author: Finch, J.

text:
    Mary M. H. Clark, Resp’t, v. Augusta Clark, Impleaded, etc., App’lt.

      (Court of Appeals,

      Filed December 10, 1895.)

    1. Will—Trust.
    A trust by implication involves a supposed intention to create one on the part of the testator, and cannot be raised where the will expressly or impliedly negatives any such intention.
    3. Same—Power in trust.
    No power in trust is conferred, where there is simply a legacy of an annuity and a duty of paying it imposed upon executors, which they are. perfectly able to perform when the will takes effect.
    3. Same—Annuity—Dower.
    Where the evident scheme of a will is to put all the property in trust until the youngest child shall reach his majority and then end the trust and give the estate over to the children, subject only to the further payment of the widow’s annuity, and there is a further provision that upon the death of the widow the property set apart to produce her annuity shall he distributed in the same manner, and such annuity is a legacy in a possible contingency charged upon the land, but still payable by the executors as such, and there is an abundance of personal property at testator’s death to furnish the capital whicli would produce the income, the trust terms ends upon the youngest child reaching his majority and-the property vests in the children subject to the charge upon it of the widow’s annuity and the necessary postponement of the ultimate possession

      4. Same.
    In such case, the right of dower of the wife of a son of testator in his, share of the realty then devolved will become consummate on such son’s dying subsequent to such devolution of the estate but during the Ufe time of the testator’s widow.
    5. Same—Pbioiuty.
    In such case, where there is a sufficient amount of personal property at the death of the testator to furnish the necessary income, the right of dower of the widow of the son of the testator in the shares in the realty taken by him through the devise has a priority and preference over that of the annuitant which will not be affected by an arrangement made between the annuitant and the devisees after the right of dower attached, making the annuity a charge upon the land.'
    6. Same.
    In a case where the son of the testator obtains a part of the realty by conveyances made between the annuitant and the devisees which by agreement subjected the title it passed to the lien of a proportionate part of the-annuity, the preference and priority belong to the annuitant.
    Appeal from a judgment of the "general term of the supreme-court in the second, judicial department, entered upon an order, which affirmed a final judgment in favor of plaintiff, rendered at special term, July 25, 1895, awarding the plaintiff dower and damages for the withholding of the same.
    The plaintiff is the widow of George H. Clark, who was a son of George Clark. The father died in 1871, owning both real and" personal property, and leaving a will, which was duly proved. The defendant, Augusta Clark”, is the widow of the testator.

      Walter C. Anthony, for app’lt;

      James M. Pray, for resp’t.
   Finch, J.

This action was brought to recover dower in the premises described in the complaint. The property passed under the will of the father of plaintiff’s husband, and her right is first assailed upon the ground that by the true construction of that will the husband was never seized in fact or in law of any estate in the land to which dower could attach. It is claimed that under the will a trust was created which vested title and possession in the trustees, so continuing from the death of the father to and beyond the decease of the son, whereby seizin was denied to the latter, and, as a consequence, dower did not attach. There was a trust created by the will, but I think it ended when the youngest of testator’s children became of full age. That child was Robert S. Clark, who reached his majority in March of 1876. The language of the will in creating the trust is very definite and explicit, and- is this : “ I give, devise and bequeath unto my executrix and executors all the rest, residue and remainder of my estate, real and personal, so long as my youngest child shall live, but not after the majority of such child shall be reached, upon trust to take charge and possession of the same,” etc. It not only prescribes the period during which the trust shall continue, measuring it by the minority of the youngest child, but it adds negative words forbidding its continuance longer. In the face off these explicit provisions we are asked to extend the trust term for the life of the testa-tor’s widow, by an-implication derived from some further provisions of the will. The purpose of the trust was to secure to the testator’s widow an annuity of $1,500, and to make needed advances to the children. The will added, upon the death or majority of the youngest child, the following provision : “ So much of my property shall be set apart as will produce an annual income of $1,500, which shall be paid to my wife during her life in half-yearly payments, and the rest, residue .and remainder shall he divided among my children.” There was a further provision that upon the death of the wife the property set aparfto produce the widow’s annuity should be distributed in the same manner. The evident scheme of the will, therefore, was to put all the property in trust until the youngest child should reach his majority, and then end the trust and give the estate over to the children, subject only to the further payment of the widow’s annuity. It may be admitted that a trust to secure that payment might have been convenient, but it was certainly not necessary. The annuity was a legacy, in a possible contingency charged upon the land, but still a legacy, which the executors could pay in the orderly and proper performance of their official duty, and which did not make necessary the prolongation of the trust. There was an abundance of personal property at testator’s death to furnish the capital which would produce the income, and he deliberately chose, by the language he used, to put the widow at first in the attitude of a trust beneficiary while a trust was needed to enable advances to be made to the children, but when that necessity disappeared through the direct gift to the children to leave her a legatee, having for her security a charge upon the property. A trust'by implication involves a supposed intention to create one on the part of the testator, but I think cannot be raised where the will expressly or explicitly negatives any such intention. At all events there is no such necessity as would justify a disregard of the testator’s manifest purpose to end the trust at the majority of the youngest child.

It is then said that if there was no trust there was at least a power in trust. But no power as such was conferred or sought to be conferred. All that we find is a legacy of an annuity and a duty of paying it imposed upon executors, a duty which they were perfectly able to perform by force of their official character, as they were situated when the will took effect. As there was no need to arm them with any additional power emanating from the testator, so none was created, and they were left as executors to pay the annuity to the legatee. That legatee of course took no life estate in the property held by the executors, as the appellant further contends, but simply held the right to be paid the annuity out of the assets in their hands.

I see no reason, therefore, to doubt that when Bobert came of age in 1876 the trust term ended, and the property vested in the four children, subje'ct to the charge upon it of the widow’s annuity and the necessary postponement of the ultimate possession. At that date, therefore, the plaintiff’s husband became seized of an undivided fourth part of the real estate, subject, it may be conceded, to the lien upon it of the widow’s annuity in case of deficiency. The plaintiff’s right of dower, therefore, attached and became consummate upon the death. of her husband in May, 1888.

Before that date two of testatator’s children had died. Robert S., the youngest son, who came of age in March of 1876, died in August of that year, leaving a last will by which he gave to his sister Martha one-fifth of all his estate absolutely, and the remaining four fifths to his mother for life, with remainder over to his brother George. Martha died intestate and without issue in July of 1877, and her whole estate vested in George and the remaining sister Mary A. Townsend, subject to the life estate of their mother. At that date the whole real estate became vested in these two children, subject to the possible charge of the widow’s annuity and to her life estate in four-fifths of one-quarter which came from Robert, and her life estate by descent in the property of Martha. To the extent of two shares or one-half of the land any charge of the annuity upon it became necessarily merged, since taking the income as owner she could not have also a lien upon it as legatee. Such lien was lost- in the title. Thereafter a new arrangement was made in the nature of a partition. The widow conveyed her life estate to the two surving children ; they quitclaimed to each other a specific half to be held in severalty, and the lien of the widow for her legacy of $1,500 was by agreement charged, one-half upon the lands of each, she at the time selling and conveying to the children for $5,000 her interests outside of the annuity. The plaintiff’s husband thereby became seized of two of the original quarter shares which passed under the will, but charged with the lien of the widow for one-half of the annuity. On his death. the plaintiff became entitled to dower in both quarters, and the only remaining question is one of priority between the annuitant and the dowress. As to the one-quarter which the son took directly from his father, it is tobe observed that the findings sl;ow a sufficient amount of personal property at the death of the testator to furnish the necessary income. The annuity did not thus become a charge upon the land by force of the original devise, but gained its hold after the dower had attached in behalf of the plaintiff by reason of the subsequent stipulation between the parties. That arrangement, of course, could not affect the wife’s right, and so as to one-quarter of the original devise, which became one-half of her husband’s ownership, her right had priority and preference over that of the annuitant. But'as to the other quarter which was acquired by the conveyances made, which by agreement subjected the title as it passed to,the lien of a proportionate part of the annuity, the preference and priority belong to the legatee. The husband took the estate and the necessary seizin incumbered by the annuity and the right of the dowress was subordinate to the existing incumbrances. That was the conclusion of the general term. The attack upon it now.proceeds upon the theory that the annuity became a charge upon the whole real estate of the testator and followed it through all its changes to its ultimate destination and so took precedence of the after accruing dower. While it is admitted that there was no deficiency of personal assets, for the payment of the annuity at the death of the testator and so no liability of the land, it is insisted that when the trust ended and the estates devolved there was such a deficiency and the alien arose. There is no finding of any such fact no request to find it, and we are not at liberty to search the evidence to discover a fact for the purpose of reversing the judgment. Indeed, a broader view of the situation is possible. The only definite complant of the annuitant is over the alleged loss of some arrears of the annuity which her counsel would make good at the expense of plaintiff’s dower. But the time to collect them if they existed has come and gone. The voluntary partition and the contract which followed it was intended plainly for a final settlement between the parties, leaving nothing at large or undetermined. While the defendant in making her conveyance was careful to reserve her rights under the will, she followed that by a new arrangement which took her annuity out-of the operation and protection of the will and furnished for it an entirely new sanction dependent upon a voluntary contract. When she made that agreement, which" for the first time divided the annuity and charged it in separate proportions upon the lands in severalty, she knew perfectly well whether or not there were any unpaid arrears, and if there were that the occasion and purpose required .them to be asserted and provided for. Either they had no existence, or were merged in the price which she received for her life estates, or were waived and abandoned, since the only charge upon the land for which she stipulated, and which she claimed was for the annuity thenceforward. When it is recalled that the plaintiff’s husband willed all his property to the annuitant, leaving the plaintiff with no provision but her dower, the demand that such dower should be diminished by past arrears, unclaimed and unasserted when the final settlement was made, seems to me to have no equity behind it. On the whole case, the taking into view all its complications, I think the conclusion of the general term was right. 1 , The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


source: Caselaw Access Project

author: Bartlett, J.

license: Public Domain

text:
    David S. Brown et al., App’lts, v. John H. Doscher, Resp't.

