text:
    George C. Preston, App’lt, v. Samuel R. Hawley, Resp’t.

      (Court of Appeals,

      Filed October 3, 1893.)

    Use and occupation.
    In an action for use and occupation it appeared that defendant had sold a wool hat factory building to plaintiff and had requested permission to leave his goods in the factory until they were disposed of or worked up there. The goods were distributed through the entire building and re-, mained there two months and a half, defendant having entire control and occupation of it. Plaintiff repeatedly demanded rent of him, defendant admitting that he ought to pay, but claiming that the amount was exorbitant. The judge at circuit dismissed the complaint. Held, error; that whether defendant continued in possession during the term as tenant, and under circumstances from which the law would import an agreement to pay for the use of the property, and if so, what was the value of such use, were questions for the jury.
    Appeal from judgment of the supreme court, general term,, third department, affirming judgment dismissing complaint

      Howard Chipp, Jr., for app’lt; George Wilcox, for resp’t.

       Reversing 46 St. Rep., 776.

   Maynard, J.

This action is brought under the provision of the Revised Statutes which declares that “Any landlord may recover in an action on the case a reasonable satisfaction for the use atid occupation of any lands or tenements by any person under’ any agreement not made by deed." 4 R. S. (8th ed.), 2459, § 26..

The plaintiff cannot, therefore, recover without establishing the conventional relation of landlord and tenant. He succeeded to the title by purchase from the defendant, who remained in possession after the sale, during the period for which rent is claimed. But the bare proof of use and occupation by the vendor, after conveyance of the premises granted, is not sufficient to support an action for compensation under the statute. The purchaser’s remedy, in such cases is trespass or ejectment, and for the recovery of mesne profits. Woodfall’s L. and T. (11th ed.), 510; Boston v. Binney, 11 Pick., 1; Greenup v. Vernor, 16 Ill., 26; Tew v. Jones, 13 Meeson & Welsby, 12.

There can be no inference that the retention of the possession is pursuant to the agreement of the parties, for the presumption is that if such were the agreement it would have been so expressed in the conveyance of the property. Hpon the first trial of this action, which was reviewed by this court on appeal, 101 N. Y., 589, the plaintiff did not succeed because there was a substantial failure of proof that the defendant had gone into possession with the permission of the plaintiff, and under circumstances indicating the creation of a tenancy. He there rested upon the proof of use and occupation, and mainly relied upon the presumption of a tenancy which the law has never recognized, but has always disfavored in such cases. There was no further evidence, except that the plaintiff testified that he wrote to the defendant to send him a check and received no reply. He then drew upon the defendant,, and he did not honor the draft; and when plaintiff saw him he said that he thought the rent was excessive; that he should, pay for storage, but not for the regular full rent of the factory, and this occurred about a month before the defendant ceased to occupy the property.

The record now here is materially different, in this respect, from that presented by the former appeal. The plaintiff’s testimony, if entitled to credit, legitimately tended to the conclusion that the defendant’s possession, after the sale, was that of a tenant, and not of a trespasser, and that an action of ejectment or of trespass would not lie. He testified that upon the day of the sale, and after it bad taken place, the parties had a talk with reference to the occupation of the property, in which the defendant requested permission to leave his goods in the factory until they were disposed of or worked up there. The premises had been used as a wool hat factory, and the personal property there belonging to the defendant consisted of raw material and wool hats in all stages and conditions of manufacture, together with findings and hat bodies, and was distributed throughout the building in every room. Some of the stock was upon the cards, and the unfinished hats were in the formers. This property remained there for two months and a half, and during this time plaintiff had no,possession or use of the premises, but paid the taxes and) insurance. The defendant, by his agent and servants, occupied the entire building, and had the keys of the factory and all the indicia of possession and control of it.

He employed a watchman who slept in the building; had his safe and books and papers in the office rooms, and used- the office as his headquarters, for the purpose of not only looking after the goods which he had in that factory, but also conducted from it the operations of a straw hat factory in the same city. The agent made his daily reports to the defendant of the business of the straw hat factory from this office, and employed there at one time six or eight assistants, to make a catalogue of the goods previous to the auction sale, which, it is to be inferred, was also held there on August 22nd, when the defendant removed from the premises. He thus had their use for the full term stipulated, which was until the goods could be disposed of or worked up. The plaintiff repeatedly demanded rent of the defendant, both while he was occupying the factory and subsequently, and the defendant never disputed his liability to pay, and admitted that he ought to pay something, and that he expected to pay when Jje ■continued in possession, but contended that the plaintiff’s charge was excessive. He disputed the amount but not the existence of the liability. Hpon this evidence it is apparent that the plaintiff was never disseized, and that he could not have pursued the defendant as a wrongdoer. The silence of the parties upon the subject of compensation at the time the permission to occupy was given does not necessarily preclude a recovery by the plaintiff. It is the settled law of the state that an agreement to pay for the use of real property, where leave to enter upon and enjoy it is given, may be implied, and it is for this class of cases that the ■statute we have referred to was enacted. Osgood v. Dewey, 13 Johns., 240; Coit v. Planer, 4 Abb., N. S., 140 ; Despard v. Walbridge, 15 N. Y., 374; Collyer v. Collyer, 113 id., 448 ; 22 St. Rep., 723.

At common law an action of assumpsit would not lie for rent, ■except on an express promise made at the time of the demise, and hence the necessity for the statutory enactment, which was taken from the II Geo. 2, ch. 19, § 14. The rule, we think, which controls in cases like the present, is stated by Judge Earl in Collyer v. Collyer, at page 448 : “ It is true that the possession and beneficial enjoyment of real property, with the permission of the owner, is ordinarily sufficient to sustain an action upon an implied agreement for use and occupation. But where the use and occupation of real estate is under such circumstances as to show that there was no expectation of rent by either party, a contract to pay rent will not be implied.” In the present case the plaintiff’s evidence leads directly to the conclusion that both parties expected that some rent would be paid. The amount only was left to be the subject of future adjustment.

In Despard v. Walbridge, the plaintiff was the assignee of the landlord’s estate, and gave notice to a sub-tenant, whose term then' expired, that if he continued in possession he would regard him as a tenant at an annual specified rent, payable quarterly, to which the defendant made no reply, but continued in occupation of the premises, and it was held that this was a virtual assent to the "terms prescribed in the notice and was a sufficient foundation for an implied contract. Here the plaintiff twice wrote to the defendant demanding rent, and to one of the communications the ■defendant made no reply, and to the other he replied with the single objection of the excessiveness of the charge, which might be regarded as a recognition by him of an existing tenancy. The evidence in regard to the correspondence between the parties, and the admissions of the defendant, did not appear in this record as .they were presented upon the former trial. They were there accompanied by a disclaimer by the defendant of his liability to pay rent, which is not contained in the case under review, and which rebutted the inferences which may now be drawn.

In order to explain the occupation of the premises the defendant seeks to establish the relation of bailor and bailee, and to restrict his liability to a charge for the storage of his property. But we think the evidence is quite'as consistent with the existence of a contract of tenancy as of bailment, and that it was the province of the jury to determine what inferences should be drawn from it. We express no opinion in regard to the weight to be given to the evidence. Whether he continued in possession during the term for which rent is claimed as tenant of the plaintiff, and under circumstances from which the law would import an agreement for the use of the property, and, if so, what was the reasonable value of such use, considering the kind and the extent •of the defendant’s occupation, were questions which, we think, should have been submitted to the jury and left for their determination under proper instructions from the court.

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

All concur.


source: Caselaw Access Project

author: Gray, J.

license: Public Domain

text:
    The People, App’lts, v. The Binghamton Trust Co., Resp’t.

      (Court of Appeals,

      Filed October 3, 1893.)

    1. Banks—Laws 1882, chap. 409, §283.
    Laws of 1882, chap. 409, § 283, making it unlawful for any corporation, association or person ‘‘to advertise or put forth a sign as a savings bank, or in any way to solicit or receive deposits as a savings bank,” is aimed only at preventing a deception from being practiced upon the public by sign or representation, and does not apply to a trust company which advertises as such to receive saving deposits, issue pass books, etc.
    2. Same.
    Trust companies are not prohibited from transacting or regulating their business upon the general plan or in the manner usually adopted by savings banks.
    Appeal from judgment of the supreme court, general term, fourth department, refusing to restrain defendant from carrying •on its business, and granting judgment to defendant upon the merits.

