author: Gardiner, J. Shankland, J. dissented.

text:
    Burckle vs. Eckhart and others.
    Where a contract is made at one place and is to be performed at another, the cause of action upon such contract arises at the latter place.
    Therefore, where by a contract made at Oswego (within the fifth circuit) the complainant was to manufacture flour at that place, and deliver it to the defendants in Canada, where they resided, who were to dispose of it there and account for the net profits, and a bill was filed before the vice chancellor of the fifth circuit for an account; held, that the cause or matter did not arise within that circuit so as to give the vice chancellor jurisdiction.
    And held farther, that jurisdiction was not acquired on the ground that the subject matter of the controversy was situated within the circuit. The subject matter in such a case has no locality within the meaning of the statute defining the jurisdiction of the vice chancellor.
    In order to give a vice chancellor jurisdiction on account of the cause or matter having arisen within his circuit, it must have arisen there exclusively.

    Where a bill was filed before a vice chancellor against persons not residing within his circuit, and the defendants voluntarily appeared, and then suffered the bilí to be taken as confessed for want of an answer; held, that such appearance did not confer jurisdiction.
    When the cause or matter does no$ arise, and the subject matter of the contro- . versy is not situated, within the circuit of a vice chancellor, the residence of a defendant therein is a jurisdictional fact, and where that is also wanting the mere appearance of the defendant does not cure the defect.
    A person employed by a firm and receiving a given share of the profits as a compensation for his services, but having no community of interest in the capital stock of the concern, is not liable as a partner.
    A mercantile house engaged in general business, and trading among other things in provisions, employed a person to attend to the purchasing and forwarding of produce, who was to act under the orders of the firm, and have, as a compensation for his services, one fourth of the profits arising out of the purchase and sale of the produce; held,, that the person so employed was 'not a partner in the business even in respect to third parties.
    Appeal from the supreme court, where Burckle brought an action of assumpsit against James Gibb, Thomas Gibb, Elisha Lane, and Isaac R. Eckhart. The suit was upon a "contract made March 2, 1841, between the plaintiff, of Oswego, of the one part, and James Gibb & Co. of Quebec, of the other part. The cause was first tried in January, 1843, when the plaintiff had a verdict which was set aside by the supreme court and a new trial granted. The facts as they appeared on that occasion are stated in the report of the case. (1 Denio, 337.) There was another trial in November, 1845, and the plaintiff again had a verdict which was also set aside by the supreme court. (Nee 3 Denio, 279.) The cause was last tried before Justice H. Gray at the New-York circuit, in December, 1847, and in addition to the facts proved on the first trial, the plaintiff, for the purpose of proving that the defendant Eckhart was' one of the parties of the second part to the contract in question, offered in evidence an exemplified copy of the proceedings and decree in the court of chancery before the vice chancellor of the fifth circuit, in a cause between the parties to this suit, the plaintiff being complainant. The bill described the plaintiff as a resident of Oswego in this state, and the defendants as residents of Quebec, in Lower Canada. It set out the agreement declared on in this suit, which it averred was executed by the defendants, by and under the style, name, and firm of Gibbs Sp Co. The object of the bill was to compel the defendants to account for the profit of a quantity of flour, which the plaintiff had delivered at Kingston, pursuant to the contract. It was taken as confessed, for want of an answer; the defendants having appeared by a solicitor. The decree, which was entered on the 20th of May, 1845, declared that all the defendants entered into the contract as members of the firm of James Gibbs Sp Co., and that the parties proceeded to the execution of its provisions, until Oct. 1841; when the defendants refused to receive any more flour, or perform on their part; the complainant having fully performed on his part; that the defendants were , indebted to the complainant in the sum of $3539,48, for one third the net profits of flour accepted and sold in Canada by the defendants; which the latter were decreed to pay with costs. This evidence was objected to, on the ground that the vice chancellor of the fifth circuit had no jurisdiction of the matters stated in the bill; and the evidence was received by the judge subject to the objection.
    After the testimony upon both sides had been given, the defendant Eckhart (upon whom alone process had been served,) moved for a nonsuit, 1st, upon the ground that the decree was not evidence to go to the jury, for the reason above alledged; and 2d, because upon the whole evidence, Eckhart was not shown to be a partner with the other defendants. The non-suit was granted, and the plaintiff excepted. The supreme court sitting in the first district refused to set aside the nonsuit, - and after judgment the plaintiff appealed to this court. The contract in question is sufficiently referred to in the opinion of the court.

      G. Wood, for appellant.

      H. Denio, for respondents.
   Gardiner, J.

Two questions are presented'in this case-1st. Had the vice chancellor of the fifth circuit jurisdiction to make the decree received in evidence upon the trial? and if not, 2d, whether Eckhart is shown prima facie, to be one of the firm of Gibbs & Co. by the other evidence in the cause ? The statute (2 R. S. 168, § 2,) declares, that every circuit judge within the limits of his circuit, shall, concurrently with the chancellor, have, and exercise, all the original jurisdiction, and powers, vested in the chancellor, in all causes, and matters in equity, when such causes and matters shall have arisen within the circuit of such judge. The 2d and 3d subdivisions of the section above quoted are not applicable, and may be laid out of consideration. And the inquiry is, whether the causes and matters in controversy between these parties, and in reference to which relief was sought in equity, arose in the fifth circuit.

The contract was executed at Oswego, but the duties and obligations imposed by it upon Gibbs &. Co., for a violation of which the bill was filed, were to be performed and discharged in Canada, with a single exception. The flour, after the manufacture, was to be delivered at Kingston, to the agents of Gibbs & Co., who were then to advance to the plaintiff the cost at that place, including all charges for freight; it was to be sold in Canada by Gibbs & Co., the accounts were to be kept there, a partial adjustment of the profits and losses was to be had from time to time, if required, and a “ final settlement (in the language of the agreement) and close of accounts to be made at the end of the year 1841, and balances paid, as they appear respectively due by the parties, from one to the other: Gibbs &, Co. having a share of two thirds, and the plaintiff one third of the same.” All these provisions, in terms, or by necessary implication, refer to Canada, as the place where the business was to be transacted. The fair inference from the contract is, that the payments of balances, by the respective parties, were to be made at the place where those balances were ascertained. This would be at the place of business of the copartnership, where the accounts were kept. The share of the losses, to be provided for by the plaintiff, were to be paid to Gibbs & Co. who, by the contract, were to advance the cost of the flour at Kingston, and who of course would sustain in the first instance, the loss arising from its depreciation. It certainly is not probable that the parties contemplated the payment of the profits in one country, and the losses in another, particularly as upon the final settlement they were to be paid when and of course where the balance was ascertained. If this is a correct view of the agreement, its performance by Gibbs & Co. was to be regulated according to the laws of Canada, and the balances, when ascertained, were to be paid there, with the interest authorized by those laws, and not according to the laws of the United States. (2 Kent, 460; Story’s Conflict of Laws, § 284; Andrews v. Pond, 13 Peters, 77, 78.)

It is true, the contract was made at Oswego, and within the 5th circuit. It is also true, that it is the foundation of the plaintiff’s claim: but the place of its execution is not a cause or matter in equity, or any part of it, in controversy between these parties, entitling the plaintiff to relief. Indeed, the fact is not alluded to in the bill.

By the seventh clause of the agreement, weekly statements were to be furnished by the plaintiff of his purchases of wheat, and by Gibbs & Co. of the receipts and sales of flour. A breach of the contract in this respect, by the defendants, is alledged in the bill, and it is insisted that it occurred in the fifth circuit, where the plaintiff resided. It may be doubted whether the agreement contemplated any thing more than that an account of sales and purchases should be forwarded to the parties respectively, by the ordinary modes of conveyance. But if those who were to furnish the statements were bound to guaranty their reception, and the defendants were therefore held to a performance of this part of their contract, at the plaintiff’s residence, this fact would not give the vice chancellor jurisdiction. His jurisdiction must be exclusive of any other vice chancellor, when the causes or matters have arisen in his circuit. (2 R. S. 163, § 2.) This must refer to all the matters in controversy, or so much of them as will enable the court to execute full and complete justice between the parties, and determine all further litigation.

If a breach of the same contract should occur in different circuits, it was not the intention of the legislature that the jurisdiction should be divided. For the vice chancellor, when he acquires, exercises jurisdiction, exclusive of all others. (Brown v. Brown, 1 Barb. Ch. Pr. 215, 216; 8 Paige, 443.) Here an important part of the contract was to be performed at Oswego, but the default of the defendants, upon which the plaintiff has rested the whole equity of his bill, occurred in a foreign jurisdiction. The bill should therefore have been filed before the chancellor. It is immaterial whether the matters arose abroad, or in a different circuit in this state. The statute requires that they shall arise within the circuit of the judge claiming to exercise jurisdiction.

It was said, that if either of the defendants had resided in the fifth circuit, the court would have had jurisdiction, and that by appearing they waived that defect. The jurisdiction of courts is conferred by law, and in no case by consent of parties. When jurisdiction of the subject and person is required as a prerequisite to judicial action, a defendant may waive any irregularities in the mode by which his person is sought to be subjected to the jurisdiction of the court, by a voluntary appearance. He may dispense with the service of process, as he may waive any other personal privilege. But when the defendant is in court as a party, the law gives jurisdiction of the person, without regard" to the question whether his appearance was voluntary or by compulsion. This is all that is meant by consent giving jurisdiction of the person, and all that is decided in the cases to which we have been referred. (Bents v. Graves, 3 McCord’s R. 280; Overstreet v. Brown, 4 id. 80.) The residence of a defendant within the limits of the circuit, according to the 3d subdivision of 2d section of the statute above quoted, is a jurisdictional fact which must exist before the court can act at all, either by issuing process or accepting the appearance of a defendant. It is necessary to give jurisdiction of the cause, not of the person. In such case there can be no waiver. (3 McCord, 280.) It is true, that where a particular matter, essential to jurisdiction, is averred by one party, it may be admitted or denied of record by the other. When denied it must of necessity be determined by the court upon proof, like any other question of fact. (6 Wend. 332, and cases; id. 447.) It is the “ matter,” however, itself, of which the record and proof are the evidence, which is the ground of jurisdiction. The plaintiff in his bill, in this case, alledges that the defendants were nonresidents, and the latter appear and confess the fact. The want of jurisdiction, as to this point, appears upon the record. We think, therefore, that the enrolled decree was not evidence for any purpose against the defendants.

