.of the plaintiff, with costs. The defendants appealed from the judgment and from the order denying their motion for a new trial to the general term of the Supreme Court in the second district, where the same were affirmed. The defendants then, appealed to this court.

      Jas. L. Campbell, for the appellants.
    I. The nonsuit was erroneously denied. The complaint is bad, and not only does not state a cause of action, but actually shows that the plaintiff had no cause of action against the defendants in respect to the matters therein stated. 1. The receipt (if sufficient as a memorandum of a contract for the sale of real estate) was binding upon Taber as vendor. Both parties allege and prove it to have been made under his authority. He was. “the party to be charged” with the performance of the agreement. It can not be varied by parol, so as to introduce a principal other than that designated in it. o
    II. The evidence of the value of the property was improperly admitted. A person who professes to contract on behalf of another without authority in fact, is liable'only for the damage resulting from the credit given to such false representation until discovered to be untrue. He is not liable for any profit or advantage which would have accrued from a performance. The defendants did not prevent the conveyance. Had they made no representation the property could not have been obtained on the terms offered, and their representation could not hinder that which otherwise would not have occurred. (Jefts v. York, 4 Cush. 371; Hopkins v. Mehaffy, 11 Serg. & Rawle, 126; Lewis v. Nicholson, 12 E. L. & E. 430; Thompson v. Davenport, 2 Smith’s Lead. Cas. 301; Smout v. Ilbery, 10 M. & Wels. 1; Randall v. Trimen, 37 E. L. & E. 275; Collen v. Wright, 40 id. 182; White, rec’r, v. Madison, Ct. of Appeals, June, 1863.) If damages in such cases were to tie regulated tiy the result of an inquiry into the profit or loss consequent upon performance, the most inequitable results might frequently follow. The language which has been somewhat loosely used in some cases, (such as Meech v. Smith, 7 Wend. 315; Palmer v. Stephens, 1 Denio, 471,) “that a party who has contracted as agent .without authority is liable as principal,” is applicable merely to the "form of action at common law, was not intended, and can not be supported, as a rule of damages. There are many cases, however, in which its application would produce the same result as that of the proper rule. It was" not necessary to' raise .the question a second time on the charge of the judge.
    III. The part of the charge excepted to was erroneous.' It confounded in the minds of the jury two very different things—instructions and authority. Applying the proper distinction between them to the evidence in this case, it will appear that, even if there was a violation of instructions, the" authority was not exceeded^ If instructions only were violated, the purchaser could not complain; such violation not excusing the party who gave them from liability. The consideration to he obtained was mere matter of instruction— the authority to sell indisputable. (Mech’s Bank v. New Haven R. R. Co., 3 Kern. 599.