      (Court of Appeals,

      Filed December 10, 1895.)

    1. Trade mark—Injunction.
    The law of trade mark has not yet gone so far as to. entitle a party to appropriate a form of package and fashion of label and exclude every one else from its use or from the use of anything resembling it.
    3. Same.
    An action cannot be maintained to restrain, as an infringement of plaintiff’s trade mark and wrapper,-the use by defendant of wrappers or forms of packages similar to those in use. by the plaintiff, where it appears that the brands, marks and names displayed upon each are amply sufficient to distinguish them in the general market, and no imitation has been made of anything appearing ou the wrapper that could be legally appropriated as a trade mark.

      Appeal from judgment of the general term of the supreme court in the first judicial department, entéred upon an order made November 17, 1893, which affirmed a judgment in favor of defendant dismissing the complaint upon the merits entered on a decision of the court on trial at special term.
    The action was brought to restrain the use by defendant of an alleged infringement of plaintiffs’trade mark and wrapper on soap.

      Rowland Cox, for app’lts;

      John Henry Hull, for resp’t.

       Aff’g 57 St. Rep. 224.

   Bartlett, J.

Since 1888 the plaintiffs have manufactured a cheap laundry soap in octagonal cakes put up in an original wrapper and called- “Blizzard Soap.”

The defendant manufactured a cheap laundry soap in octagonal cakes, put up in a wrapper and called “Leader Soap.”

The plaintiffs insist that the defendant has been guilty of an infringement of then" trade mark and wrapper.

The general term, after an examination of the wrappers and a review of the evidence, agreed with the trial judge that the defendant’s wrapper did not so resemble that of the "plaintiffs as to deceive the ordinary buyer.

After a careful examination of this record and an inspection of the wrappers and packages submitted by counsel we are of opinion that no infringement was established, and that the complaint was properly dismissed.

The plaintiffs’ wrapper consists of the words “ Blizzard Soap ” in white upon a dark ground, presenting the appearance of letters covered with snow, while preserving their general form, and the field or ground represents the air as filled with falling snow. The words “Blizzard Soap ” are displayed within an octagonal figure, while within a similar figure are the firm name of plaintiffs, stated to be located in New York, and a refernce to the blizzard of March 12th, 1888, in the following words, viz.: “New York was visited by a tremendous blizzard on March 12, 1888, which was most disastrous to the city.

“We hope the Blizzard soap will have the same effect upon all rival soaps.”

In the background between these octagonal figures is a representation of the Brooklyn bridge covered with snow.

When the wrapper is folded about the cake of soap the first of these octagonal figures appears upon the obverse side, and the second upon the reverse side of the package. ■

The defendant’s wrapper, while it presents a scene in which the air is filled with falling snow, is in other respects easily distinguishable from the wrapper of the plaintiffs.

It contains two octagonal figures which fold about the cake of soap as in case of plaintiffs’ wrapper.

The first figure contains the words “Leader Soap,” which in the original wrapper used by defendant were covered with snow while preserving the outlines of the letters but in the second wrapper the letters are a clear cut block letter without the appearance of snow.

The second figure contains the defendant’s firm name and business together with the address in the city of Brooklyn.

The firm name is printed with great prominence. No reference is made to the blizzard of 1888.

In the background of the wrapper, and outside of the two octagonal figures already described, is a representation, not of the Brooklyn bridge, but of defendant’s four-story factory with a sign displaying in distinct letters the words “ Doscher & Co. National Soap Works,” and on the side of a tall chimney, rising above the roof of the building, appear the words in still larger letters,“Leader Soap.”

The slightest inspection discloses the difference between these two wrappers, and there is no reasonable ground to fear that even the careless and unwary would be misled.

Unless there was such a close and studied imitation of plaintiffs’ package in its general appearance as to naturally mislead and deceive the public, there is no further rule of law which entitles plaintiffs to the exclusive use of cakes of soap and labels octagonal in form, or to the depiction of a scene in which the air is filled with falling snow.

This court has held that the law of trade mark has not yet gone so far as to entitle a“party to appropriate a form of package and fashion of label and exclude every one else from its use or from the-use of anything resembling it. Enoch Morgan's Sons Co. v. Troxell et al., 89 N. Y. 292.

Judge Rapallo, in delivering the opinion of the court, says if the law of trade mark had gone that far, “the different forms and •fashions of cigar boxes, packages of chewing tobacco, perfumery, ■canned goods and other small articles, and the color and style of labels which every dealer, according to his tase, adopts or selects from those in use, would afford food for litigation, sufficient to give constant occupation to the courts. All these articles of each ■class bear a general resemblance to each other, and the products of the different dealers can be distinguished only by the 'brands, marks or names which they may put upon them, and these can be protected as trade marks only so far they are new and comply with the other conditions necessary to constitute a trade mark. When there is a simulation of a trade mark, and the intent becomes a subject of inquiry, the form, color and general appearance -of the packages may be material, but to sustain an action there must be an imitation of something that can legally be appropriated as a trade mark.”

In the case at bar, our inspection of the rival packages satisfies ns that the brands, marks and names displayed upon each are amply sufficient to distinguish them in the general market, and that defendant has not imitated anything appearing on the wrapper of plaintiffs that could be legally appropriated by them as a trade mark under the peculiar circumstances of this ■case.

We have refrained from deciding the effect upon this cause of action of plaintiffs’ alleged misleading statement found on their first wrapper in the printed words, “form of cake and title a trade mark secured.” when, as matter of fact, the statement was untrue.

The use of these words was discontinued just prior to the com.mencement of this action, although the first wrappers were still in the market.

If we had reached the conclusion that the plaintiffs were entitled to judgment, then the legal question presented by this false statement would have required careful examination, but as the case stands, we prefer to rest out decision upon the merits.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: O’Brien, J.

text:
    The Importers and Traders’ National Bank of New York, Resp’t, v. Cebra Quackenbush, Impleaded, etc., App’lt.

      (Court of Appeals,

      Filed December 18, 1895.)

    Execution—Supplementary Proceedings.
    The execution required, in order to institute proceedings supplementary to execution, is not that prescribed by section 1252, but by section 2458, o£ the Code.
    This was a motion for a reargument.

      A. R. Dyett, for motion;

      Abraham, Lansing, opposed.
   O’Brien, J.

Upon a motion for are-argument the learned counsel for the plaintiff calls our attention to two facts which he claims have been overlooked in the disposition of the case, but. which, we think, are covered by the opinion. The first is that no-execution was issued in one of the cases to the county of Albany,, the county of the residence of the judgment debtor, until March,. 1894. We did not overlook that fact, but did not regard it as material, since when it was issued the judgment was not a lien on any'real property in that county and could not be effective to exhaust the remedy at law. Besides, if an execution had been issued,to another county more than ten years before, which complied with section 2458 of the Code and entitled the plaintiff to-institute the pfoceedings then that would set the bar of the statute, running. If it was not. such an execution the second one was ineffectual to exhaust the remedy at law. The next point is that, we have overlooked the fact that section 1252 requires nothing more, so far as the plaintiff is concerned, to revive the lien of the-judgment than the delivery of an execution to the sheriff, then that officer must himself d.o the things required by that section to-make the execution effective. We do not think that the plaintiff’s counsel is correct in that contention, but it is not very material since neither the plaintiff nor the sheriff did, in fact, comply with it. It matters little upon whom the duty rested of preparing,, filing and procuring the notice to be recorded which is required .by that section, so long as it was not done. But we think that, even if it had been complied with, that section furnishes no sufficient basis for the proceedings. The execution required is not that pre°cribed by section 1252, but by section 2458. .The former-section provides for a proceeding' to sell specific property and is-not mentioned in section 2435 as one of the conditions to be complied with in order to entitle the creditor to maintain the proceedings.

The motion for re-argument must be denied, with ten dollars costs.

All concur. Motion denied.


text:
    Minna Knock, App’lt, v. Marie E. H. Von Bernuth, as Executrix, etc., Resp’t.

      (Court of Appeals,

      Filed April 9, 1895.)