2. Was Eckhart shown, by the other evidence in the cause, to be a member of the firm of Gibbs & Co. ? This point was fully considered when this cause was before the supreme court, after the first trial. (1 Denio, 341, 2.) I concur fully in the reasoning and conclusions reached by the learned judge who delivered the opinion of the court. The distinction between an interest in the profits, as such, and the payment of a sum in proportion to a given quantum of the profits, is to be taken with the qualification that, in the first instance, the stipulated share of the profits are received by individuals in the character of partners, and not as agents, or as a compensation for services. (Coll, on Part. by Perkins, 3d Am. ed. 33, 34, 37, note; Loomis v. Marshall, 12 Conn. 69; 20 Wend. 70.) This is true as between the parties themselves, whatever may be the effect as regards third persons.

.The judgment of the supreme court should be affirmed.

Shankland, J. dissented.

He was of opinion that a new trial should be granted, and the evidence submitted to a jury to decide, whether Eckhart held himself out to the plaintiff as a partner or co-contractor with James Gibbs &. Co., and whether the plaintiff was induced to contract, and did so, on that hypothesis. Such, he said, should be the judgment of this court, even if the court should think that the defendants Were not partners inter se-, nor as to third persons in general, because if Gibbs and Eckhart so acted and talked, in the presence of the plaintiff, at the time of making the contract, as to induce a reasonable man to believe they were partners, although all the rest of the world knew they were not, yet as to him they are liable as such. (Hoare v. Dawes, Doug. Rep. 371; Cooper v. Eyre, 1 H. Black. 37; 9 Bing. 297; Dickenson v. Valpy, 10 B. & C. 140; 1 Smith’s Lead. Cas. 729.)

Upon the question whether there was in fact a partnership as to third persons, the judge proceeded as follows. But a full examination of the cases has satisfied me that the facts sworn to by Duncan McPherson constituted Eckhart a partner of the firm of Gibbs & Co., in respect of that branch of their business, which he calls the western produce business, as between the said defendants and third persons dealing with them in that.particular business. The contract proved by him is that James Gibbs & Co. employed Eckhart to purchase and forward western produce, and it was agreed that he should have one-fourth of the profits arising from said business, as a remuneration for his trouble; that he acted in all matters connected with that business under the order of James Gibbs & Co., and exercised no kind of ownership over the produce, and never was looked upon or considered as a partner of the firm. That Eckhart was not considered as a member of the firm, has no bearing upon the case-. That is a question of law upon ascertained facts. Nor is it of importance to the decision of this cause, that Eckhart in fact acted in pursuance of orders from Gibbs & Co. It is not pretended that it was a part of the contract, that he should be subordinate, if that would alter the law of the case. This contract allowed Eckhart to participate in the profits of the branch of business in which he was engaged, and made him liable, as between himself and Gibbs & Co., to the loss of his time, labor and expenses, if no profits were made. He was entitled to one-fourth of the profits specifically, and would be entitled to an account of those profits, and to hold them as against the separate creditors of either, or all of the other members of the firm. (Dob v. Halsey, 16 John. 40; Gouthwaite v. Duckworth, 12 East, 421; Pott v. Eyton, (T. Term, 1846,) 54; Eng. Com. Law Rep. 32.) In this last case Tindal, Ch. J. lays down the rule thus: “ Traders become partners between themselves by a mutual participation of profit and loss ; but as to third persons they are partners if they share the profits of a concern; for he who receives a share of the profits, receives a part of that fund upon which the creditors of the 'concern have a right to rely for payment, and is therefore to be made liable for losses, although he may have expressly stipulated for exemption from them.” (See 1 Smith’s Lead. Cas. 726; 18 Wend. 175 ; 4 East, 144.) Barry v. Nesham, 3 Manning, Granger & Scott, 641, is in point. The above rule has been long established by adjudications in England and in this state, and should be adhered to by us.

The reason that a dormant partner js made liable for the debts of the firm, is not that the goods were sold, or the debt contracted wholly, or in part, upon his credit; but only because he participates in the profits of the concern, and abstracts so much from the fund which is in equity due to the creditors. And it is for the same reason that a person who participates in those profits is made liable to creditors, although he contributes nothing to the fund but his services; and who is not a general partner because he does not share in the losses. The above rules are based on great and sound principles of public policy, and the courts ought not to depart from the English doctrine which holds a person liable to the debts of the firm, if he takes a share of the profits, although he takes them as a compensation for services, unless they are prepared to release a dormant partner from his responsibility also. It was never thought to make a difference that the share of the profits stipulated for were great or small. A dormant partner who receives a tenth of the profits, is held responsible in the same degree as the one who receives nine-tenths. Nor should the person who receives of the profits, as profits, of a concern, any amount, although in the name of wages, or compensation for services, be exempt from a similar liability to the creditors. The reason of the rule is the same in both cases, and the consequences should be the same. The following English authorities, commencing with Waugh v. Carver et al. in 1795, and ending with Pott v. Eyton in 1846, will show with what regularity the line of decisions has been sustained in their courts. (2 H. Black. 235; Ex parte Hamper, 17 Ves. 403; Ex parte Langdale, 18 id. 300; Ex parte Watson, 19 id. 459; Myers v. Sharpe, 5 Taunt. 74; Cheap v. Cramond, 4 B. & Ald. 663; Smith v. Watson & Lock, 2 B, & C. 401; Reid v. Hollingshead, 4 id. 867 ; Chuck, ex parte, 8 Bingh. 469; Green v. Beesley, 2 Bingh. N. C. 108; Ex parte Digby, 1 Deacon, 341; Pott v. Eyton, 3 Mann. Granger & Scott, 33.)

The first case in our own courts, in which the subject is noticed, is Muzzy v. Whitney, (10 John. 226,) in which it was held that where the defendants agreed with the plaintiff “ to let him have the share of the profits, if any, in making the second ten miles of the Chenango turnpike road, in proportion to the help he afforded in completing the same, the one half to be taken from the part of each defendant,” there was no partnership inter se. But the court based their decision on Hasketh v. Blanchard, (4 East, 144,) and other cases, which clearly decide that they would be holden as partners, quoad third persons. In Dob v. Halsey, (16 John. 34,) it was held that where one Moore agreed to superintend the saw-pits and lumber yard of the plaintiffs for one year, in consideration of his receiving one-third of the net profits, he was a partner, not only as to third persons, but also inter se. The case of Champion v. Bostwick, (18 Wend. 175,) is a direct authority in favor of the principle, that where one is paid for his services by a share of the profits, according to the English rule, he is a partner as to third persons. In Cushman et al. v. Bailey and Conkling, (1 Hill, 526,) it was decided that where C. loaned to B. $1000 for a year, and leased him a store for the same period, and stipulated that his son should attend the store as B.’s clerk without specific compensation ; in consideration of which B. agreed to invest $3000 in the store, conduct it during the year, and at the expiration thereof repay the $1000 and surrender the premises, if required, accounting for the business done, and render to C. one equal third of all the profits, dec. the agreement constituted a partnership as to third persons. Here too the English rule is fully recognized.

The case of Vanderburgh v. Hull and Bourne, (20 Wend. 70,) is one where one Sherwood was called by Hull and Bowne, the plaintiffs, to prove their demand against the defendant, and on his voir dire disclosed that he was employed as the agent of the plaintiffs, in a foundry conducted by them, at an annual salary of $300, and in addition to that, one-third of the profits of the foundry, if any were made, but had nothing to do with the losses. The plaintiffs found the capital, stock, &c. and he gave his services. The defendant objected to the witness on the ground of interest, and also that he should have been joined as co-plaintiff. Mutual releases were then executed between the plaintiffs and witness, and he was allowed to testify. The supreme court, on a bill of exceptions, decided that Sherwood was not a partner, because he was not liable for losses—because the share of profits was intended as payment for the labor of the witness; and the cases in 5 Taunt. 74, 2 H. Black. 590, and 1 Camp. 331, were cited as in point. In the first case cited by Justice Nelson, it was conceded by both counsel and court, that the parties in that case were partners in the profits, though not in the goods, and of course would be liable to third persons. So in the other cases, a distinction is taken between being partners in the goods and partners in the profits. In the first case they are partners inter se; in the latter not, except as to third persons.

I concede that the case of Vanderburgh v. Hull and Bowne was rightly decided, for the reason that the witness was not a partner of the plaintiffs, as between themselves—a proposition which the defendant should establish, before he could make the objection of non-joinder available; because he was not suing as a creditor of the firm, and was not, therefore, in a position to raise the question. Only those who are partners inter se are bound to join in a suit, as plaintiffs, to recover a debt due them. ( Teed v. Elworthy, 14 East, 209 ; Atkinson v. Laing, 1 D. & E. 16.) And in this respect I cannot but think the supreme court erred in deciding the case of Dob v. Halsey. In that case Moore had no joint interest in the timber sued for, nor was he responsible for losses, as between himself and the plaintiffs. He was a partner in the profits only, but inter se, they were not partners within the English rule.

