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

text:
    Robinson v. Wheeler.
    The reversioner may recover for waste by a tenant, although after its commission he alienate the estate and have no interest therein at the time of suit brought.
    The common-law rule (as stated in Coke Litt., 53, b,) is no impediment under our statute. (1 R. S., 750, § 8.)
    The plaintiff may recover for negligent waste, as in suffering a building to be burnt, although the complaint charge the defendant with having wrongfully set fire to it.
    The presumption that a deed which has been acknowledged or proved was delivered on the day of its date, is not affected by the statute. (1 R. S., 738, § 137.)
    Appeal from the Supreme Court. Action to recover for alleged waste. The complaint stated that at the time of the commission of the waste, the plaintiff was the owner in fee of the premises, which were an island in the Niagara river called Tonawanda island, and that the defendant held and enjoyed said premises as the tenant of the plaintiff. The waste charged consisted in cutting down trees, in digging up and carrying off quantities of the soil, and in burning down a wood house; which acts were charged to be to the injury of the plaintiff’s reversionary estate. The defence denied the several allegations of the complaint. The premises formerly belonged to a Mrs. Mary White, who conveyed them to the plaintiff on the 30th March, 1850; but he reconveyed them to her by a deed dated September 2d, 1851, but which was proved to have been actually delivered to the grantee in April, 1852. Evidence was given tending to prove the several acts of waste committed between the conveyance to the plaintiff and the reconveyance by him.
    The defendant maintained, and requested the judge to charge the jury, that the reconveyance by the plaintiff to Mrs. White divested the former of his reversion in the premises, and of all claim to damages done to such reversionary estate, and that he could not therefore recover in'the action; but the judge refused so to charge and the defendant’s counsel excepted. Verdict for the plaintiff for $80. The judgment having been affirmed at a general term, the defendant appealed here.
    White v. Wheeler was an action for the same waste, and the pleadings were the same. The plaintiff was the original owner, who granted the premises to the plaintiff in Robinson v. Wheeler, and afterwards took a reconveyance from him, as above stated., The trial was at the same Circuit, and three days prior to that of Robinson v. Wheeler. The evidence was ' substantially the same. The judge charged, under exception, that the plaintiff was entitled to recover for waste prior to ° March 30, 1850, when she conveyed to Eobinson. She had a verdict for $35, and judgment thereon having been rendered at general term in the eighth district, where the exceptions were heard in the first instance, the defendant appealed to this court.
    The cases were submitted together on printed points.,

      John H. Reynolds, for the appellant.

      Eli Cook, for the respondent.

      The main question involved in both cases was discussed by Wright, J., in Mrs. White’s case, and by Denio, Ch. J., in Robinson’s case, in the following opinions:
   Wright J.

This action, which was in the nature of an action of waste, was brought by the plaintiff in 1853, when she confessedly had an estate in reversion. She had been the owner of the reversion, and the defendant was her tenant before the 30th March, 1850. At that time she conveyed the premises, alleged to have been wasted, to one George Robinson. On the 2d September, 1851, Robinson reconveyed the premises to the plaintiff. It was proved in the case that the defendant entered into the possession of the premises in May, 1849, by the consent and permission of the plaintiff as her tenant, and continued to use and occupy them as her tenant until the 1st May, 1852, and after, a time when all the waste complained of had been committed. Some of the waste was proved to have been done before March 30, 1850, and another part after the 2d September, 1851; and 'the judge charged the jury that the plaintiff could recover for the waste done prior to the 30th March, 1850. Upon this branch of the charge the principal question in the case is presented.

The charge of the judge withdrew from the jury the consideration of any acts of waste while the plaintiff was not the owner of the reversion. Conceding, therefore, that she had the reversion after the 2d September, 1851, and before the 30th March, 1850, and her action in consequence of the waste committed prior to the latter period, the question is whether she parted with that right of action by the conveyance of March 30, 1850? I think not. If the plaintiff cannot maintain an action for an injury to the premises whilst she held the reversionary interest, no person can. Robinson, her grantee, could not, for waste committed before he took title, as the right of action would not pass with the land. There would be an injury without a remedy, and a consequent failure of justice. Upon principle the plaintiff should have her action, all the conditions upon which the action was given being in her favor. The relation of landlord and tenant existed between her and the defendant at the time of the injury. She was then the owner of the reversion, and the injury was to her reversionary interest. She sustained the damage and was compelled either to repair the injury out of her own pocket, or to sell her reversion in its impaired state, and with its depreciated value. A reason why the grantee of the reversion cannot sustain an action for waste committed before he has the title is, because he has sustained no damage. At common law a reversioner, when the term had expired, and he had got possession of his estate, and consequently could only recover damages, might sustain an action of waste in the tenuit. Upon principle, therefore, I cannot perceive why an action on the case in the nature of waste is not maintainable by one seised of an estate in reversion when the waste is committed, but who subsequently grants it away. The. right of action at common law, by the reversioner did not depend, in any degree, upon the facts that the tenancy had expired, and he who had the reversion had got possession of the estate; but damages were recoverable for the injury done to the inheritance, and no person could maintain the action who had not an estate of inheritance in him at the time when the waste was committed.

I have not discovered, nor have we been referred to any decision of the courts of England or of this country where it has heen held that one having an estate in reversion when waste is committed, may not maintain, after alienation of his estate, an action in the nature of waste for the injury done to the inheritance when he was so seised. Against the maintenance of such an action we have been referred to a remark or note of Lord Coke, in his Commentaries upon Littleton (1 Inst., 53, b., Thomas’ ed., vol. 3, 271), wherein he says, “ After waste done there is a special regard to be had to the continuance of the reversion in the same state that it was at the time of the waste done; for if after the waste he granteth it over, though he taketh back the whole estate again, yet is the waste dispunishable. So, if .he grant the reversion to the use of himself and his wife and of his heirs, yet is the waste dispunishable, and so of the like; because the estate of the reversion continueth not, but is altered, and consequently the action of waste for waste done before (which consists in privity) is gone.” The learned commentator was treating of, and the pássage had immediate reference to, the old forms of action. ‘ At common law the action of waste could only be brought by him who had the immediate reversion or remainder in fee or in tail to the disinheritance of whom the waste was alleged to have been committed, (Co. Litt., 53, a,), and no person could maintain the action unless he had an estate of inheritance in him at the time when the waste was committed. If a particular estate intervened between the tenant and the reversioner, the action could not be had during the continuance of such estate. (Co. Litt., 54, a.) The heir could not maintain the action for waste done in the time of his ancestor, nor the grantee of a -reversion for waste committed before the grant to him. (2 Saunders, 252, n. 7.) If a particular estate intervened, and the reversioner died before the determination of the intermediate estate, the action was gone. Lord Coke had just been affirming the doctrine that no man could have an action of waste unless the reversion be in him,- evidently •referring-to the time when the waste was done. He then appends the passage above refered to. Both the learned editors, Hargrave and Butler, in a note to Co. .Litt., p. 218, it would seem supposed the passage had reference to a case where a particular estate intervened, and the reversioner died before the determination of the intermediate estate, in which case the action would be gone, on account of the technical rules of the common law before stated. In Bacon’s Abridgement (title, Waste, Gr.), after stating that the action must be brought by him that hath the immediate estate and inheritance in fee simple or fee tail, it is added, “ It is said that the reversion must continue in the same state that it was at the time of the waste done, and not granted over. But in some special cases an action of waste shall lie, though the lessor had nothing in tne reversion at the time of the waste done; for if a bishop makes a lease for life or years, and dies, and the lessee, the see being void, doth waste, the successor shall have an action of waste.” Thus the rule in Coke is referred to in such a manner as to show that it was intended to affirm that the plaintiff in an action of waste must have had the reversion at the time the waste was done. Cruise in his Digest upon the Law of Real Estate, makes no allusion to the rule in the passage in Coke. The reason of the rule, as stated by Coke, is, that the action of waste “consists in privity.” But it is enough that there should be privity of estate between the reversioner and tenant when the waste is done. In Bacon v. Smith (1 Adol. & Ellis, N. S., 345), husband and wife were seised of lands for their joint lives, and the life of the survivor. The husband assigned his interest and died. The surviving wife brought her action for waste done after the husband’s alienation and before his death. It was held that she could not maintain the action, because until after the husband’s death she had no survivor-ship. Lord Denman, Ch. J., said, “ The declaration sets out no title. It shows no vested interest in the plaintiff at the period when the waste was committed. It is needless to inquire whether the action would have lain if the plaintiff had a vested estate for life in remainder at the time.” Patterson, J., said, “ the action of waste in Coke Litt., 53, b., is said to consist in privity.” Of course there was no privity in the case between the plaintiff and the tenant at the time of waste done.