      John H. Reynolds, for the respondent.
    I. By the verdict of the jury, the fact is established, that the owner of the property in question made a limit as to the price for which the property might be sold, and this limitation was known to the auctioneers at the time they made the sale, and in express violation of their instructions they sold it to the plaintiff for a less amount than they were authorized to do. Upon this state of facts—the owner refusing to convey because the auctioneers had violated instructions—there can be no doubt of the liability of the defendants to all the damages the plaintiff has sustained. The jury were so instructed, and no exception was taken.
    II. It is to be presumed that the jury were correctly instructed as to the rule of damages, as no question in that respect is made by the defendants. 1. It is obvious from the amount of the verdict, that the jury gave only the actual damage the plaintiff had sustained, and not the difference between the price agreed to be paid and the actual value of the property. 2. Upon the facts established by the jury, it may be urged that the defendants sold without authority, and in bad faith; and in such case the recovery may be equal to what the plaintiff has lost by the defendants’ nonperformance. (Brinckerhoff v. Phelps, 24 Barb. 100; Conger v. Weaver, 20 N. Y. R. 140; Hopkins v. Grazebook, 6 Barn. & Cress. 31; Trull v. Granger, 4 Seld. 115.)
    III. On the trial of the cause the court allowed the plaintiff to give evidence of the value of the property at the time the' defendants should have conveyed it, and the defendants excepted. 1. When, in a case like the present, bad faith can be imputed to a party who refuses to convey real estate according to agreement, the plaintiff is entitled to recover, as damages, the difference between the price agreed to be paid and the actual value, and hence the evidence was entirely proper. (See cases above cited.) 2. And upon the facts established by the verdict it is impossible for the defendants to escape the imputation of bad faith, for- they made the sale in willful violation of instructions and hence without authority, and after the sale, reduced the contract to writing, received a deposit of money and auctioneers’ fees, and gave the plaintiff to understand that he was to have the property.
    IY. The motion for nonsuit was properly denied. 1. There was nothing in the ground suggested, at the time the motion was made, and if there was it is of no consequence, because subsequently it was distinctly proved, and so the jury found, that the defendants did exceed their authority. 2. Besides, the defendants were liable upon the agreement signed by them at the sale. It was their contract, and they agreed to give a title, and they did not disclose the fact that they were acting for a principal, or disclose his -name. (Story’s Agency, §§ 155, 264, 266, 267, 276, ed. of 1851; Mills v. Hunt, 20 Wend. 433; Coon v. Knap, 4 Seld. 402.)
    Y. The single exception to the judge’s charge is untenable. 1. The portion of the charge excepted to was to the effect, that if the defendants knew that Taber was agent for the owner, they assumed the risk of his not exceeding instructions, and were liable. 2. This instruction was of no sort of consequence, inasmuch as the jury found .that the defendants violated the instructions they had received from the agent, and hence the exception is practically made to a mere abstraction and must fail. 3. But if the proposition has any material relation to the case, it is unquestionably sound, and for that reason also the exception must fail. 4. The judge correctly refused to charge as requested by the defendants. Bach of the several requests had no foundation in law or fact. But as the exception is general to all, if any one should not have been charged, the exception to the whole goes down.
   Balcom, J.

Whether the verdict of the jury was against evidence is not within the province of this court to determine. We must, therefore, assume the truth of the case to be as the jury have found, namely, that the defendants were not authorized to sell the house and lot for less than $2800. This being the case, their alleged contract, as auctioneers, to sell the same to the plaintiff for $2250, was not binding upon the owner. The defendants were constituted agents for a particular purpose, and under a limited and circumscribed power, and could not bind their principal beyond their authority. (See Batty v. Carswell, 2 John. 48; Andrews v. Kneeland, 6 Cowen, 354; Gibson v. Colt, 7 John. 390; Nixon v. Palmer, 4 Seld. 398; Hoff. Ch. 351; Story’s Ag. §§ 17 to 23, 126, 131, 224.)

If the owner of the premises had authorized the defendants to sell the same at auction, without any limitation as to the price, the contract of sale which the defendants executed would have bound him. It would have answered the requirements of the statute of frauds; and according to the uniform course of decisions in this state, the defendants are personally bound by the contract. It does not show who the owner of the premises was. But if it- did, the defendants would be personally liable upon it, because the owner did not authorize them to make such a contract in his name or for him. * (See White v. Skinner, 13 John. 307; 7 Wend. 305; 1 Hill, 402; Coleman v. Garrigues, 18 Barb. 60.) It was not so framed and executed that neither the defendants nor their alleged principal could be bound by it, as the agreement was in Sherman v. The N. Y. Cent. R. R. Co., (22 Barb. 239.) It shows that the defendants signed it as agents of an undisclosed principal; and as they did so without authority, they were primarily responsible as contracting parties. (Episcopal Ch. of St. Peter v. Varian, 28 Barb. 644; Mills v. Hunt, 20 Wend. 431.)