It was not the intention of the court in Vanderburgh v. Hull and Bowne, to establish a new rule, as to what facts constitute o'a partnership between partners and third persons, nor to innovate upon the old one; nor did the facts of that case, and the point to be decided, call for the consideration of the question arising on this record. I therefore respectfully dissent from the remark of the learned justice in Burckle v. Eckhart, (1 Denio, 342,) that “ so far as that court was concerned, it had been settled that a mere agent or servant who is to obey orders, and has no interest in the capital stock, will not be a partner, even as to third persons, merely because he is to be compensated for his services by receiving a share of the profits which may arise from the business in which he is employed.” That court decided directly the other way in Dob v. Halsey, (16 John. 34; Cushman v. Bailey, (1 Hill, 526;) Bostwick v. Champion, (11 Wend. 580 ; S. C. in court of errors, 18 id. 184, 5, opinion of Walworth, Ch.) In this last case Mr. Justice Nelson admits that the proprietors of the stage line were not partners, inter se, but holds them so as to third persons, because they shared in the profits.

The private arrangement existing between Gibbs and the other members of his firm was unknown, and immaterial to the plaintiff at the time the contract was made. If Gibbs conceived the services which Eckhart contributed to the common stock equal to money, he had the right to do so. The law so esteems it; and if Eckhart was to act a subordinate part to the head of the firm, in the management of the joint interest, it does not in the least affect the question. Two things are certain, he was actively engaged in purchasing and forwarding western produce, (including the very purchase on which this suit is founded,) and was entitled to one-fourth of the profits coining from that business. There is not a case in the books, either English or in this state, which hold such a case not a partnership, as between the vendor of property and persons thus purchasing. In addition to the above facts Gibbs declares to the plaintiff, at the time of the purchase, “ that Eckhart had a share in the business,?’ and Eckhart replied “ that it was so.” This remark must have been understood by the plaintiff to mean that Eckhart had a share in the business then transacting, or why such a remark at that time 1 If an authority is needed to show that a declaration made at such a time, should be taken seetmdum subjectam materiam, it will be found in the judgment of Lord Kenyon, in De Berkom v. Smith, (1 Esp. N. P. C. 29.)

For the above reasons the judgment should be reversed and a new trial directed.

Judgment affirmed.


source: Caselaw Access Project

author: Jewett, C. J. Hoyt, J. dissenting.

license: Public Domain

text:
    Smith and others vs. Kerr and others.
    In an action upon a sealed instrument in a justice’s court, it is not necessary to show in the declaration that the instrument was sealed by the parties. It is enough to declare generally for breach of contract, referring to the contract in such terms as to identify it, or setting it forth according to its legal effect without stating it to be under seal. Per Jewett, C. J.
    A declaration in writing in a justice’s court without naming the form of action, set forth that the defendants leased certain premises of the plaintiffs, and went on to state a cause of action for a breach of one of the engagements in the lease. Annexed to the declaration was a paper purporting to be a copy of the lease, together with a notice addressed to the defendants stating that it was a copy of the lease referred to. The instrument purported tó be signed by the parties, but there were no marks indicating that the original had been sealed, nor was it averred in the declaration that it was sealed. Held, nevertheless, that the plaintiffs might upon the trial give in evidence and recover upon the lease, although it was a sealed instrument.
    A party may sue upon a covenant running to himself although he did not sign and seal the instrument.
    A sealed contract relating to partnership business executed by one of several partners for the firm, without authority under seal, is binding on all the partners if they assent thereto, and such assent may be given at the time or subsequently.
    Isaac Potter, Abner Potter, and Elihu S. Smith, sued John Kerr and Charles S. Kimble in a justice’s court in the county of Erie. The declaration was in writing, and set forth that on, tfcc. the defendants leased of the plaintiffs a certain potashery with three potash kettles in the arches, worth thirty-five dollars each, and other articles used in that business; and that the defendants agreed with the plaintiffs, among other things, to return the articles at the expiration of the lease in as good condition as when they received the same, except the usual wear with fair usage; and if said kettles should be broken or injured so as to render them unfit for use, the defendants agreed to pay for them. One of the breaches complained of was the breaking and loss of one of the kettles, which the defendants had not paid for, to the plaintiffs’ damage, &c. The form of the action was not mentioned in the declaration. At the foot of the declaration was a notice addressed to the defendants stating that thereto annexed was a copy of the lease referred to'. • Then followed a paper purporting to be á copy of a lease "executed between the parties which contained substantially the provisions set forth in the declaration. The concluding words were, “ signed, sealed, and delivered,” <kc. The instrument purported to be signed by the parties respectively, plaintiffs and defendants, but there were no marks indicating that the original had been sealed. The defendants pleaded the general issue.
    On the trial before the justice, the plaintiffs recovered judgment. The defendants appealed to the common pleas of Erie county, where the cause was again tried and the plaintiffs had a verdict and judgment thereon. The defendants brought error into the supreme court, where the judgment of the common pleas was reversed and a new trial awarded. The plaintiffs then brought error to this court. The questions which arose on the trial are stated in the opinions delivered by the judges.

      A. S. Sawin, for plaintiffs in error.
    I. One partner can consent to the execution of any paper under seal of the kind given in evidence, in his name, by a co-partner, and whether such consent in this case was given or not was fairly submitted to the jury. (1 Hall’s R. 262 ; 3 Kent’s Com. 5th ed. 47, 48; 19 John. 513; 9 id. 285 ; 4 T. R. 313; 4 Met. 548; 5 Hill, 113; 22 Wend. 324; 4 Com. Dig. 158; Tait, a. 2; 10 Wend. 87; 21 id. 202; 10 Com. Law R. 109.)
    II. The defendants having contracted with the plaintiffs by name, whether the plaintiffs executed the contract or not, the defendants were bound by it, and therefore it was unnecessary to prove its execution by the plaintiffs.
    III. The objection taken on the trial to the reading of the lease in evidence, was not sufficiently specific to authorize the defendants to raise the point of variance. If the objection was properly taken, still, it is insisted that under the liberal rales which prevail in justice’s courts, it was properly disregarded by the justice and the common pleas. (15 Wend. 669; 13 id. 66, 403 ; 2 Hill, 504; 1 id. 61, 69; 5 Wend. 275 ; 5 John. 122 ; 1 Denio, 432; 4 id. 419 ; 9 Cowen, 274 ; 4 Denio, 498; 1 Comst. 223; 7 Hill, 503.)

      H. S. Love, for defendants in error.
    I. The declaration is in assumpsit and not covenant or debt, and the lease being under seal could not be given in evidence under the declaration. The declaration does not aver that the instrument was sealed, or that it was a covenant; neither are any words of art, such as “ indenture,” “ deed,” or “ writing obligatory,” which of themselves import a seal, used in the declaration ; nor does the copy of the lease attached to the declaration appear on its face to be under seal. (West v. Cartledge, 5 Hill, 488; Andrews v. Montgomery, 19 John. 162; 1 Chit. Pl. 99, &c.; Saund. Pl. & Ev. 109, et seq.; id. 889, 890, marg. p.)

    II. The case is not altered by the fact that at the conclusion of the lease are the words, “ Witness, our hands and seals.” Sayiqg an instrument is sealed does not make it a specialty, if it wants the requisite formalities, and is not in fact sealed. (Van Santwood v. Sanford, 12 John. 197, and cases there cited; Macomb and Bouck v. Thompson, 14 id. 207 ; Cabell v. Vaugn, 1 Saund. 291, note 1; Pordage v. Cole, id. 320, note 3; 5 John. 245.)
    III. The plaintiffs are not helped by the rule that pleadings in a justice’s court are to be liberally construed. The declaration is good upon its face as a declaration in assumpsit; and had the defendants demurred, they must have been beaten on the demurrer. The plaintiffs have entirely misconceived their action. (Howe v. Wilson, 1 Denio, 181.)
    IV. The judge erred in his charge to the jury. (1.) In charging that the onus lay with the defendants to show that the kettles were used in the ordinary way, and were not broken through the negligence or improper usage of the defendants. (2.) In charging that although the lease was not executed by all of the defendants, yet if they assented to its execution, it was equally binding as if executed by all the defendants. (3.) And in refusing to charge as requested by defendants’ counsel. (Story on Agency, 51, 52, §§ 48, 9, n. 1; id. 252 ; id. 287, § 242; Sto

      ry on Part. § 117 ; Wells et al. v. Evans et al. 20 Wend. 251 ; Blood v. Goodrich et al. 9 id 68.) (4.) There was no sufficient evidence of a ratification on the part of the defendant Kimble, or direct ratification on the part of the plaintiff, Abner Potter.
   Jewett, C. J.

It was objected on the trial that the lease, which was under the seals of the parties, could not be given in evidence under the declaration which, as insisted by the defendant’s counsel, was in assumpsit. This objection was overruled by the common pleas; and I am of opinion that the declaration was sufficient in a justice’s court, to allow the plaintiffs to give in evidence under it the written agreement. The objection to it was, that the declaration was in assumpsit, and the agreement being under the seals of the parties was not, therefore, admissible in evidence as the foundation of an action of assumpsit upon a simple contract. The justice, in his return, states that “ the plaintiffs declared in assumpsit in writing which is hereto annexed.” That is, the plaintiffs declared in writing, which the justice annexed to his return; which shows, that although the justice called it a declaration in assumpsit, it may be as well called a declaration in covenant as in assumpsit. There was a notice annexed to the declaration that the paper annexed was a copy of the lease referred to in the declaration. The agreement produced on the trial purported to have been signed and sealed by the parties respectively; the copy annexed omitted the sign of the seals. The notice was no part of the declaration, nor the. copy of the lease technically an oyer of it; and therefore an objection to the admission of the lease or agreement in evidence, for a variance between it and the copy given, on the ground that the sign of the seals had been omitted, can not be sustained. It is not necessary in a justice’s court, in an action upon a sealed instrument, that the declaration should contain an averment that the' instrument was signed and sealed by the parties or either of them. It is enough to declare generally for a breach of contract, referring to the contract or agreement in such terms as to identify it, for the breach of which damages are sought to be recovered; or to set out the contract according to its legal effect, without averring that it was sealed by the parties. The latter was done in this declaration with more than ordinary precision. To sustain the action, it was competent to give in evidence, on the trial, an agreement between the parties, whether sealed or not, made at the time, and containing the stipulations alledged in the declaration.