    1. Witness—Estoppel.
    A witness, who testifies to a state of facts in favor of the successful party to an action, is not, it seems, thereby estopped and forever precluded from, asserting the contrary in a subsequent action in his own behalf against the party in whose favor the testimony was given or his legal representatives.
    2. Appeal—Reversal.
    A judgment will not be reversed because the trial court has drawn from facts properly in the case for other purposes an erroneous legal conclusion as to a question not necessarily involved in the case or essential to its determination.
    Appeal from judgment of the general term of the superior court of the city of New York, entered upon an order, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at special term dismissing the complaint.

      Charles Goldzier, for app’lt;

      Austin Abbott, for resp’t.

       Aff’g 59 St. Rep. 892.

   O’Brien, J.

The plaintiff, as assignee of John Boker, her former husband, brought this action against the defendant, as the personal representative of Louis Eunice, to compel an accounting and payment to her of certain interests or profits in a business-that, as she claims, passed to her under the assignment from her-husband. She has been defeated in the action on various grounds: - (1) That her husband had no interest in the business or profits to assign, and nothing passed to her under the assignment. '(2) That the assignment was collateral security merely for the payment of a certain note which had been fully paid. (8) That she is estopped through the acts of her husband and assignor in certain prior litigations from now claiming any-interest in the proceeds of the business. (4) That the claim is barred by the Statute of Limitations.

The action was commenced in June, 1889, and the following facts were conceded or established and found by the trial court: John G-. Boker, the father of plaintiff’s assignor, had acquired the receipe, formula and secret for the manufacture of a cordial known as “ Bolter’s Stomach Bitters,” with the labels designating the same, and the trade mark and sole right to manufacture and sell the same. On the 20th of February, 1860, he assigned and transferred the same by an instrument in writing to his son-in-law, de~ fendant’s testator, who continued, up to the time of his death, on April 2, 1892, to be the sole proprietor of the right thus assigned .■and the business of manufacturing and selling the article. In consideration of this assignment the assignee agreed to carry on the business and to pay over to Marie Boker, the wife of the assignor, ■during her-life, two-thirds of the net profits arising therefrom. .John G-. Boker died a few days after this assignment, on March 3, 1860, but his widow for whose benefit the transfer was made, .survived him for many years and until July 5, 1888, when she -died, having resided for most of the time in Germany after her husband’s death.

It has been found by the trial court and is not disputed that ■the assignee,the defendant’s testator, faithfully performed his agreement to pay to the widow during her life two-thirds of the net promts of the business. He rendered to her every year statements of the business and its profits and paid to her, or upon her order, the ¿share of the profits secured to her by the assignment and agreement. Her share of the profits amounted to a very considerable .-sum annually, and from time to time she gave directions that a part of it should be credited and paid to other members of her .family, and in all cases her directions were complied with. Among ■others, she directed that a portion of her share be credited to a dormer wife of her son, John Boker, in trust for his benefit, and paid to her for his use. This request was carried out by the defendant,, and certain sums were predi ted and paid to John’s wife as trustee for him. It is claimed that John did not in fact' secure the benefits of these credits or payments,- but that they were retained -or otherwise disposed of by his former wife, and the principal feature of this action is to compel Fun eke, the son-in-law, assignee .and proprietor of the business, to account for tlie same. He died .after, the commencement of the action, which has been continued against his executrix. This is the interest which the plaintiff -claims under her assignment.

Without reference to the other grounds upon which the plaintiff was defeated in the action, it is quite sufficient to say that the ■defendant’s legal relations and obligations were with Marie Boker, the widow of his assignor. He, having accounted to her for-two-"thirds of the profits of the business and paid over the same tojher, -or to others by her directions, is relieved from any liability to ac- • count to the plaintiff. He has discharged all his obligations, and if any portion of the share which he disposed of under the directions of Marie failed to reach the objects of her bounty, he is not in anywise responsible for the diversion. It is said that Marie, in -directing certain sums to be paid to the former wife of her son, in trust for him, created a valid- trust which may be enforced in -equity. That may be so, but the defendant was not the trustee, .and after he had paid the money over according to the directions •of the creditor to whom it belonged, he had no further duty to perform and incurred no further obligations concerning it. If there was any trust, then the former wife of John was the trustee, .and if she failed to account or use the money for his benefit, her -default cannot be charged to the defendant. The findings in the trial court, which are fully sustained by the evidence, leave no ground upon the merits for the plaintiff’s case to rest Without discussing any question as to the statute of limitations, the other ¡finding that the note to which her assignment was collateral has been fully paid is supported by evidence. We must, therefore, •assume it to be a fact in the case, and this assumption would deprive the plaintiff’s claim of any equitable basis.

There are several exceptions in the case, only two of which require any special notice. The ground upon which the plaintiff’s assignee, John Boker, claimed an interest in the profits is stated in the complaint in a very general way. The statements were very broad and not confined to the interest paid over for his benefit in trust. In 1879 the defendant, as assignee and proprietor of the right secured the recipe, formula and trade mark, brought an ¡action in the courts of Louisiana against parties there for an infringement of his right, to restrain the use of the trade mark and labels and for damages. He succeeded in the action. In the ■course of the proceedings John was examined as a witness for the plaintiff and his depositions taken in this state. He testified that he had no intesest whatever in the right or in the business. On "the trial of the present action these depositions were offered in ■evidence for the defense and received under objection and exception. They were properly received, since they were at least admissions on the part of the witness that he then had no interest in the formula, trade mark or business, and thus tended to disprove the broad allegations of the complaint.

Subsequently the judgment record in the action in which the depositions were taken was offered and received under a general objéction. The record containing the pleadings in the case showed what the issues wore to which the testimony in the depositions related, and thus tended to give point and application to the statements of the witness.

While this document was not very material, it was not error prejudicial to the plaintiff to receive it, especially against an objection so general as the one interposed.

The learned trial judge found the fact of the institution of the action in Louisiana by the defendant, its purpose, object and result, and further that John, the plaintiff’s assignor, gave testimony to the effect that the defendant was the sole owner of the recipe, formula and right to manufacture.

On this finding a conclusion of law was based to the effect that John by thus giving testimony in the action estopped ¡himself and all claiming through or under him from claiming, ■as against the present defendant, who was the plaintiff in that suit, any interest in the business or the profits resulting from the sale of the bitters. We do not mean to affirm the correctness of this proposition. It would probably be quite difficult to show that a witness who testified to a state of facts in favor of the successful party to an action is thereby estopped and forever precluded from asserting the contrary in a subsequent action in his own behalf against the party in whose favor the testimony was given or his legal representatives. His testimony once given bears upon the truth or good faith of any subsequent contradictory statement, but does not necessarily of itself create an estoppel. This finding, however, is not material. It constitutes, an ipdependent ground of defense in the decision below, and has-no necessary connection with the other matters of defense which appear in separate findings and are so free from doubt or conflict-as to determine the result, irrespective of any other questions. If the findings in regard to the former suit and the estoppel are stricken out, the judgment is well sustained by what remains. A-judgment ought not to be reversed because the trial court has drawn from facts properly in the case for other purposes, an erroneous legal conclusion as to a question not necessarily involved in-the case or essential to its determination. Upon the other facts found by the learned judge, the plaintiff’s ease necessarily failed,, and an additional reason for the result, though erroneous, does not furnish any ground for complaint" by the plaintiff. There are some other questions presented on the briefs of counsel, but it is not necessary to consider them since the findings and other features already considered are controlling and dispose of the appeal.

The judgment should be affirmed, with costs. ■

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

Judgment affirmed.


text:
    Franklin P. Roberge, Resp’t, v. Maria N. Winne et al... App’lts.

      (Court of Appeals,

      Filed February 8, 1895.)

    A majority of the court did not concur in the prevailing opinion.
    Appeal from judgment of the general term of the supreme-court in the second judicial department, entered upon an order,. ■ which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term.
    As a majority of the court did not concur in the opinion the-case is not reported in full.

      Edmund Luis Mooney, for app’lts;

      Frank H. Gray, for resp’t.

       Afi’g 54 St. Rep. 193.

   O’Brien, J.

The judgment in this action requires the defendants to specifically perform a verbal agreement to execute and deliver to the plaintiff a bond and mortgage of $3,500, upon a parcel of land in Westchester county, containing about sixty acres. The? facts found by the learned trial judge indicate that the general result was entirely just, but some questions of law were pressed upon the argument in this court that perhaps are not free from difficulty.

On December 14, 1891, the plaintiff conveyed to the defendantWinne certain real property at Newark, in the state of New Jersey, for which the defendant transferred to him certain securities, and among them a bond and mortgage upon a house in the city of New York for $3,500. The court has found that the mortgage was worthless in fact, and that the plaintiff was induced to take it by means of fraud practiced upon him by the defendant’s agent, who negotiated the agreement for the purchase of the property.