      S. W. Rosendale, Attorney-General, for app’lts; W. J. Welsh,for resp’t.

         Affirming 47 St. Rep., 570.

   Gray, J.

In this action the People of the state, by their attorney-general, seek to recover a judgment in their favor, which shall decree that the defendant is exercising franchises not conferred upon it by law, and which shall adjudge in their favor and against the defendant for the amount of the penalty prescribed for carrying on business in violation of § 283 of chapter 409 of the Laws of 1882, known as the banking law.

By that section it is made unlawful for any corporation, association or person “to advertise or put forth a sign as a savings-bank, or in any way to solicit or receive deposits as a savings bank; ” and, for every offense against these provisions, the offender “shall forfeit and pay... .the sum of $100____to be sued for and recovered in the name of the People of the state by the district attorneys of the several counties, for the use of the poor chargeable, to said county in which said offense shall be committed.”

The district attorney did not bring this action, but he has joined in its submission. Inasmuch as no objection has been raised to-the form of the action, and in view of the ■ public interest in a determination of the issue raised, we shall pass over any question-of that kind, and we shall assume that a recovery might be had in such an action, if, upon the facts established, a violation as alleged is made out.

The facts were agreed to by the parties. It appears that the defendant’s mode of doing business is to issue a pass book to customers upon the receipt of deposits, containing sundry so-called “ rules governing deposits; ” that it issued and distributed a circular descriptive of the nature of the corporate business and pointing out the advantages to the public in dealing with the company ; and that it also published in the papers a certain advertisement descriptive of its business. With respect to the pass books issued by this defendant, it was argued that, as they were exactly similar-to those issued by savings banks in the feature of a set of interest rules, a violation of the banking law is evidenced. Whether it is true that the pass books are alike in the feature alleged we-cannot say, inasmuch as the fact is neither admitted, nor shown by the record. But, assuming that such likeness exists, are we-then to say that there has been a violation of the law ?

If those rules are such as savings banks have adopted, in their relations and dealings with depositors, I see nothing in them but a regulation of the manner of doing' business, which has nothing in its nature to make it so peculiarly appropriate to the savings-bank business as, in the view of the law, or of the ordinary mind, to constitute any test of the organic business; or that the rules are-other than would be. appropriate for adoption for the regulation of any business in which deposits of money are received and held upon an obligation to pay interest. I do not see that the rules; which are given in the circular as governing the “Interest Department,” and which are printed in the pass book, are such as-should be confined in their use to a savings bank business. They are eight in number. The first states the hours for business ; the second, that entries of deposits and withdrawals of moneys are-made through a pass book; the third, that to draw out moneys there must be a written order or check, and that the right to withdraw is subject to a condition, to be imposed at the option of the company, requiring a certain notice to be given, varying with the .amount proposed to be drawn; the fourth fixes the rate of interest which will be paid on deposits left for three months, and states how it will be compounded and computed; the fifth reserves a right to the company to close and refuse accounts; the sixth states that moneys may be deposited for minors under written directions; the seventh provides for the case of a loss of the pass book, and the eighth states that the acceptance of the pass book, with its entries, shall be the evidence of an agreement by company and depositors to be governed by these rules. The trust company has the power, under the fourth section of the act under which it exists, “ to receive deposits of trust moneys, securities and other personal property from any person or corporation, and to loan money on real or personal securities.” With this rather broad privilege, and having the power, by its first section, “to make contracts,” there can be no question as to its right to agree with its depositors with respect to their relative duties and obligations. That agreement is embodied in the eight rules, and in no one can we find any such innovation upon commercial practices, or such a novelty in idea, as to characterize it as especially applicable to any peculiar institution. These rules are, evidently enough, the product of a consideration of the nature of the obligation which the trust company assumes towards the depositor, and of certain prudential requirements, which have been suggested by a business sense and by the experience of men, founded upon •commercial transactions and crises.

The company’s power, by the eleventh section of the act, over the deposits extends to a use of them in making loans and in a pretty wide range of investments. Its relations with a depositor are, obviously, those of debtor and creditor. The moneys belong to the company when deposited, and through their use, in the.permitted ways, are gained the moneys from which to make the interest payments agreed to. Without being a banking corporation, as such is legally understood, it is a moneyed corporation and possesses many of the powers of a banking corporation; as may be inferred from the eleventh section, in prohibiting a construction which would authorize the issuance of bills to circulate as money. These circumstances sufficiently show that, in the formulation of rules to govern deposits, the company but compels the adoption of a reasonable and prudential agreement as the basis of its relations with a depositor. The statute has not prescribed a set of rules, or of regulations, for doing business with depositors, for the adoption by the one or the other class of corporations; nor has it done anything more than to define and limit their powers, duties and privileges. I know of no other principle of law which, as to commercial transactions within their chartered powers and involving the receipt or borrowing of, and the obligation to repay, moneys, denies the entire freedom to regulate them by such a contract as the parties are willing to enter into.

The learned attorney-general, conceding that trust companies may receive deposits of moneys and may pay interest upon them, argues that they may not transact or regulate their business upon the general plan, or in the manner usually adopted by savings banks. Why may they not? Can there be such a thing as an exclusive appropriation of a system of conducting commercial transactions, and thereby to symbolize it to the world ? I do not think that savings banks, however closely in the public interest they should be guarded, should be accorded a monopoly of any set of business rules. The vice of the position taken for the People in this controversy seems to be found in attaching a wrong sense to the language of the section. The prohibition is that a corporation shall not “solicit or receive deposits as a savings bank.” It would not be correct to interpret that language as though its literal reading were “ to solicit or receive deposits as a savings bank solicits or receives deposits.” That would, in my opinion, impute to the legislature an unnecessary intention. I think it plain that it embodies the legislative intention that a corporation shall not, in soliciting and receiving deposits, represent, or hold itself out as a savings bank so as to deceive the public.., Unless it can be established that, in the acts of issuing the circular and of publishing the advertisement in question, there is either a soliciting of deposits from the public in the character, or under the pretense of being a savings bank, or an advertising, of the corporate business in such manner as to deceive persons into believing it to be that of a savings bank, we could not say that any violation of the law has been made out

It ought to be plain to the ordinary mind, in reading the circular, that the features described to the public as being valuable and attractive mark the company at on.ce as being other than a savings bank, and as possessing several attributes and capacities very different from those of banks for savings. It sets out by announcing to the public its corporate title, and its readiness to receive deposits óf money, and to transact such other business as its charter permits. It describes the advantages which trust companies offer by reason of having a capital, and being subjected to certain legal restrictions, and their greater safety as depositaries which people may trust with their savings. It sets forth the amount of its paid-in capital; mentions the liability and solvency of its stockholders, as an added security to the depositor; describes its investments; narrates the powers conferred by the charter, and under the heading of “An Interest Department,” gives a set of rules, which'are the same as printed in the pass book, and which have been described. It explicitly says that it “ differs from a savings bank in that it has a large capital invested, that is pledged as security to its depositors.” The whole circular is the company’s prospectus, setting forth the advantages and superiority of trust companies in general as depositaries of the people’s moneys, and of this company in particular; not because of any special legal attributes, but because possessing, in connection with its organization and management, certain solid and attractive features. There is nothing in the paper which should lead minds of the plain order to suppose that the corporate business was that of a savings, bank; and the only feature of corporate resemblance is in the soliciting of deposits in the manner in which they would be received and held. That, however, is not a business distinctively and exclusively of a savings bank. Nor is the published advertisement of the defendant subject to any other legal criticism than is the circular. The advertisement is not that the defendant could or would do business as a savings bank; and no more than the circular does it hold the company out as a savings bank.

In discussing whether acts were in violation of law, I have, of course, had in mind the statutory prohibition or provision in the section of the banking law referred to. I have not had reference to the statute under which the defendant is incorporated. We are not concerned with the question of whether it has violated any provision of its charter. That question is not here. If there has been any such violation, or an exercise of powers or privileges not conferred by law, that question can only be raised and tried out in another form of action provided to be brought by the attorney-general. That with which we are alone concerned is whether the inhibition in the banking law is met by the facts of this case, so as to render the defendant amenable to the penalty prescribed for a violation. I think it clearly is not The provision is only aimed at preventing a deception from being practiced upon the public by sign or representation. It is intended to act as a safeguard to what, under the legislation in the state, exists with respect to corporations which are created to become safe depositaries of the people’s moneys, and which are designed solely for the public advantage, and not for the promotion of any private interests of the organizers or members.

