author: Sheldon, S.

text:
    In the Matter of the Disposition of the Real Estate of the Estate of Stilman B. Sanders, Dec’d, for the Payment of his Debts.

      (Surrogate’s Court, Herkimer County,

      Filed May 15, 1893.)

    1. Limitation—Payment.
    A payment, in order to have the effect of a renewal of the obligation or an extension of the time in which an action may be brought, must be made by the party who is sought to be held; not necessarily in person, but by him or by his agent authorized to do that act for him, so that it is his payment.
    2. Same—Suretyship.
    A note made by the decedent and one P. was given to the aunt of the latter to raise money to pay off a prior note made by P. and indorsed by decedent. All the payments on such note were made by P., who made all the indorsements. Decedent at one time asked to be allowed to take his name off, which the payee refused, but expressed no surprise, and decedent said that he would see that it was paid, and that P. had made enough on the place to have paid it. Held, sufficient to show that the payee understood that decedent was only a surety.
    3. Same.
    It was claimed that a delivery of hay by P. was a payment by decedent on the note. The evidence showed that on the payee sending for hay, decedent said that P. was away, and that when he returned the payee could have it; that subsequently on examining the note he expressed surprise that the hay was not indors'd thereon, and the payee replied that she and P. were in the habit of letting their accounts run and indorsing them in one indorsement. P. testified that all the hay delivered was his property. Held, that a payment by decedent or by P., as his agent, was not shown.

      Upon the return of citations Hudson B. Farrington appeared and presented a claim to be proved against the estate based upon a promissory note assigned to him by the payee, Madeline Harter, which was dated March 8, 1875, for $1,200, executed by Thomas E. Petrie and Stillman B. Sanders, payable one year after date, with interest, and was the joint and several note of the said makers. Sanders died September 18, 1890. Thomas E. Petrie and Marietta S. Gardner were appointed administrators of his estate on October 9, 1890.
    The administrators interpose the statute of limitations as a defense to the claim against Sanders’ estate.
    On January 1, 1887, Thomas E. Petrie delivered to Madeline Harter, to be applied as a payment on the note, 1,235 lbs. of hay of the value of $8.02, and the claimant asserts that this payment was made by Petrie as the agent of Sanders, by Sanders’ direction, and was a payment by Sanders upon the note, and that by such payment Sander’s renewed his obligation on the note.-

      J. A. & R. E. Steele, for claimant; Steele & Prescott, for administrators.
   Sheldon, S.

It is well settled that one of the joint and several makers of a promissory note cannot, by his own act in making a payment thereon, postpone or avoid the bar of the statute of limitations as to the other makers, and this is so whether the one making the payment is the principal debtor and the other makers are sureties, or whether the surety makes the payment. In any case a payment, in order to have the effect of a renewal of the obligation or an extension of the time in which an action may be brought, must be made by the party who is sought to be held; not necessarily in person, but by him or by his agent authorized to do that act for him, so that it is his payment. First National Bank of Utica v. Ballou, 49 N. Y., 155; Littlefield v. Littlefield, 91 id., 203.

In the case last cited it appeared that the holder-of a joint and several note long past due went to one of the makers, 'who was a surety for the other maker and in substance asked for payment. The surety asked the holder to wait until the maker came home and sent the principal maker a message by the holder saying “ Tell him for me that he must pay the interest and as much of the principal as he' can; and that I say so.” The principal maker came home, and the holder delivered the message as directed, and some months afterward the principal made a payment on the note and afterwards told the surety of making the payment and the surety said that it was all right It is clear that the effect of the acts of the parties was not otherwise than as though the surety had gone to the principal maker of the note and said to him 11 You must make a payment on that note, pay the interest and as much of the principal as you can," in pursuance [of this direction the the principal maker makes a payment upon the note, and soon after informs the surety of it, and the surety says “ All right; that is what I told you to do.” Such a payment is one made with the knowledge and approval of the surety, and in one sense by the direction of the surety, for he instigated the payment, he set the maker in motion, and directed him to make the payment and the payment inured to the benefit of botii principal and surety in the-reduction of the debt, and if such payment was the joint act of principal and surety it would be a payment by the surety and be could not avail himself of the statute of limitations until six years thereafter, but such payment cannot be held to be the joint act of principal and surety; the principal makes the payment out of his funds: he is only discharging his obligation both to the holder of the note and to the surety; the surety in urging the principal to make a payment was only urging him to do "his duty. It is competent for the surety to direct the maker to make a payment as the act and payment of both, although made with the means of the principal, and if so made, it will have the same effect as though made personally by the surety, but to establish such a payment the proof must be clear and unequivocal. In a case where the makers of a joint and several note were equally liable as between themselves, and one of the makers had upon the-request and direction of the others made a payment upon the note; or in a case where the surety made a payment upon the request of the principal maker of the obligation, there is ground for contention that such payment is the joint act of the one requesting and the one making the payment, because the principal maker, who requests and induces the surety to make a payment, is thereby discharging his own duty, and contracting a fresh obligation to the surety for the money advanced by the surety to-make the payment for the principal.