’ Subsequently, and in the early part of January, 1892, the plaintiff called the attention of the purchaser to the circumstances connected with this mortgage upon which his claim of fraud was based, and to its character and value as a security, and thereupon, as is alleged and found, she agreed to execute and deliver, iii its place, the mortgage upon the Westchester property. This agreement she failed to perform, but, on the contrary, about two weeks after she conveyed the property to the defendant Cavanagh. The trial court found that this conveyance was without any consideration, and made for the purpose of defrauding the plaintiff and evading any obligation to execute a mortgage thereon to the plaintiff, and was in fact fraudulent and void. These are the main facts upon which the judgment rests, and while at some points it may be there is some conflict in the evidence, yet it cannot be said that any of the findings are unsupported by proof.

The learned counsel for the defendants contends that the subsequent promise to give the mortgage is void by the sixth section of the statute of frauds. The statute has not been pleaded as a defense, and hence it might well be held that the. defendants éannot now be heard to urge or invoke it as an answer to the plaintiff’s claim for specific performance. Crane v. Powell, 139 N. Y. 379; 54 St. Rep. 659. But we think the contention can be met and answered upon broader grounds. The plaintiff conveyed the title to this property to the defendant, and from all the facts disclosed the original agreement was good in equity by reason of part performance on both sides, but to the extent of the amount of the mortgage the purchaser never further paid the purchase price. The fact that her agent induced the plaintiff by fraud to take a worthless mortgage and the bond of an insolvent person in part payment, does not change the case nor strengthen her defense. The defendant, having obtained the title and possession, there can be no doubt with respect to the power of a court of equity to compel her to transfer to the plaintiff the property which she agreed to give in exchange. The mortgage that she did transfer, however, represented nothing, and that part of her agreement is still unperformed. She recognized this situation by her promise to give another mortgage upon other property as a substitute for the worthless one which her agent had induced the plaintiff to accept by means of fraud. This promise cannot be regarded as a separate and independent agreement. It was a mere modification of the original agreement under which she-obtained the title to the New Jersey property and a part of it. Had she stipulated in the first instance to give the mortgage in question as part payment of the price of the property conveyed to her, it would be difficult to answer a demand for specific performance. The fact that the last agreement was made for the purpose of repairing an injury to the plaintiff through fraud, cannot put him in a more favorable position than he would have occupied had it been made in the first instance. In equity the defendant’s promise to give the mortgage in question may be regarded as relating back to the original agreement and forming part of it, and at least, a modification of it, upon sufficient consideration. When a party obtains title to real estate upon a verbal agreement to transfer in payment of the same to the grantor other property, real or personal, the statute of frauds does not apply and equity will enforce the agreement, since it would be a fraud on the part of the grantee to refuse. Such an agreement is not executory, but completely executed on the part of the grantor, and the purchaser alone is in default. Gases of this character have never been considered as within the statute. Sprague v. Cochran, 144 N. Y. 104; 63 St. Rep. 63; Beardsly v. Duntley, 69 N. Y. 577; Newman v. Nellis, 97 id. 285 ; Miller v. Ball. 64 id. 286 ; Freeman v. Freeman, 43 id. 37.

Therefore, by part performance the original agreement was in. equity taken out of the operation of the Statute of Frauds, and for all the purposes of this case, was, under the circumstances, as-valid as if in writing, and this being so, a subsequent verbal modification of it, with respect to the manner of performance, was not. within the letter or the spirit of the statute. Reed on Stat. of Frauds, vol. 2, § 468; Blanchard v. Trim, 38 N. Y. 225 ; Organ v. Stewart, 60 id. 419 ; Cummings v. Arnold, 3 Met. 486; Packer v. Steward, 34 Vt. 127. There was no change in the terms of the-original contract, but only the substitution, with respect to a single-item, of one mode of performance for another. Goss v. Lord Nugent, 2 N. & M. 28.

It appears that the plaintiff, after the subsequent agreement was-made to give the mortgage in question, filed a bill in equity in the court of chancery of New Jersey to rescind the whole transaction on the ground of fraud, and'to compel the defendant to convey back the property. It is urged that the plaintiff thereby elected to resort to another and inconsistent remedy and is now bound by that election. This general proposition is sustained by authority.. Terry v. Munger, 121 N. Y. 161; 30 St. Rep. 746; Pryor v. Foster, 130 N. Y. 171; 41 St. Rep. 320; Bach v. Tuch, 126 N. Y.. 53 ; 36 St. Rep. 363 ; Mills v. Parkhurst, 126 N. Y. 89; 36 St. Rep. 512 ; Crossman v. U. R. Co., 127 N. Y. 34; 37 St. Rep. 230.

But its application to this case is not so clear. Where such art-election has once been made, with full knowledge of all the facts,, the first action operates substantially as a bar to a subsequent one-by the same plaintiff to enforce another and inconsistent remedy'. Of course it is just as necessary to plead such a defense as it is to-plead a former adjudication or another suit pending for the same-cause of action. The answer contains no such defense, and hence-the» learned counsel for the defendants, fully appreciating this-difficulty, contends that a failure to set up the defense is not now material since the facts were fully established at the trial without objection. If this contention could be held to be correct as matter of fact it is quite likely that he would now be entitled to the-benefit of the point. Fallon v. Lawler, 102 N. Y. 228 ; Knapp v. Simon, 96 id. 284; Moffatt v. Fulton, 132 id. 513 ; 44 St. Rep. 853; Wells v. World's Dispensary, etc., 120 N. Y. 630; 30 St. Rep. 909; Frear v. Sweet, 118 N Y. 454; 29 St. Rep. 972 ; Tarbell v. Royal Exch. S. Co., 110 N. Y. 170; 117 St. Rep. 153.

Where a cause of action or defense, not embraced within the scope of the pleadings, has been established by consent or without objection at the trial, the point that the pleading was not. sufficient to permit the trial of such an issue cannot be made for the first time on appeal.

But we think that the defendant did not establish the necessary facts so clearly and conclusively as to entitle her now to take the benefit of such a defense without pleading. The only proof in the record to sustain such a defense is a certified copy of a bill, filed in the court of chancery of New Jersey on the--19 th of January, 1892. „ It is In the form of a petition addressed to the chancellor, but is not signed or verified by the plaintiff. It is signed by two persons who describe themselves, one as the solicitor and the other as the attorney for the complainant. So far as appears nothing was done except to file this paper. It does not appear that any process or notice was ever,, served upon the-defendant nor does it appear what was the significance or legal effect of a paper thus filed under the law of that state since there-is no proof on the subject. The trial court did not find that the plaintiff had, prior to the commencement of this action, elected to pursue another and inconsistent remedy with knowledge of all the facts, and such a finding, or at least conclusive proof on that subject, is necessary to enable this court to give effect to such a defense. On the contrary, the court refused to make such a finding upon the proof, and we think that the defendant did not go far enough into proof on this subject to enable her now to claim that such refusal was error. There was nothing to show that the plaintiff in this action had ever seen the petition, and its language is evidently that of the solicitor or attorney. Since the defendant by her answer gave no notice to the plaintiff of her intention to rely upon any such defense, she is now bound to show by the record that enough came out on the trial to require this court to say, as matter of law, that the plaintiff had, with knowledge of all the facts, made his election by, at least, the commencement, of an action. The record, we think, falls far short of disclosing such a state of facts.

It is also urged that the verbal agreement to give the mortgage-in question was too indefinite and uncertain in its terms to justify a judgment for specific performance. This proposition is based upon the circumstance that there was no proof as to the rate of interest it was to draw or the time it was to-run. But we think that the defendant’s promise to substitute a good security for a worthless one fairly implied that the new mortgage was to draw the same rate of interest and run the same period of time as the one which it was to replace. The trial court found that the agreement was to give a new bond and mortgage at one year at six per cent., and the judgment requires the defendant to- execute the mortgage according to these terms. The agreement, under the circumstances, implied a promise to give a mortgage bearing legal interest. The evidence tended to show that at the time of the-trial the first mortgage was past due.' The agreement that the mortgage should have a year to run was not unreasonable and •affords to the defendant no just ground of complaint. A verbal • agreement of this character will not be permitted to fail in equity because the parties have not distinctly specified all the details, but the court will look to the substance of the transaction, and in this •case that was that the defendant should give a new mortgage in place of the old one. There can be no claim that the decree does •any injustice to the defendant with respect to the terms of the mortgage which it requires her to execute. If she in fact agreed to replace the worthless security with a good one, as the trial •court has found, the terms of payment are sufficiently favorable.

The defendant’s counsel produced at the. trial an unsigned paper which her agent had drawn or procured to be drawn before the land was conveyed. It was claimed that this paper, though never •executed, contained the terms of the original agreement, and if there was any dispute on that’point it was perhaps admissible if shown to embody their verbal negotiations. Eager v. Crawford, 76 N. Y. 97. But there was really no question as to what the defendant was to receive and how she was to pay for the property. The issue was in regard to the fraud, which consisted of statements of certain facts on the one side and reliance upon the truth of those statements on the other. Whether the paper contained •anything that threw any light upon this issue we cannot know, ■since it does not appear, in the record. The defendant’s counsel now insisting upon an exception to the ruling of the court excluding the writing, is bound to show that it contained some com-' petent evidence on the questions in controversy, or some of them, and we cannot say from what took place on the trial, as disclosed by the record, that it did, or that the ruling was prejudicial to the defendant. Moreover, it did not appear that the plaintiff had ever seen or read the paper offered. The defendant’s agent and attorney in fact, who transacted the business for her, testified, in substance, that he left a copy of it with him; but the plaintiff, who was made a witness on this point for the defendant, testified, in substance, that the paper which he saw was nota copy of the one ■offered. It is apparent, therefore, that before the paper offered could have been admitted the court had to decide a preliminary question of fact whether the plaintiff had such knowledge of the contents of the unsigned paper as to make it binding upon him as evidence, and in deciding this question against the defendant we ■cannot say, as matter of law, that the learned judge was in error. '

On the whole we think that the learned counsel for the defendant has failed to show that any legal error was committed that would warrant this court in disturbing the judgment, and it should, -therefore, be affirmed, with costs.