Our statute, unlike the common law, which gave the action of waste only to him who had the immediate reversion or remainder in fee, or in tail, authorized the maintenance of an action of waste, by any person seised of an estate, in remainder or reversion, notwithstanding any intervening estate for life or years. (1 R. S., 750, § 8.) Unlike the common law, also, which gave the action only against tenant by the curtesy, tenant in dower or guardian, the statute gives it against a tenant for life or years, and the assigns of the tenant by the curtesy, or in dower, or for life or years. (2 R. S., 334, § 1.) It also gives the action to the assignee of such tenant; to one joint tenant or tenant-in-common against another joint tenant or tenant-in-common, who shall commit waste of the estate held in joint tenancy or in common; and to an heir whether he be within or of full age, for waste done in the time of his ancestor, as well as in his own time. (2 R. S., 334, §§ 2, 3, 4.) The impediments, therefore, in the way of maintaining the old common-law action of waste, have been removed; and all the rules of the common law which affected the form of the action merely, and did not go to the right, have no application now. Hone but an immediate reversioner or remainderman in fee or in tail, could have waste, and the estate of inheritance must have been in him when the waste was committed. But he could" have maintained waste after the tenancy had expired, and he had got possession of the estate. If an estate intervened for life between the reversioner in fee and the tenant, he could not bring an action against the tenant for waste, so long as the intervening estate continued; for he was not entitled to the immediate reversion in fee or in tail, to the disinheritance of whom the waste was always alleged to have been committed. And this is all that is meant by Coke in reference to the continuance of the reversion in the same state that it was at the time of the waste done. If the reversioner in fee made a lease to A for life or years, remainder to B for life, he could not bring an action of waste against A, so long as the estate of B continued; and if the reversioner died before the determination of B’s estate, the action of waste against A would be gone; but if B died or surrendered his estate, he might bring his action, as the impediment would be removed. Our statute authorizes any person having an estate in reversion or remainder, to maintain an action of waste or trespass for an injury done to the inheritance, though there, be an intervening estate for life or years. It removes the impediment in the way of sustaining the old common law form of action, and authorizes the maintenance of an action in the nature of waste by other than a reversioner or remainderman in fee or in tail. If a tenant grants away his estate, still retaining- the possession, and commit waste, his assignee may have an action against him. So, an heir is given an action for waste done in the time, of his ancestors. It is no longer necessary, to enable one who has had a reversionary interest in lands, to maintain an action in the nature of waste, that he should be seised • of that interest at the time the action is brought. It is enough if he was seised of the interest at the time the waste was committed; and indeed this is not necessary in the case of an heir who may recover for waste done in the time of his ancestor. The statute allows a person seised of an estate in reversion or remainder, whether it be in fee or for life or years, to maintain either waste or trespass. At common law the reversioner could not maintain trespass; but now the person seised of any estate in reversion or remainder may do so. I do not think it can be maintained, since our statutes, that trespass would not lie in favor of one whose reversionary estate was wasted whilst he held it, though subsequent to such injury he aliened the estate. In this case there is no difficulty on account of the form of the action; and the only question to be considered is whether the law of the land affords any remedy to a reversioner who parts with his estate before action brought against a tenant who wastes such estate whilst the reversioner is seisecf of it. Or, more especially in this case, when the plaintiff divests herself of her reversionary interest for a time, and retakes the estate before suit brought, whether she may have an action for waste done before being divested of her reversionary interest. I think that she may; and that it was not error for the judge to charge that the plaintiff could recover'for waste done before the 30th of March, 1850.

2. The judge charged the jury that the plaintiff could recover for the wood-shed without showing that the defendant set fire to it on purpose, if it was burned through his negligence. The tenant was answerable for waste of the premises through his negligence; and although it was averred in the complaint that the defendant wrongfully set fire to and destroyed the wood-shed, and it turned out from the proof that he had negligently set fire to it, and it was burned up, the plaintiff could recover. That was this case. It was the same kind of waste, the complaint averring that it was committed wrongfully, and the .proof showing that it was done negligently.

3. The objection that the deed from Eobinson to the plaintiff of September 2,1851, did not operate to transfer the estate to the latter as of its date, was not well ■ taken. The deed bore date 2d September, 1851, and it was acknowledged on that day, but appears not to have been recorded until the 20th October, 1852. The date is presumptively the true time of the execution of a deed. (Jackson v. Hill, 5 Wend., 532.) The deed was acknowledged on the day it bore date. The Eevised Statutes do not affect this-rule in cases where the deed has been proved or acknowledged. (Elsy v. Metcalf, 1 Denio, 323.) There was no presumption that the deed was not delivered until it was recorded; but on the contrary, in the absence of proof showing non-delivery, the presumption was that it was delivered on the day it bore date.

The judgment of the Supreme Court should be affirmed.

Denio, Ch. J., (dissenting.)

The writ of waste was a real action, but it has been long in disuse both in England and in this country. Here, the Eevised Statutes rendered the forms more simple; and the Code has abolished the action altogether, providing that wrongs heretofore remediable by action of waste are subjects of action as other wrongs.” (2 R. S., 334, §§ 1-10; Code, §§ 450, 451.) Ho objection of a technical character can now be taken to the form of the proceeding, and the question in the present case is simply this: whether a person seised in fee of lands, who has demised them for years, and has afterwards conveyed the premises in fee, can after such conveyance maintain an action in any form against the tenant for waste committed during the time the plaintiff was seised of the reversion. Lord Coke, in his commentary upon Little-ton, section 67, says: “Ho person shall have an action of waste unless he hath the immediate estate of inheritance.” As corollaries to this he adds: “ If the tenant doth waste, and he in reversion dieth, the heir shall not have an action of waste done in the life of the ancestor, nor a bishop, master of an hospital or the like, in the time of the predecessor,” and “ if an estate tail determine, hanging the action of waste, and the plaintiff becomes tenant in tail after possibility [which is only equivalent to an estate for life] the action of waste is gone.” Further on he adds as follows: “Note. After waste done, there is a special regard to be had to the continuance of the reversion in the same state that it was at the time of the waste done; for if, after the waste, he granteth it over, though he taketh back the whole estate again, yet is the waste dispunishable : so if he grant the reversion to the use of himself and his ' wife, or his heirs, yet the waste is dispunishable, and so of the like; because the estate of the reversion continueth not, but is altered, and consequently the action of waste, for waste done before (which consists in privity) is gone.” (Co. Litt., 53, b.) The doctrine as thus stated is generally repeated in the abridgments and treatises. (Bacon’s Ab., Waste [g.]; Com. Dig. Waste, [c. 3] ; Roscoe on Real Actions, 109.) Sergeant Williams makes it the subject of two interesting notes appended to Greene v. Cole (2 Saund., 235, note 2; 252, a, note 7), in which the subject is measurably exhausted, but the principles ■ stated by Coke are affirmed as unquestioned law. In the last note it is shown that the modern practice, where it is not sought to recover the place wasted, is to bring an action on the case in the nature of waste, in which action some of the formal difficulties of the ancient writ of waste are avoided. Bacon v. Smith, (1 Adol. & Ellis, N. S., 345; anno 1841), was case 1 for waste brought after the defendant had yielded up the premises to the plaintiff, who, when the action was brought, had an estate for life. The question was whether this was the same estate which she had at the time of the waste committed. Jt was held that it was not and that she could not recover. Patterson, J., repeated the passage from Coke Littleton, that the reversion must continue in the plaintiff in the same state that it was at the time of the waste done, and added. “ The passage, indeed, has immediate reference to the old form of action, but the rule equally applies to an action on the case in the nature of waste.” The case is referred to in order to show a recent recognition' of the rule, as well as that it applied equally to the modern as to the ancient action. The rule has been qualified by the legislature in this state in a point not essential to the present case, by 1 Revised Statutes, 750, section 8, which declares that a person seised of an estate in remainder or reversion may maintain an action of waste or trespass, for any injury done to the inheritance, notwithstanding any intervening estate for life or years. The object of this enactment was to abrogate a branch of the doctrine of Coke ' by which it was laid down that if, between the estate of the tenant who commits waste, and the subsequent estate of inheritance, there is interposed an estate of freehold in any person in esse, then, during the continuance of such interposed estate, the action of waste is suspended, and i if the estate of the person committing the waste expires during the continuance of such interposed estate the action is gone forever. (Co. Litt., 218, b.; Sergt. Williams’ note 7, sup.) This formal difficulty is thus removed, but the rule of the old books is at the same time .impliedly recognized, and it is on account of the latter circumstance that the statute is here mentioned.