In the application of these principles to the case in hand, I will first consider in what relation to the other maker of the note was Stillman B. Sanders. It is clearly shown that, at the date of the-note, Petrie was the maker and Sanders one of the indorsers of a note held by William Reynolds upon which there was due $1,765, upon which Petrie was the principal debtor, and Sanders was surety, and that the consideration of the note in suit was $1,200 furnished by Madeline Ilarter, the payee, to pay off the Reynolds note. I think it must be found as a fact that Madeline Harter knew of the fact that Petrie had the benefit of the $1,200, and that as between themselves Sanders was only surety for Petrie upon the note. Miss Harter was Petrie’s aunt. Petrie testifies that before getting the money he had talked with Miss Harter about it, and told her that he was paying Reynolds a bonus for the use of his money which he wished to get rid of, and this testimony is not contradicted. Reynolds was paid at Newport, and Miss Harter went to Newport on the day of the payment with either Sanders or Petrie to furnish the $1,200. In support of this finding some weight must be given to the fact that Petrie personally attended to making the payments. None of the indorsements are in Sanders’ handwriting; and all, except one made by Miss Harter, are in Petrie’s writing; there is no dispute but that nearly all the payments of interest were made by Petrie with his own funds. The fact, as testified to by-Mary A. Farrington, the wife of the claimant, that in the spring of 1887 Sanders asked Miss Harter to allow him to take his name off the note, and her reply refusing, but without surprise at such request,and Sanders’ remark following in the same conversation that he should see that it was paid ; that Petrie could have made enough on the place to have paid it long before now, but that she should have her pay, and that he considered that and one other as sacred, and that these were all that he was holden for; all this indicates a mutual understanding between Miss Harter and Sanders that Sanders was only a surety on the note.

I think it must also be found that the hay delivered to Miss Harter January 1, 1887, to apply on the note was the property of Petrie, and that Miss Harter so understood it. Petrie testified that about the year 1871 he made an oral agreement with Sanders, whereby he was to give Sanders $100 a year and his support for the use of the farm, and that lie occupied the farm under that agreement down to 1890.

There was no direct contradiction of Petrie’s testimony in this respect, and he testified also directly that all the hay delivered to Miss Harter, as well as the other products of the farm delivered to her, all of which was applied upon the note in question or upon other notes of Petrie’s held by her, was his property. How, what is the testimony relied upon to show that Sanders, the surety, made a payment upon the note by Petrie as his agent with and by means of the load of hay, which was Petrie's property ?

Yarnum S. Farrington, called as a witness in behalf of the creditoi', testified that at the request of Miss Harter he delivered a message from Miss Harter to Sanders as follows: “ I told Mr. Sanders that Miss Harter, or Lainy, wanted him to send her some hay for her cows, and he said that Petrie was not at home and when Petrie came home he would send the hay to her.”

Mary A. Farrington, the wife of the creditor, was called as a witness in his behalf and gave testimony concerning a conversation between Sanders and Miss Harter in the spring of 1887 at her house, as follows: “ They talked for some time about church matters; then he asked if the interest had been paid on the note, and she replied, not all of it; he then asked if she had any objections to his seeing that note of his and Petrie’s ; she said no, and got the note for him to see; he looked at the note and seemed surprised, and asked if she had not had that hay; he said that he had told Petrie to bring the hay to apply on the note; he told him to do so and supposed that he had done so, and she replied that he had brought the hay, but that she and Petrie were in the habit of letting their accounts run, and then footing them up and indorsing them in one indorsement” In the same conversation Sanders made the remark “ that Petrie could have made enough on the place to have paid it long before now.”