If we were called upon to discuss the relative advantages of the two classes of institutions, in the feature of security offered to the depositor, it might be said that the trust company is the safer in the added resource of a capital stock. Each is placed under a supervision by the state government, and the difference in the powers, or in the restrictions imposed upon the use or investment of moneys, rests upon the difference in the purposes for which incorporated. The trust company is incorporated for the purpose of gain to the members of the corporation; while the savings bank is in the nature of a charitable institution, the sole corporate purpose of which is to securely protect moneys deposited up to a certain fixed amount by individuals and, by investing them in such limited and prudent ways as the legislature has prescribed, to secure a safe and moderate return by way of interest upon the moneys held. Whatever tends to the protection of a bank for savings is in the public interest, and it is in the line of that protection that any appearance, or external sign, or representations should be prohibited, which would deceive and cause the public to suppose that a business institution, really organized for the gain of its members, was a savings bank. But the line ends with securing that general protection against public deception, tod does not project itself into the mere methods by which transactions with depositors or dealers are conducted. There can be no exclusive appropriation of business laws, or business methods. Where commercial transactions are alike in their character, the parties to them are entitled to make use of the same business rules, and to contract in the same manner respecting them.

I think, for these reasons, that the judgment of the general term was right, and should be affirmed by us, with costs.

All concur, except Maynard, J., not voting.


author: Maynard, J.

text:
    Byron Pond, Resp’t, v. Caroline L. Harwood, Imp’ld, App’lt.

      (Court of Appeals,

      Filed October 3, 1893.)

    1. Injunction—Perpetual stay.
    In cider to justify a perpetual stay of a proceeding facts must be shown, which, according to the established rules for the administration of equity, will authorize that kind of relief. A subsequent action cannot be maintained to restrain the prosecution of another action in the same court, unless it clearly appears that full and complete justice cannot be obtained in the earlier action.
    2. Same—Set oee in equity.
    Something more than the mere existence of reciprocal and independent demands is required to authorize a set ofE in equity when not allowable under the statute of set ofEs. Circumstances must be shown from which it can be inferred that one debt was contracted on the faith of the other, or that there was an agreement between the parties that the one should be deducted from the other, or some other intervening equity which renders the interposition of that court necessary for the creditor’s protection.
    S. Same.
    A purchaser of a debt after suit brought against him, for which he pays nothing and with knowledge of the debtor’s insolvency, is not in a position to demand the application of the rule as to equitable set oils.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment for plaintiff.

      Oliver P. Buel, for app’lt; Richard L. Hand, for resp’t.

       Reversing 36 St. Rep., 1018.

   Maynard, J.

The defendants, Caroline L. Harwood and William S. Judd, were the residuary legatees under the will of their father, David Judd, who died May 2, 1868, and each was entitled to an equal half of the estate. They thus succeeded to the title to one hundred and sixty acres of land in Wisconsin, of which their father had become the owner by virtue of a bounty land warrant as a soldier in the war of 1812. The plaintiff is an attorney, residing in Essex county,-and, as appears from the verified account filed by him in this action, he was the attorney for the defendant, Mrs. Harwood, who alone brings this appeal, from May, 1869, to October, 1882, with respect to various matters connected with her interests in her father’s estate, including the Wisconsin lands. He was also, during the same time, the attorney for Mrs. Elizabeth Judd, the widow of David Judd, who, under his will, was entitled to a life estate in the homestead property at Elizabethtown, and to an annuity of three hundred dollars, which, for the purposes of this appeal, may be regarded as a charge on the entire estate left by him. Grove M. Harwood, the husband of the appellant and a lawyer, and the brother, William S. Judd, were the executors of the will, and both qualified, but Harwood .alone, in fact, acted. The plaintiff was also attorney for the executors in the settlement of the estate, and received assets for collection belonging to the estate, and a suit for an accounting brought by the executors was pending when this action was tried.

The plaintiff, acting as the attorney for the appellant and her brother, sold the Wisconsin lands in 1882 for $900. A controversy having arisen between the plaintiff and appellant in regard to the application of the proceeds of sale, she brought an equitable •action against him on April 7, 1888, in the supreme court in Kings county, where she resided, for an accounting and for the recovery of the moneys due her upon the sale of these lands. Before the time to answer expired plaintiff procured an order extending it thirty days. Meanwhile, on May 5th, he obtained from Mrs. Judd an assignment of a judgment against the appellant, entered by him as attorney January 10, 1879, for $958, and •docketed it and issued execution to Kings county, which was returned unsatisfied May 18th. On May 24th another order extending the time to answer was obtained. June 5th he served his ■answer and simultaneously brought this action in Essex county, and procured a preliminary injunction order restraining the appellant from the prosecution of her action in Kings county during the pendency of this action. William S. Judd is also made a party defendant here, and the plaintiff seeks relief in this action of a three-fold character. First. The discovery of assets and their application to the payment of his judgment, the usual judgment «creditor’s remedy. Second. An accounting between himself and the defendants, and the set-off of his judgment against any balance found due the appellant from him. Third. A perpetual injunction restraining the plaintiff from the prosecution of her action in Kings county.

The referee to whom the cause was referred reported that the -plaintiff was entitled to judgment: 1st. Perpetually restraining s.nd enjoining the appellant from prosecuting her action. 2nd. Adjudging that the plaintiff had fully accounted and settled with the defendants concerning all matters between them, and upon such accounting there was nothing due from the plaintiff to the defendants, or either of them, but the defendants are indebted to the plaintiff, exclusive of the judgment, in the sum of $622, of which the appellant should pay $516, and William S. Judd $106. 3rd. For the enforcement of the judgment of Mrs. Judd assigned to the plaintiff .against the equity of redemption of the defendants in the homestead property, and 4th. For the recovery : against the appellant of any balance due on the judgment after applying the avails of the sale of her equity of redemption, and the costs •of the action. Judgment was accordingly entered, from which this appeal has been taken.

Upon the findings and proofs, we do not think the plaintiff was entitled to any of the relief which has been awarded him.

As a creditor’s bill the plaintiff’s complaint should have been dismissed, for no assets were discovered, either legal or equitable, which could be applied in satisfaction of his judgment. It is claimed that the appellant had an interest or equity in the homestead property, which could be reached by a creditor’s bill, and sufficient to support the action. There is no finding that such interest or equity, if it exists, has any value, and the plaintiff in the complaint avers that it does not exceed $100, and in the affidavit of verification of the complaint he states that it is not worth anything. But in the view we take of the legal effect of the instrument, under which it is insisted that this interest is created and which will be more fully referred to hereafter, the appellant is not shown to have such a vested right to, or interest in, the property as would render it liable to sequestration by her creditors. It is apparent from the structure of the complaint and the course of the trial, that the real purpose of the action was to forestall the prosecution of the appellant’s suit in equity, and that the vicinage of the forum where the controversy was to be determined was regarded as a point of great advantage. There can be no doubt that the supreme court may, in a proper case, perpetually stay the proceedings of the plaintiff in an equitable action at the suit of his adversary in another equitable action. Formerly the court of chancery denied the existence of the jurisdiction, and said that an application for such a stay could scarcely be considered as seriously made. Medlock v. Cogburn, 1 Rich. Ch., 477 ; McReynolds v. Harshaw, 2 Iredell Ch., 196.