It thus appears that a rule, which it must be admitted seems to be somewhat technical, has come down to us from an early period of English jurisprudence, and has been repeatedly recognized and affirmed by modern authorities. I cannot find that it has ever been questioned or even doubted. It does not relate to the form of the remedy, but to the right to recover in any action. We cannot, therefore, refuse to apply it to the present case, which presents facts precisely within its terms and spirit. The plaintiff was seised in fee and the defendant became his tenant for years, and while holding the premises in that character he committed waste; but before« bringing the action, and, as I understand the facts, before the expiration of the tenancy, he granted the premises, that is, the reversion, to another. This precludes him from maintaining an action for the waste.

But the rule is founded on reasons which, though somewhat, artificial, are not entirely unsatisfactory. When the waste was committed the plaintiff was not in a condition to recover damages for an injury to the possession, and he accordingly only claims them on account of injuries to the reversion. Such damages, it is supposed, could not affect him until he became entitled to the actual enjoyment of the inheritance by the expiration of the defendant’s term. Before that time he grants the reversion to another. He may, it is true, have sold the land at a less price on account of the waste; but such a ground of damage is somewhat speculative, and the law does not appear to regard it as a cause of action. The grantee, it is considered, cannot maintain the action, for when the waste was committed he had nothing in the premises.

I have assumed that the defendant was something more than a tenant at will. The complaint states that he was the plaintiff’s tenant under a demise; and'the injury is stated tobe done to the plaintiff’s reversionary estate. These statements of course imply a term in the tenant, and a reversion in the plaintiff, and they are inapplicable to a mere holding at will. If the latter had been the character of the defendant’s possession, a common action of trespass would have been maintainable, as the commission of the waste would have been a determination of the will. (Phillips v. Covert, 7 John., 1, and cases cited.)

I am of opinion that the decision at the Circuit was wrong, and that the judgment ought to be reversed, and a new trial ordered.

The case of White v. Wheeler is similar in its facts to Robinson v. Wheeler, argued at this term, except that the plaintiff, after conveying the premises wasted to Bobinson, subsequent to the commission of the waste, and while the defendant remained her tenant, and before the commencement of this action, received a grant of the same premises from Bobinson, and thus was seised of the inheritance at the time of bringing the action. The case falls directly within Lord' Coke’s rule, in which he says: “for if after the waste, the tenant granteth [the reversion] over, though hetaketh back the whole estate again, yetis the waste dispunishable.” (Co. Litt., 53, b.)

This judgment should also be reversed.

In the Robinson case, the following opinion was delivered by

Wright, J. The plaintiff proved that on the 80th March, 1850, the premises described in the complaint were sold and conveyed to him, and from that time until almost the middle of April, 1852, the defendant occupied the same, and the buildings thereon, as his tenant. He then gave evidence of acts of waste committed by the defendant upon the premises between March 30, 1850, and April 1, 1852. The greater part of the waste was done in 1850,' but some of it after the 11th January, 1852, and before the 1st April, 1852. It was conceded that the plaintiff, by deed, sold and conveyed the' premises to Mary White in April, 1852. The defendant claimed that the conveyance had been executed on the 2d September, 1851, the day it bore date, but the judge permitted the plaintiff to prove that it was not delivered until April, 1852. It can make no difference, as respects the principal question in the case, whether the plaintiff parted with his reversionary interest in September, 1851, or in. April, 1852, as he had, unquestionably, granted and conveyed such interest to another before suit brought.

The judge, upon being requestéd, declined to charge, but on the contrary charged the converse of the propositions: 1st. That the deed of the plaintiff to Mary White of September 2, 1851, operated to grant over the plaintiff’s reversion, and all claim on account of any injury to his reversionary estate; and, 2d. That the action cannot be maintained unless the plaintiff’s reversion be at the time of the action brought in the same state that it was at the time of the waste done. This substantially raised the question whether a reversioner, who aliens his estate after waste committed, may, after such alienation, maintain an action for such waste; or, whether to entitle a party to maintain an action in the nature of an action for waste, the reversion must be in him at the time of action brought in the same state as when the waste was committed. I think that a party may recover after alienation for waste done whilst the title to the premises and the reversionary interest was in him. I have explained my views, and given my reasons for this opinion, in the case of White v. Wheeler, at the present term, and it is unnecessary to repeat them.

The defendant offered to show that the plaintiff’s grantee, in a prior action, had recovered for the waste done after the 2d September, 1851, but the judge excluded the evidence. There was no error in this; the proof could in no way affect the plaintiff’s right. It was not his fault if the defendant had suffered a recovery against him by some other person for this waste; who, by law, had no right to recover. It was clearly by some neglect or omission of his own, if the defendant suffered a recovery against him by a person not entitled thereto, and he cannot set that up to defeat the plaintiff’s right of action.

There was nothing in the objection to the court receiving evidence that the deed of the plaintiff to Mrs. White was not delivered until April, 1852. The plaintiff was entitled to recover for all acts of waste committed during the time the reversionary interest remained in him. A deed can convey nothing until it is delivered, and hence it is always open to show when a deed is actually delivered. The execution and recording of it is only presumptive evidence of its delivery. This was not a case for the appliéation of the doctrine of estoppel. The defendant being liable to respond to the owner of the reversion it was open to both parties to show, as best they could, the precise period of time when the ownership ceased.

The judgment of the Supreme Court should be affirmed.

Davies, Selden, Gould and Smith, Js., concurred; Sutherland and Allen, Js., concurred with Denio, Ch. J., for reversal.

Judgments affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Wright v. Delafield et al.

    A judgment under the Code (§ 274) must, as before, be based upon the pleadings, and is not to be given in favor of a defendant for a cause of action which he has not set up by way of'defence or counter-claim.
    The complaint sought to restrain the prosecution of actions pending against the plaintiff on notes given for the purchase of land, on the ground of defect of title, and prayed that the defendant might be required to make a good title and convey. There was a pure defence, which prevailed. Held, that the complaint should have been dismissed, and a judgment for the defendant for the amount of the notes was reversed.
    Appeal from a judgment of the Supreme Court. From the complaint these facts appear: In 1835, divers persons claiming to own about 1,200,000 acres of land in Florida formed an association by the name of the Appalachicola Land Company, for the sale and management of said land, dividing the capital of the Company into 2,400 shares, each share represent ing 5,000 acres of land. The title to the said land was vested in trustees to sell and manage, and these trustees appointed agents; the defendants, Delafield and Curtis, were such agents. The plaintiff is a shareholder of eleven shares, and the plaintiff and defendant Dardin, in 1841, purchased of the defendant and Delafield, as agents of said Company, two parts of said land for the sum of $20,000, for which they gave five promissory notes in the sum of $8,000 each, for the amount of the purchase in the contract, and four notes in the sum of $750 each, for the amount of the purchase of the other parcel; and took a contract to convey said land so purchased, upon payment of the price therefor. Three of said notes are paid; two of them have been transferred by the trustees to one Austin, of Florida, and one to J. Macpherson Berrien; and actions in the other of them have been commenced in the name, of the said Delafield & Curtis against the plaintiff, in the Superior Court of New York city, where they are now pending. The complaint alleges that the association of the said Land Company cannot give a good title to the land; that there are large outstanding mortgages and liens on it, and that Dardin refuses to pay any part of said notes, and has not been served with process, and resides in Florida; that Dardin is not interested in the Company, and declines to take any proceedings in relation t,o said note. The complaint also alleges that the trustees of said Company have made large sales, and received large sums of money, over and above all expenses, and have never rendered any account thereof.
    The complainant prays that the defendants, Delafield and Curtis, may account for the proceeds of sales; that the suits in the Superior Court may be restrained; that defendants, Curtis and Delafield, may be decreed to convey a good title, to plaintiff and Dardin, and thus release the said land so purchased by them of all lien and incumbrances, and that suits on the other notes may be restrained, and for general relief.
    The defendants, in answer to the complaint, admit the formation of said Land Company, the sale and contract, and giving •of the notes, as stated in complaint: deny that plaintiff is a stockholder in said Company, and aver that the whole proceeds of the sale of land has been duly expended in the course of administration of its affairs; admit that Delafield was agent of the Company, and made the sales for it; that plaintiff and Dardin gave the notes, and that the trustees transferred to Berrien three of said notes, two for $800 each and one of the $750 notes ; that one was transferred to said Austin; admit that suits have been brought on the notes as alleged, and say that if plaintiff and Dardin will perform the covenants in said contract of sale, the defendants will perform the covenants on their part to be performed; and in conclusion, contend that the plaintiff and Dardin are bound to perform on their part, before the court can grant the prayer of their complaint.
    The cause was-tried before Mr. Justice Roosevelt, without a jury, who found that the Appalachicola Land Company was formed as stated in the complaint; that Delafield was agent of the trustees and made the sale of land as stated; that the plaintiff owns twelve shares,of the stock of said Company, that large amounts of money had been received by the trustees and absorbed in expenses; that the plaintiff and Dardin gave the notes stated; that no one claimed adversely to plaintiff any of the lands agreed to be sold him and Dardin; that the plaintiff has been and still is in possession of said land under said agreement, and receiving the rents and profits, and has never offered to rescind the contract or to surrender the land. He found, as conclusions of law, that the stockholders of the Appalachicola Land Company confirmed the legal title to the lands in question to the trustees, and they had power to convey a perfect title; that the plaintiff and Dardin, being still in possession of the land, not having surrendered the same or rescinded the contract, cannot be discharged from paying the notes; that Delafield had authority to make the agreement, and if not, his acts had been confirmed by the plaintiff and by the Company. Judgment for a specific performance of the contract by the plaintiff and Dardin, and that said promissory notes be paid, was ordered and entered accordingly, with costs.
    The plaintiff duly excepted to each and every finding of fact and law. The court in the first district at general term affirmed the judgment, with costs, and the plaintiff appealed to this court.