It is claimed that this conversation referred to the hay delivered to Miss Harter by Petrie January 1, 1887, although it is far from clear that this was so; for by the hay bills it appeared that Petrie had delivered a load of hay to Miss Harter Hovember 24, 1886, another load January 1, 1887, and another load February 10, 1887. These several loads of hay were all payments upon the note, and while it is not impossible that one of tlíese loads of hay was sent by Sanders as a payment by him, the more natural and probable view of the ease is that the payments of hay all stood upon the same footing, and that Sanders’ view of' the transaction, at each time that Petrie took a load of hay to Miss Harter, was that Petrie had done his duty, had made a payment; and it is not probable that it ever came into his mind that he, Sanders, had made a payment to Miss Harter.

Sanders, the surety, could not easily have supposed or intended that when Petrie, the principal debtor, was delivering his own property in payment of his own debt that he, the surety, was making the payment, although at the request of Miss Harter he had told Petrie to bring the hay.

It is evident that Miss Harter knew of no reason for treating any load of hay delivered about this time as a payment by Sanders, ■or any differently than any other of Petrie’s payments. She supposed the payments to be Petrie’s payments, for she told Sanders that Petrie had brought the hay, “ but that she and Petrie were in the habit of letting their accounts run and then footing them up and indorsing them in one indorsement.”

A careful consideration of the circumstances and the inferences to be drawn from the testimony does not permit of the conclusion ■that Petrie was acting as the agent of Sanders when he delivered hay to Miss Harter about Jan. 1, 1887, to apply as a payment on the note. Mr. Sanders did not make that payment. Therefore, the statute of limitations had barred an action on the note as against Sanders prior to his death and the note and the claim cannot be established as a debt to be paid out of Sanders’ real estate in this proceeding.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Accounts of Hattie Clapsaddle, Adm’rx of Dennis L. Clapsaddle, Deceased.

      (Surrogate’s Court, Herkimer County,

      Filed June 19, 1893.)

    1. Limitation—Payment.
    The only indorsement within the statutory time upon a note of decedent to his wife was one for ¡§50, on back interest, which was not signed by him. His daughter testified that she was present when the indorsement was made, and that decedent said : “ There, the note is all right now; my indorsement makes it all rightthat no money passed at the time ; that she had seen her father hand her mother money at other times, but could not tell the amount Held, insufficient to prove a payment, and that the note was barred by the statute.

      2. Payment—Presumption—Husband and wife.
    When the delivery of money is from husband to wife or from father to child the presumption that the delivery of money was in payment of a debt will not arise.
    5. Executors and administrators—Verification of claim.
    An affidavit in support of a claim by an administrator which does not state that no payments have been made thereon is insufficient.
    Upon the accounting in the above entitled proceeding the administratrix sought to prove and have established as a debt due from the estate to her the amount of a promissory note dated April 4, 1867, made by Dennis L. Clapsaddle and LawrenceClapsaddle, promising to pay jointly to Harriet Clapsaddle, three-years from date, $2,100, with use.
    J. M. Hyde, a creditor, filed objections to the claim of the administratrix, viz.: First, that the claim was barred by the statute of limitations. Second, that the administratrix had not made-sufficient proof of the claim, and that the proof and papers submitted were not sufficient to authorize the allowance of the claim.
    The note had indorsements written upon it in the handwriting of Dennis L. Clapsaddle as follows: “May 1, 1871, received $200.00 as interest on within note. May 1,1875, received $200.00 as interest on within note. May 1, 1879, received $200.00 as interest on within note. May 1, Í890, received fifty dollars towards-back interest.”
    The administratrix presented on the hearing as her claim a copy of the note and indorsements, and statement that the amount claimed to be due from the estate of Dennis L. Clapsaddle to the claimant on the note September 80, 1891, for principal and interest, was $6,685.68, and this was verified by the affidavit of the administratrix, “ that the amount of the above promissory note, as stated in the within note, is now justly due and owing to her from the estate of Dennis L. Clapsaddle, and that there are no-offsets thereto.”