If these views are correct, there can be no doubt that the defendants were liable to refund to the plaintiff the $222.50 per centage on his bid, and the $10 auctioneers’ fees which they received of him when the contract of sale was made, with interest on the same. And if we are to assume that the verdict of the jury establishes that the defendants knew they were not authorized to sell the premises for less than $2800, when they struck them off to the plaintiff for $2250, he was also entitled to recover what the premises were worth over and above the price he was to pay therefor; for this proposition is clearly sustained' by the decisions in Trull v. Granger, (4 Seld. 115;) Driggs v. Dwight, (17 Wend. 71,) .and Brinckerhoof v. Phelps, (24 Barb. 100;) and neither of these decisions was overruled by this court in Conger v. Weaver, (20 N. Y. Rep. 140.) The rule seems to be that if the vendor acts in good faith, and as a prudent man should, the vendee can recover nothing for the loss of a good bargain. (Peters v. McKeon, 4 Denio, 546.) But if he contracts to sell lands to which he has no color of title; or perversely refuses to perform his contract, when there is no obstacle in the way; or makes an agreement to sell as agent without authority from the owner, he is .liable for damages beyond the part of the consideration paid and interest. (See Baldwin v. Munn, 2 Wend. 399; 2 Hill, 116; Id. 488, and authorities supra.)

We must assume that the verdict of the jury shows the * defendants did not act in good faith; because the 'jury found specifically that the owner limited the price for which the premises might be sold, and that such limitation was made known to the defendants—which price was greater than that for which they struck off the premises to the plaintiff.

The motion for a nonsuit was properly denied, for two reasons: 1. The plaintiff was clearly entitled to recover the percentage and auctioneers’ fees which he paid to the defendants, and interest thereon; 2. The evidence raised the question whether the defendants did not act in bad faith, in agreeing to sell the premises for less than the price limited therefor by the owner.

The evidence that the premises were worth more than the price the plaintiff was to pay therefor was competent, if in any view of the case the plaintiff could recover for the loss of a good bargain. And as there was sufficient evidence to justify the judge in submitting the question to the jury, whether the defendants did not act in bad faith in selling the premises to the plaintiff for a less sum than they were authorized to take therefor, the evidence, that the premises were worth moi’e than the contract price, was admissible.

The charge on the question of damages is not in the case, and the presumption is it was correct.

My conclusion is, that no error was committed on the trial, unless the verdict was against evidence. But whether it was is not for us to determine. The decision of the Supreme Court that it was not against evidence is conclusive upon the defendants.

It follows that the judgment of the Supreme Court should be affirmed, with costs.

Denio, Ch. J. also delivered an opinion for affirmance; and all the Judges concurring,

Judgment affirmed.


author: Wright, J.

text:
    Henry J. Lewis v. Aaron F. Palmer and J. L. King.
    It is a well settled principle that a surety who pays a debt for his principal is entitled to be put in the place of the creditor, and to all the means which the creditor possessed to enforce payment against the principal debtor.
    H. loaned to the firm of L. & Co. the sum of §1300, taking as security therefor a mortgage on personal property in their possession, and also an assignment of the plaintiff’s bond and mortgage covering real estate owned by him; which bond and mortgage, at the request of L. & Co. and for their benefit, had been executed to them, by the plaintiff, for the purpose of being assigned to H.; and which were, at the time the loan was made, and as a condition thereof on the part of H., assigned and delivered by L. & Co. to H. as additional security. Subsequently H. brought a suit to foreclose the mortgage on the plaintiff’s property, which was prosecuted, by Ms administratrix, after his death, to final judgment. To prevent a sale of the mortgaged premises, the plaintiff paid the amount of the judgment, §1780.05, taking from the administratrix of H. an assignment of the chattel mortgage. The defendants, after the chattel mortgage had been duly filed, and with notice thereof, converted the property embraced in it to their own use, and refused, on demand, to deliver it to the plaintiff.