      Samuel E. Lyon, for the appellant.

      William C. Noyes, for the respondents.
   Smith, J.

Upon the facts and conclusions of law found by the judge at special term, a judgment dismissing the plaintiff’s complaint would have been entirely proper. But I cannot see upon what ground a judgment, giving to the defendants affirmative relief upon the pleadings, can be upheld. The rule that judgment should be rendered in conformity with the allegations and proofs of the parties, secundum allegata et probata, is fundamental in the administration of justice. The principle has not been exploded by the Code, although its essential vigor has oeen doubtless to some extent impaired. And it is, I think, quite problematical whether the relaxation of this rule which has been introduced under the Code in modern practice will not involve and produce much greater confusion and mischiefs than it will remedy.

This ease presents an illustration of the tendency at the present time to depart from sound principle on this subject. The plaintiff commenced á suit in equity to stay suits at law, and call for an accounting between stockholders of a voluntary association. The equity of the complaint is denied, and the court holds that it was disproved, and without considering whether the requisite parties were before it, and without any cross-bill or counter-claim asking for affirmative relief, gives an affirmative judgment in favor of the defendants.

The theory of an action at law, or a suit in equity, is that it presents in succinct form the facts and grounds upon which the party instituting suit asks the aid of the court to obtain some right or the redress of some wrong. If the opposite party controverts the facts alleged, an issue is presented for trial. This issue grows strictly out of a denial of some of the allegations of the plaintiff’s complaint, or out of some new facts set up as a defence to the plaintiff’s claim. The question presented upon these issues is simply whether the plaintiff is entitled to the relief demanded. If the decision of the court is in favor of the plaintiff, it gives the relief sought. If the decision is in favor of the defence, the decision of the court simply dismisses the plaintiff’s action.

But section 274 of the Code provides that judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may determine the ultimate rights of the parties on each side as between themselves: and it may grant to the defendant any affirmative relief to which he may be entitled. This provision doubtless enlarges the primary scope of the action at law. In connection with sections 149 and 150, in- respect to a counterclaim, and providing for the setting up of such claim with, or as part of, the defence in all actions, it gives to every action, within the limits and upon the terms prescribed, a double character. Every action may, within these limits, contain an answer and counter-claim setting up a cause of action not limited to matters of defence.

But the rights of action on defence or counter-claim must be stated in an answer under this section, as much as was ever required under the former system of pleading; and a judgment under section 274 must be made upon the pleadings, and be warranted by and based upon the allegations of the complaint and answer, as much as was ever the case in the courts of law and equity.

It is true that the courts are more liberal than formerly in making or allowing amendments of pleadings, and when the substantial rights of the parties have been fairly tried, trifling variances are disregarded, and judgment given according to the real right of the case as established. (Corning v. Corning, 2 Seld, 97; Hall v. Gould, 3 Kern., 127; 28 Barb., 441-602; 33 id., 238.)

But these cases assume, and this right of disregarding variances proceeds upon the ground, that the substantial rights of .the parties are set up in the pleadings, and section 169 forbids amendments where the party will be misled or surprised. But the whole scope of these provisions of the Code, in respect to pleadings and amendments thereof, implies that all the material allegations of the plaintiff or defendant shall be spread upon the record, shall be actually inserted in the pleadings, and when variances are disregarded, it is upon the principle that they may be amended nunc pro tunc at the trial, and the court will so order to perfect the record so that it shall show the question really litigated and decided. The principle still remains that the judgment to be rendered by any court must be secundum allegata et probata; and this rule can* not be departed from without inextricable confusion and uncertainty and mischief in the administration of j ustice. Parties go to court to try the issues made by the pleadings, and courts have no right impromptu to make new issues for them, on the trial, to their surprise or prejudice, or found judgments on grounds not put in issue, and distinctly and fairly litigated.

The judgment in this case is in clear conflict with this rule. The plaintiff commenced the suit to stay the proceedings at law in actions upon several of the promissory notes in question then pending in the Superior Court of Hew York city. The injunction I think was irregularly issued to stay proceedings in another court of concurrent jurisdiction equally qualified and empowered to give equitable relief. But when it was determined that the action could not be maintained, the complaint should have been dismissed, and the defendants left to pursue their proper legal remedies in the Superior Court. I know of no right in the Supreme Court to take a cause in this way, out of the control of another co-ordinate court, and proceed to give final judgment for the defendants, upon the original cause of action.

This judgment is utterly unwarranted by anything contained in the pleadings. The answer of the defendants was a pure defence. They successfully defended the action, and were entitled to have the complaint- dismissed, with costs. The court had no power to render any other judgment.

The only specific performance that the plaintiff could make was to pay his notes, and judgment for that purpose was a pure legal right which the defendants were entitled to assert in the forum of their own choice.

The judgment should be reversed, and a new trial granted, with costs to abide the event.

Gould, J., dissented.

Judgment reversed, and new trial ordered.


author: Davies, J.

text:
    Tompkins et al. v. Dudley et al.

    One who has agreed to build a house on the land of another, and has substantially performed his contract, but has not completely finished the house nor delivered it, when it is destroyed-by fire, is liable to an action for money advanced upon the cpntract and damages for its non-performance.
    Appeal from the Supreme Court. The. plaintiffs sued as trustees of a school district for money advanced by them upon a contract to build a school-house, and for damages from the non-performance of the contract. There was a verdict and judgment for the defendants, which haying been affirmed at general term in the seventh district, the plaintiffs appealed to this court. The facts are sufficiently stated in the following opinion.

      Homer A. Nelson, for the appellants.

      John K. Porter, for the respondents.
   Davies, J.