O’Brien, J., reads for affirmance; Finch, J.,' concurs; Andrews, Oh. J., Peckham, Gray and Bartlett, JJ., concur in result; Haight, J., not sitting.

Judgment affirmed.


text:
    In the Matter of the Assignment of Arthur E. Bateman for the Benefit of Creditors. Claim of Lewis Clephane.

      (Court of Appeals,

      Filed March 19, 1895.

    Appeal—Okfeb op evidence.
    A party who intends, hy an offer of evidence, to interject a new, unsuspected and wholly inconsistent issue into the case, should ask a ruling thereon in the light of such purpose, and, if he does not do so, but conceals such purpose, he cannot, on appeal, avail himself of it to defeat the ruling which, when .made, was perfectly proper and just under the circumstances which surrounded it.
    Appeal from judgment of the general term of the court of ■common pleas for the city and county of New York, entered upon an order, which affirmed a judgment entered upon an order of special term confirming the report of a referee, which decided that the claimant above named was not entitled to participate in the .distribution of the estate of Arthur E. Bateman, who had made an assignment to John A. Grarver for the benefit of his creditors. The claim, as presented to the assignee, was for the value of certains bonds alleged to have been delivered to Bateman to secure the performance of certain conditions in a contract, which conditions had been performed and delivery of said bonds demanded •by claimant prior to the assignment. To prove his case the claimant put in evidence a contract between himself and one Hood, whereby, in consideration of the sale of a railroad to him, Hood agreed to deliver to the claimant certain bonds. The referee found that the sale was made as proved, and that claimant received the consideration agreed upon, except the bond in question here; that Bateman was not a party to the transaction, and never held any of the bonds belonging to claimant, and was not individually indebted to him.

      William H. Stayton, for app’lt;

      Matthew Hale, for resp’t.

       AfE’g 58 St. Rep. 326.

   Finch, J.

There are said to be two questions of fact in this case, although involving quite inconsistent positions. One is whether Bateman held the ten bonds claimed as due to the plaintiff in the character of a bailee bound to deliver them; and the other whether he owed the bonds as a debt because he was the undisclosed principal in plaintiff’s contract with Hood. Waiving for the present the inconsistency thus developed, it remains true that the referee’s findings negative both the asserted facts, and are beyond our review because supported by evidence. They require attention, however, since they are more or less involved in objections taken to the referee’s rulings upon the trial.

It is first urged that proper evidence tending to show that Bate-man was the real purchaser in plaintiff’s sale of the railroad to Hood was erroneously excluded. To appreciate the referee’s ruling we . must recall the situation existing when it was made. Plaintiff’s written claim put bdfore the referee was wholly against. Bateman as bailee. After stating the amount sought to be recovered, the plaintiff proceeds thus: Said Bateman,'at the time of his assignment, held said bonds which had theretofore been delivered to him to secure the performance of certain conditions. Prior to his assignment, such conditions had been duly performed and the delivery of said bonds, coupons and interest had been duly demanded, but such-delivery was not made. If there wSs or could be the least doubt as to th‘e meaning of this claim it was dissipated at the opening of the trial, for the first thing done on behalf of plaintiff was to put before the referee the affidavit of the plaintiff in which he tells his whole story and sets out in detail the. facts and circumstances upon which he relies. In that paper Bateman is charged as bailee violating his duty, the written contract with Hood is annexed, and there is no pretense or suggestion of any other ground of liability. In this state of the case plaintiff called Bateman as a witness. On his direct examination he testified that he never had the bonds, and that the sale of the railroad was to-Hood. The claimant then asked: State, if you can, the circum-: stances surrounding the agreement entered into by Lewis Clepliane and one Peck, attorney in fact of Calvin Hood. The evidence was objected to on the ground that the agreement was in-writing, and is in evidence, and speaks for itself. The objection was sustained, and there was an exception. The ruling was clearly right.

The offer itself was loose and broad, stating no purpose and confined to no point, obviously immaterial to any known issue in the case, and improper in the face of the writing itself. But the claimant now says he wanted to show that Bateman and not Hood was the real purchaser. Then he should have said so. He should have made that offer. He should have stated the new and unsuspected and wholly inconsistent issue which he meant to interject into the case, and asked a ruling in the light of it. Hot having done so, but concealing the purpose if he had it at all, he cannot now avail himself of it to defeat the ruling, perfectly proper and just under the circumstances which surrounded it,, and when it was made. To hold otherwise would be to condone what would operate as a fraud upon the referee.

Later Clephane himself was called as a witness and was asked: With whom did you conduct the negotiations leading up to that, sale? That was objected to again and the objection was-sustained. There was no exception; and if one had been taken the observations already made would again be applicable. There is a further answer to the criticism of these rulings contained in the opinion of the general term, but, wholly independent of that, I think the-claimant 'never put himself in position to raise the question of error upon which he how relies.

What has been said is one answer to. the claimant’s exception which questioned the referee’s refusal to admit an offered, telegram. It preceded the sale of the road, and appeared to form an.element of the negotiations ending in such sale, and there was no sufficient proof of the genuineness or authenticity of the paper. If such proof was possible by the method suggested in the testimony, it was not furnished.'

We discover no ground for reversal, and the judgment should be affirmed, with costs.

All concur. Judgment affirmed.


author: Gray, J.

text:
    Charles H. Palmer, Resp’t, v. Augusta B, Gould, Impleaded, etc., App’lt.

      (Court of Appeals,

      Filed January 15, 1895.)

    Attorney and client—Breach of good faith.
    Where an attorney, who had for several years acted as general counsel and professional adviser for a woman, acts ostensibly as her attorney in the negotiation and making of a contract for the.sale of certain of her real estate, while, without disclosing to her the fact, he acts for and follows the instruction of the purchaser, such conduct is a breach of good faith'not only meriting disapprobation, but rendering his testimony subject to disbelief when in conflict with that of his client in an action by the purchaser to enforce specific performance of the contract.
    Appeal from, judgment of the general term of. the supreme court in the fifth judicial department, entered upon an order, which affirmed as to the defendant Gould and reversed and granted a new trial as to the defendant Bowen an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at special term.
    This action was brought by the plaintiff to enforce the specific performance of a contract made with the appellant, Mrs. Gould, for the sale to him of a large tract of land in the city of Rochester. The land was owned by Mrs. Gould and her brother, Augustus C. Bowen, in equal undivided interests. The agreement for its sale was dated the 2oth day of February, 1890, and was expressed as being between Augusta B. Gould, of Rochester, N. Y, and Augustus 0. Bowen and Jennie M. Bowen, his wife, of Michigan Bluffs, California, by said Augusta B. Gould, their “ attorney in fact,” as parties of the first part, and Charles H. Palmer, of the city of Rochester, N. Y., as party of the second part. It was expressed therein that the parties of the first part “ have sold, and hereby agree to convey to the party of the second part,” a certain tract of land, describing it, containing about forty-six acres, for the sum of $50,000, to be paid in the manner therein mentioned. The parties of the first part were to execute and deliver to the party of the second part a good and sufficient warranty deed of the premises, at a time and placed specified. A provision of the agreement made the conditions and agreements on the part of the parties of the first part binding on them, jointly and severally. It was signed on the day of its date by the. plaintiff Palmer, and by the defendant Augusta B. Gould, who, also, signed the names of Augustus 0. Bowen and Jennie M. Bowen to it, as their “attorney.” The trial of the action resulted in an interlocutory judgment, directing the defendants Bowen and Gould to perform the contract and to convey the property to the plaintiff. As to the defendant Jennie M. Bowen the complaint was dismissed, on the ground that her name was signed without authority. On the appeal by the defendants from the interlocutory judgment, it was reversed at the general term as to the defendant Augustus 0. Bowen, on the ground that the contract had been executed in his name, also, without authority. The decision of the general term reversing the judgment as to Augusus 0. Bowen was appealed from to this court, where it was affirmed, and judgment absolute ordered for the defendant Augustus 0. Bowen. Final judgment was then entered, dismissing the complaint as to the defendants Augustus and Jennie Bowen, and directing specific performance as to the defendant Mrs.- Gould.
    At the time this contract was made, Mrs. Gould lived in Rochester and her brother lived in California. In January, 1890, a proposition for the "purchase of this property had been made by one Ely, and a contract was submitted to Mrs. Gould respecting its sale. She consulted with a lawyer in Rochester by the name of Barker, and, acting upon his advice, the proposed contract was rejected. The-plaintiff, Mr. Palmer, was informed about the negotiations with Ely for the-sale of the property, and of their having fallen through, and he gave instructions to Barker to purchase the Bowen property for him. Barker saw Mrs. Gould and informed her that a party wished to purchase the property and requested her to come to his office. She did so, accompanied by her sister, Mr. Lathrop, and the contract in question was then and there drawn by Barker arid subsequently executed as described.
    It is claimed on the part of Mrs. Gould that she executed the contract conditionally upon her brother’s approval and willingness to sell. Her testimony, as that of Mrs. Lathrop, was explicit with respect to that. On the other hand, it is claimed on behalf of the plaintiff that Mrs. Gould executed the contract unconditionally* and that it was not dependent for its completion upon the approval and ratification of Bowen. To sustain that position the testimony of Barker is relied upon, to show that nothing was said by Mrs. Gould at the time of the execution of tljie contract to the effect that she would not sell unless her brother was willing. There had been no interview between the plaintiff Palmer and any of the defendants prior to the making, execution and delivery of the contract. The interviews respecting it were had only between Barker and Mrs. Gould, at which Mrs. Lathrop was present, and took place on the 24th day of February, 1890, at Mrs. Gould’s house and on the following day at Mr. Barker’s office. At the time of the execution of the contract by Mrs. Gould, a power of attorney was drawn up by Barker for execution by her brother, Mr. Bowen, authorizing her to make a valid conveyance of his real estate interests; but it was never executed by him and he. refused to join in the sale. The evidence showed that though Barker had been and was acting as Gould’s attorney, in the matter of the sale of the property in question, he was, also acting under Palmer’s instructions in the endeavor to secure a sale of it to him, and that between them the terms had been arranged for its purchase, intermediate the rejection of the Ely proposition and the interviews had by Barker with Mrs. Gould at her house. Barker did not inform Mrs. Gould then of the name of the party proposing to purchase; nor of his negotiations with him, and his communications to her were confined, in substance, to making the offer upon the terms, which had been arranged upon between him and Palmer.
    Upon the evidence relating to the making and delivery of the contract of sale, the trial court made the finding of fact that no condition of any kind was attached to its delivery. The court was, also, requested by the defendant, Mrs. Gould, to find: “That at the time of the execution of said agreement, and during the negotiations preceding the same, said Barker was secretly, and. without knowledge or assent of the defendant Gould, acting as attorney or agent for the plaintiff, charged with the duty of purchasing the real property described in the complaint.” To the refusal so to find, the defendant Gould excepted. As a majority of the court con'cur only in that portion of the opinion which relates to his refusal to find the case is not reported in full.