      field, 1. That the case was that of a surety compelled to pay the debt of his ' principal; and who was entitled to he subrogated to the rights of the creditor against the principal debtors.
    2. That the right of H. to the property covered by the chattel mortgage was that of owner, as between the parties to the mortgage and-all parties purchasing with notice. That upon a failure to pay, according to the condition of the mortgage, the absolute title, at law, was in the mortgagee, who had the right to possess himself of the goods, sell the same, and pay the debt out of the proceeds,
    3. That the plaintiff, being subrogated to this right, upon receiving the assignment of the chattel mortgage, was entitled to enforce it for his reimbursement.
    4. That the plaintiff, on paying the debt as surety, and on becoming assignee of the mortgage, became invested with the title to the property and all the rights of H. under the mortgage; and that the defendants were liable' to him for the amount he had so paid as surety; the value of the property converted exceeding the amount so paid by the plaintiff.
    Purchasers, of mortgaged chattels with actual knowledge of the existence of the mortgage are not tona fide purchasers, and therefore can riot raise the objection that the mortgage had ceased, by its own limitation, to be a lien, and had not been legally renewed.
    Appeal from a judgment of the Supreme Court. The action was to recover, as damages, the value of certain property, (converted hy the defendants,) embraced in a chattel mortgage given by the firm of W. &' W. H. Lewis to one Amos Haynes, to secure a debt of $1300, for which debt the plaintiff had become the surety of such firm, and had been compelled hy legal proceedings to pay.
    The cause-was referred to S. P. Hash,.Esq. as referee, who found the following facts: On the 28 th of May, 1851, one Haynes loaned to the firm of W. & W. H. Lewis, manufacturers of daguerreotype apparatus in the city of Hew York, the sum of $1300, and as security therefor the firm executed and delivered to Haynes a mortgage upon certain goods and chattels in their store and factory, payable on demand, with interest at seven per cent per annum; which chattel mortgage was duly filed, and on the 29 th of May, 1852, a true copy thereof, with a statement of the interest of the morí-. gagee in _the property therein claimed by him, was also duly, filed. About the same time the said mortgage was given, the plaintiff, H. J. Lewis, and his wife, at the request of said firm, and for the benefit of the firm, executed to them their bond and mortgage, for the payment of the sum of $1300 on the 1st of June, 1852, upon certain real estate, situated in Kings county, belonging to the plaintiff, for the purpose of being assigned by. said firm to Haynes, as further security for the loan; and the said bond and mortgage were, at the time said loan was made, and as a condition thereof on the part of Haynes, assigned and delivered by the said firm to Haynes as such further security. The bond and mortgage were not given in consideration of any indebtedness from the plaintiff to the firm, but were distinct and apart from their mutual dealings.
    About the 1st of July, 1852; Haynes commenced a suit to foreclose the mortgage against the plaintiff, which was continued after his death, in the name of his widow as his administratrix, to final judgment for the sale of the premises ; to, prevent which the plaintiff paid, on or about the 8th of June, 1854, to the administratrix, the sum of $1780.05, the amount due on the mortgage, with interest and the costs of the action; and the said administratrix, in writing, assigned and transferred to ■ the plaintiff the said chattel mortgage, and all the right, title and interest of the said Haynes or the said administratrix therein. The chattel mortgage contained' the usual power of sale in case of default of payment.
    The firm of W. & W. H. Lewis have not paid to Haynes or his representatives, or to the plaintiff, any part of the said sum of $1300. The defendants, after the chattel mortgage was duly filed, and with notice of such mortgage, took possession of the goods an'd chattels mentioned in the plaintiff’s complaint; being a portion of those embraced in, the said mortgage, and converted the same to their own use; and the same was of a value exceeding the sum so paid by the plaintiff to the said administratrix. The plaintiff, after the assignment to him of the chattel mortgage, duly demanded of the defendants the possession of the goods and chattels, but they refused to deliver the same or any part thereof.
    The principal defense attempted to be maintained was, that the mortgage on the plaintiff’s real estate was given to W. & W. H. Lewis to secure the payment of his indebtedness to them, and therefore he was not a surety, and not entitled to be subrogated to the rights of Haynes as a creditor of W. & W. H. Lewis. The referee decided as matter • of law, that the plaintiff, as surety for W. & W.' H. Lewis in the loan made to them by Amos Haynes, became entitled, upon paying the amount due to the administratrix as aforesaid, to be subrogated to the rights of said Amos Haynes to the chattel mortgage, and upon receiving the assignment thereof, as aforesaid, was entitled to enforce the same for his reimbursement. That the defendants having converted the property embraced in the chattel mortgage to their own use, are liable to the plaintiff for the amount so paid by him, with interest; and that the plaintiff is accordingly entitled to judgment against the defendant for the sum of $2111.63. To which conclusions of law the defendants excepted.
    On the trial, after the plaintiff rested, the defendants’ counsel moved to dismiss the complaint, on the ground that the defendant's appear to be bona fide purchasers of the property, and the mortgage has ceased by its own limitation to be a lien, and has not been renewed. The mortgage is dated the 28th of May, 1851, and was renewed the 27th of May, 1852; and also that that renewal was not made thirty da'ys before the expiration of the first year. The motion was denied, and the defendants excepted.
    There were several exceptions taken' by the defendants’ counsel to the reception and exclusion of evidence, (all of which were of an immaterial and frivolous character.
    The judgment entered on the report of the referee was affirmed at a general term of the Supreme Court; and the defendants appealed to this court.