On the 31st of August, 1857, Cornelius Chambers, by a written contract, agreed to make, erect, build and furnish for the plaintiffs a school-house, according to certain plans and specifications, and to furnish the materials for the sum of $678.50. The school-house was to be completed on the 1st day of October, 1857. The defendants guaranteed the performance of the contract on the part of the builder. The building was not completed on the 1st day of October, and it was burned down on the night of the 5th of October. The judge who tried the cause found, as matter of fact, that the contract was substantially performed by Chambers, but -that the building was not entirely completed according to the specifications, there remaining to be done a small amount of painting and the hanging of the window blinds, and that the same had not been formally accepted nor the key delivered on the 5th of October. This action is brought to recover the money paid on account to Chambers as the building progressed, and for the damages which the plaintiffs have sustained by reason •f the non-completion of the contract, the fulfillment of which was guaranteed by the defendants. It is undeniable that the school house was not completed, nor delivered and accepted by the plaintiffs at the time of its destruction. They had á right to insist upon the completion, of the contract according to its terms, and the builder did not allege or pretend that he had completed it. A substantial compliance with the terms of the contract will not answer when the contractor, as in this case, admits and concedes that the work was incomplete; he was still in possession, engaged in its completion. According to the testimony, about $60 was yet to be expended on the building. Had the builder completed the building and complied with his contract at the time of the destruction of the school house? I am constrained to say he had not. He was not only to complete.it in accordance with its terms, but was to deliver it over to the plaintiffs thus finished, or offer to deliver it, before his whole duty was performed. How it is undeniable that the builder did not do this. A portion of the work was yet to be done; the builder was still in possession, and actually engaged in the work of completion at the time of its destruction. This court has declared the law in this * State to be, that a contract for the building of a vessel, or other thing in esse, does not vest any property in the party for whom it is to be constructed during the progress of the work, nor until it is finished and delivered, or at least ready for delivery, and approved by such party. It is said all the authorities agree in this. (Andrews v. Durant, 1 Kern., 35, and the authorities there cited.) And it was also held that the law is the same, though it be agreed that payment shall be made to the builder during the progress of the work, and such payments are made accordingly. In Mucklow v. Mangles (1 Taunt, 218), which arose out of a contract for building a barge, the whole price was paid in advance, the vessel was built and the name of the person who contracted for it was painted on the stern, yet it was held that the title remained in the builder. Lawrence, J., said, “No property vests till the thing is finished and delivered.” In Merritt v. Johnson (7 John., 473), where a sloop was agreed to be built-and one-third of the price was to be paid when one-third of 'the work was done; two-thirds when two-thirds were done; and the balance when it was completed, and before it was finished it was sold on execution against the builder, after more than one-third had been done, and more than that proportion of the price had been paid, the court held that the vessel was the property of the builder and not of the person who engaged it to be constructed. The court says, in its opinion, “ The sloop did not become his property (the person for whom it was built) until finished and delivered.” The Supreme Court of Massachusetts, in Adams v. Nichols (19 Pick., 275), a case quite like the present, say: “It is not very material to consider whose property the house was before its destruction. The principal defendant had contracted to build and finish a house on the plain tiff’s land. After the conflagration, he might have proceeded, under the contract, and if he had completed a house according to the terms of his agreement, the plaintiff would * have been bound to perform his part of the stipulations. So if in any stage of its progress he had seen fit to remove * any part of the materials, and substitute others, the plaintiff, could not complain. They must, therefore, be deemed to* be at his risk. And if he had not intended to incur this risk, he should otherwise have stipulated in his agreement. Pad the article to be made been a chattel, or a coach, or a vessel, it is extremely clear that the materials in the first place, and the article itself, in every stage of its manufacture, from its inception to its completion, would have been at the risk of the builder. Now it is not easy to preceive , how it can make any difference in the construction or operation of the contract, that the thing manufactured, was to be attached to the freehold.” ■

The builder, in the present case, by his own contract, created a liability and incurred a duty, which the defendants guaranteed he should perform, and which he has not performed. In justification of such non-performance, he alleges the destruction of the building by fire and inevitable accident, without any fault on his part. The law is well settled, that this is no legal justification for the non-performance of the contract. This subject was most carefully considered and elaborately discussed in the case of Harmony v. Bingham (2 Kern., 99), arid it was then held by this court, that when a party is prevented by the act of God from discharging a duty created by the law, he is excused; but when he engages unconditionally, by express contract, to do an act, performance is not excused by ineyitable accident or other unforeseen contingency not within his control. Edwards, J., says: “This rule has been uniformly followed, and that, too, even in cases in which its application has been considered by the court as attended with great hardships.” Ruggles, J., said: “ It is a well-settled rule of law, that when a party, by his own contract, absolutely engages to do an act, it is deemed to be his own fault and folly that he did not thereby expressly provide against contingencies, and exempt himself from responsibility in certain events; and in such a case, therefore, that is, in the instance of an absolute and general contract, the performance is not excused by an inevitable accident or other contingency, although not foreseen by or within the control of the party.” These principles have been applied by the Supreme Courts of Massachusetts, Connecticut and New Jersey, in cases- almost entirely analogous to the one now under consideration. In Adams v. Nichols (supra), the action was upon a bond executed by Nichols, one of the defendants, as principal, and by Selkirk, the other defendant, as surety, conditioned that Nichols should fully perform an agreement in writing, by which he contracted to erect a dwelling house for the plaintiff, on the plaintiff’s land. It was agreed that, at the time of'the execution of the bond and agreement, the plaintiff advanced to Nichols the sum of $400, in pursuance of such agreement; that subsequently Nichols commenced building the house and continued to work on it until 23d of August, 1836 (the agreement having been made October 5, 1835), at which time it was raised and principally covered, and materials prepared for finishing it; that on the night succeeding that day, the house was, from some cause unknown to both parties, wholly destroyed by fire, and that Nichols did not offer to rebuild the house. The trial was had before Shaw, Ch. J., who ruled that the destruction of the house did not constitute a legal defence to the action, and a verdict was taken for the plaintiff, by consent, subject to the opinion of the court. Morton, J., in delivering the opinion of the court, says: “The defendants do not pretend that they have executed their contract to build a house for the plaintiff, but contend that the facts disclosed furnish a legal excuse for not doing it. * * * In these and similar cases, which seem hard and oppressive, the law does no more than enforce the exact contract entered into. If there was any hardship, it arises from the indiscretion or want of foresight of the suffering party. It is not the province of the law to relieve persons from the improvidence of their own acts. * * * The original contract remaining in force, and there being no legal excuse for not executing it, the defendants are liable for the damage which the plaintiff sustained by the non-performance of it.”

In the case of School District No. 1 v. Dauchy (25 Conn., 530), the defendant, on the 7th day of December, 1853, made a contract in writing with the plaintiff to build the school house for the sum of $2,469, and to complete the same by the first Monday of May, 1854; a part of the price to be paid by instalments, as the work progressed. The defendant commenced the building of the same, and had nearly completed it, when, on the 27th of April, 1854, it was struck by lightning and consumed by the fire communicated thereby. At this time he had received $1,000 of the price, having been entitled thereto, under the contract, by the progress of the work. Ellsworth, J., in delivering the opinion of the court, says: “ The defendant did agree, absolutely and unqualifiedly, that the building should and would be completed and ready to be delivered to the plaintiffs, by the first Monday of May at the farthest. This he has not done. The building has not been completed nor delivered, ■ although it is true he nearly-finished it, and it is found could and would have completed it, had it not been destroyed by lightning. In the contract, he made no provision for any contingency or event whatever, and the question is, can he now incorporate into his contract a provision for a contingency or a condition, or must he abide by his positive and absolute undertaking.” After an able discussion of the question, and a careful review and analysis of the cases bearing upon it, the learned judge came to the conclusion that the defence set up affords no justification for the non-performance of the contract, and that the plaintiffs were entitled to recover their damages by reason of a breach thereof.

The only additional case needful to refer to, is that of School Trustees of Trenton v. Bennett (3 Dutcher [N. J.], 514). In that case a person had contracted with the owner of a lot to build, erect and complete a building thereon, and by reason of a latent defect in the soil the building fell down before it was completed, and the Supreme Court of Hew Jersey held that the loss fell upon the contractor, and that when the contract was, by its terms, to build and complete a building, and find materials for a certain entire price, payable in instalments as the work progresses, the contract is entire, and if the building, either by fault of the builder or by inevitable accident, is destroyed before completion, the owner may recover back the instalments he has paid.

The court, in its opinion, says: “Ho rule of law is more firmly established by a long train of decisions than this, that where a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.” And in reference to the argument of hardship, the court very justly says: “ Ho matter how harsh and apparently unjust in its operation the rule may occasionally be, it cannot be denied that it has its foundation in good sense and inflexible honesty. "The party that agrees to do an act should do it, unless absolutely impossible. He should provide against contingencies in his contract. When one of two innocent persons must sustain a loss, the law casts it upon him who has agreed to sustain it, or, rather, the law leaves it where the agreement of the parties has put it; the law will not insert for the benefit of one of the parties, by construction, an exception which the parties have not, either by design or neglect, inserted in their engagement. If a party, for a sufficient consideration, agrees to erect and complete a building upon a particular spot, and find all the materials, and do all the labor, he must erect and complete it, because he has agreed so to do.”