      Thomas Raines, for app’lt;

      David Hays, for resp’t.

       Rev’g 44 St. Rep. 802.

   Gray, J.

I do not think that this contract is one which, under all the circumstances, it would be equitable to enforce. It is a rule, well settled by the cases, that the specific performance of a contract for the sale of lands will not be decreed if the remedy be not natural, or where one party only is bound by the agreement. Chancellor Kent, in asserting that principle, in Benedict v. Lynch, 1 John. Ch. 370. referred to the decision of Lord Redesdale in Lawrenson v. Butler, 1 Sch. & L. 13; a case where the bill prayed a specific performance of an agreement to execute a lease of lands. The defendant entered into an agreement with the plaintiff for the lease of certain property; but it was necessary, in order to its validity, that certain trustees, who held the lands upon the trusts during defendant’s life, should give their consent; and they refused to do so. Lord Redesdale refused to decree specific performance, on the ground, substantially, that one party only was bound by the agreement, viz.: the plaintiff, as the defendant could not have executed the lease in compliance with the agreement.

In the course of his opinion he observes: I have no conception that a court of equity ought to decree a specific performance in a case where nothing has been done in pursuance of the agreement; except where both parties have by the agreement a right to compel a specific performance according to the advantage which it might be suppose they were to derive from it. Again he observes: It is said that courts 'of equity have decreed performance in cases where one party only was bound by the agreement. I believe it would be difficult to find a case where that has been done, particularly a late case. I am aware of the criticism to which Lord Redesdale’s opinion has been subjected, and, though I should prefer his views (as Chancellor Kent said he did, in Clason v. Bailey, 14 Johns, at page 489), I have no intention of using it as authority; except as illustrative of the general rule. In the cases of agreements for the sale of land signed only by the party to be charged, it must be regarded as overruled by later decisions.

In the cases of contracts relating to the sale of real property, courts certainly have been stricter in enforcing their performance upon the application of the vendee, and it has not unfrequently happened that where he has been in ignorance of the defect in the vendor’s'title, or where the vendor has represented his interest as being greater than it was, his claim that there should be conveyed to him whatever that interest was has been sustained. Under such circumstances thei’e does not appear to be any good reason .why the vendee should not compel the vendor to perform, so far as he is able to, and to make compensation for the deficiency. See Adams’ Equity, *90; Sugden on Vendors, 193. In Mortlock v. Butter, 10 Ves. Jr., 292, Lord Chancellor Eldon observed:

“ I also agree, if a man, having partial interests in an estate,' chooses to enter into a contract representing it, and agreeing to sell it, as his own, it is competent to him to afterwards say; though he has valuable interests,' he has not the entirety ; and therefore the purchaser shall not have the benefit of his contract. For the purpose of this jurisdiction, the person contracting under those circumstances is bound by the assertion in his contract, and if the vendee chooses to take as much as he can have, he has a right to that, and to an abatement; and the court will not hear the objection by the vendor that the purchaser cannot have the whole. But that always turns upon this; that it is, and intended to be, the contract of the vendor.”

Thei’e is no doubt about the rule that where the vendor has by his agreement undertaken to convey an estate in’ lands, in which he has a partial interest, and the vendee is in ignorance of that fact, the latter is entitled to insist upon the former conveying to him what interest he has. Wood v. Griffith, 1 Wils. Ch. 44; Pratt v. Law, 9 Cranch, 456; Waters v. Travis, 9 John. R. 450, 465. That is not this case, and none of the cases to which respondent directs our attention are analogus in their facts and in the circumstances which influenced the decree. In Dyas v. Cruise, 2 Jones and La Touche, 560, the plaintiff in the action for a specific performance of a contract to lease had, on the faith of it, during the first year of his term, expended a large sum of money in lasting improvements, and Lord Sugden said he should have held, ‘ if it had been necessary to decide the point, that Mr. Dyas was entitled to a decree for partial performance of the contract’ The defendant, Cruise, was tenant for life of one undivided moiety of the estate; having with his co-tenant power to lease for a -term of thirty-one years, and the case was decided on the ground that the contract was a valid one. and did not involve a decision of the present question. In Hooper v. Smart, L. R. (18 Eq.) 683, the vendor agreed to sell the entirety of certain freehold property and the purchaser went into possession. Because of delays in completing the transaction of sale, he brought the action for a specific performance It transpired that a good title to the entirety could not be made; a moiety being in other parties. The vice-chancellor decreed specific performance as to the undivided moiety and an abate'ment of one-half the price. He rested his decision on the authority of Castle v. Wilkinson, L. R (5 Ch. D.) 584; where the chancellor held ‘that where a man proposes to convey the whole of an estate, as owner of the fee simple,’ and it turns out that he is only seized pur autre vie, and that his wife has the remainder, there the court can insist on his making good his contract to the extent to which he is able to make it good; and he must submit to an abatement of the consideration to be paid, for what he improperly alleged he was capable of selling.'• In Barker v. Cox, L. R. (4 Ch. App.) 469, there was an engagement by the vendor, who also had a reversionary interest in the estate, that all parties would concur in conveying. In Barnes v. Wood, L. R. (8 Eq.), 424, the decree for a specific performance was expressly placed upon the ground that the vendor represented himself to be the owner of the fee, when, in fact, having only a limited interest; of which the purchaser was ignorant when he entered into the contract. It was held that the vendor was bound to convey all the interest he had. In Bostwick v. Beach, 103 N. Y. 414; 3 St. Rep. 659, the executors contracted to sell their testator’s farm, under a power of sale, and there was an outstanding dower right. It was held that the widow by joining in the contract consented to look to the purchase money, as a substitute for the land, for her dower right therein, and she could be decreed to release her dower, on payment of its gross value.

But in this case there was no misrepresentation, nor improper conduct, on the part of Mrs. Gould. She did not represent that she could not convey, nor did she - undertake that she would convey, her brother’s interest. Palmer, as well as Barker, knew the nature of the ownership; a fact of which the contract, on its face, informed the former. The transaction, in all its appearances, was one for the proposed conveyance of interests held by the tenants in common.