Although the power now concededly exists, it cannot be arbitrarily asserted. The grant of a temporary injunction is usually discretionary; but not so with a decree allowing a perpetual stay. Facts must be shown which, according to the established rules for the administration of equity, will authorize that kind of relief. A subsequent action cannot be maintained to restrain the prosecution of another action in the same court, unless it clearly, appears that full and complete justice cannot be obtained in the earlier action. Hall v. Fisher, 1 Barb. Ch., 53; Hayward v. Hood, 39 Hun, 596; Cowper v. Theall, 40 id., 520; 2 St. Rep., 108; Erie R. Co. v. Ramsey, 45 N. Y., 637 ; Savage v. Allen, 54 id., 458 ; Wallack v. Society, 67 id., 23. As was said by Com. Reynolds, in Savage v. Allen, supra: “The proposition that a separate action may, under our present system, be maintained to restrain by injunction the pi’oceedings in another suit in the same or another court, between the samé parties, where the relief sought in the later suit may be obtained by a proper defense to the former one, has long since been exploded, or, if not, should be without delay.”

As an action fpr an accounting, all the relief which the plaintiff claims, and to which he has been found entitled in this action, could have been secured in the .appellant’s action. If William S. Judd was a necessary party to a complete determination of the controversy, he cóuld have béen made a party to that action upon motion of the plaintiff in this action, or the court could, upon its own motion, have directed that he be brought in, whenever it appeared in the progress of the action that his pres; ence was required for a full and final adjudication of the rights of the parties. Code, § 452. But upon the facts disclosed by the record he does not appear to be a necessary party. The appellant was a tenant in common with him of the Wisconsin lands, and their shares were held in severalty. He has never asserted any equities in her share, or sought to charge her with more than one-half of the expense of the care and sale of the property. He has made default in this action, where he might have been heard if he had any equitable claim against the appellant. It is not shown, that the plaintiff had ever received any notice from him that he claimed to be entitled to any p,art of his sister’s share. As she only sought to recover her equal portion, the plaintiff would have been protected in dealing with her to that extent, in the absence of notice of any equitable demand upon it by her brother. It would thus seem that a complete and final accounting could have been had between the plaintiff and the appellant in her action without his presence, but if, for any reason, it should be deemed proper by the trial court that he should be brought in, its power is ample to cause it to be done. Mor was this action maintainable for the purpose of enforcing an equitable set-off of plaintiff’s judgment against any balance which might be found due the appel.lant upon an accounting. Plaintiff was not the owner of the judgment when the appellant’s action was brought. He purchased it subsequently with full knowledge of the situation, and of the appellant’s insolvency, and paid no value for it. If there is anything due on it, he may enforce it by such appropriate proceedings as the law may authorize; but he cannot invoke the interposition of a court of equity to give him an advantage which at law the ownership of the judgment does not confer upon him. Something more than the mere existence of reciprocal and independent demands is required to authorize a set-off in equity when not allowable under the statute of set-offs. Circumstances must be shown from which it can be inferred that one debt was contracted on the faith of the other, or that there was an agreement between the parties that the one should be deducted from the other, or some other intervening equity, which renders the interposition of that court necessary for the creditor’s protection, Willard’s Equity Jur., Potter’s ed., 1008.

As it was stated in Hackett v. Connett, 2 Edw., 73, “Equity decrees a set-off, independent of the statute, only where mutual debts exist, and where there was either an express or implied agreement of stoppage pro tanto, or mutual credits.” In such cases it is allowed; otherwise the just expectation of the-parties might be disappointed. Wolcott v. Sullivan, 1 Edw., 399 ; Greene v. Darling, 5 Mason, 202 ; Hatch v. Mayor, etc., 82 N. Y., 442.

It is clear that a purchaser of a debt after suit brought against him, for which he pays nothing and with knowledge of the debtor’s insolvency, is not in a position to demand the application of the rule.

But whatever equitable right of set-off the plaintiff had it was available to him in the appellant’s action. That was an equitable action, where the rule is different than in actions at law, and the right to judgment is not limited to the facts as they existed at the commencement of the action, but the relief administered is such as the nature of the case and the facts, as they exist at the close of the litigation, demand. Peck v. Goodberlett, 109 N. Y., 180; 15 St. Rep., 182; Mad. Ave. Bap. Ch. v. Oliver St. Bap. Ch., 73 N. Y., 82; Worral v. Munn, 38 id., 137; Gay v. Gay, 10 Paige, 369.

If upon the trial of the appellant’s suit it should appear that there were any equitable reasons why a set-off should be allowed of a debt acquired after the action was brought, it cannot be doubted that the court wbuld have jurisdiction to direct it to be done.

We, therefore, think the plaintiff failed to establish any ground for the maintenance of this action, and that, upon the facts found by the referee, the complaint should have been dismissed.

We are also of the opinion that, upon the uncontroverted facts, it must be held that the plaintiff’s judgment was fully paid before the assignment of it by Mrs. Judd. David Judd, the testator, left personal property of the value of at least $15,000, after paying his debts, which was divided in 1868, by the agreement of the parties and without any judicial proceeding, into three parts, the appellant and her brother taking $5,000 each, and$5,000 wmsleftin the hands of the executor Harwood as a fund out of which to raise and pay Mrs. Judd’s annuity in half-yearly instalments. It may be inferred that Mrs. Judd assented to this arrangement, and from 1868 to 1875 her annuity was paid by Harwood in the manner stipulated. In 1878 Harwood became financially embarassed and involved the appellant also in h is embarrassments. He had given Mrs. Judd his own drafts for three years annuities which were unpaid. He was, for purposes of his own, desirous of securing the payment of these drafts, and he was also, evidently, apprehensive that his wife’s creditors would seize upon her interest in her father’s estate, and, at his instance, she gave Mrs. Judd her note for $928, Nov. 2, 1878, to secure the payment of the past due annuities. In a few weeks after, the plaintiff, acting as the attorney for Mrs. Judd, brought suit upon this note in the supreme court, at the request of Harwood, who procured a firm of attorneys to appear for his wife and make an offer, upon which plaintiff entered judgment January 10, 1879, for $958. In the following May, Harwood requested the plaintiff to issue execution upon the judgment, and upon its return nulla bona to institute proceedings supplementary to execution and have a receiver of his wife’s property appointed in order to anticipate the threatened action of other creditors. Harwood was then at Syracuse, but his wife was temporarily residing with Mrs. Judd at Elizabethtown. She had been instructed by him to do whatever the plaintiff directed. The plaintiff did not institute supplementary proceedings on the judgment as suggested by Harwood, but procured from the appellant a conveyance, May 30, 1879, of her interest in the real estate in Essex county, owned by her father at his death, consisting mainly of the homestead property; of a lot under contract to one French, and of the undivided one-half of a wild lot. This conveyance was made for an expressed consideration of $400 to apply on the judgment, and appellant gave Mrs. Judd a chattel mortgage upon all her personal property for $584, to secure the balance of the judgment. The plaintiff wrote Harwood, June 2, 1879, informing him that he had taken this course instead of instituting supplementary proceedings, and that he deemed it the better way; that he had issued an execution and had it returned unsatisfied, and as he was on the spot and would know if any hostile judgment creditor undertook to issue execution for the purpose of commencing supplementary proceedings, he could start such a proceeding at a moment’s notice and secure priority.

It is plain that Mrs. Judd was not the moving party in these proceedings. She never demanded or requested any security from the appellant for the payment of her annuity. Conceding that the annuity was a charge upon the real property devised to the appellant, she was not personally liable for its pajrment. Over eleven years had elapsed since she had received her share of the personal property, with the assent of all the parties interested, and it is not seen how any action or proceeding could have then been maintained to reach that part of the estate. The record admits of but one conclusion. The note was given, the judgment confessed, and the deed and mortgage executed, not because Mrs. Judd sought or required them, but to protect the appellant, acting under the advice of her husband and the plaintiff, from the attack of other creditors, and the correspondence discloses that it was expected by both parties that when the storm had gone by there should be an adjustment of the matter upon the basis of the actual value of the property represented in the transaction. If there were any. doubt upon this point, it would be dispelled by the correspondence between Harwood and the plaintiff in regard to the chattel mortgage. On March 3, 1881, Harwood wrote; plaintiff, calling his attention to the existence of this mortgage, and saying: “ Of course, both you and Mrs. Judd understand that, the object was to protect Carrie in case any other creditor should, undertake to make her trouble. I do not think there is any further danger on that score and requesting plaintiff to' secure a surrender or cancellation of the mortgage. Plaintiff replied on March 15th, requesting a description of the mortgage, its date, amount and place of filing, and saying, if he had these things, he would draw a release and Mrs. Judd would execute it. On the 16th Harwood sent a release for Mrs. Judd to execute, and on the 19th the plaintiff returned it duly executed. The plaintiff and Mrs. Judd seem to have promptly acquiesced in the statements made by Harwood as to the object for which the mortgage was given.