      James Conking (James B. Rafter, of counsel), for admr’x Charles D. Thomas, for creditors.
   Sheldon, S.

By the provisions of § 895 of the Code of Civil Procedure: “An acknowledgment or promise contained in a writing, signed by the party to be charged thereby, is the only competent evidence of a new or continuing contract whereby to take a case out of the operation of the statute of limitations.” But this sec-’ tion does not alter the effect of a payment of principal or interest.

The indorsement in the handwriting of Dennis L. Clapsaddle, dated May 1, 1890, was an acknowledgment by him at that date that he was indebted upon that note to the holder in the amount of the note and interest, less the payments indorsed thereon. But the acknowledgment, though in writing, was not signed by the decedent, and therefore was not alone sufficient to lift the bar of the statute.

The indorsement, however, is the admission and declaration of both the holder, Harriet Clapsaddle, and the maker, Dennis L.' Clapsaddle, that fifty dollars was paid on the note on the day of the indorsement, and a payment made that day would have the effect of renewing the note from the date of the payment.

If this indorsement were the only proof on the subject of the payment represented by that indorsement it would be sufficient to support and require a finding that a payment of fifty dollars was, in fact, made on May 1, 1890, on the note by decedent

Additional evidence upon the subject of that indorsement and the payment supposed to be represented by it was given, and the effect of it must be considered.

In the case of Hulbert v. Nichol, 20 Hun, 457, Maynard, County J., says: “When it appears upon the face of the instrument declared upon that the statute has run against it, the burden is upon the party claiming under it to show that the case is excepted from the statutory bar; and where the exception contended for consists of a constructive acknowledgment of the debt arising from part payment, the partial payment must be clearly established, and not be a matter of conjecture merely,” and “ The evidence to establish a part payment from which an acknowledgment of the debt and a promise to pay it is to be implied ought to be as clear, explicit and unequivocal as that required to support a written acknowledgment or express promise to pay ; evidence which is just as consistent with the theory that no payment was made as with the presumption of payment should not be deemed sufficient. ”

The only testimony in support of the claim was given by Ellen H. Clapsaddle, a daughter of decedent and the claimant, who testified that she was not quite twenty-six when her father died; and that she had always lived at home with her father and mother; and that her father was a farmer; that about 1881 she saw her father pay her mother some money; and that at the time of the indorsement of May 1, 1890, she saw her father write the indorsement on the note and hand it back to her mother and say: ^ There, the note is all right now; my indorsement makes it all right.” The foregoing was upon direct examination. Upon cross-examination she testified respecting the payment made about 1881: “I do not know the amount; I saw the money; I do not remember the denomination of the bills; all I mean about that transaction is, that in 1881 I saw my father hand my mother some money; I cannot say there was more than two bills; I cannot say I recollect of seeing distinctly more than one; during all the years of which I have testified my father and mother were living together and my father furnished the money for the usual wants of the family.”

Upon re-direct she testified: In 1887 or 1888 I saw my father pay my mother money, and I think in 1889. I am able to swear positively that at various times in 1887 and 1888 I saw my father pay my mother money.” Upon re-cross examination she testified: “ I saw him pay her money in 1890 on several occasions ; I mean by pay hand her money. On a few occasions I saw her buy articles with the money handed to her; I could not say whether the sums were large or small. I do not know that there were seasons of the year when he gave her money more frequently than others. It was about as frequent through the years one with another. I remember one occasion when something was said. I think it was later than 1879. I cannot give the date. I have given all that I remember of what was said when the last indorsement was written. I did not see my father hand my mother any money on this occasion. My mother produced the note. The indorsement having been made, my father re-delivered the note to my mother. I did not see any other paper there. I had been with my mother nearly all the. day. I did not see at any time any money paid by father to mother that day.”

Ordinarily the mere fact that money is delivered by one person to another raises a presumption that the money was delivered in payment or to apply in satisfaction of an obligation previously incurred. Bradner v. Fitzhugh, 4 W. Dig., 516.