      A. Mann, jun. for the plaintiff.

      B. Goodman, for the defendants.
   Wright, J.

On the facts found" hy the referee, (and we are to consider the case upon such finding,) the judgment is right. Haynes loaned to. the firm of W. & W. H. Lewis the sum of $1300, taking as security therefor a chattel mortgage on personal property in their store and factory; and also the plaintiff’s bond and mortgage covering real estate owned by him; which bond and mortgage, at the request of W. & W. H. Lewis and for their benefit, had been executed to them by the plaintiff, for the purpose of being assigned to Haynes; and which were, at the time the loan was made, and as a condition thereof on the-part of Haynes, assigned and delivered by W. & W. H. Lewis to Haynes as additional security. The relation of the plaintiff to the transaction was that of a mere surety for the firm of W. & W. H. Lewis. Subsequently, Haynes brought a suit to foreclose.the mortgage on the plaintiff’s property, which was prosecuted by his administratrix, after his death, to final judgment for the sale of the mortgaged premises; and to prevent a sale the plaintiff paid the amount due on the mortgage, with interest and the costs of the action, being the sum of $1780.05; taking from the administratrix an assignment to him of the chattel mortgage, and all the right, title and interest of Haynes, or his administratrix, therein. The case, therefore, was that of a surety compelled to pay the debt of his principal; and who was entitled to be subrogated to the rights of the creditor against the principal debtor. It is a well settled principle, that a surety who pays a debt for his principal is entitled to be put in the place of the creditor, and to all the means which the creditor possessed to enforce payment against the principal debtor. (Clason v. Morris, 10 John. 524; Wilkes v. Harper, 2 Barb. Ch. Rep. 338; Mathews v. Aikin, 1 Comst. 595; Hodgson v. Shaw, 3 Myl. & K. 183.) In Hayes v. Ward, (4 John. Ch. 130,) Chancellor Kent said: “The doctrine does not belong merely to the civil law system. It is equally a well settled principle in the English chancery, that a surety will be entitled to every remedy which the creditor has against the principal debtor, to enforce every security, and to stand in the place of the creditor, and have his securities transferred to him and to avail himself of those securities against the debtor.” The mortgage on the debtors’ personal property, in this case, was one of the securities and a means possessed by the creditor to enforce payment against the principal; and the plaintiff, a surety, having paid the debt, he was entitled to the security, and to stand in the place of Haynes in -respect thereto, and with all the rights of the latter under it. The right of Haynes to the property covered by it was that of owner, as between the parties to the mortgage, and all parties purchasing with notice. It transferred the whole title of the mortgagors to the property, subject to he defeated only by payment, and upon a failure to pay according to its terms, the absolute title, at law, vested in the mortgagee. Haynes had the right, on default of payment, to possess himself of the goods and chattels, sell the same, and pay the debt out of the proceeds. The plaintiff being subrogated to this right, upon receiving the assignment of the mortgage; was entitled to enforce it for his reimbursement. The defendants, however, after the mortgage had been duly filed, and with notice thereof, converted the property embraced in it to their own use; and, after the assignment, refused on demand of the plaintiff to deliver any part thereof to him. The value of the property thus converted exceeded the sum paid by the plaintiff as surety. Under these circumstances, the defendants were liable to the plaintiff for -the amount so paid. As against Haynes, the mortgagee, the defendants were simply trespassers, having no right whatever to the property at the time of the conversion,- or afterwards; and this was the precise relation they sustained to the plaintiff, after paying the debt which the mortgage was given to secure. There can be no doubt of Haynes’ right before the payment of the debt and the assignment, to have recovered from the defendants the value of the chattels converted, they being neither creditors of the mortgagees, nor subsequent purchasers in good faith. The plaintiff, on paying the debt, and as assignee of the mortgage, became invested with the title to the property, and all the rights of Haynes under thb mortgage.