In 1880, the plaintiff sent to the defendant, William S. Judd, who was living in the state of Minnesota, a deed to be executed by him to Mrs. Judd of his interest in all the real estate in Essex county owned by his father at the time of his death, and being the same property described in the deed from the appellant to Mrs. Judd. This deed bore the same date as the deed from appellant, May 30, 1879,'but was not executed until February 14, 1884. It may here be noted that the value of the property conveyed by the appellant to Mrs. Judd, May 30, 1879, was more than sufficient, according to the estimate then placed upon it by the plaintiff, to satisfy the judgment. The consideration expressed was $400, and it was taken subject to a judgment recovered by the executors of the Buck estate against the testator upon which there was unpaid over $700, making the value of the property conveyed over $1,100. The Buck judgment was not paid out of this property, but the plaintiff ultimately satisfied it out of the avails of the Wisconsin lands sold by him. Or, if the value of the estate then conveyed by the appellant and her brother be taken as estimated by the referee, it reaches the sum of $1,660, or nearly $700 in excess of the judgment.

But the application of the proceeds of these conveyances was finally adjusted on September 14, 1885, when Mrs. Judd received from the executors money and securities to the amount of $1,779. Included in this was a note of the plaintiff’s upon which there appeared to be due, for principal and interest, the sum of $539. The receipt stated that it was received by Mrs. Judd subject to the deductions which the plaintiff might be entitled to, if any, on settlement of his account with- the Judd estate. Upon ihe trial of this action the plaintiff gave no evidence tending to show that he was entitled to any credit upon this note. Mrs. Judd at the same time executed, under her hand and seal, a written instrument in which she certified and declared that the two conveyances from the defendants to her, dated May 30, 1879, quoting the lan-» guage used. “ were made and delivered to and accepted by me in consideration of the sums then due and to become due to me on account of my annuity of three hundred dollars per annum under and by said last will of said David Judd, and to apply thereon to the extent of the value of the interests and property so conveyed to me.” Then followed an agreement, reciting a consideration of one dollar, that in case she sold any of the real estate the avails should be credited upon the annuity and accounted for to the defendant after deducting all sums due her from the estate and the value of her life estate therein, and that whenever the sums due and to become due heron account of her annuity should be paid she would reconvey whatever remained unsold of the real estate to the defendant; and that she would not sell any of the real estate without notifying the defendants, or one of them, of the proposed terms .of sale, and giving them, or one of them, an opportunity to purchase or procure a purchaser on more favorable terms. It appears by the evidence and findings that the present worth of the defendant’s interest in this real estate was then at least $2,030, which, with the payments then made and receipted for, amounted to $3,809. The total of the past due annuities, including those secured by the judgment, and computing interest upon the judgment and each subsequent annuity from the time it fell due, was at that time about $3,700, according to the figures given by plaintiff's counsel. We think that the legal effect of this transaction was to extinguish the judgment as a security in the hands of Mrs, Judd. According to the findings of the referee theiappellant had no personal property out of which it could be collected, and the only real property upon which it could be a lien was her interest in the real estate conveyed.

But the plaintiff contends that the note upon which the judgment was recovered was given in payment of the annuities, and that the judgment was, therefore, the independent and absolute debt of the appellant, and that the transaction of September 14, 1885, had reference only to the annuities accruing and to accrue subsequently to the^ giving of the note. But the'referee, upon the request of the appellant, has found that the note was given as security for the payment of the annuities then due, and if there is any finding in the report of the referee which is in conflict with it, the finding made at the request of the appellant must control. When the note was merged in the judgment the form only of the obligation was changed, and its character as collateral security remained. When the annuities were paid which it was given to secure, its life was gone. The payments acknowledged in the receipts of September 14, 1885, amounting to $1,779, would, of themselves, be more than sufficient to discharge the annuities secured by it, and, in the absence of evidence of an application of them by the creditor, or by the agreement of the parties, or of any equities which would require a different application, they would be applied to the payment of the debts of the longest standing in preference to later demands, and to the discharge of a debt for which the debtor has given security in preference to an unsecured demand. Dows v. Morewood, 10 Barb., 183; Thomas v. Kelsey, 30 id., 268; Thompson v. St. Nicholas Bank, 113 N. Y., 325; 22 St. Rep., 929; Nat. Park Bank v. Seaboard Bank, 114 N. Y., 28; 22 St. Rep., 160.

It is insisted that the appellant is not entitled to credit upon the judgment for more than one-half of the value of the property conveyed, inasmuch as her brother was the owner of an undivided half, and the referee has found that the conveyance from him was a gift to Mrs. Judd. A search of the record will fail to disclose any evidence to support this conclusion. In the letter in which the plaintiff transmitted the deed to William for execution he states that the object of the conveyance is to compensate Mrs. Judd, in part, for her lost annuities, and she subsequently declares in a sealed instrument that the conveyance was received upon that consideration. But, as between the appellant and her brother, his share of the estate was equally subject with hers to the annuity charge. Whatever sums she might pay or secure for the purpose of discharging the annuities, and thus relieving the real property in which he had an interest, she might still regard in equity as a charge upon his portion for her benefit and enforce reimbursement out of the proceeds thereof to the extent of one-half of the amount thus paid or secured. Hence, whether the conveyance by him to Mrs. Judd was a gift or not is immaterial. The property was equitably charged as between himself and sister with his share of the amount which she had paid or secured on account of the past due annuities, and this charge would survive the conveyance to Mrs. Judd as she was not a purchaser for value.

The agreement of September 14,1885, did not operate to divest Mrs. Judd of the fee of the land which she acquired from the defendant by the conveyance of May 30, 1879, or reduce her estate' to that of a mortgagee, or invest the defendants with any interest or equity in the premises. These conveyances were absolute and not conditional and not subject, when made, to any agreement for their defeasance. By the subsequent writing she merely stipulated that if she sold the property she would give the defendant, the refusal to purchase or to find a purchaser upon the same terms offered to others, and if she sold a portion and realized enough, to pay what was due or to become due upon her annuity, she would re-convey the residue of the property to the defendants. Such an agreement did not convert the fee into a defeasible .estate. Kraemer v. Adelsberger, 122 N. Y., 467; 34 St. Rep., 24; Randall v. Sanders, 87 N. Y., 578; Macaulay v. Porter, 71 id., 173. No recourse could be had to the land in case Mrs. Judd disregarded the terms of the agreement. In such an event the only remedy of the defendants would be an action for damages for a breach of the agreement. But the contingency upon which such a claim might be based has not happened, and the defendants have as yet not acquired any alienable interest in the property by any act of the grantee.

The judgment must be reversed and a new trial granted, costs-to abide the event

All concur.


text:
    Jonathan D. Condict, Resp’t, v. Jane H. Cowdrey, App’lt.

      (Court of Appeals,

      Filed October 3, 1893.)

    Bbokebs—-Option.
    Plaintiff was employed by defendant’s agent to sell certain property in Kentucky, and procured an agreement to be made with one B., giving Mm an option at ten cents an acre for four months, it being agreed that B. should search the title, etc., for himself. The option expired andM., who-was B’s. attorney, a year after induced one Wolff to join with him, and pay ten cents per acre, $2,000 down, and the balance in three acceptances,, which with the deeds were deposited in escrow with a bank in New York, It was a part of the agreement tliatM. and Wolff should examine the title- and if defendant had no title then there was to be no sale. M., upon investigation, found that defendant’s abstracts were false and the title was in another. Held, that there never was a sale but only an option to buy which never ripened into an actual purchase.
    Appeal from judgment of the New York superior court, general term, affirming judgment for plaintiff entered on verdict of jury.
    _William M. Ivins, for app’lt; Henry G. Atwater, for resp’t.
   Maynard, J.