The defendants’ counsel objected to the giving of the agreement or lease in evidence, also on the ground that it had not been proved that Abner Potter, one of the plaintiffs, and Charles S. Kimble, one of the defendants, executed the agreement in person or by attorney duly authorized. The objection was overruled. Before it was made, the subscribing witness had testified that the signatures of two of the plaintiffs, Smith and Isaac Potter, to the agreement, were in their hand-writing; that he saw Isaac Potter sign the name of Abner Potter, and that they were partners; that Kimble was about the store at the time the agreement was executed; that he had seen him write, and that in his opinion, the signature of Kimble to the agreement was in his proper hand-writing. Other witnessés had testified that the signature of Kimble was in the hand-writing of Kerr. The objection was properly overruled, for if it was material whether the name of Kimble to the agreement had been put there by himself or by Kerr, there was evidence enough to authorize the fact to be submitted to the jury.

The defendants covenanted with the three plaintiffs, and if it was admitted that one of them, Abner Potter, did not sign or seal the instrument, the law would not convert it into a covenant with the other two. All the covenantees must sue, although they did not all sign and seal the agreement. (Petrie v. Bury, 3 Barn. & Cress. 353.) The omission of the name of Abner Potter as a co-plaintiff would have been fatal. (Smith v. Tallcot and Ransom, 21 Wend. 202.)

The judge charged the jury that although the lease or agreement was not executed by all the parties, yet if they, being in partnership, assented to the execution of it after it was executed, it was equally binding as if executed by them individually.' There was an exception to this charge. On the trial, it was admitted that the defendants at the date of the lease were in partnership; and it was proved, that at the time the lease was executed, Kimble was about the store where it was executed ; that Kerr and Kimble occupied the ashery and premises as partners during the term covered, by it. After the execution of the lease, Kimble employed one of the witnesses to repair one of the kettles, and said that he ánd Kerr had hired the ashery of the plaintiffs for one year, and the defendants employed one Valentine to run the ashery for them, and he did so until-the kettle gave out. It was proved, among other things, that Kimble in speaking in relation to the breaking of the kettle, said that Valentine broke it; that he did not know how he broke it, but thought it was through carelessness. On being asked whose loss it would be, said that he did not know, but he expected from the writing they would have to pay for it.

The ground of the exception is, that no prior authority from Kimble to Kerr to execute the lease in his name, or subsequent ratification by Kimble, either verbal or by writing without seal, is sufficient to give validity to the lease as the sealed contract of Kimble. Whatever may have been the technical doctrine of the common law, as to the authority of an agent to execute a-sealed instrument in the name of his principal, so as thereby to bind him, as the party thereto, unless the authority is conferred by an instrument under seal; it has been decided in England that one partner, in the presence of his copartners, by parol authority, may execute a deed for them in a transaction in which they were all interested. It amounts in judgment of law to an execution of the deed by all the partners, though sealed by one of them only. (Ball v. Dunsterville, 4 T. R. 313; Williams v. Walsby, 4 Esp. N. P. 220; Steiglits v. Egginton, 1 Holt’s N. P. 141; Brutton v. Burton, 1 Chit. R. 707 ; 3 Kent’s Com. 5th ed. 47.)

There was evidence enough in this case to have authorized the jury to find that the lease was executed by Kerr for Kimble in his presence, and which he was authorized by parol by Kimble to do. But that ground was not taken at the trial. The point made is whether one of two partners may be bound by a sealed contract, executed in the names of both, by the other, in his absence, in reference to a transaction in which both were interested as partners, if there is a subsequent parol adoption of the act by the absent partner; and I think it well settled that an absent partner may be bound by a deed executed on behalf of the firm by his copartner, provided there be either a previous parol authority or a subsequent parol adoption of the act. (Skinner v. Dayton, 19 John. 512 ; Anderson v. Tompkins, 1 Brock. C. Rep. 462; Story on Part. p. 176 to 181; Cady v. Shepherd, 11 Pick. 405; Gram v. Seton, 1 Hall, 262; 3 Kent’s Com. 47.) The more rigid rule of the common law, which held that one partner, from that mere relation, could not bind the others by a deed or instrument under seal, either for a debt or any other obligation, even when contracted in the course of their commercial dealings and business, and within the scope thereof, unless the authority was expressly given under the seals of the other partners, and include the very act done under seal, has been greatly relaxed by modern decisions; and although they profess to retain the rule itself, they qualify it very much, in order to make it suit the exigencies of commercial associations. (3 Kent’s Com. 5th ed. 47, 48.) I think that under the circumstances of this case, it was competent for Kimble to adopt the act of Kerr without seal) and thereby give validity to the contract as .his deed. The exception, therefore, can not be sustained.

The defendants’ contract was not to make good the ordinary deterioration of the kettles, resulting from fair and proper usage—unless the kettles broke or became so injured as should render them unfit for the place and use where they were then used. If damages had been claimed for an injury to the kettles, or either of them, less than a breaking, or less than that, which rendered them unfit for the place and use where they . were at the time of the contract; the burthen of proof of such injury, and that it resulted from improper usage, would have ,lain with the plaintiffs. In this case they showed that one of the kettles was broken during the term. That, within the express terms of the contract, subjected the defendants to pay the plaintiffs the sum stipulated as its value, without regard to the fact whether it was the result of negligence on .their part or not. The judgment of the supreme court must be reversed, and that of the common pleas affirmed.

Hoyt, J. dissenting.

In form the declaration was clearly in assumpsit. There being no averment in the declaration that the lease was under seal, and the copy given not purporting upon its face to have been sealed, any person looking at the copy given would suppose that when the lease was written it was designed that it should be sealed, but that in point of fact the parties had, for some reason, omitted to seal it. This was clearly a good declaration in assumpsit, and if the lease produced in evidence had been without seals, the declaration would have been a proper and appropriate one, under which to give it in evidence. (4 Denio, 420.) In that case it'is conceded that the justice erred in permitting evidence of a contract under seal to be given in evidence under a declaration hi assumpsit. Judge Jewett says, “ upon general principles I think it is obvious the justice erred. A specialty can not be given in evidence as the foundation of an action of assumpsit upon a simple contract. The variance changes the nature of the contract, so as to render the one set out a different contract, in legal contemplation, from that received in evidence.” (Cowen & Hill’s Notes, 518, note 407.) I think this is clearly so upon well settled principles of pleading. In Andrews v. Montgomery, (19 John. 165,) the court say, “ It is well settled that assumpsit can not be supported where there has been an express contract under seal.” Chitty says, When a party has a security of a higher nature he must found his action thereon, and as the law has prescribed different forms of action on" different securities, assumpsit can not in general be supported where there has been an express contract under seal.” (1 Chit. Pl. 94.) And most clearly assumpsit can not be maintained upon a sealed contract. Here the action is brought upon the contract itself to recover damages for its nonperformance.

In the case of Van Santwood v. Sanford, (12 John. 197,) the declaration contained four counts. The fourth alledged that certain differences having existed between the plaintiffs and one Isaac Newton, they on the 22d of March, 1814, entered into articles of agreement in the words following, (setting forth the agreement to submit,) and hereupon the said defendant, on the 24th day of March, in the year aforesaid, entered into a guaranty covenant and agreement in the words and figures following, to wit, (setting forth the agreement of the defendant verbatim,) and which concluded in the following words: “ Signed and sealed the 24th - day of March, 1814. Stephen Sanford, L. S.” and by which the defendant guarantied the performance of the award of the arbitrators on the part of Newton to the amount of $800. The award of the arbitrators was then stated, by which Newton was- to pay $680,32 in two days, and notice of the award to Newton and to defendant, and that neither of them had paid the money, and that the defendant had not kept his covenant and guaranty so by him made, &c. To this count there was a demurrer.

The court say the demurrer to the fourth count is well taken; the action is covenant and it can not be maintained but on a deed. The only averment or allegation of a deed is and hereupon the defendant on the 24th March,” &c. (reciting the averment in the declaration.) It must appear that the contract was under seal unless it be expressly averred to be so, and though the bond or deed upon oyer recite “ in witness whereof we have hereunto set our hands and seals,” yet that does not amount to such an averment but that the party must show that the bond or deed was actually sealed by the other. The court further say there are some words of art, such as ‘ indenture, deed, or writing obligatory,’ which of themselves import that the instrument was sealed; but if it be alledged that J. S. by his certain writing demised or covenanted without averring that it was sealed, the court will not intend that it was sealed.” (Cro. Eliz. 571; Ld. Ray. 2537; 8 Com. Dig. Fait, (A, 2,) Pleader; 2 Wend. 9,14.) They also say that in the case of Warren v. Lunt, (5 John. 244,) “this court decided that a scrawl for a seal with an (LS) was not a seal and deserved no notice, and that calling a paper a deed will not make it one if it want the requisite formalities. The oyer of the contract, therefore, set out in the count under consideration, can have no effect, for we can not tell that the original differs from it or possesses any of the properties of a seal.” So in this case, on looking at the declaration and the copy of contract or oyer annexed, the court could not say that the contract therein referred to was under seal, as it was not so averred.

But it is said that the declaration is good and sufficient in a justice’s court, where pleadings are to be liberally construed. If the original contract had been annexed to the declaration I have no doubt it would have been a sufficient declaration in covenant if not demurred to, because it would then have affirmatively appeared that the contract was under seal. In this case, if the defendant had demurred to the declaration and alledged as cause of demurrer that it was not alledged that the contract declared on was under seal, it would have been a sufficient answer that the declaration on its face did not appear to be in covenant, but was. in fact assumpsit, and that a sufficient consideration was set forth for the making of the contract. The defendant could not have sustained a demurrer. They therefore had no alternative but to plead. But to say that a declaration which is good in assumpsit, so that a demurrer .will not lie thereto, will also answer as a declaration in covenant, is an anomaly in pleading which I do not understand.