I arrive at' the conclusion that the law is well settled that the defence interposed by the defendants constitutes no justifi-' cation to Chambers, the builder, for the non-performance of his contract with the plaintiffs, and that, having guaranteed for an adequate consideration, expressed therein, its performance, they are liable to respond to the plaintiffs for the damages which they have sustained by reason of such non-performance. If these views are concurred in by my brethren, the judgment appealed from must be reversed, and a new trial should-be had, with costs to abide the event

Wright, Gould, Allen and Smith, Js., concurred.

Judgment reversed, and new trial ordered.


author: Wright, J.

text:
    Wooster et al. v. Sherwood.
    A brewer sold “ sufficient barley now in my brewery to make malt enough, to be made in the brewery, to pay ” a sum then advanced by the plaintiff, to whom a delivery was made of a specific mass of barley more than enough for the payment. The plaintiff did not remove it, but it remained until the brewer sold his brewery and the contents, with notice of the facts and subject to the plaintiff’s claim. The purchaser sold the barley to the defendant; and by his direction put it upon a railroad for transportation to the latter. Eeld:

      1. The legal title and general ownership of the barley passed to the plaintiff. The transaction was an executed sale, in the nature of a mortgage.
    2. The purchaser with notice had no title as against the plaintiff and could convey none t6 the defendant, although the latter bought without notice.
    3. The apparent authority of the defendant’s vendor, not having been conferred by the plaintiff, nor with his knowledge or assent, the defendant is not within the rule protecting, as a bond fide purchaser, him who deals with one to whom the real owner has given the indicia of power to sell.
    4. As against the defendant, the transfer was valid, without filing as a chattel mortgage.
    Whether a demand is necessary to sustain an action for the conversion of the barley, qucere; if it were, one made of the carriers engaged in transporting it is suEcient.
    Parol evidence,, it seems, is admissible, in addition to the written contract of sale or mortgage, that, by the agreement of the parties, the brewer was not to sell the barley delivered under the contract, or malt made from it, without the plaintiff’s permission.
    Appeal from the Supreme Court. Action for the wrongful detention of 450 bags of barley malt, alleged to be the property of the plaintiffs. The trial was before a referee, who reported in favor of the plaintiffs, and assessed their damages at $1,413.33, the value of the property. The referee found the following facts:
    On the 22d of September, 1856, and from that time to the 15th January, 1857, one William S. Haight was the owner and in possession of a brewery in the county of Monroe, and a manufacturer of malt and beer at said brewery. On the day first mentioned, Haight borrowed of the plaintiffs, for his own accommodation, their promissory note, dated upon that day, and payable upon the 1st December following, to the order of Haight, for the sum of $3,000, which was subsequently used by Haight in his business; and on the 13th Deqember, 1856, was owned and held by thevHollister Bank of Buffalo.
    On pr before the 3d December, 1856, Haight was indebted to Edgar C. Dibble for money lent and advances made to him in his business; and on that day, with the consent and" concurrence of Dibble, made and executed an instrument in writing as follows:
    “ Whereas, W. B. & A. M. Wooster did, on the 22d September, 1856, advance their promissory note for $3,000, payable at the Metropolitan Bank, in the city of New Tork, on the 1st day of December then next, which I was to return to them or give them the cash therefor by the 1st October then next; and whereas the Hollister Bank has used the same, and the same is under protest for non-payment; in consideration that the said Wooster agrees to pay the same, I, William S. Haight, do hereby sell and transfer to them sufficient barley now in my brewery, to make malt enough, which is to be made in the brewery, to pay said note and interest to them, or to said Hollister Bank. This instrument is made subject to the right of Edgar C. Dibble to the barley in said brewery, and the malt made therefrom, which said Dibble says is th$ right to take 1,500 bushels which he is now getting, and sufficient over and above said 1,500 bushels to make the further sum of $3,951, and such further advances as he may make to pay for barley already bought to amount of $500.
    “WM. S. HAIGHT.
    “Mumford, December 13, 1856.”
    At the time of making said contract there was in the south part of said brewery between eight and nine thousand bushels of barley, about 2,500 of which were in the process of malting, and the residue in grain. There was, in addition to the above, in the north part of the brewery, a separate heap of barley, containing about 2,000 bushels, upon which Nathan H. Camp held a claim or lien, for advances theretofore made and'responsibilities incurred by him for said Haight.
    On the same day of the making of said contract, and immediately after the execution thereof, the. said Dibble, at the request of the said Haight, went with the said plaintiffs, or one of them, to said brewery, and made delivery of that portion of said barley being in the south part of the brewery as aforesaid, by pointing out and taking a part of the parcel of said barley in his hand and saying to the plaintiffs, “ I deliver to you this barley subject to my claim, and in pursuance of the contract” above mentioned. There was a verbal understanding, at the time of the above agreement, that the plaintiffs should control said barley: that Haight should manufacture the same into malt: that of the malt so made Dibble should in the first place receive sufficient to satisfy his demands above mentioned, and that Dibble should inform the plaintiffs by letter when he should receive the amount requisite for that purpose. There was no other delivery of said barley than that above mentioned. Haight subsequently proceeded to manufacture the barley from the parcel in the south part of brewery into malt, which was afterwards from time to time received by said Dibble. The quantity so received, on or before the 2d January, 1857, was sufficient to satisfy his said claim and demand, which on that day was discharged accordingly, and notice thereof was subsequently, and on the 15th January, given by Dibble to the plaintiffs.
    The lien or claim of Camp upon the parcel of barley in the north part of said brewery as above mentioned, was under and in pursuance of a writing executed by Haight and dated December 1, 1856, given to secure certain liabilities; the, provisions of which writing were, on the 14th January, 1857, altered and modified.
    On the 15th January, 1857, Haight sold and conveyed by deed to Camp, the said brewery and lot upon which it stood, and a house and lot in the same town; also, under date of 14th January, 1857, executed to him a bill of sale of all the barley and malt in the brewery and malt house; and on the 15th January, 1857, executed another bill of sale of personal property attached to the brewery and belonging to Haight. The different writings constituted parts of one entire agreement, which in substance was, that Camp, out of said property, should pay the demands in his favor against the said Haight, and all responsibilities incurred by him on behalf of the vendor, and that the surplus should be restored or paid to Haight or to such creditors as he might direct. Camp, before said writings were executed by Haight, was informed of and knew the claim of the plaintiffs to the barley in the south part of said brewery under and by virtue of the written contract of December 13, 1856, and the facts above mentioned. He was informed by Haight that no part of the barley last mentioned should be removed or disposed of until the claim of the plaintiffs was paid or satisfied, to which suggestion of Haight, Camp made no objection.
    The plaintiffs, in the month of January, 1857, and before the commencement of this suit, paid the note mentioned in the writing of December 13,1856, in pursuance of that agreement. The itote, with interest and fees for protest, amounted, on the 20th July, 1857, the date of the referee’s report, to $3,133.30.
    On or about the 16th January, 1857, Camp took possession of the brewery and the property mentioned in his several bills of sale. There was at that time, in the south part of said brewery, and of the parcel of barley delivered to the plaintiffs as above mentioned, about 4,175 bushels, in grain and in process of malting, exclusive of the 2,000 bushels subject to Camp’s claim in the north part of the brewery as aforesaid. Camp proceeded by his workmen to convert the parcel so delivered to the plaintiffs into malt, part of which he disposed of to the defendant, claiming the right as owner to dispose of the whole of said parcel. Prior to the commencement of this suit, the plaintiffs demanded the possession of the barley and malt which was then in the brewery, of Camp, which was refused by the latter. The barley and malt thus demanded was a part of the parcel so delivered to the plaintiffs as aforesaid. The barley in said parcel at the time of the execution of the writing of December 13, 1856, was worth ten shillings per bushel, and malt the same; and at the time of the trial of the cause, twelve shillings per bushel.
    Camp and the defendant reside at the city of Buffalo. Subsequent to the 16th January, 1857, and after Camp had taken possession of the brewery, and before the commencement of this suit, Camp sold to the defendant the malt mentioned in the complaint in this cause, and received from him upon said sale $500, part of the purchase money; the malt was manufactured from the barley in the south part of said brewery, and theretofore delivered to the plaintiffs. Such malt was delivered by Camp to the defendant, by putting the same, in pursuance of the directions of the defendant, upon the cars of the railroad at Caledonia, in charge of the proper officer of said road, and consigned to the defendant at Buffalo. And it was admitted, upon the trial, that said malt was, at and before the commencement of this suit, in the possession of the defendant.
    Before the commencement of this suit the said malt was demanded of the officer having the same in charge, who refused to render possession thereof to the plaintiffs. One demand on the said officer was at the railroad in the town of Caledonia, and the second at the town of Batavia, in the county of Genesee, while the malt was in transitu-, both of which were refused. The malt was worth ten shillings' per bushel when sold to the defendant, and when converted by him as aforesaid, and twelve shillings per bushel at the time of the trial of the cause.
    The referee’s conclusions of law were: 1st. That by the written instrument of the 13th December, 1856, designated as exhibit “A” in the cause, a sale was made of the parcel of barley in the south part of said brewery, and which was delivered to the plaintiffs, in the nature of a mortgage, to secure and indemnify the plaintiffs for their agreement and undertaking to pay the note lent by them to said Haight. 2d. That prior to and, at the commencement of this suit, the plaintiffs had the right and were entitled to the possession of the personal property mentioned in the complaint, and the same was wrongfully detained by the said defendant. 3d. That the plaintiffs were entitled to the usual judgment in this action, and that their damages should be assessed at the value of the property, being 1,131 bushels of malt at $1.25 per bushel, equal to $1,413.35.
    The defendant excepted to each and every conclusion of law by the referee. He also excepted to every decision of the referee upon the questions of fact arising in the cause, as-against and unsupported by the evidence; and furthermore to the report of the referee, for the reason that he had not found certain facts.
    On the trial of the cause, Haight testified that “the agreement was, that Wooster was to have the control of the barley and malt, and that I was not to sell without consulting him. What I have just said was at my house at the time of the written contract.” The defendant moved to strike out this statement of the witness as inadmissible, as tending to vary or change the written contract. The referee overruled the motion, and the defendant excepted.
    The defendant appealed from the judgment entered on the report of the referee to the court at general term, when such judgment was affirmed, and he appealed to this court.