The defendant was the executrix of her husband’s will and the devisee of his real estate. Among the title papers which came into her possession were conveyances to him of eight different tracts of land in various counties in the state of Kentucky, aggregating 435,000 acres, and what purported to be duly certified abstracts of title,' showing, upon their face, a complete chain from the commonwealth of Virginia. It does not appear that the defendant, or her managing agent, one Samuel R. Dickson, had any knowledge of the genuineness of these abstracts. In 1887 Dickson, acting for the defendant, employed the plaintiff, a real estate broker, to effect a sale of these lands for her, and on May 10th she addressed, signed and delivered to the plaintiff the following -written memorandum of his employment:

Sir: I hereby agree to pay you a commission of ten per cent on the price I may accept for the 435,000 acres of land in Eastern Kentucky, belonging to me, if sold through your agency. I hereby acknowledge your agency in bringing Jere Baxter and his associates to me, whereby a refusal until September 10th next-was given by me.”

On the same day a written option was given by her to Baxter for the purchase of these lands at ten cents per acre for a period of four months, and it was expressly stipulated in this writing, “ that he, the said Baxter, shall, at his own expense, time and labor, have the titles to said property examined into, and the-condition and character of the lands examined, and gather all information he may deem necessary for him to act intelligently in the premises, the vendors not being able to give him such information.” This option was to be renewed for ninety days, if Baxter desired it. Baxter resided at Nashville, Tenn., and endeavored to associate W. A. Milliken, a lawyer of that city, with him in the negotiations. Milliken visited the lands and made some examination as to their location and quality and the-extent to which they were occupied by squatters, but made no investigation of the title. Baxter’s option expired without effecting a purchase, and Milliken then continued the negotiations in his own behalf. As the defendant required payment either in money or short time paper, it seemed necessary for him to obtain the assistance of some one possessed of the requisite means to meet these requirements. In April, 1888, he succeeded in inducing Frederick Wolff, a banker and broker in New York, to consent to join with him in the purchase of the property. It was finally agreed between them and the defendant’s agent that they would pay at the rate of ten cents per acre, or $43,500, for the property, as follows: $2,000 down, and three acceptances of $13,833.33 each, drawn by Milliken on Wolff to the order of defendant and accepted by Wolff, payable at three, four and six months, respectively, and the defendant should sign and acknowledge the deeds of the property, and that the acceptances and the deeds should be deposited as an escrow with the-Second National Bank of New York, and upon the payment of the acceptances the deeds were to be delivered by the bank to Wolff and Milliken. On April 26, 1888, the $2,000 were paid, and the acceptances signed and the deeds executed, and both deposited with the bank, as agreed, and a written receipt signed by the defendant and delivered to Milliken and Wolff, showing that all these things had been done. At the same time there was left with the bank a written memorandum called “ Conditions of Hypothecation,’’ not signed by any one, and, as shown by the evidence, drawn by the defendant’s agent without the knowledge or assent of the purchasers, reciting that there was placed with the hank, for safekeeping and delivery, eight deeds transferring the title to 435,000 acres of land, situated in the state of Kentucky, from the defendant to Milliken and Wolff; also, three obligations for the payment of money, describing them, which three obligations are made for the purchase of said lands, and stating that if the obligations are paid at maturity the deeds are to be delivered, but in case of any default in the payment, the deeds are to be delivered to the defendant, and that all moneys paid shall be forfeited in liquidation of damages sustained by virtue of the non-payment of any of the obligations. As yet the title had not been investigated. The defendant was not willing to make any other conveyance than a quit-claim deed; the intending purchasers were not willing to complete the purchase and take the property unless the title was found, upon examination, to be good; and the proof shows that it was also a part of the agreement of the parties that Milliken and Wolff should examine the title before the acceptances matured, and if it was found that the defendant had no title, then there was to be no sale. Before the first acceptance fell due Milliken went to Kentucky and examined the title and found that the abstracts which the defendant had were false in every material respect; that the signatures to the certificates were genuine, but the conveyances set forth in the abstracts did not exist and had never existed, and that there was a complete chain of title to the lands in another upon the public records.

The defendant, therefore, had no lands, and not even a color-able title to any lands in Kentucky, which she could convey. Milliken and Wolff immediately notified the defendant and the bank of the discovery of the non-existence of her title, and of their refusal to complete the purchase, and they demanded of the defendant the re-payment of the $2,000, and of the bank the surrender of the acceptances. They also brought an action against the defendant in the U. S. circuit court for the recovery of the money and the cancellation of the acceptances. The defendant was willing to refund the $2,000, but Milliken and Wolff demanded damages for fraud in the transaction, which the defendant resisted. This suit was compromised June 20, 1889, by the defendant agreeing to re-pay the $2,000, and to pay $900 in addition for the expenses of Milliken and Wolff, and the acceptances were to be surrendered and the deeds returned.

It appears from the testimony of Milliken why the investigation of the title was left to the last. He was acquainted with the reputation of the officer who certified to the abstracts, and knew him to be a prominent lawyer of Kentucky, and had confidence that the abstracts would, upon examination, be found to be correct.

The plaintiff insists that there was a sale of the property by the defendant to Milliken and Wolff, and that he was entitled to his commissions under the agreement of May 10th, and he has recovered judgment for the full amount and interest, from which this appeal has been taken.

When the plaintiff rested the defendant moved for a nonsuit upon the ground that this transaction, which we have detailed, was not a sale which entitled plaintiff to a commission, but simply an option, and that under the terms of that option the property was not finally taken; in other words, that the transaction was not consummated, and failing in the consummation, the property not having been sold, nothing was earned by the plaintiff. This motion was denied and also a like motion, at the conclusion of the evidence, and an exception taken. This case has been here on a former appeal, 123 N. Y., 463; 34 St. Rep., 107, and it was then held, we think, that upon substantially the same proof as that made by the plaintiff’s witnesses the transaction between the defendant and Milliken was not a sale, but a mere option to buv, and that the plaintiff failed to establish his cause of action.

Upon that trial the plaintiff relied upon the receipt and the memorandum of the conditions of hypothecation as constituting a written contract which could not be varied, explained or modified by parol. But a single witness was examined by the defense, the agent Dickson, who testified that “ they were not willing to pay for the land until they had searched the title, and to give them that opportunity the postponement of the cash purchase was deferred, as specified in the notes, upon the express agreement that the deeds and the notes should be placed in escrow till such time as they might be able to be satisfied as to the title, and if the title was satisfactory they would pay the paper and take the deeds; those were the terms of the transaction.”

The court upon that trial rejected this evidence and directed a verdict for the plaintiff upon the ground that all prior oral negotiations were merged in the written contract, which must control.

This ruling was held to be erroneous by this court, and Judge Finch, commenting upon the testimony of Dickson, which we have quoted, said : If this evidence is true, what appears upon the face of the papers to have been an agreement of sale is in reality a privilege to purchase at a fixed price, and to refuse to purchase upon the forfeiture of a definite sum, or what seemed to be an agreement of sale is in truth a mere option to purchase. If this evidence is true, the alleged vendees never bound themselves to take the land, but preserved their freedom to refuse, and the acceptances in Mrs. Cowdrey’s hands were so much waste paper and incapable of being enforced. Her sole right was to retain the money paid, and the alleged vendees were never bound to take title or pay the purchase money. In other words, there was no absolute contract of sale, but merely an option.” The witness Dickson was sharply contradicted by the plaintiff upon other points, and this court held that, so long as the case rested upon his evidence, it should be submitted to the jury.

The course of the present-trial was widely different. The plaintiff produced Milliken as a witness, who gave a detailed history of the negotiations between him and the defendant’s agent, from, their inception to the time when they were finally broken off by the discovery of the failure of the title. He was corroborated by Wolff and by Montague, the president of the bank, both of whom were called by the plaintiff. His testimony makes it entirely clear that under the former decision of this court there was never a sale, but only an option to buy, which never ripened into an actual purchase. He states that he refused to complete the purchase, because, upon examination of the records in Kentucky, he found that the defendant did not have the title which the abstracts purported to show ; that “ we never consummated the salethat, the acceptances and deeds were deposited in the bank in escrow, there to remain until the acceptances were all due and paid, when the deeds were to be delivered, and meanwhile they were to examine into the condition, character of and title to the lands, and if the title was not found to be as set out in the abstracts, the contract of purchase was not to be carried out; that the contract was-not to become absolute unless the title proved upon examination to be as represented; that they, were negotiating for the purchase of the title as stated in the abstracts, and if it turned out that there-was no such title, there was no purchase. The plaintiff’s witness-Wolff testified ; “It was an agreement this way : Mr. Milliken to. examine the abstract of title in the different counties of Kentucky, and to verify it, and on his verification I had to pay the balance of the notes,” and the sale was conditional upon that. Again, he says; “ The sale was made in this way : They furnished me with the abstract of title, and stated that these deeds as stated in the abstract were recorded in the different counties; I was willing to-take the title, a quit-claim deed from Mrs. Cowdrey, provided that these deeds were in accordance with the abstract of title; I had an agreement with Milliken about this, based upon this agreement, with Mrs. Cowdrey.” In his agreement with Milliken it is recited that the latter “ has an option for the purchase of several tracts of land in Eastern Kentucky ” from the defendant. The witness-Montague testified that he never delivered the deeds to Milliken ;. “ they were returned by order of all parties to Mrs. Cowdrey, or rather to Mr. Dickson for Mrs. Cowdrey, and so the-transaction was off; the escrow was surrendered and the transaction was off.”