It was not error to refuse a nonsuit. The ground was, that the defendants appeared to be bona fide purchasers of the property, and the mortgage had ceased by its own limitation to be a lien, and had not been- legally renewed. The statute provides that every chattel mortgage, (when the things mortgaged continue in the possession of the mortgagor,) shall be absolutely void as against the creditors of the mortgagee and subsequent purchasers in good faith, unless the mortgage, or a true copy thereof, shall be filed, (in this case,) in the office of the register of the city of Hew York; and being thus filed, shall cease to be valid as against the same class of persons, after the expiration of one year from the time of filing; unless within thirty days next preceding the expiration of the said term of one year, a true copy of such mortgage, together with a statement exhibiting the interest of the mortgagee in the property thereby claimed of him by virtue thereof, shall be again filed. (Laws of 1833, chap. 279.) The mortgage in this case was duly filed on the 7th of June, 1851, and the copy and statement required by the statute again filed on the 27th of .May, 1852. In March, 1852, the firm of W. & W. H. Lewis made an assignment of their property for the benefit of creditors, and in that year, with full notice of the mortgage, the defendants purchased from the assignees of the firm, a portion Of the property embraced in it. When, therefore, the purchase was made, the mort gage was valid as against a purchaser in good faith. But the defendants were not bona fide purchasers, having bought and possessed themselves of the property with actual knowledgé of the existence of Haynes’ mortgage. They could not raise the question of the effect upon the mortgagee’s rights of the omission to file or re-file the mortgage.

■ An examination of the few exceptions of the defendants’ counsel on the trial, has Jed to the conclusion that none of them are tenable. Those insisted on now will be briefly noticed.

1st. On the examination of one of the firm of W. & W. H. Lewis, the witness was asked: “What was the state of the accounts between the plaintiff and your firm at the time of the giving of the mortgage?” The answer was: “He was indebted to us about $160; I ascertain this from our books.” The defendants then objected to the evidence without a production of the books. There was no force in the objection. It was not necessary to produce the books of the firm to qualify the witness to answer the interrogatory.

'2d. The counsel of the plaintiff offered in evidence a copy of the judgment in the suit foreclosing the mortgage on the plaintiff’s property; to the introduction of which the defendants’ counsel objected as being between other parties, as irrelevant and immaterial. The exception was manifestly frivolous. Instead of being irrelevant and immaterial, the evidence was a most important link in the chain to establish the plaintiff’s case.

3d. One Doctor Oatman acted as the agent of Haynes in effecting the loan of $1300 to the Lewises. He testified that the plaintiff’s premises were mortgaged as a security for the money, and a chattel mortgage taken also, on stock and fixtures. This question was then put to. him by the defendants’ counsel: “Which property was taken by you as the principal security for the loan ?”• It was objected to by the plaintiff’s counsel as immaterial, and as swearing to an inference ; which objection was sustained by the referee. This was not error. • It was of no sort of importance whether in the witness’ view, the plaintiff’s bond and mortgage, or the chattel mortgage were taken as the principal security for the loan. Both were required and given.

4th. Oatman testified to a conversation between the plaintiff and himself, at a time when visiting the mortgaged premises. He was asked: “Do you recollect whether or not, at the interview you have spoken of between you and the plaintiff at G-reenpoint, any thing was said by him on the subject of the money of the firm having gone in his building there ?” The questioú was objected to as leading, and the objection. sustained. It was leading; but if not objectionable on that ground, the inquiry was wholly immaterial. The same answer is applicable to the following question to which an objection was sustained, viz: “Did Lewis, (the plaintiff,) in that conversation, say any thing as to his using the money of the firm?’’