But such a presumption is by no means conclusive, and its strength must depend upon circumstances. When the delivery of money is from husband to wife or from father to child the presumption that the delivery of the money was in payment of a debt will not arise. This case is similar to that of the rendition of services, concerning which in the leading case of Williams v. Hutchinson, 5 N. Y., 317, Pratt, J., says: “ Under certain circumstances, when one man labors for another a presumption of fact will arise that the person for whom he labors is to pay him the value of his services. It is a conclusion to which the mind readily comes from a knowledge of the circumstances of the particular case and the ordinary dealings between man and man. But where the services are rendered between members of the same family no such presumption will arise.” The deliveries of money by decedent to his wife are not proved to have been made under such circumstances as to lead to any other inference than that they were made to supply ordinary domestic wants.

The witness by whom these receipts of money from decedent by the claimant was proved appeared entirely candid and truthful ; and from the interest in favor of the claimant which her natural affection as a daughter would inspire it may well be supposed that all the facts which she could give tending to show payment were given in evidence. The situation of the witness was such that it is difficult to suppose that payments or any payment upon the note was made without the daughter hearing anything said upon the subject between her father and mother. The fact that nothing was said at the time of the indorsement,' or at any other time, so far as appears, about a payment on the note, and that the actual payment first attempted to be proved as the payment for which the indorsement was made was stated to have been made in 1881, and that all the alleged deliveries of money by decedent to the claimant were for domestic purposes probably, and not payments upon the note, and that the attempt of the claimant to show actual payment upon the note, aside from the-force of the indorsement, has failed, leads to the conclusion, which is also supported by what was said by the decedent at the time of making the indorsement, that the decedent and claimant agreed to have the indorsement put upon the note, not as evidence of any payment ever actually made, but acting under the impression that the indorsement would, of itself, renew the note, and save it from the operation of the statute of limitations.

The literal meaning of the words used by the decedent, accompanying his indorsement, express the idea that the indorsement alone made the note all right; he said : “ There, the note is all right now; my indorsement makes it all right.”

Taking all the evidence into consideration, the conclusion is reached that the claimant has not successfully sustained the burden of proving a payment upon the note May 1, 1890, or at any time within six years prior to the death of Dennis L. Clap-saddle.

The contesting creditor also raises the objection that the administrator is required, but has omitted to present the affidavit which the administrator may require each creditor to present in support of his claim, viz., “ that such claim is justly due; that no payments have been made thereon; and that there are no offsets against the same to the knowledge of such claimant.” That a claim in favor of the administrator shall not be deemed proved and may not be allowed by the surrogate unless the affidavit is made and presented is held by the following authorities: Williams v. Purdy, 6 Paige’s Ch., 166; Clark v. Clark, 8 id., 159; Terry v. Dayton, 31 Barb., 519; Wood v. Rusco, 4 Red., 384.

The affidavit presented by the administratrix was defective in not stating that no payments had been made on the claim.

The rule makes a requirement in excess of the demands of the statute, and compels a creditor who happens to be the administrator to do an act that, if omitted by an ordinary creditor, would not bar a recovery by action or upon a reference under the statute of his demand. The rule seems a technical one, but if there be reason for requiring the affidavit, there is the same reason for requiring that the affidavit should conform to the rule, and not only state that the claim is justly due; and that there are no offsets against the same to the knowledge of the claimant; but that no payments have been made thereon. Upon the authority of the cases cited I am constrained to hold that this ground of objection is also well taken, and that' for the reasons stated the claim must be disallowed.


text:
    In the Matter of the Judicial Settlement of the accounts of Bridget Lucy et al., Adm’rs of Cornelius D. Lucy, Deceased.

      (Surrogate's Court, Herkimer County,

      Filed July 11, 1893.)

    1. Tenants in common—Use op property for common profit.
    If, by agreement between tenants in common, the common property is used for the purpose of making a profit, either tenant in common may have an accounting in equity of the rents and profits and disbursements, and the tenant to whom there is found abalance due will have an equitable lien upon and right to reimbursement out of the share of the common property from which such balance is found due.
    2. Same Right to reimbursement from estate of co-tenant.
    The owners of a farm agreed that one of them should carry on a dairy and general farming business thereon, the products to be divided between ln a certain manner. The business was so carried on until the death of the one conducting it, who received th" moneys from sales and mingled tike same with his other money, and the other tenant received nothing. JLhe estate proved insolvent. Held, that the co-tenant was entitled to be paid m full for his share of the profits out of the moneys so received, and, if necessary, out of the proceeds of any property owned by the parties in common and used in the business, and that only so much as remained after such payment should be considered assets for the payment of general creditors.