      William H. Greene, for the appellant.

      Angus McDonald, for the respondents.
   Wright, J.

The rights of the parties depend primarily on the construction of the contract of December 13, 1856. If, by that contract, Haight’s title to the specific parcel of barley in the south part of the brewery passed to the plaintiffs, Camp, the subsequent vendee of Haight, took no interest in it, and could pass none to the defendant. Camp, by the transfer of the 14th January, 1857, took only such title as Haight then had. If he had none, Camp took nothing, and if Haight in selling the barley would have been guilty of a conversion, Camp would be equally a wrongdoer. Camp has not the shadow of equity peculiar to himself, for he was informed by Haight, when he took possession of the brewery, of the plaintiffs’ claim to the parcel of barley in the south part thereof, and in substance assented to the suggestion of Haight that no part of it.should be removed or disposed of until such claim was paid or satisfied.

I think that the legal title to the barley in the south part of the brewery vested in the plaintiffs by the contract of December 13, 1856, and that by such contract they obtained more than a mere right of action against Haight. It amounted to a sale in presentí of the property mentioned. The language too of the instrument is, “ I, William S. Haight, do sell and transfer,” &c., and the consideration was a present one. The instrument did not specify the parcel or the quantity of barley sold. It, however, represented the subject of the sale as in the brewery, and the quantity was to be sufficient to pay the plaintiffs’ note and interest, lent to Haight, and which he had used in his business. The precisé subject of the sale was ascertained and fixed by the delivery made as a part of the transaction. Cotemporaneously with the execution of the agreement, the precise parcel of barley sold, viz., that in the south part of the brewery, was pointed out by Haight’s agent to make delivery, and formally delivered to and accepted by the plaintiffs. There was no removal of the barley by the plaintiffs, but this, did not affect or change their rights. By the terms of the contract the grain was to be malted in the brewery, and had they removed it after delivery and then brought it back to be manufactured, their rights would be the same as they now are. There can be no objection, therefore, against regarding the transaction as an executed sale, on the ground of an imperfect or insufficient delivery.

The intention of the parties in the execution of the agreement, and the formal delivery of the specific parcel of barley in the south part of the brewery, is obvious. It was to invest the plaintiffs with the legal title to the parcel for the security of themselves and Dibble. The legal title to, and control of, the barley was passed to the plaintiffs to secure Dibble’s claim and the payment of the $3,000 note. In this view, it was a sale in the nature of a mortgage. The plaintiffs were to have enough of the proceeds of the property to pay the note, after satisfying Dibble’s claim; and the surplus belonged to Haight.

By the sale and delivery, therefore, on the 13th December, 1856, the legal title and general ownership of the parcel of barley in the south part of the brewery passed to the plaintiffs. By leaving it with Haight to be malted, he acquired a qualified possession for that purpose only, in subordination to the legal title, and the right of possession incident to it. When Camp, after taking possession of the brewery, undertook to convert the property to his own use, and dispose of a portion of it to the defendant, the legal title, with the right of possession was in the plaintiffs. Camp, in assuming to sell the barley, was a trespasser, and his act without any legal justification.

It is urged, however, that the defendant is a bona fide subsequent purchaser of the malt of Cámp, and that, as between the plaintiffs and the defendant, the referee erred in deciding that the latter wrongfully detained it. If Camp had no title to the malt in question,' but was a wrongdoer in controlling and disposing of it, it is not easy to perceive how his vendee could acquire a valid title or, in respect to the property, occupy .the relation of a subsequent purchaser in good faith. It may be conceded that when the owner of property, by his own voluntary act or consent, has given to another such evidence of the right of selling his goods as, according to the custom of trade in the common understanding of the world, usually accompanies the authority of disposal, the owner furnishing such indicia, or apparent authority, is bound by it, and the bona fide purchaser obtains title. But that is not this case. It does not appear that the plaintiffs had any knowledge of the transfer by Haight to Camp, or that they voluntarily gave the latter any indicia whatever, not even possession. On the contrary, as soon as they learned that Camp had possession of their property, claiming to sell it, they brought their action against Camp, and his vendee, the defendant. Whatever apparent authority Camp had, came through the effect of the transfer by Haight to Camp, which was involuntary as to and unauthorized by the plaintiffs. If Haight could not give good title, under the same circumstances, to a bona fide purchaser, without notice, Camp, the defendant’s vendor, could not. That Haight, as against the plaintiffs (even conceding that the defendant was without notice of the plaintiffs’ rights), could not have conveyed title to the defendant, I think is clear. Haight only had possession to manufacture the barley into malt, and had no right to sell. There is nothing to show that either Haight or Camp ever manufactured malt on their own account and sold it in the usual course of trade, except the sale to the defendant; or, if they did, that the defendant knew it. But if it had been shown that Haight or Camp sold malt on their own account, the fact of "the plaintiffs leaving barley at the brewery to be manufactured into malt would not furnish sufficient indicia of the right of the manufacturer to sell. In both cases, the manufacturer makes his goods, or adds labor to them, for others as well as on his own account, and hence the presumption of authority to sell does not arise. This case falls within the rule, that whoever deals with an agent constituted for a special purpose, deals at his peril, when the agent passes the precise limits of his power. If the owner loses his property, or if it is sold or pledged without his consent, by one who has a qualified possession of it for a specific purpose, as for' work to be performed on it, the owner can follow and claim it in the hands of any person.however innocent. (2 Kent’s Com., 621; Saltus v. Everett, 20 Wend., 267; Brown v. Peabody, 3 Kern., 121.) The case of Thompson v. Blanchard (4 Comst., 303), is no authority against this view.

Nor, regarding the title of the plaintiffs as that of vendee or mortgagee, was it necessary, as against the defendant, to file the instrument of December 13, 1862, in the clerk’s office of the town in which Haight resided. The defendant was not a subsequent bona fide purchaser, nor a purchaser at all from Haight. The statute only applies to purchasers from the mortgagor. But. if it were otherwise, the defendant pur chased from Camp, who was a mala fide purchaser, and hence must be considered'as occupying the same relation.