The referee having drawn the correct legal conclusions" from the facts, and there being no erroneous rulings on the trial to the prejudice or injury of the defendants, the judgment should be affirmed.

All the Judges concurring,

Judgment affirmed.


text:
    Clute v. Jones and others.
    The defendants agreed to pay the plaintiff $1800 for her, interest in the property and estate of C., her deceased father, and she was to take, in part payment therefor, a piece of land, at $60 per acre, which the defendants conveyed to her, and which they estimated to contain twenty-four acres, and which was to he measured “ within ten days ” from the date of the contract'; and the defendants were to give their promissory note to tho plaintiff, for “the balance” of the $1800, “whatever it might he,” payable, &e.

      Seld 1. That the time within which the land was to be measured, was not a material part of the contract.
    2. That the defendants were not estopped from claiming that the quantity of land which they had conveyed to the plaintiff, at $60 per acre, was twenty six ninety-seven one hundredths acres, instead of twenty-four acres, merely because they omitted to measure the same “within ten days ” from the date of the contract.
    3. That the fact that the land was described in the defendants’ deed to the plaintiff by metes and bounds, and as “ containing twenty-four acres be the same more or less,” did not prevent the defendants from claiming an allowance for the excess beyond the twenty-four acres.
    4. That the defendants, in an action upon the contract, were entitled to be allowed for the excess of the land, at, $60 per acre, over and above the twenty-four acres.
    Appeal from a judgment of the Supreme Court. The defendants purchased of the plaintiff her interest in her father’s estate for the sum of $1800. At the time of the purchase they deeded to her, as part payment of the $1800, a piece of land described in said deed as containing twenty-four acres of land, more or less, for the consideration of $1440. The deed is dated July 29, 1857. On the same day the defendants executed to the plaintiff a writing, of which the following is a copy;
    “We, Horatio Jones, 3d, and Thomas J. Jones,.have this ■ day purchased of Harriet E. Clute all her claim to the property and estate of John H. Jones, of Leicester, late deceased, and agree to pay her therefor the sum of eighteen hundred dollars; and, as part payment, have conveyed to her a piece of land calling it twenty-four acres, at $60 per acre, which we agree to measure and estimate at that price, for whatever it may hold out, as part pay of said $1800, to he measured within ten days; and we agree that we will give our promissory note for the balance, whatever it may be, due in one year from the first of October next, with use.
    Leicester, July 29 thy 1857. Horatio Jones, 3d,
    [H. W.] Thomas J. Jones.”
    After the money would have become due on the note, as stipulated by the above agreement, had one been given, and on the 10th day of November, 1858, this action was commenced. The action was brought upon the above instrument. The complaint alleged that the premises had not been measured, and that the defendants had not given their promissory note, but had neglected and refused to give the same, and that no part of the money due under and by virtue of the agreement had been paid. She claimed damages for the non-fulfillment of the contract, and for the balance of the $1800, after deducting $1440, or the value of twenty-four acres of land, at $60 per acre, and interest, being $360 and interest from July 29, 1857. The defendants, to reduce the claim, offered to show that the land deeded by them to the plaintiff contained more than twenty-four acres, after admitting that the same was not measured within the ten days, and that no note had ever been given or tendered. The plaintiff objected to the evidence. The court overruled the objection, and the plaintiff excepted. The defendants proved a measurement of the land the day before the trial, and they were allowed a deduction from the amount claimed by the plaintiff of the value of two and ninety-seven one hundredths of an acre of land, at $60 per acre. This action was tried by the court at the Livingston circuit November 28, 1859. The following are the findings of the court: 1st. That the defendants on the 29th day of July, 1857, made and executed an agreement in writing, as is set forth in the complaint, and delivered the same to the plaintiff. 2d. That the premises mentioned in said contract or agreement are hounded as follows. (Here follows description of boundary and concludes as follows:) And that the amount . of land contained within said boundaries is twenty-six and ninety-seven one hundredths of an acre. 3d. That no measurement of said premises was had by either party since the commencement of.this action, and no note was ever made or tendered by the defendants to the plaintiff therein. The conclusions of law were as follows: 1st. That the plaintiff was bound in this action by the conditions and stipulations contained in the agreement set forth in the complaint herein. 2d. That the defendants can not be held to have acquiesced in the measurement of said land at twenty-four acres. 3d. That the defendants are entitled to a deduction from the amount claimed by the complaint in this action of the value of two acres and ninety-seven one hundredths of an acre of land, at sixty dollars per acre, and the plaintiff is entitled to judgment for the residue of said claim, with interest after ten days from the date of said contract, being $210.96.
    The plaintiff excepted severally to the conclusions of law and appealed from the judgment entered thereon to the general term of the Supreme Court. The general term reversed the judgment and granted a new trial, from which order of the general term the defendants appealed to this court. •