      On January 1, 1891, Ambrose Arnold and Cornelius D. Lucy were the owners as tenants in common, each owning an undivided half, of a farm of 160 acres, and a dairy of 40 cows upon it, situated in the town of Fairfield, N.Y. On or before January 1,1891, Arnold and Lucy entered into an agreement that Lucy should, during the year 1891, carry on and conduct dairy and general farming business with the said farm and dairy, and that Arnold should have three-tenths, and Lucy should have seven-tenths, of the products of the farm. The principal product of the farm was cheese, and by agreement the milk produced from the dairy of the farm was taken to a cheese factory, and with the milk of many other patrons of the factory made into cheese, which cheese, after being cured, was sold by the salesman of the factory, and the money received for it checked out to the patrons in proportion to amount of milk contributed. The milk from the farm of Arnold and Lucy was credited at the factory by consent to Lucy, and the proceeds paid to him during his life, and after his death to his administrators.
    Lucy carried on the farm business from January 1, 1891, to the time of his death, which occurred October 17, 1891, and after his death his widow, Bridget Lucy, on November 2, 1891, was, with John G. Murphy, appointed administrator of Lucy’s estate, and the administrators carried on the farm business to January 1,1892.
    Of the products of the farm aside from cheese a portion was sold by Lucy, and the remainder by the administrators, and none of the moneys received from the business were kept separately from other moneys, either by Lucy or the administrators; and nothing has been paid to Arnold on account of his share in the product of the farm. The amount of money received by Lucy in his lifetime from sales of cheese by the factory was $577.98; from sale of butter was $50, from sales of pigs and pork was $40, from sales of calves was $44. After Lucy’s death, his administrators received from sales of cheese made by the factory from milk taken to the factory before the death of Lucy, $225.31, and from milk taken to the factory after the deatli of Lucy, $182.56.
    The administrators also received from sale of butter from the farm, $10, and from sale of pigs and pork, $39.
    At some time during the year 1891 Lucy sold a bull from the dairy which was owned equally by Arnold and Lucy, and received the price, which was $25. In 1892 Ambrose Arnold died, and Thomas Arnold was appointed administrator of his estate. At the time of Lucy’s death the money found in his possession was only $100. The first money received from the cheese factory by the administrators was $90, received by"Mrs. Lucy and paid out by her. The other cheese, butter and pork monies; received by the administrators, was mingled with the monies received from sale of cows, horses and farming implements, etc. Part of the debts, the funeral expenses and expense of administration have been paid from this fund by the administrators.
    On July 30, 1892, Nathan B. Arnold recovered a judgment against the administrators in the supreme court for the sum of $4,771.46, to be paid in due course of administration out of the assets. This proceeding is the final accounting of the administrators, and the foregoing facts have been stipulated by all parties, except those in default, and the same parties have stipulated to waive all question of jurisdiction of the surrogate to determine the questions presented.
    The administrator of the estate of Ambrose Arnold claims that three-tenths of the proceeds of the farm products, viz.: $350.64, should be paid in full. This claim is controverted by Nathan B. Arnold, who contends that it must be treated as an ordinary debt, to be paid ratably with the other debts against the decedent.

      P. H. McEvoy, for adm’rs; R. H. Smith, for Nathan B. Arnold; A. M. Mils, for adm’r of Ambrose Arnold.
   Sheldon, S.

It is well -settled that a tenant in common of either personal or real property may have an action against his -co-tenants in a court of equity for a partition of the common property, and if the interests of the parties require it such partition will be made by a sale of the property and a division of the proceeds. Tinney v. Stebbins, 28 Barb., 290; Tripp v. Riley, 15 id., 334; Andrews v. Betts, 8 Hun, 325; Shehan v. Mahar, 17 id., 130; Prentice v. Janssen, 7 id., 86; Smith v. Smith, 10 Paige, 470.