There is a clear distinction between the case where a party, in ■agreeing to sell land to another, represents or asserts his estate, or interest in it, to be other or greater, than it is, and the present case where Mrs. Gould represented nothing that was untrue with respect to her attitude towards the property, except, possibly, regarding only the face of the instrument, that she had capacity to .agree for her brother's interest. Her representation to that effect was, of course, nor in fact made; nor was it understood by Barker to have been made. But assuming, for the purposes of the present discussion, that upon face of the contract such a representation seemed -to be made by Mrs. Gould, in signing as attorney for her brother, it is clear that the distinction between such a case and the cases to which reference has been made, where a party had been compelled to convey what intérest he had in the property, rests in this, that, in the latter, there is assertion with respect to the title, or interest, of the party in the property, which furnishes a ground for equity to say that he must convey to the extent that he can, when the other party insists upon the agreement; whereas, in the case assumed, there would be, at most, only a possible deception practiced with respect to the’ ability of the party to bind & part owner in the transaction of sale. In such case, however, the party contracted with is informed of the necessity of the concurrence of the other owner and is put upon notice, as to the extent of the agency of the party with whom he is negotiating. It is conceiviable that an action at law might lie in such a case for damages, by reason of the deceit practiced, or the misrepresentation made by one owner respecting his power to represent the other. The saíne ground, -upon which equity proceeds in decreeing specific performance in the former class of cases, is not found in the present case; because, as I have before suggested, there has been here no proposition by Mrs. Grould to convey the whole-estate as its owner; no false assertion of title; nor any engagement.by her that her brother would concur in the conveyance. In my opinion, this is a case which aptly illustrates the rules that the' mutuality of the remedy, upon which rests the right to the specfic performance of a contract, depends upon the contract being enforcible by both parties. Under such a rule, it must be perfectly clear from the contract, that either party could compel a specific performance as against the other. Mr. Pomeroy, in his work on Contracts (sec. 162), relying on many cases which he cites, says : “ If, therefore, from the nature or form of the contract itself, from the relations of the parties, from the personal incapacity of one of them, or from any other cause the argreement devolves no obligation at all upon one of the parties, or if it cannot be specifically enforced against him,- then and for that reason, be is not, in general, entitled to the remedy of a specific performance against his adversary party; although otherwise there may be no obstacle arising, either from the terms of the contract, or from his personal statu» and relations, to an enforcement of the relief against the latter individually.” Vice-Chancellor Leach, in Adderley v. Dixon, 1 Sim. & Stu. 611, observed : ‘It has-been settled by repeated decisions that the remedy in equity must be mutual, and that where-a bill will lie for the purchaser, it will also lie for the vendor.’’ Phillips v. Berger, 8 Barb. 527. If it should be suggested, an answer to the application of this equitable rule that mutuality must, exist in the remedy to authorize a decree of specific performance,, that it was competent for Palmer to waive the want of mutuality ánd therefore, the case is similar to one where the agreement though only signed by the one party may, neverthless, be enforced against him by the other I should reply that such a case is an apparent exception to the rule which requires the contract to be mutually-binding when entered into. See Fry on Specific Performance, sec. 449, and cases cited, ft does not prevent the application of the rule to a case like the present one. With respect to the case-, suggested, as it was said by Pltjmer. M. R, in Martin v. Mitchell, 2 Jac. & W. *427, ‘It is considered that when the party files the bill he does an act that will bind him, and that from that time there is mutuality.’ That is to say; in the case of a memorandum agreement, which is signed only by the party to be charged, it i» not er.forcible by him against the other party, who has not signed it;' but, by the filing of a bill for specific performance, the other party lias waived the original want of mutuality. But' in the present case there was originally a contract, which was signed by Palmer and by Mrs. Gould, individually and as attorney for her brother, and apparently a valid agreement, and the question of the mutuality of the remedy upon it, as between them, was determinable upon the event of what the absent party would do about the ‘ proposed agreement made for him to sell. As the contract contemplated and called for a conveyance • of both interests in the property, the purchaser, Palmer, would not be bound to accept less, in the event of the refusal by the brother to concur in the sale. Thus there, arose the conditions suggested by the contract and which made it unenforcible against the intending purchaser. It would be unjust to hold that it was open to him to waive; when the contract in its nature might be regarded as dependent upon a subsequent event. In the other class of cases, under the statute of frauds, the statute interposes and there is no binding agreement by the party purchasing at all, until, by the institution of his action to enforce the agreement, he makes himself a party to the transaction and makes the agreement a mutual one. In the one case, the question of mutuality turns upon the nature and conditions of the contract of the parties. In the other, there is no contract as to one, until he does an act which is deemed to make him a party to it. ■

Applying these general principles to the case at bar, it appears to me that there is lacking that mutuality in the equitable remedy, which is so essential to the right to a specific performance of the contract. Reversing the positions of the parties, can it be said that the appellant, Mrs. Gould, could have enforced this contract against Palmer, if he .had elected not to be bound by it ? The contract calls for the conveyance by Mrs. Gould and her brother, Mr. Bowen, of the whole property, as the owners in common of it, by a good and sufficient warranty deed. It was a contract for the sale of the interests of both owners. It would have been competent for him to refuse to complete the contract as to Mrs. Gould’s undivided .interest, after Mr. Bowen had refused to complete the-contract on his part. He could say that what he agreed to buy was not a partial interest, but the whole, and that he refused to-accept less. Under these circumstances, it would be inequitable to decree a performance at his suit; for there was an inequality of obligation between the parties. If the vendee was at liberty to enforce, or to avoid the contract, according as his interests might incline him, tlip rule of mutuality, to which allusion has been made, would be violated.

Nor does it, in my opinion, alter the case that it was provided in the contract that the agreement should be binding upon the parties of the first part, jointly and severally. I do not see how that provision disposes of the objection of the want of mutuality in the contract. If by that provision it was meant to say that, irrespective of whether Mrs. Gould’s brother should approve' of the contract and join in the conveyance, it should be binding upon her to the extent of her interest, if it was demanded Mm Palmer, then it would be as if he had made with each owner a .several contract, which he.would be at liberty to enforce separately, if performance was refused, and which each might insist upon his performing. That was not the character nor the purpose -of this agreement. I do not think that Mr. Palmer would have been precluded from saying, if Mrs. Gould had insisted upon his purchasing her interest alone, that the contract which he made was to purchase the entire tract of land and that he was unwilling to take only a partial interest in it. Again, it is to be observed that the inquality of the obligations upon the parties to this contract becomes apparent, when we consider the .existence of the ■provision, inserted in the contract by Barker, who was Mrs. Gould’s -adviser, that it should bind her and her brother, severally and jointly. Were they to be bound, each in all events, and Palmer .at his election ? In Attorney General v. Day, 1 Ves. Sen. 218, where a purchase of lands for the benefit "of a charity, established under a will, was sought to be enforced on behalf of the charity, Lord Chancellor Hardwicks said there were reasons why it can-mot be executed entirely, and then not at all. By reason of the •death of a tenant in tail, his part had gone over to his issue in tail, ¡against whom, as it appears, the court could not decree. The •chancellor observed: It is admitted that if the bill was on the -other side by the present defendant, or surviving tenant in common, for an executiomas to a moiety, the court would not execute it against the purchaser; because it is different from what was contracted for; as his meaning might be to have the entire estate, .and the court pretends to decree in specie only, which the decreeing half would not be. He did subsequently remark upon a -difference existing between the case of a private person and of .■a charity; though he refused to express an absolute opinion as to whether it would make a difference in the the legal result. But it is immaterial to this case what the lord chancellor’s opinion was; because there it was founded upon the fact of a contract of sale made by both of the tenants in common. In Horrocks v. Rigby, L. R (9 Ch. D.) 180, it is true, Lord Hardwicke’s opinion in .Attorney-General v. Day, was referred to by Justice Fry ; but there again the difficulty was, not that of the two parties, contracting to sell as common tenants of the property, one refused to convey, but that one was found to have no good title. The defend■ant there, it seems, was unwilling to convey his moiety; because, bv reason of the existing mortgage covering his half, he would ..actually receive nothing, as is said in his counsel’s point. It •,-seems to me very clear that if the court may decree specific performance on the part of Mrs. Gould, it will be compelling her to perform a contract which she never intended to make. The ■only contract which she in reality entered into was one in which her brother was to join. In view of their harmonious relations, with his letter in her possession; declining to sell and ■adVising her against selling, it cannot be supposed that she intended 'to sell out her interest and to leave her brother a co-tenant with a stranger. Her denial of the intention is explicit ¡and is borne out by every circumstance and presumption ; which, in my opinion, the clause making the obligation a several and joint one is insufficient to overcome. The case of Price v. Griffith, 1 De Gex, Macn. and Gordon, 80, is. not unlike the present case ; though the subject of the contract of sale there was a colliery, belonging to two persons in undivided moieties. The bill alleged the contract was binding on both; but prayed relief, in the alternative, against one. The bill had been dismissed against one •owner by consent of plaintiff for inability to prove a concurrence in the proposal to sell, and the appeal concerned the other owner. Justice Knight Bruce said : ‘But the owner of the other share never meant to contract for one share alone. If he intended to contract at all, he intended to contract for a lease of the whole colliery. Cases may be conceived where a person, who has contracted for more than it is in his power to convey, •ought to be decreed to convey what he can, either with or without ■compensation, to the vendee for such part of the subject-matter of the contract as the vendor is unable to convey. But a lease of an undivided moiety of a colliery is a very different thing from' a lease of a whole colliery; and in this case there is no evidence of the improper conduct, or misrepresentation, or of the defendant "Griffith having held himself out as capable of contracting for the latter, or in fact, any other circumstance constituting a ground for ■a decree as to one undivided share alone.’