      F. G. Wicker, for the appellants.

      A. M. Bingham, for the respondent.
   Balcom, J.

Ho written opinion was delivered at the general term of the Supreme Court, when the judgment given in favor of the plaintiff, at the circuit, was reversed and the order made for a new trial, with costs to abide the event.

The judges at the general term must have been of the opinion that the contract of the 29th day of July, 1857, was not binding upon the plaintiff, because she did not sign it, or that the defendants could not avail themselves of it, for the reason that they did not measure the land, mentioned in it, “within ten days” after the date thereof.

The' plaintiff could not say that any part of the contract was not binding upon her, for her action was based upon it, and she could not recover without giving it in evidence.

The defendants were not estopped from claiming that the quantity of land which they had conveyed to the plaintiff at $60 per acre, was twenty-six acres and ninety-seven one. hundredths of an acre, instead of twenty-four acres, simply because they omitted to measure the same “within ten days” from the date of the contract. For if there had been less than twenty-four acres of the land the plaintiff would not have been estopped from showing that fact and claiming $60 per acre for the deficiency.

The true interpretation of the contract, when read in the light of the. surrounding circumstances, as it should be, is, the defendants agreed to pay the plaintiff $1800 for her interest in the property and estate of John H. Jones deceased, and she was to take in part payment thereof a piece of land at $60 per acre, that the defendants conveyed to her, which they estimated to contain twenty-four acres, and which was to be measured “ within ten days,” from the date of the contract; and the defendants were to give their promissory note to the plaintiff for “the balance” of the $1800, “whatever it might be,” payable on'the 1st of October, 1858. The time within which the land was to be measured was not so material a part of the contract as to make either party lose on the question of quantity, if not performed in respect to such time. If there had been but twenty acres of the land, the defendants could not have compelled the plaintiff to allow them more than $1200 therefor towards the $1800, on the ground that the land was not measured “within the ten days” specified in the contract. Hence the defendants were not estopped from claiming pay .for the excess of the land over twenty-four acres.

The general rule is, that one party is not estopped unless the other is. In other words, an estoppel must be reciprocal and binding upon both parties. (The Welland Canal Co. v. Hathaway, 8 Wend. 480; Green v. Russell, 5 Hill, 183.)

The point that the defendants can hot be allowed for more than twenty-four acres of land, because the land is described in their deed to the plaintiff by metes and bounds, and as containing twenty-four acres be the same more or less,” is untenable; for the reason that the contract for the payment of the $1800, for the plaintiff’s interest in the property and estate referred to, provides for ascertaining the number .of acres of the land conveyed, and for an allowance therefor to the defendants, by the acre. The contract, therefor, is not controlled or rendered nugatory in any respect by the deed.

For these reasons I am of the opinion the judge at the circuit properly allowed the defendants for the excess of the land at $60 per acre over and above the twenty-four acres ; and that the order, made at the general term of the Supreme Court, granting a new trial, should be reversed, and the judgment given at the circuit affirmed with costs.

All the Judges concurring,

Judgment affirmed.