A remaining question upon the whole case is, whether the action could be maintained against the defendant without a demand; and if not, whether the demand proved was sufficient. I am inclined to the opinion that no demand was necessary. The defendant, under a claim of ownership, assumed to transport the property to or towards Buffalo, after having unlawfully acquired the possession of it. That act, and the detention for that purpose, was wrongful, and a conversion. But a demand, if necessary, upon the carrier was sufficient. The carrier’s possession was not only that of the defendant, but he had himself an interest in the possession by virtue of his responsibility for, and to enable him to discharge his duty to his principal. In Jones v. Hart (2 Salk., 441), it was held that the refusal of a pawnbroker’s servant to redeliver goods pawned, is evidence of a conversion by his master.

But a single exception relating to the admissibility of evidence, was taken on the trial. Haight having testified “ that Wooster was to have control of the barley and malt; and that he (the witness) was not to sell without consulting him,” the defendant moved to strike out the statement as tending to vary or change the written contract. The defendant’s counsel seems not to have made this a point on the argument. But there was no error in refusing to strike out the testimony for the reason assigned. It did not tend to vary or change the written contract. The legal effect of the contract, and the delivery of the specific parcel of barley accompanying it, was to be determined by the writing itself. The testimony had only reference to the rights of the parties as to the parcel of barley delivered for the purpose of carrying out the contract; and for this purpose, it was not improper. Had there been, however, a technical error in refusing to strike out, it is evident that the evidence could not in any way have influenced the decision of the referee.

The judgment of the Supreme Court should be affirmed.

■Judgment affirmed.


text:
    Rheel v. Hicks.
    Money paid by a person charged as the father of an unborn bastard to a superintendent of the poor, upon a compromise, under chapter 26 of 1832, may be recovered back upon its appearing that the supposed mother was not in fact pregnant.
    It is no defence by the superintendent that he paid the money into the county treasury, no expense having been incurred in the support of the expected child or mother. .
    Appeal from the Supreme Court. Action to recover back money as paid under mistake. Upon the trial before Mr. Justice Emott, and a jury, these facts appeared: On the 28th of February, 1856, the defendant, who was the superintendent of the poor of the county of Dutchess, was notified that one Louisa Hehr was pregnant of a child, likely to be born a bastard, and he thereupon applied to a justice of the peace to make examination. The justice took the examination of the woman in writing, wherein she testified, under oath, that she was so pregnant, and that Eheel, the plaintiff, was the father. Eheel was arrested, and on the 5th of March, 1856 (and before the examination of the two justices), compromised with the defendant relative to the support of such child. At the request of Eheel, the matter was compromised by his paying the superintendent $50 in consideration of a full settlement and release for the child’s future support. It appeared on the trial of the action (and so the jury found specially), that Louisa Hehr was not pregnant on the 28th of February, 1856; that she was never delivered of a bastard child of which the plaintiff was the father, and which became chargeable to the county of Dutchess; and that such county had been to no expense or damages on account of the woman or any child of which she was pregnant in February, 1856. The only witness to prove that there was no pregnancy was Louisa Hehr herself On being inquired of, why she testified before the justice in February, 1856, that she was pregnant, she answered that she believed so then. Rheel had had connection with her two or three times, in November, 1855. Upon ascertaining that there had been no pregnancy, the plaintiff demanded the $50 of the defendant, who refused to pay it back.
    The plaintiff had judgment for the $50, with interest and costs, which having been affirmed at general term in the second district, the defendant appealed to this court.

      J. F. Barnard, for the appellant.

      Silas Wodell, for the respondent.
   Wright, J.

It is made the duty of the county superintendent of the poor, when any woman shall be pregnant of a child likely to be born a bastard, and to become chargeable to the county, tó apply to a justice of the peace to make inquiry into the facts and circumstances of the case. (1 R. S., 642, § 5.) The justice is required, by examination of such woman on oath, and upon such other testimony as may be offered, to ascertain the father of such child, and thereupon to issue his warrant' to apprehend such reputed father, and have him .brought before him for the purpose of having an adjudication respecting the filiation of the child. (Id., § 6.) Upon the person so charged with being the father being brought before the justice issuing the warrant, th$ latter 'is to call to his aid another justice, and the two justices are required to proceed and make examination of the matter, and again examine the woman alleged to be pregnant, on oath, in the presence of the person charged, touching the father of such child, and hear any proofs that may be offered in relation thereto; and they are to determine who is the father. (§§ 11, 13.) If they determine that the person charged is not the father, he is to be forthwith discharged; but if they determine that he is, they are "to make an order of filiation, specifying therein the sum to be paid, weekly or otherwise, by him for the support of the child; and if the mother be in indigent circumstances, they are also to determine the sum to be paid by such putative father for the sustenance of such mother during her confinement and her recovery therefrom. (§ 13.) •

Superintendents of the poor in any county in this State are empowered to make such compromise and arrangements with the putative' father of any bastard child within their jurisdiction, relative to the support of such child, as they shall deem equitable and j ust; and thereupon to discharge such putative father from all liability for the support of such bastard. (Laws of 1832, ch. 26, § 2.)

There can be no doubt of the general principle that, when one pays money without any legal obligation to do so, under a mistake of fact, and without the means of ascertaining the truth, he may recover it back. .The cases founded on mistake, says Savage, Ch. J., in Mowatt v. Wright (1 Wend., 355), seem to rest on this principle, that if parties, believing that a certain state of things exist, come to an agreement with such belief for its basis, on discovering their mutual error they are remitted to their original rights. Error of fact takes place, says the same learned judge, either when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist. The question is, whether the law, as to the payment of money under the influence of a mistake, applies to this case. I think it does. The liability of a putative father for the support of his bastard child is created wholly by statute (he not being liable at common law), and the remedy there prescribed must be pursued. The statute authorizes a compromise and arrangement with the putative father relative to the support of such child. The compromise under the statute is merely a mode of getting indemnity on the part of the county for the support of the bastard. Whether the superintendent takes a bond or a sum of money, he but indemnifies the county against an actual or impending expense ; and when there has been no expense to the county, and there is to be none, against which the money was paid as an indemnity, then the money, ex eguo et bono, belongs to the persoii paying it. The plaintiff was charged with being the father of a child likely to be born a bastard, of which Louisa Heh’r was alleged to be pregnant. Both- the plaintiff and defendant acted upon the érroneous assumption that she was pregnant, and they compromised relative to the support of the _ child that, it was supposed, would be born a .bastard and become chargeable to the county. It is true that this compromise and settlement was made after the arrest of the plaintiff, and after he had been charged with being the father of the child; but I do not think that, because the matter was in process of legal investigation, the plaintiff was concluded by such compromise from ever after denying the pregnancy. The fact as to who was the father of the child 'may have been waived by the compromise, but not the vital fact which gave it all its force and without the existence of which the superintendent had no power to act, viz., the pregnancy of Louisa Heh-r. There was no disagreement or compromise between the plaintiff and the defendant as to the fact of pregnancy. They both believed and acted upon the assumption that she was pregnant, and it turns out that they were both mistaken. As there was no pregnancy, the county has not been put to any expense, and never cán be, and as the plaintiff paid his money to, indemnify the county under "a mistake of fact, I think he was entitled to maintain this action. It has been repeatedly held, that when money was paid under a mistake which there was no ground to claim in conscience, the party may recover back.

It is urged that this action cannot be maintained against the defendant, for the reason that he had no power to pay the money back. The superintendent, in compromising with the plaintiff, was acting under a special power conferred on him by law, and the money was paid to him in the first instance to provide for the child that was expected to be born. Bastards, it is 'true, are supported as paupers, and the superintendent has no power to retain moneys that may come into his hands, and' disburse them for the support of the poor. He must pay over such moneys to the county or into the poor fund, and then draw on the county treasurer for all necessary expenses incurred-in the discharge of his duties. It did not-clearly appear in this case that the defendant had paid over the money to tn'e county or into the poor fund. But if it had, it would have made no difference. I entirely concur with the learned judge who tried the cause, that, when it was ascertained that the woman had not been pregnant, and that -all parties had acted under a complete mistake of the fact, as the defendant would no longer hold the money for the original purpose, he simply held it for. the plaintiff. He had then no more right to pay the money to the county, or place it in the poor fund, than he would have had to bestow it on any charitable object. If this action will lie at all, it cannot be defeated by the voluntary transfer of the money by the defendant after the cause of action had accrued.”

The judgment of the Supreme Court should be affirmed.

All the judges concurring,

Judgment affirmed.