There is no doubt the justice might disregard any technical variance between the contract offered in evidence and the one set out in the declaration, which was not calculated to mislead the defendants, and which was of the same nature of that set forth in the declaration. But this is not a case of variance within that principle. It was seeking to prove a cause of action of an entire different nature from the one declared upon. It was a contract which required an entire different form of a declaration, and which would require an entire different plea from the one set forth. If the declaration is to be regarded as one in assumpsit, then the general issue not only puts in issue the making of the contract, but the breaches assigned, and the defendant would under it be permitted to give in evidence almost any defence he might have to the action. But if it can be treated as a declaration in covenant, and the plaintiff be permitted to give in evidence a sealed contract, then the defendant’s plea properly puts in issue only the execution of the contract, and when that is proved the breaches assigned would be admitted, because they were not specially denied.

I am aware that in the case of Mosher v. Lawrence, (4 Demo, 421,) a case similar to the one in question, Judge Jewett says, “I am of opinion that the defect in the declaration was such as the justice’s court had ample power to amend before verdict; and that on the trial it might well disregard the variance.” That case was not reported, and was not brought to the notice of the supreme court upon the argument of the cause now under consideration. If it had been, it is probable that court would have felt bound by it, as an authority for its action, subject to a review in this court. But the two cases have been decided upon principles which I think evidently conflict, and it remains for this court to determine which is in accordance with the then well settled and known rules of pleading and evidence. I believe no other case can be found than the one cited, where a variance which changed the entire nature of the action was held to be such that it might be disregarded upon the trial.

It is true that the jrtdges of the. court of common pleas, when reviewing justices’ judgments on certiorari, are required to give judgment in the case as the right of the matter may appear, without regarding technical omissions, imperfections, or defects in the proceedings before the justice which did not affect the merits. (2 R. S. 257, § 181.) This provision was cited by the court in Mosher v. Lawrence. But the same general rules of pleading are applicable to justices’ courts as are applicable to courts of record. The same and no different causes of action may be joined before a justice. But the same nicety in matters of form are not required, unless objected to at the joining of issue.

The form of action is determined by the matter set forth in the declaration, and not by the name which the plaintiff may give it. (5 Hill, 177; 1 Comst. 226.) The matter here set forth clearly made a good cause of action in assumpsit, but no pretence of a cause of action in covenant.

In the case of Mosher v. Lawrence, some stress was laid by the court upon the fact that the defendant had not been misled, or prejudiced, because the plaintiff offered to amend and to consent that the cause be adjourned, so as not to prejudice the defendant. No such offer was made in this case; nor was there any amendment made in fact.

The rule that pleadings in justices’ courts shall be liberally construed, has nothing to do with this case. The declaration is good both in form and substance, as a declaration in assumpsit. But the declaration is not supported by the proof. The case of Howe v. Wilson, (1 Denio, 183,) is directly in point upon this question. That was an action before a justice ; the declaration alledged that the defendant, with force and arms, broke and entered the plaintiff’s close situated, &c. and then and there took and carried away the plaintiff’s horse, &c. Plea, not guilty. The proof was that the defendant entered the close of another man near the plaintiff’s and took and carried away the plaintiff’s horse. Bronson, J. in delivering the opinion of the court says, The plaintiff relies on the principle that pleadings in justices’ courts are to be liberally construed, but the rule has nothing to do with this case. There is no defect in the declaration either in form or substance. The difficulty is that the declaration is not supported by proof, and for that reason the plaintiff was properly nonsuited.” So in the case now under consideration, the declaration was a good and perfect one in assumpsit, but the plaintiff gave no evidence to support an assumpsit, but was permitted to give in evidence a contract under seal. In permitting this evidence I think the justice clearly erred, and that the judgment of the supreme court reversing the judgment of the court of common pleas and of the justice, should be affirmed.

And-thereupon the judgment of the supreme court was reversed, and that of the common pleas affirmed.


author: Ruggles, J.

text:
    The New Hope and Delaware Bridge Company vs. The Phenix Bank.
    The directors or managers of a banking corporation are chargeable, it seems, with notice of such matters relating to the ordinary business of the institution as are known to their cashier.
    The plaintiffs, a corporation chartered by the legislature of New Jersey, and exercising banking powers, increased their capital by new subscriptions; and by resolution of the board of managers, directed the installments on the stock held in the state of New-York to be paid in at the defendants’ bank, in the city of New-York, which was accordingly done to a large amount, in May, 1835. The defendants’ cashier, who was also one of the managers of the plaintiffs’ bank, drew out and loaned a portion of the funds so deposited, to be repaid on demand, and sent a statement of such loans to the plaintiffs’ cashier at the office of the plaintiffs kept in Philadelphia, requesting at the same time to be informed if the loans were not satisfactory so that he might call them in. The plaintiffs’ cashier replied that all was satisfactory. The board of managers afterwards met and took action in relation to the business in New-York, but expressed no dissatisfaction in respect to the loans so made, nor in any manner repudiated them. Held, that the managers were chargeable with notice of the fact that the loans had been made from the time it was communicated to their cashier, or at all events from the time of their subsequent meeting. And held further, that by their silence and acquiescence they had ratified the loan, and therefore that the defendants were hot liable for permitting the fugids to be withdrawn from their bank and loaned without authority.
    The New Hope and Delaware Bridge Company brought assumpsit in the superior court of the city of New-York, against the Phenix Bank. The declaration contained the common money counts. The cause was tried before Chief Justice Oakley, in October, 1845, when the defendants had a verdict which the superior court, on a bill of exceptions, refused to set aside. After judgment, the plaintiffs brought error to this court. The object of the suit was to recover a sum of money belonging to the plaintiffs, which in May or June, 1835, had been deposited with the defendants, and which Mr. Delafield, the cashier of the defendants, and one of the managers of the plaintiffs’ corporation, had drawn from the defendants’ bank and loaned on account of the plaintiffs. In the opinion of Ruggles, J. will be found a sufficient statement of the facts.

      S. A. Foot, for plaintiffs in error.
    I. The amount of the item in dispute, viz. $34,500, having been rightly deposited in cash in the bank of the defendants by the plaintiffs, the defendants are bound to pay it to the plaintiffs, or show a legal discharge from the payment of it.
    II. Mr. Delafield was not authorized by the plaintiffs to lend this sum in the city of New-York. The president and cashier of the plaintiffs, who assume to give him such authority, had themselves no power to do so. A president of a corporation is a mere agent, and has no powers, except those conferred upon him by the charter, by-laws, or course of business. (Life & Fire Ins. Co. v. Mechanics' Fire Ins. Co. 7 Wend. 33.) By the charter of the plaintiffs only two duties are assigned to their president, independent of the board of managers, viz. to sign certificates of stock, and to sign orders on the treasurer as directed by the board. In conjunction with the board of managers he is intrusted with the management of the affairs of the plaintiffs, and with the board has a variety of powers. The by-laws give the president no power. No course of business is shown or alledged, giving the president any power by implication.
    The cashier of a corporation is also a mere agent, and derives his authority from the same sources as the president, viz. the charter, by-laws and course of business. No such officer is mentioned in the charter, but the president and managers have power to appoint one. They did appoint one. They gave him, at least by implication, the general powers belonging to his office. His general duties by law are to receive and pay. Neither he nor the president have authority to make loans or discounts; that power belongs exclusively to the board of directors or managers. (Angell & Ames on Corp. 246, and case there cited of Bank U. S. v. Dunn, 6 Pet. Rep. 51, 58.) The directors can not confer this power on a cashier, it being one which can not be delegated. (Ang. & Ames on Corp. 211, and case there cited of Perry v. Millander, 3 Louis. Rep. 568; Comm'rs v. Bank of Buffalo, 6 Paige, 497, 504.) No course of business is shown or alledged, giving the cashier power to authorize loans, nor could any such power be given him by implication, as the board of managers had not authority to confer it even directly.
    III. The plaintiffs have not ratified the loan. Notice of the loan to the cashier of the plaintiffs is not notice to their board of managers, it being merely notice to the cashier of an act done under an authority given by him, which he had no power or right to give. (Ang. & Ames on Corp. 247, and cases there cited; Bank United States v. Davis, 2 Hill, 451, 461; Fulton Bank v. Benedict, 1 Hall, 557, 8; Washington Bank v. Lewis, 22 Pick. 24, 31; Fulton Bank v. Sharon Canal, 4 Paige, 136; Farmers' Bank of Geneva v. Commercial Bank, MS. opinion of Sup. Court; Story on Agency, § 140.) There are two essentials to the notice; 1. It must be given or received while the agent is acting within the scope of his agency. 2. It must be given or received of or concerning a matter committed to his charge as agent.
    The board of managers of the plaintiffs had no power to authorize or ratify the series of loans made by Mr. Delafield, and of which the item in question is one. Boards of directors or managers are mere agents, and have no powers except those conferred by the act of incorporation, or by the corporators acting collectively; and the same rules are applicable to them which are applied to agents of natural persons. (Angell & Am. on Corp. 166, 167, 212 to 214, 239, 242, 243 ; Salem Bank v.
      Gloucester Bank, 17 Mass. R. 28 to 30.) The board of managers in this case have the ordinary powers of boards of directors. A board of directors cannot delegate its power to make loans. Their duty and power is limited to a direct action upon each loan. (Perry v. Millanden et ad. 3 Louis. R. 568; Bank Commissioners v. Bank of Buffalo, 6 Paige, 497.) This rule rests on the sound principle, that a trust, being a personal confidence, can not be delegated, and if it is, the acts of the delegate are void. (Lewin on Trusts, 262 to 266.) It thus appearing that the board of managers of the plaintiffs had not power to authorize the loans in controversy, it could not ratify them, for one can not ratify who has not power to authorize. (Delafield v. State of Illinois, 2 Hill, 175, opinion of Bronson, J. and cases cited by him. See in this connection, Wyman v. Hallowell & Augusta Bank, 14 Mass. R. 63.) Notice of the loan in question was not in fact given to the board of managers of the plaintiffs, nor has the board in fact ratified it.