Whore one tenant in common has the occupation and enjoyment merely of the whole of the common property, without any agreement with his co-tenants, express or implied, to render any thing for the use, and receives nothing in the nature of rents and profits from the use of the property, he cannot be called upon by his co-tenant to account or pay for the use and occupation, but if he receives rents and profits he may be called to account for them in an action for partition. McCabe v. McCabe, 18 Hun, 154; Scott v. Guernsey, 48 N. Y., 124.

And such rents and profits are upon partition a lien upon the share of him from whom they may be due. Scott v. Guernsey, 48 N. Y., 124.

If one tenant in common, with the assent of the other, lays out his money in repairs or improvements upon the common property, or if by agreement the common property is used for the purpose of making a profit, either tenant in common may have an accounting in equity of the rents and profits and disbursements, and the tenant in common to whom there is found a balance due will have an equitable lien upon and right to reimbursement out of the share of the common property from whom such balance is found due. Green v. Putnam, 1 Barb., 500; Prentice v. Janssen, 7 Hun, 86; Dykman v. Valiente, 42 N. Y., 564 ; Mumford v. Nicoll, 20 Johns., 634; Willard’s Eq. Jur., 106; Wright v. Wright, 59 How., 186.

The reason of the rule is well stated by Merwin, J., in the case last cited, as follows: The increase or rents are common property as much as the principal or the original estate. When one, therefore, takes of the increase or rents, he takes a part of the common fund or property; and it may well be said that there is an implied agreement to have what he has received applied on his share, or that on division he will bring it in, to the end that it may be charged to him on division, and that a court of equity works out this result through the operation of an equitable lien.”

When an agreement is made between tenants in common for the use of the common property, and sharing the profits obtained from such use, the tenants in commondo not become partners generally, although such relation is sometimes called a special partnership for the particular adventure. Thus, in Mumford v.Nicoll, before cited, Chief Judge Spencer, who wrote the prevailing opinion, says: “ I must not be supposed to overrule the distinction between partners in goods and merchandise and part owners of a ship. The former are joint tenants, -and the latter are, generally speaking, tenants in common, and one cannot sell the shaz’eof the otlzez-. But I znean to say that part owners of a ship may, under the facts and ciz’cumstances of this case, become partziez-s as regards the proceeds of the ship, and if they ‘are to be so regarded, the right of one to retain the proceeds until he is paid what he has advanced beyond his proportion is unquestionable.”

The gist of the decision in Mumford v. Nicoll is stated as approved by Fostei', J., in Dyckman v. Valiente, above cited as follows : “ And in Mumford v. Nicoll, 20 Johns., 611, it was held that where one of two part owners of a ship receives or gets possession of the whole funds of a vessel and of the voyage he has a right to retain them until he is paid or indemnified for what he has advanced or paid more than his share for outfits, repairs or expenses of the vessel for the particular voyage or adventure.”

Although an agreement between tenants in common for the use of the common property for the purpose of making a profit or income to be divided may not constitute a partnership, yet after the undertaking has been commenced the rights and liabilities of the parties are to be determined upon the same principles as are applied by courts of equity to partnership transactions. King v. Barnes, 109 N. Y., 267 ; 15 St. Rep., 52; Dyckman v. Valiente, 42 N. Y., 551; Wilcox v. Pratt, 34 St. Rep., 477.

Ambrose Arnold and.-. Cornelius D. Lucy entered into an agreement for the use of their common property, for the purpose of making a common profit. The contracting parties carried on the business provided for until the death of Lucy, and his adzninistzutors taking his place, the business was carried on by them, with the assent of the other party to the adventure, until' the completion of the enterprise. The proceeds of the business came to the hands of Lucy in his lifetime, and to the hands of his adzninistrators after his death. The administrator of the estate of Ambrose Arnold was entitled to go into a court of equity and have an accounting with Lucy’s administrators of the year’s business and the proceeds of it. Such an accounting has in effect been had, and from it there appears to have been received by Lucy and his administrators as the proceeds of the year subject to a division the sum of $1,168.80, of which Arnold’s share was $350.-64; and it also appears that Lucy sold a bull which was owned in equal shares by Ambrose Arnold and himself as a part of the dairy and received $25 for it, of which $12.50 would be properly added to the $350.64, making $363.14 as the amount found due the administrators of Ambrose Arnold upon the accounting. The estate of Lucy is insolvent, the amount of assets to be used in payment of debts being less than $1,000, and the indebtedness amounting to over $5,000. As a part of the assets there appears to have been received by the administrators over $400 as proceeds of the farm arising from the sale of cheese, also over $400 from the sale of Lucy’s interest in the dairy owned in common with Ambrose Arnold. Such-being the facts, the administrator of Ambrose Arnold claims that only such part of the proceeds of the farm and of the common property as remains after the payment of his share, viz., $363.14, should be considered as assets applicable to the payment of general creditors.