It is, therefore, apparent that upon this trial the defendant was not required to rest her defense upon the evidence of the contradicted witness Dickson. By the contract between the plaintiff and defendant he was not entitled to commissions unless there was an actual sale of the property effected through his agency. It must ' appear to have been a binding and enforcible agreement for the sale and conveyance of the land; and it is not sufficient to show a provisional arrangement which has failed because of the non-fulfillment of a condition not dependent upon the action of the vendor. This is not a case where the owner refused to consummate the sale after the broker had found a purchaser upon the terms originally proposed, or where the vendor has been unable to give the Stipulated title on account of some defect in it, either-known at the time the contract was executed, or subsequently •discovered. Duclos v. Cunningham, 102 N. Y., 678; 2 St. Rep., 13; Sibbald v. Bethlehem Iron Co., 83 N. Y., 378; Knapp v. Wallace, 41 id., 477; Barnard v. Monnot, 1 Abb. Ct. App. Dec., 110. There was no failure on the part of the defendant to abide by her offer or agreement to sell. The negotiations failed because the buyers availed themselves of the privilege, which they had reserved, to recede from the propositions to purchase upon a specified contingency, which happened, and it was not the fault •of the defendant that the bargain was never closed.

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

All concur,» except Earl, J., not voting.

       Affirming 46 St. Rep., 896.


author: Earl, J.

text:
    Jens Kaare, Resp’t, v. The Troy Steel & Iron Co., App’lt.

      (Court of Appeals,

      Filed October 3, 1893.)

    'Master and servant—Negligence.
    Plaintiff was injured while wheeling wood on a wheelbarrow along a platform by the overturning of the barrow, which he testified was caused by a hole in one of the planks which had been in that condition for two weeks, to plaintiff’s knowledge; that the place was dimly lighted and plaintiff and other workmen objected to going on the platform in the night, but defendant’s foreman ordered them to do so. While plaintiff’s story was uncorroborated several disinterested witnesses testified in behalf of defendant that the platform was in good condition with no defect or hole in it, and that it was well lighted. Held, that plaintiff should have been non-suited.
    (O’Brien and Maynard, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of plaintiff, entered on verdict.

      R. A. Parmenter, for app’lt; G. B. Wellington, for resp’t.

       Reversing 46 St. Rep., 451.

   Earl, J.

In the night of June 13, 1887, the plaintiff was in the employment of the defendant as a laborer, and while engaged in wheeling a load of slabs over an elevated platform into its boiler house on Breaker Island, he fell from the platform and was seriously injured, and this action was commenced by him on the 3d day of December, 1889, to recover for his injuries. The account he gives in his evidence of the accident which befell him is as follows: He had been at work for the defendant on the island about two months, and for about two weeks had wheeled coal over the platform into the boiler room. One of those weeks he worked in the day time and one in the night time, and he had commenced his night work in the third week. He had wheeled coal all day on Sunday, June 12th, and between one and two o’clock on Monday morning the supply of coal was exhausted, and he, Sullivan, Keeler and other workmen were ordered by Mr. Stevenson, the night boss, to wheel slabs to the boiler room for fuel; and he and the others asked Stevenson to wait until daylight, as the platform was dangerous to work on when they could not see. He nevertheless ordered them to proceed with the work of wheeling the slabs upon wheelbarrows. The plaintiff loaded the slabs, which were about two yards long, crosswise upon his barrow. The platform was made of two planks, each one foot wide, and ascended, so that it was fifteen feet high where he fell. There were no guards on the sides of the platfoi'm, and no lights so that he could see ahead at the place where he fell. There was a hole in the platform which he could not see on account of the darkness, and when the barrow struck that as he was wheeling the first load of slabs it tipped over, the slabs struck against the door of the boiler room and he was thereby thrown off from the platform. It was the hole in the platform which tipped over the barrow and caused the accident. The hole had been there about two weeks, and he had frequently seen it, and-had several times called the attention of Mr. Cooper, whom he styled the head boss, to it, saying to him that it was dangerous in rainy weather and slippery. Other workmen had also called his attention to it, and he said he would see about it. He gave no particular description of the hole when he was first examined. But the plain inference is, that it was not there when the platform was built; it was not through the platform ; it was a mere imperfection or depression, caused by the use of the platform. Keeler had preceded him with a load of wood in safety.

This is the story of the plaintiff as to the cause and manner of the accident. He called no witnesses whatever to confirm it in any respect As to the width of the platform and its height, and as to the lights and the hole, he is his only witness. There must have been numerous persons who knew the condition of the platform, if he told the truth about it, and yet he did not call one of them.

The defendant called several witnesses as to the condition and use of the platform, as follows: Martin Fay, who had been in the employ of the defendant for many years, a millwright and carpenter, built the platform in the early part of May, 1887, of oak, spruce and pine, seven feet wide of seven plank. There was no defect in any of the planks, and the platform was .built wide enough so that two men with barrows could use it at the same time, one going up and the other down, and there was plenty of room for them to pass each other. The door of the boiler room into which the men wheeled the slabs was four feet and six inches wide. The height of the platform at the lower end was six feet and six inches, and at the upper end, at the boiler room, seven feet above the filling under it. He saw the platform and passed over it every day after it was built, and it was in good condition and there was no hole in it. There were pieces of scantling spiked on the sides of the platform to hang torches on. He saw the platform as late as eight o’clock in the evening before the accident, and it was well lighted so that one could see all around on both sides of it The workmen had had no difficulty in working on this platform before.

Hugh Munroe, a foreman in the employ of the defendant, gave evidence in all essential respects confirming that of Fay. He assisted in building the platform, and said ho knew there were seven planks three inches thick, and that it was seven feet wide. The morning after the accident he and others examined the platform, and there was no defect or hole in any of the planks. The platform, at the time of the trial, was seven feet wide, and in that respect had never been changed since it was built.

Mr. Touceda, a. civil engineer and chemist in the employ of the defendant, testified that the length of the platform was eighty feet, and that it was eight feet high at the highest point, and that the boiler room door was four feet six inches wide.

Mr Keeler, at the time of the accident one of the defendant’s workmen, testified in substance that at that time he was working with the plaintiff wheeling wood over the platform; and when the plaintiff fell he was wheeling a load of wood about six feet behind him. They had been wheeling wood about an hour before the accident occurred. The slabs were four feet long. He loaded the slabs on his barrow lengthwise of the barrow, and wheeling until six o’clock in the morning he had no trouble on the platform, which consisted of seven planks, each ten or twelve inches wide. There were a good many men engaged in wheeling the wood, and they wheeled the loaded barrows up on one side of the platform and came down with empty barrows on the other side. There were lights hung on both sides of the platform, and there was plenty of light, so that the whole of the platform could be seen. The plaintiff was close by the boiler room door when he fell, and the slabs were piled on his barrow crosswise. Either the wheels of the barrow or the slabs struck the side of the doorway, and this caused the accident. He never discovered any hole in the plank, and there was none, and he never made any complaint of, the hole or of the platform, or heard any one else make any. At the time he gave his evidence he was not in defendant’s employ, and had not been for two years.