      E. S. Van Winkle, for defendants in error.
    The plaintiffs are not entitled to recover on the ground of the original deposit of the money with the defendants. That money was deposited in the usual manner. It was drawn out and loaned by Delafield, not as the cashier of the defendants, but as the agent of the plaintiffs. The cashier of the plaintiffs was duly informed of such withdrawal and loan. Their board of managers approved of it. They made no reclamation for years. The transaction was the plaintiffs’, and the responsibility theirs. Delafield having so loaned the plaintiffs’ money, with the knowledge and approbation of the plaintiffs, it is unimportant in law whether Delafield had or had not been previously authorized by the plaintiffs so to loan their money; for a confirmation retroacts, and is equivalent to an original authority. If follows necessarily that it was also unimportant whether the defendants had or had not notice that Delafield had no such authority.
    If Delafield was authorized by the plaintiffs as their agent to make this loan, no responsibility rests on the defendants. If the plaintiffs, without having authorized Delafield to make the loan, afterwards adopted it, the result is the same. (Conn. v. Penn. 1 Pet. C. C. R. 496; Paley on Agency, 4, 31, 115, 247; Smith’s Merc. Law, 60.) Acquiescence even in a small matter will bind. ( Ward v. Evans, Ld. Raym. 930; Bank of U. S. v. Dandridge, 12 Wheat. 64.) Confirmation of a part of the transaction is an affirmance of the whole. (Story on Agency, 245, § 250.) An account rendered and not objected to in a reasonable time is settled. The same rules apply to corporations. (12 Wheat, ut supra ; Ang. & Ames on Corp. 2d ed. 246, and cases there cited; Moss v. Rossie Lead Mining Co. 5 Hill, 137. See also Commercial Bank of Buffalo v. Kortright, 22 Wend. 348, 360, 364; Bank Commissioners v. The Bank of Buffalo, 6 Paige, 497; Angell & Ames on Corp. 2d ed. 220, 222.)
   Ruggles, J.

The plaintiffs were incorporated first by an act of the legislature of New-Jersey in January, 1812, for the purpose of building and maintaining a bridge across the Delaware river, with a capital of $50,000, and with a power of enlarging the same by new subscriptions, and to dispose at pleasure of any surplus moneys that might belong to them after the bridge should have been completed. Under this clause in their charter the plaintiffs carried on the business of banking. In December of the same year, they were incorporated by the legislature of Pennsylvania with the like powers. In the fall of 1834, this capital stock had been enlarged to $200,000.

In the spring of 1835, the company further enlarged their capital stock to $400,000 in the whole, by new subscriptions, a large portion of which was taken by persons residing in New-York. By a resolution of the board of managers adopted on the 21st of May, 1835, the installments on the stock held in this state, were made payable at the Phenix Bank in New-York, and on all other certificates at the office of the company in Philadelphia. Accordingly in May and June, 1835, a large amount of the new subscriptions of the capital stock was paid in at the Phenix Bank and deposited there to the credit of the plaintiffs. The amount exceeded $200,000. About $73,000 of the previous capita] had been expended in the building of the bridge, and the residue of the entire capital, being about $137,000, was employed during the summer of 1835, and afterwards, at Lambertsville, N. J. and at Philadelphia, in the business of banking.

The object and purpose for which the increased capital was subscribed is not distinctly stated in the case. It could not have been for building or sustaining the bridge. The use to which it was subsequently applied sufficiently shows that it was subscribed to be employed in the business of banking. It does not appear, nor is it suggested that it was collected for any other or different purpose.

Samuel Morris was the president of the company from Nov. 1834, to November, 1839, and Timothy Davis was the cashier from 21st May, 1835, to March, 1837. John Delafield, (the cashier of the Phenix Bank,) was one of the managers of the plaintiffs’ company from 16th November, 1834, to March, 1837. And Marcus Wilbur was also a manager from 1832 to 1842, excepting one year.during which he was the president. Although the greater part of this large sum of money subscribed for the purpose of being employed in banking was paid in at the Phenix Bank during the month of May, 1835, and the residue in June following, the board of managers do not appear by the books or minutes of the company to have adopted any resolution for using or employing it for any purpose whatever until the 26th of November, 1835. In the mean time, unless in some way used and employed it was entirely unproductive of income. On the day last mentioned a resolution was passed by the managers in these words:

“ Resolved, that J. Delafield, K. Taylor and M. Wilbur be and they are hereby appointed a committee in relation to such affairs of the company as to the promotion of its business and interest as may be laid before them in the city of New-York, with power in the premises.”

On the 30th of Nov. 1836, about one year afterwards, another resolution was passed by ttíe board of managers in these words:

“ Resolved, that it is expedient to use the funds of the institution in a more active manner, by their investment in public stocks, or otherwise to loan or dispose of the same; and for that purpose a committee of three be appointed with full powers, which committee be and they are hereby authorized to check for and draw funds so to be appropriated.”
“ Resolved, that J. Delafield, J. D. Beers, and R. Curtis, constitute the committee named in the foregoing resolution.”

If, therefore, we are to be guided only by the minutes of the proceedings of the managers in ascertaining what measures were taken by the company' to render their capital productive, it would seem that they had entirely neglected it for nearly six months. That they then appointed a committee with absolute discretionary powers ; that they took no further action in relation to this subject until November, 1836, when by the last resolution they required a more active use of their capital, without any complaint or intimation that any part of it had been loaned without authority, or improperly disposed of.

In the mean time, and before the first committee was appointed, more than $164,000 of sums deposited, had been drawn and Raped by Delafield, one of the managers, and by Davis, the cashier, partly on notes, but chiefly on -stock securities; of this, sum, according to the account rendered, $146,000 and upwards was loaned before and on the 30th of June, 1835; and in this sum was included the Ran of $34,500, which is now the subject of controversy. This last mentioned loan of $34,500 appears by the account to have been made on the 30th of June. On the following day, July 1, 1835, Delafield addressed to Davis, the plaintiffs’ cashier, a letter in which he says, “Your favor of the 20th ult. was duly received. Enclosed you have a statement of the payments made for your account on the installment due on the 25th of June. You have credit for Mr. Taylor’s notes as desired. The scrip is with me, though not discharged from your office. I enclose a list of the loans made here with the securities attached, which will I trust prove satisfactory to you. If otherwise, state it, and I ca'n call them in as they arc. on demand.”

In a postscript he adds, “ with the approbation of Mr. Morris [the president of the plaintiffs’ company] and yourself, I will continue to loan the funds on hand. Let me know when your notes are ready for issue.”

To this letter, Davis, the plaintiffs’ cashier, on the following day, returned the following answer:

“ Office of the New Hope Delaware Bridge Company, Philadelphia, July 2d, 1835.
J. Delafield, Esq. cashier,
Dear Sir. Yours of the first is at hand, I feel much pleased that you have been so mindful of our interests, and have invested so large an amount of our funds which is perfectly satisfactory, &c. I hope you will continue to loan as far as our account will permit. You do not credit us with the first installment of J. P. Cushman on 100 shares, say 1000 dollars, with that exception we agree. We shall have an emission of notes ready the first of next week.
(Signed,) T. Davis, cashier.”)

Davis, the cashier, distinctly admits in this letter the receipt of a list of the loans made at New-York from the plaintiffs’ fund deposited there, and that list must have included the loan in question. Moreover, the first paper read in evidence on the part of the plaintiffs appears to be one of the accounts current received from time to time by Davis from Delafield. This paper brings the account between the parties down to the 30th of June. It answers the description of the paper mentioned in Delafield’s letter. It contains a statement of the payments made on account of the plaintiffs’ stock subscriptions, and of the loans made up to that date for their benefit, and of the securities therefor, and it includes the loan in question. No other paper of the kind could be found after search by Mr. St. John among the plaintiffs’ papers. In that letter Delafield speaks of the papers as “ a list of loans made here with securities attached.” Davis testifies that the letter contained no certificates of Farmers’ Loan stock. He does not say that it contained any of the securities, nor does he say that the account current now in evidence was not the paper inclosed. Under these circumstances it seems to be safe to conclude that it was, or if not, that the statement of the loan in question was one of those contained in the list enclosed. I understand Delafield’s letter to mean that he sent therewith a list of the loans with a list or statement of the securities attached, and not the securities themselves.

But the plaintiffs, not denying notice of the loan to their cashier, contend that notice to him is not notice to their board of managers, it being merely notice of an act done by Delafield under color of an authority which the cashier had no right to confer, upon him. Let us examine this proposition with reference to its application to the present case. The plaintiffs’ principal business was that of a bank. They had a capital of $330,000, intended for that business, To carry it on successfully it was necessary that the capital should be constantly and actively employed, and in order to conduct it with prudence and safety frequent meetings of the board of managers were indispensably necessary.

It was the duty of the managers at those meetings to inform themselves of the condition of the affairs of the company, and to take the same care of its funds and property as a prudent man would take of his own. The cashier was an officer selected and appointed by themselves, in whom they must be supposed to have entire confidence. An important part of his duty was to keep the managers informed of the state and condition of the company’s funds, and to communicate to them every thing affecting the interests of the company, Without presuming a gross neglect of duty on the part of the managers in meeting and making the inquiries in relation to the funds in New-York, and a like neglect of duty on the part of their cashier in giving them information, it cannot be supposed that the managers remained ignorant of the loan now in controversy, or of the entire disposition which had been made of their funds in the defendants’ bank during the month of June, 1835. The plaintiffs themselves can not call on a court or a jury to presume such a neglect of duty on their part. If however that neglect is to be regarded as proved, then another presumption arises equally fatal to the plaintiffs’ case—the presumption that the managers intended to commit the disposition of their funds in New-York entirely to the discretion and control of the president and cashier who appear to have authorized the loan. It is much more rational to presume this, than to suppose they intended to abandon the interests of the stockholders by letting their capital lie idle and unemployed.