The question is one of interest and of legal importance, and the conclusion at which I have arrived is, that, under all the circumstances, it would be contrary to equity to decree a specific performance by Mrs. Gould and that it would be much better to leave the respondent, Mr. Palmer, to his action at law, for what ■damage he may be able to show he had sustained, by reason of what Mrs. Gould has done, or has refused to do.

While I think the foregoing considerations are of sufficient weight to dispose of this case adversely to the plaintiff’s claim for a specific performance of the contract, there is another ground upon which the appellant must prevail. The conflict of evidence may have justified the court in refusing to find that any condition was attached to the delivery of the contract; but the proofs fully warranted the defendant’s (Mrs. Gould’s) request of the trial court to find, that at the time of the execution of said agreement, and’ during the negotiations preceding the same, said Barker was secretly, and without the knowledge or assent of the defendant G-ould, acting as attorney or agent for the plaintiff, charged with the duty of purchasing the real property described in the complaint. The court found that Barker had been for several years prior to February the general counsel and professional adviser of Mrs. ,Gould and acted as her attorney in all the matters connected with the execution of the- agreement in question, and that she relied upon his good faith and professional advice. The evidence, however, did not show that he conducted himself towards her, as •she was justified in assuming that he would, in view of their relations. After the Ely proposal was rejected, under Barker’s advice, he did not see Mrs. Gould again until the day before this •sontract was drawn; but, during that interval of time, he was with Palmer and he was acting under his instructions when he called again upon Mrs. Gould to propose a sale of her property. He had informed Palmer of the objections made to Ely’s proposal, because of the mode of payment in a trade o£ lands, and he went to Mrs. Gould with a proposition from Palmer, involving a part payment in cash and part in his bond secured by mortgage upon-the land and with suggestions as to a release of the mortgage lien,, in case of sales of lots. He was acting in Palmer’s interest and yet, when seeking again the client who had advised with him, he-did not disclose to her his relations with Palmer and that they had arranged terms for the purchase of the property. Good faith required of him to state his. attitude with respect to the party proposing to purchase. It was not consistent with that good faith that he should suppress a knowledge of what had occurred, intermediate the time of their previous consultations and his call upon the afternoon before that day, when, by his request, Mrs. Gould called at his office to execute a contract of sale. For him to precipitate his client, Mrs. Gould, into a contract that morning with a party, whose name was then first revealed to her and at whose instance he endeavored to secure a contract of sale of so one sided a nature in its provisions, was conduct meriting not only disapprobation; but'which should render his testimony subject to-disbelief, when in conflict with Mrs. Gould’s. Enough is apparent, in the testimony which he gave, to show that he was playing a double part in the transaction. I think the evidence justified the appellant in making the request of the court tó find, which I have mentipned, and the refusal was an error, which certainly calls for a reversal of the judgment which the plaintiff recovered.

Upon the grounds which have been discussed, I am of the opinion that the judgment should be reserved and that a judgment should be entered for the appellant dismissing the complaint; but, as my associates place their concurrence upon the last ground, there must be a reversal of the judgment appealed from and a new trial must be ordered; with costs to abide the event. ■

All concur upon the last ground of the opinion, relating to the-refusal to find as to Barker’s secretly acting for the plaintiff.

Judgment reversed.


text:
    Richard Cronin et al, Resp’ts, v. William M. Tebo, App’lt.

      (Court of Appeals,

      Filed January 15, 1896.)

    Contract—Abandonment.
    The defendant was held, under the facts and circumstances, not to be. justified in the abandoment of the contract.
    Appeal from judgment of the general term of the supreme court of the second judicial department, entered upon an order, which affirmed a judgment in favor of plaintiffs entered upon a verdict directed by the court, and also affirmed an order denying a motion a new trial:

      The plaintiffs in this action contracted to build certain bulkheads at Fort Hamilton, the construction of which required an excavation in the ground under-water for their reception. The defendant made a written offer to the plaintiffs to do this work, of which .the following is a copy :
    Brooklyn, June 13, 1887.
    I, the undersigned, propose and offer to excavate and dredge .a trench seven hundred and seventy-five feet in length for crib bottom of thirty feet wide to the depth of twenty feet at mean low water for the sum of twenty-three hundred dollars, the material so dredged to be deposited in-shore so as not to interfere with said trench. Respectfully yours,
    W. M. Tebo.
    The proposition was accepted verbally, and the defendant was ■directed to proceed with the work, which he did. He was prevented by the shore inspector from dumping the material in-shore, and carried the same to sea until about the seventh day of July, when he ceased to work and did no more dredging thereafter.
    This action is for the recovery of damages alleged to have been sustained by the plaintiffs in consequence of the failure of the defendant to complete his contract, and for service in driving some piles.
    Defendant set up as a counterclaim the value of the work he actually did under the contract.
    The counterclaim was based upon the theory that the contract secured to the defendant the right to dump the excavated material in-shore. That it was the duty of the plaintiffs "to furnish that place of deposit under the contract, and as they failed to perform that portion of the contract on their part, the defendant was justified in the abandonment of the work, and entitled to compensation-for what he had done under the contract '

      Josiah T. Morean, for app’lt;

      James C. Church, for resp’ts.

       AfE’g 54 St. Rep. 91.

   Finch, J.

“ The defendant’s counterclaim, as pleaded, goes upon the ground that it was made one of the terms of the contract that he should be permitted and would be able to dump the dredging material in-shore, and that the plaintiffs broke that contract by not securing for him such permission or authority. There_ was no express contract to that effect, and if any such existed it was, by implication from the nature of the transaction. The defendant offered to do the dredging at a named price, adding, the material so dredged to be deposited in-shore, so as not to interfere with the trench to be made for the cribs of the new bulkhead. The plaintiffs accepted the' proposition. They had a contract with the owner to build the new bulkhead, and knew the fact that he needed the material for filling, and was both willing and desirous to have the material so deposited. He never interfered to prevent in-shore dumping. The consent of the owner being assured, no difficulty remained except what might come from the law of the state. Both parties assumed, as was again the fact, that in-shore dumping behind a bulkhead was permissible under that law. There was a bulkhead existing, and it was supposed by the parties-that it would afford opportunity for disposing of the material. .They were experienced in the business, and, so far as appears, had equal knowledge and equal means of knowledge-of the law. But at the first effort the shore inspector stopped the-work and prevented the in-shore dumping at the locality selected. At that point it is possible that the defendant might have been justified in abandoning his Contract because of a mutual mistake as to the understood possibility of dumping in-shore, or on the ground'of an implied contract of the plaintiffs to furnish such opportunity. But he did not do so, and kept on carrying the-material out to sea, which was a more expensive process. What, followed is matter in dispute. The plaintiffs say that defendant preferred to dump the material at sea, because he .could not get. his scows near enough to the shove, and could take away much larger loads with his tug. The defendant says that he waived his right temporarily on the faith of plaintiffs’ promise to build the north crib, in which event in-shore dumping could be resumed, and that plaintiffs neglected and refused to build it promptly and for that reason he abandoned the work. We may assume his ’ version as correct. But before lie abandoned the dredging the whole difficulty vanished and he knew it. Over two hundred, feet of the crib parallel to the shore had been completed. The-change was so great that he was not justified in assuming that inshore .dumping would still be prohibited. ■ On the contrary, he saw one Beard, employed by the same owners at the north, damping dredging material in-shore at the precise point where he had earlier been denied that permission. 'Cronin, one of the plaintiffs, testified that the defendant knew what Beard was doing, and that his agent, Bentley, complained about it and threatened to quit. ■ work unless the process was stopped. Why this" complaint was-made the case does not show. Bentley, when called for the defendant, said: I understood the day before I quit work that Mr. Beard had commenced dumping in-shore. I knew.the fact at the time I went and spoke to Mr. Oronin. It thus appears that before the defendant abandoned his work enough of the cribs had been put in place to permit in-shore dumping without official interference, and the defendant knew it, for it was going on under Ms own observation, He needed not to be told, for he saw. He ' had no right to assume that the inspector would refuse to him what he.permitted to Beard, and he should have begun, as he-could have done, to dump in-shore. His successors, who took aphis work where he left it, did so without difficulty or interference,, and what they did he could have done, and he was aware of the fact. Indeed, the prohibition by the shore inspector did not, rest upon the absence of the north crib. That was never specified by any of the" officials. Their action was founded upon the absence of cribs generally, and the alleged need of the north crib was a bare assumption % the defendant without any foundation in fact. -On the contrary, when enough of the outside-crib to serve as protection was constructed all complaint ceased™ Beard dumped in-shore, and also defendant’s successors, and these facts were obvious to him before he abandoned the work. I am unable to see in the proof any justification for his abandonment of the contract.

The judgment should be affirmed, with costs.

All concur, except Haight, J., not sitting. .

Judgment affirmed.