Mr. Trowbridge worked for the defendant in 1887, and was night timekeeper. He was well acquainted'with the platform, examined it and went back and forth upon it every night. There were seven planks side by side on the platform, which was seven feet wide, and in wheeling, men with loaded barrows would go up on one side, while men with empty barrows came down on the other side. From thé time the platform was built to the time of the accident he saw it' every night, and there was no change in its width, and it was safe and strong.

John Sullivan testified that he was working for the defendant at the time of the accident; that he was wheeling coal and wood that night over the platform; that the platform was six or seven feet wide; that he made no complaint and heard no complaint by any one of the platform; that there was a depression worn by the barrows in one of the planks, of about one-quarter of an inch, which did not amount to anything, and did not cause any difficulty in the use of the platform; that the platform was about two feet wider than the door of the boiler room; that the platform was well lighted with torches, and that he could see plainly.

Thomas Stevenson, who was at the time in the employ of the defendant, and had charge of the men working at the time of the accident, testified that he was standing right by the boiler room door when the plaintiff fell; that the wood on the barrow hit the side of the door and caused him to fall; that his attention was never called to any defect in any plank, and he never discovered any; that no one made any objection to wheeling wood on any ground; that he is positive that the plaintiff had wheeled wood over the platform that night before the trip upon which he fell; that he told the men to pile the wood on the barrows lengthwise of the barrows, and not crosswise; that the "wood struck the side of the door because it was piled crosswise; that the platform remained just as it was originally built; that it was well lighted with torches, which threw their light across the platform; perfectly light; that thirty torches were furnished, and the men lighted as many as they wanted, not all of them; that he had not been in the employ of the defendant for the past three years.

Samuel Hurlburt testified that he knew the platform was built in the forepart of May, 1887, and that there never was any other platform there.

After the defendant had rested its case the plaintiff was recalled, and he described what he called the hole in the plank as follows: “ It was a kind of split that was taken out of the plank, worn like; it was worn down in the plank; it was worn down like, a split; there was a kind of hole; it was worn down like a split that had gone out. The hole did not go through the plank. It was about three feet from the boiler room; ” and he reiterated his statement that there were but two planks, about a foot wide each, in the platform, and that there never were any torches lighted on the side of the platform.

There was no proof or claim that any accident had before happened upon this platform, although it had been used night and day for more than a month.

At the close of the evidence the defendant moved that the plaintiff be nonsuited on the grounds that there was not sufficient evidence of its negligence, and that he had not shown' affirmatively his freedom from negligence, and the judge denied the motion.

The judge submitted the case to the jury for them to determine whether the defendant was chargeable with negligence on account of the alleged defect in the plank and the alleged absence of lights upon the platform, and the j ury found for the plaintiff a verdict of $1,000.

The defendant moved for a new trial upon the judge’s minutes, and that motion was denied; and judgment having been entered, it appealed from the judgment, and also from the order denying the new trial, to the general term. The learned judge writing the opinion at the general term, among other things, said:

“ The plaintiff is his only witness as to the facts showing negligence on the part of the defendant, and is contradicted by a number of witnesses, and on examining, the evidence I have entertained doubts whether the court ought not, under the circumstances, to have granted defendant’s motion for a new trial on the ground that the verdict was against the weight of evidence.
“ But the learned judge who presided at the trial of the case, who heard all the witnesses sworn, and who saw them when they gave their testimony, was of opinion that the evidence given justified the submission of the case on the question of negligence to the jury, and that such evidence was sufficient to sustain the verdict, and his view as to the evidence bearing on the questions of fact involved in the case is entitled to great respect. It is only in exceptional cases that the decision of the judge presiding at the trial of an issue of fact in a case where there is conflicting evidence, on a motion for a new trial, will be disturbed by the court on appeal. * * *
“As above stated, the cases are unusual where the general term, on an appeal, there being a conflict of evidence and the case having been fairly tried and submitted to the jury, and a motion for a new trial having been denied by the trial judge, will grant a new trial because the- number of witnesses on the part of the appellant on a question of fact exceeded the number of witnesses sworn on the part of the respondent.”

If these views give what should be the correct practice in the general term upon appeals from orders denying new trials, the right of appeal secured by the Code in such cases is of very little value. Here the plaintiff, testifying under the influence of self-interest, was the sole witness on his own behalf as to all the essential facts relating to the accident. He was confronted by numerous witnesses contradicting, in the most positive manner, all the material facts stated by him. There does not appear to be any possible chance of mistake. Either he or they testified falsely. They were disinterested, and were in no way responsible for the accident, and the evidence that they gave is in no way improbable. Indeed, their version seems to be more probable than that given by the defendant. The plaintiff waited more than two years and a half before he commenced his action, and then did not allege in his complaint the defect in the plank, now the main ground of complaint against the defendant

The plaintiff testified through an interpreter, and hence his manner of testifying and his appearance could not have been of much aid to the judge in weighing his evidence. If, under such circumstances, the general term will refuse to grant a new trial on the ground that the verdict is against the weight of evidence, it is difficult to conceive of any case where it ought to do so, and an appeal to it in such cases will be entirely useless. It is quite true that in some cases some deference may properly be paid to the views of the trial judge who heard the witnesses testify, and those ■cases are where there is a fair conflict in the evidence; and while there is some, yet there is no great or marked preponderance in the evidence either way. But where there is a vast preponderance in the evidence in favor of the defendant, and the defense is supported by numerous witnesses apparently entitled to credit, and the plaintiff’s case stands upon his own evidence, either unsupported or slightly supported, the general term should exercise an independent judgment and give the defendant 'appealing to it the full benefit which the law, by the right of appeal, intends he should have. But where the court below refuses a new trial in the exercise of its discretion, we have no jurisdiction to give relief, and if there be no error of law the defeated party is without remedy for any injustice he may suffer.

A careful scrutiny of this record satisfies us that the plaintiff as matter af law upon the undisputed evidence ought not to have recovered and should have been non-suited.

(1) If we assume that this platform was only two feet wide, the plaintiff knew it. He had used the platform for two weeks, night and day, and wheeled his barrow up and down it many times. If it was dangerous for use on that account, he knew it as well as any one, probably better than any of the defendant’s officers. He did not ask that it should be made wider, nor did he complain of the manner of its construction to any one. Knowing exactly the condition of the platform and the risk of its use, and fully able to appreciate that risk, he voluntarily took the risk upon himself and exposed himself to the danger, and he cannot, therefore, maintain his recovery on' the ground that the platform was not wide enough. De Forest v. Jewett, 88 N. Y., 264; Powers v. N. Y., L. E. & W. R. R. Co., 98 id., 274; White v. Wittemann Lith. Co., 131 id., 631; 43 St. Rep., 312.

(2) There was not such an imperfection in the plank as to sustain a charge of negligence against the defendant.. Only two witnesses saw the defect in the plank. The plaintiff described it as above. According to his evidence it certainly was not a defect which would indicate to one of ordinary prudence the appearance of danger. It was simply a depression in the plank caused by its use, and judging, as we must, by the description he gave of it, it was not a dangerous defect. The witness Sullivan, the only witness who gave the depth of the depression, says it was only one-quarter of an inch and of no moment. The depression was so small that it escaped the attention of the numerous other "persons who used the platform, some of whom specially examined it. It is impossible to say upon this evidence that there was the want of that ordinary care on the part of the defendant in the maintenance of the platform which can impose liability for the accident upon it, and a verdict based upon this imperfection should not be permitted to stand. It is altogether improbable that this imperfection played any part in the accident. It is a fair inference from the plaintiff’s evidence that it was caused, as one of the defendant’s witnesses testified, by the collision of the slabs laid crosswise upon the barrow with the side of the doorway. The only other ground of alleged negligence is the absence pf lights at the platform. All the witnesses but the plaintiff testified that it was amply lighted. He had wheeled all the night until two o’clock A. M. without any difficulty. But the answer to this ground of negligence is, that plenty, of torches were furnished to the workmen for use in lighting the platform, and if they did not use them, and thus the platform was not sufficiently light, it was their own fault. The defendant discharged its duty by furnishing sufficient torches, and if they were not used, or if they were not properly placed, the fault cannot be charged to it.

We are, therefore, of opinion that a new trial should be granted, costs to abide event.

All concur, except O’Brien and Maynard, JJ., dissenting, Andrews, Ch. J., not voting.