But if it is to be taken that the loan in question by Delafield on the 30th of June, 1835, was without authority, and that the managers were not chargeable with notice of the transaction immediately by reason of the. notice to their cashier, they are clearly chargeable with notice from the time of their meeting on the 26th of November of the same year, when they acted upon their New-Y ork business by appointing a committee thereon. The accounts current between the defendants and the plaintiffs showing the loans made in New-Y ork, and this among others, and the correspondence between Delafield and Davis already mentioned, was in the hands of the cashier, and must be presumed on that occasion to have been produced by him and submitted to the board of managers. No other supposition can be indulged without looking upon the managers as ignorant of their duty or totally regardless of it. Mr. Wilbur testifies that he never saw the accounts until the early part of 1837, but it does not appear that he was present at the meetings of the managers in November, 1835, and in November, 1836, or at either of them. He says he was very little interested in the company, and remained a manager only because he was requested to do so. He knew nothing of the manner in which the funds in New-Y ork were employed, and seems to have paid very little attention to the business of the company or to his duty as a manager. He never met with the committee appointed 26th November, 1835, in relation to the business in New-York, of which he was a member. Delafield informed him that the funds lodged in the Phenix Bank were productive and drawing a good inteiest, or that in substance, but how they were productive or invested was not stated in his hearing, and it does not appear that jhe inquired.

In my opinion the plaintiffs were chargeable with notice that Delafield had made'the loan in question as soon as that notice was received by their cashier, which was on the second of July, 1835. Every bank or banking company has its cashier, who is its agent for the purpose of writing and receiving letters on the subject of its ordinary business. A letter from the cashier (having no other agency or duty except what pertains to that office) on the business of his bank is a letter from his bank; a letter to the cashier relating to the business of his bank is a letter to his bank : and the bank is chargeable with knowledge of contents of such letter.

Assuming then that Delafield, at the time of making the loan in question, had no authority to make it in behalf of the plaintiffs, the loan was beyond all doubt sanctioned and ratified by the omission of the plaintiffs afterwards to object to it. In his letter of the first of July he says, I enclose a list of the loans made here which I trust will prove satisfactory to you ; if otherwise, state it, and I can call them in, as they are on demand.” The cashier answered that they were satisfactory, and hoped he would continue to loan. The managers at no time expressed their disapprobation of it; and when they met on the 26th of November afterwards and appointed a committee with full powers to attend to their New-York affairs, Delafield, who made the loan, was the first named of the committee. In November, 1836, when the managers resolved to make more active use of their funds, he was again put Upon a committee for that purpose ; and on neither of these occasions was any objection made or disapprobation expressed as to the loan. If the plaintiffs had not intended to approve of it, they should have said so without delay, so that the money might have been called in : not having done so, the defendants, if ever they were responsible to the plaintiffs for permitting their money to be drawn without authority, 'are discharged from that liability, by a ratification and adoption of this loan, and whether they had notice of the want of origing.1 authority is totally immaterial. The defendants did not ask to have the case submitted to the jury on the question whether Delafield had originally authority to make the loan ; but on the question whether the plaintiffs subsequently acquiesced in and adopted it, although not authorized. The jury having found in their favor on that point, it is not material to inquire whether the judge was right in saying that the defendants were not chargeable with the knowledge possessed by Delafield as to his want of authority when the loan was made. The case did not depend on the question whether he had or had not originally that authority.

But the plaintiffs claimed to recover on another ground, viz. that the defendants received and had in their possession the Farmers’ Loan stock upon which the $34,500 was borrowed, and which they haye neither accounted for nor delivered to the plaintiffs.

The defendants denied that they at any time had the custody or possession of these certificates of stock, and insisted that in making the loan and in holding the securities Delafield was the plaintiffs’ agent, and not the defendants’.

Delafield was at the same time the cashier of the defendants’ bank, and the manager and agent of the plaintiffs. In keeping the account of the plaintiffs’ deposits and in charging the sums drawn therefrom, he acted as the cashier and agent of the defendants. But in making the loans for the benefit of the plaintiffs, he acted by or under pretence and color of their authority, and not as the defendants’ agent. The evidence leaves no doubt on this point. The defendants had no interest in the loan. In Delafield’s correspondence he usually signed his name as cashier, and the letters from the plaintiffs were mostly addressed to hirh in that capacity. But most of this correspondence related to business in which Delafield acted partly as the cashier of the defendants and partly as the agent of the plaintiffs, and in determining the character in which he acted in any particular transaction, it .is much safer to look to the nature of the business between the two institutions, and the relation he stood in to each of them respectively, than to the style in which the correspondence was signed or addresed. On this point it is sufficient to say, that the true question between the parties was fairly submitted to the jury. The judgment below must be affirmed.

Judgment affirmed


author: Jewett, Ch. J.

text:
    Davis vs. Allen and others.
    Where a partnership is indebted to an individual for services, and an agent of the firm on adjusting the account gives to the creditor a written acknowledgment that a certain amount is due “ on settlement” for the services, signing it with his own name and adding thereto the designation of “ agent;” quere, whether this is a promissory note, either of the firm or of the agent.
    But although the instrument be regarded as a promissory note, it is no discharge of the previous indebtedness of the firm, where it is not shown to have been taken in satisfaction of the debt.
    And in such a case a receipt given by the creditor to the agent in full of the demand does not estop him from asserting his claim against the principals, unless they have settled with the agent on the faith of the receipt, and upon the supposition that the agent has actually'paid the debt.
    A partner whose name is not used in the film is not, it seems, liable for debts contracted by the firm after his fetirement with persons who had no knowledge of his previous connection as a partner, although no notice of his retirement is given.
    But he continues liable for debts subsequently contracted with persons who knew of his previous connection, unless he gives them notice of his retirement.
    And á jury, it seems, may infei* a knowledge of the previous connection, either from direct transactions and dealings of the creditor with the firm, or from public notoriety.
    Where a cause is tried by referees, their finding upon the facts of the case is" as conclusive as the verdict of a j'üry.
    Su el Davis brought assumpsit in the supreme court against John Allen, Jonathan Child and William Griffith, as partners constituting a firm under the name and style of “ The Albany and Buffalo Towing Company.” The declaration was for work and labor, money had and received, &c. The cause was heard before referees, who reported in favor of the plaintiff. The supreme court sitting in the eighth district refused to set aside the report, and rendered judgment thereon in the plaintiff’s favor. The defendants appealed to this court. The facts are sufficiently stated in the opinion.

      E. Darwin Smith, for appellants.

      M. L. Burrill, for respondent.
   Jewett, Ch. J.

The referees found the fact that The Albany and Buffalo Towing Company, on the 26th day of November, 1840, was indebted to the plaintiff in the sum of $125,'92, for blacksmithing done by him, for the company, between the first of June and that day. That Levi Darling was the station keeper and agent of the company at Reyn ale’s Basin, where the plaintiff resided, at that time, and had for several years previously. That Griffith, one of the defendants, was superintendent-of the company and a member of it, and a few days prior to the 26th day of November, directed Darling to get receipts from all with whom he, as such agent, had dealt, for the purpose of informing him the amount of the accounts against the company, but which he was not then ready to pay in full, and would not be until he returned to Rochester. That pursuant to this direction Darling accounted with the plaintiff and found due to him the abovementioned sum and gave him a written acknowledgment as follows:

Due S. Davis one hundred and twenty-five dollars and ninety-two cents, on settlement for blacksmithing for Albany and Buffalo Towing Company. (Signed) Levi Darling, Ag’t.”

Upon which the plaintiff executed and delivered to said Darling a receipt as follows:

“Received, Royalton, Nov. 26, 1840, from the Albany and Buffalo Towing Company, by the hand of Levi Darling, one hundred and twenty-five dollars and ninety-two cents, hi full for blacksmith bill from the first of June up to the 26th of November.
$125,92. (Signed) Suel Davis.”

That Darling, in a few days after said directions were given, procured receipts from all with whom the company had dealt by him as its agent, amounting to about $600, and showed them to Griffith ón his return to the basin, among which was the one executed by the plaintiff. That Griffith then directed Darling to go to Rochester, settle his accounts, deliver his receipts and receive the money: which he did soon after, and delivered to Griffith this receipt with others, and received from him the amount of all the receipts so procured, by him, but did not pay the plaintiff the amount so found due to him. That Darling had previously given notes for the company for amounts found due to individuals from the company, which the company had paid. Griffith, personally, had settled one such note, and knew that other notes had been so given, and furnished money to pay them.

It is first made a point in behalf of the defendants, that the paper signed by Darling as agent, certifying the amount found due the plaintiff from the company, for blacksmithing, was his promissory note, and not that of the company, and that therefore the plaintiff cannot recover against the members of the company upon it. I am inclined to think, from the facts found, that it was not intended, by the plaintiff or Darling, to be made as the promissory note of either, the company, or their agent Darling. In form it is but a mere acknowledgment or certificate that a settlement with the plaintiff for blacksmithing which he had done for the Albany and Buffalo Towing Company, had been made by Darling, acting as agent for the company, and that the sum .mentioned was found due to him. But if this instrument is to be deemed the promissory note of Darling, or of the Towing Company, it makes no ground to bar the plaintiff of his action to recover the balance due to him, on his account, unless it has been paid; and it is found that it has not been. (Porter v. Tallcot, 1 Cowen; 359; Muldon v. Whitlock, id. 290; Tobey v. Barber, 5 John. 68; Schermerhorn v. Loines, 7 id. 311; Johnson v. Weed, 9 id. 310.)

It is next contended that the plaintiff, having given a receipt in full to Darling upon which he settled with his principals, is estopped from setting up any claim against them. If the fact had been found, that Darling’s principals had come to a settlement with him, upon the faith of that receipt and upon the supposition that the plaintiff’s demand had been satisfied by Darling as indicated by it, and had paid him the money, the point could not have been successfully 0met. But the referees found the fact that the plaintiff’s account against the company had been adjusted and receipt given, without payment, in pursuance of the directions of Griffith—he knowing that, notwithstanding the receipt, the plaintiff’s demand was unpaid—and for the purpose of paying it, Griffith furnished Darling, the agent of the company at the time the receipt was delivered to him, the money to pay this demand, as well as others who had given receipts under like circumstances. If, therefore, Darling proved unfaithful and misapplied the money thus provided, the loss, if any, should fall upon his principals, and not upon the creditors of the company. (Wyatt v. The Marquis of Hertford, 3 East, 147; Cheever v. Smith, 15 John. 276.)

It is next objected that the plaintiff can not recover in this suit against the three defendants, on the ground that it is found that the demand accrued against the company subsequent to the time when Child, one of (he defendants, had ceased to be a member of the company; and that as his name never appeared in the name under which the company did business, no notice of his having retired from the firm was necessary. It was incumbent on the plaintiff in this action to prove a joint promise made by the defendants to himself. If the defendants had been found to be all partners, at the time the work was done for the company, using the name of “ The Albany and Buffalo Towing Company,” to transact their partnership business, that promise is established. But the referees found the fact that they had ceased to be sp, Child having previously withdrawn from the firm. It was also found, that from the year 1832 till some time in the year 1840, the defendants were partners and transacted their business under the name of The Albany and Buffalo Towing Company,” and that the plaintiff had worked for that company, as a blacksmith, from the fall of 1833 to the fall of 1843; and that no notice that Child had ceased to be a member of the company had been given to the public or to the plain tiff. Then it is said that although Child was not in fact a partner at the time the plaintiff’s demand accrued, he had by his conduct represented himself as one, and induced the plaintiff to give him credit ajs such, and is therefore liable to him.

The general principle is, that where a person has done business with another, as a member of a firm, or has so publicly appeared as a partner as to satisfy a jury that the plaintiff must have believed him to be such, and he suffers the plaintiff to continue in, and act upon that belief, by omitting to give notice of his having ceased to be a partner, after he really had ceased, he will be responsible for the consequences of his original representation, uncontradicted by a subsequent notice. An omission to give such person notice, under such circumstances, of his retirement, is held to be equivalent to a continual representation, that he still remains a member of the firm. But in order to render him liable on this ground, it is necessary that he should have been known as a member of the firm to the plaintiff, either by direct transactions or public notoriety. (Story on Partnership, p. 247, 2160; Carter v. Whalley, 1 Barn & Adol. 11.)

The referees have not stated what conclusions of fact they drew from the evidence in reference to this point, except that Child omitted to give notice of his retirement from the firm. They do not state that they came to the conclusion that Child ever dealt with the plaintiff in the character of a partner of the company, or that he was ever known to the plaintiff as a member of the company, either by direct transactions or public notoriety. They have stated a fact from which a jury might perhaps infer that the plaintiff knew who composed the company during the seven years immediately subsequent to the year 1832, by direct transactions, namely, that the plaintiff did their blacksmithing during that period, at Reynale’s basin. But in reference to Child’s having been known as a member of' the company during that time to the plaintiff, by public notoriety, instead of stating the conclusion of fact which the referees drew from the evidence before them, they have merely stated what the evidence of the fact was. That may have - satisfied them that Child was known to the plaintiff, in one mode or the other, as a member of the company. Their report necessarily involves a finding that Child was thus known to the plaintiff.

But if the members of this court should think that the referees had come to a wrong conclusion, upon a mere matter of fact, this court has no jurisdiction to reverse the judgment of the supreme court for that reason, in a case like this. In cases of this kind the referees are, as to matters of fact, merely a substitute for a jury, whose decision upon questions of fact can not be reversed upon a writ' of error; although the court in which the original action is pending may set aside the report as against the weight of evidence, or grant a new trial upon newly discovered facts, as justice may seem to require. (Feeter v. Heath, 11 Wend. 478 ; Mersereau v. Lewis, 25 id. 243.) The judgment must therefore be affirmed.

Judgment affirmed.


author: Gardiner, J.

text:
    Campbell vs. Butts,
    A party insisting upon a former recovery as a bar to an action, must show that the record of the former suit includes the matter alledged to h.ave been determined.
    Consequently where the declaration in the first suit states a particular matter as the ground of action, and issue is taken by the defendant, parol proof is inadmissible to show that a different subject was litigated upon the trial.
    In an action for slander, the defendant set up a former recovery for the same cause. Held, that it was not competent to prove on the trial that some of the words charged in the declaration, but not contained in the declaration in the former suit, were given in evidence on the trial of such former suit.
    Where certain words are given in evidence on the trial of an action of slander for the special "purpose of showing the quo animo with which other words are spoken, it seems that the plaintiff is not thereby prevented from insisting upon the same words in another suit as a substantive ground of action.
    In the action of slander a former recovery for the whole or any part of the actiona. words may be given in evidence, under the general issue. Per Gardiner, J.

      Campbell sued Butts m the recorder’s court of the city of ■ Buffalo for slander. The defendant pleaded not guilty and a former recovery for the same cause. On the trial it was proved by the defendant that there had been a former suit for slander in the Erie common pleas brought by the same plaintiff against the defendant, and that on the trial of that suit the plaintiff, without objection, for the purpose of showing malice, gave in evidence the speaking of some of the words charged in the declaration in this cause, but which were not set forth in the declaration in such former suit; that some of the words so given in evidence were spoken before and others after the commencement of that suit. The defendant objected to evidence of the same words again on the trial of the present suit as a substanfive cause of action. The objection was overruled and the defendant excepted. The charge of the recorder to which an exception was also taken, is stated in the opinion of the court. The plaintiff had a verdict- and judgment, and the defendant brought error into the supreme court, where the judgment was reversed. The plaintiff then brought error to this court.

      D. Tillinghast, for plaintiff.

      S. G. Havens, for defendant.
   Gardiner, J.

The rule is well established, if not elementary, that a party insisting upon a former recovery must show that the record of the former suit includes the matters alledged to have been determined. This is true in all cases in courts of record, whether the pleadings between the parties in the previous suit are general or special in their character. (Cowen & Hill’s Notes, part 2, 839, 840; 5 John. 24; Young v. Rummel, 2 Hill, 481, and cases cited.) It follows that when the declaration, as in the first suit between these parties, states a special matter as the ground of action, and issue is taken by the defendant upon the allegation, parol proof is inadmissible to show that a different subject was litigated upon the trial. For this would be to contradict the record, which shows the issue, and the verdict and judgment upon that issue, to the exclusion of all other matters whatsoever.

The cases in this state which apparently conflict with this principle originated in justices’ courts. (13 John. 184; 3 Caines, 152; 3 John. 432; 16 Wend. 583.) In these courts the pleadings may be, and usually are, informal; and with a view to substantial justice, courts of review have attached far more consequence to the conduct of parties, and the proofs made by them upon the trial, than to their allegations. These decisions are inapplicable to proceedings in courts of record. Indeed, if the records of our higher courts, which import absolute verity, are to be accommodated to the evidence given upon trial, because this has been done in suits before justices of the peace, no good reason can be assigned why the pleadings of the parties in the different courts should not be placed upon the same footing, and receive the same liberal construction. This has never been claimed, or if claimed, allowed. (2 John. 24, and cases.)

If these views are correct, it only remains to apply the doctrine above suggested, to the case before us. And 1st. The defendant admits that his special plea is not sustained by the evidence, but he insists that a former recovery as to the whole or a part of the actionable words contained in the declaration may be given in evidence under the general issue. I can perceive no objection to this course. In Gilman v. Lowell, (8 Wend. 579,) it was said that before Underwood v. Parks, (Str. 1200,) the defendant in an action for slander might avail himself of any defence under this issue. Since, then, if he relies upon the truth of the words spoken in justification, he must plead specially. In other respects the former rule remains. (1 Chit. Pl. 528, m. paging; id. 532, 228 ; Vesey v. Pike, 3 Car. & Payne, 512.)

Assuming the admissibility of the evidence under the pleadings, it appeared upon the trial that some of the words charged in the declaration in this cause were spoken before, and others after, the commencement of the first suit, but none of them were set forth in the declaration in that suit. They were proved however upon the trial of the first cause, without objection, for the sole purpose of showing the malice of the defendant. The defendant objected to evidence of words so spoken and proved on the former trial, and excepted to the decision of the court overruling the objection. The recorder charged the jury “ that the plaintiff was entitled to recover for the speaking of any words laid in the declaration in this cause, and not laid in the declaration in the first suit, notwithstanding such speaking was given in evidence, for the purpose of showing malice, on the first trial.” To this charge the defendant also excepted. Neither of the exceptions is well taken. None of the words offered in evidence upon this trial were stated in the declaration, or embraced by the issue, first tried between these parties. Parol evidence to show a recovery for a different cause of action from the one specially stated in the pleadings, did not tend to explain, but to contradict, the record of a former recovery upon which the defendant relied. It was therefore inadmissible for the reasons already suggested.

There is another answer to these exceptions. The evidence was given upon the first trial for a special purpose, with the assent of the defendant. Admitting that the parties could enlarge the issue by a parol agreement, it was no part of their understanding that because the plaintiff proved certain words to show the quo animo with which others contained in the declaration were spoken, that therefore he should be estopped from insisting upon them in a subsequent suit, as a substantial cause of action.

.The judgment of the supreme court must be reversed, and that of the recorder’s court of the city of Buffalo affirmed.

Ordered accordingly.