The principal creditor, Nathan B. Arnold, resists this claim, and insists that the proceeds of the farm products, and other common property, sold b3r Lucy and his administrators, must be treated as though it were Lucy’s individual property and as being general assets; and the amount shown to be due upon the accounting to the administrator of the estate of Ambrose Arnold, as his share of the proceeds of the year’s business, must be treated as an ordinary debt and only entitled to the same percentage of the assets as the other debts. I am of the opinion that there are equities founded upon the relations of the parties growing out of their undertaking for the use of the common property for the purpose of getting common profit that authorizes and requires that Ambrose Arnold’s share of the profits be paid to him out of the money received from sale of the products of the farm, and, if necessary, out of the proceeds of any property owned by the parties in common and employed in the business. The learned counsel for Nathan B. Arnold asserts, in his brief, upon the authority of Taylor v. Bradley, 39 N. Y., 129, that the contract between Ambrose Arnold and Lucy was in the nature of a partnership.

In this position I think the learned counsel is correct, and that the rights of Lucy’s administrator in the common property must be determined by the rule that applies to the administrator of a deceased partner. In such a case, the administrator takes or retains, as assets, only such a part of the common property as may be found due after an adjustment of the partnership accounts upon equitable principles. Thomson v. Thomson, 1 Bradf., 24; Hooley v. Gieve, 9 Abb. N. C., 11; Leserman v. Bernheimer et al., 113 N. Y, 45; 22 St. Rep., 606.

The conclusion, therefore, is reached that the administrator of the estate of Ambrose Arnold must be paid in full out of the money received for the common property, and the remainder of the property in the hands of Lucy’s administrators be distributed among his creditors ratably.


author: White, J.

text:
    Frederick G. Ernst, Resp’t, v. The Brown Hoisting & Conveying Co., App’lt.

      (Superior Court of Buffalo, General Term,

      Filed July 14, 1893.)

    Master and servant—Negligence.
    While plaintiff was at work for defendant, on the top of a framework of timber, one of the cross timbers, on which rested the plank on which he was standing, broke, and he was thrown to the ground and injured. It appeared that this timber had knots near the top and bottom, and the break extended from one to the other. There was evidence on the part of defendant tending to show previous use of the timber, but it failed to show that it had been used in the same place or manner as when it broke. Held, that the case was properly submitted to the jury, and that their finding in favor of plaintiff should not be disturbed.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.

      Adolph Rebadow, for app’lt; George W. Cothran, for resp’t.
   White, J.

The defendant is a foreign corporation engaged in the business of manufacturing and selling machines for handling coal and ore and other material. On January 7, 1891, the plaintiff was in the service of the defendant, and in the discharge of his duty was on the top of a framework of timber, which was constructed by the defendant for the purpose for which it was being used by the plaintiff. While the plaintiff was thus engaged, and while he was standing on a plank supported by cross timbers at either end thereof, one of these cross timbers broke; the plank upon which the plaintiff stood dropped from beneath his feet; he was precipitated to the ground, a distance of some forty feet, and injured ; and for these injuries he recovered a verdict of $5,135. The timber that broke and caused the accident in question was one of two, each of which was two inches thick and eight inches wide. These two timbers were in a horizontal position, and each was securely fastened at each end to an upright timber. The upper edge of one of these two horizontal pieces of timber was slightly above the other. Similar timbers to the above-described two horizontal ones were fastened in a similar manner to two other similar upright timbers, and the top of these last-mentioned upright timbers was slightly lower than the top of the two uprights first described. The plank on which the plaintiff was standing extended from and across both sets of these horizontal timbers, a distance of some twelve feet. The fact that one set of the horizontal timbers was somewhat lower than the other caused one end of the plank, on which the plaintiff stood, to be elevated slightly, so that the plank on which the plaintiff stood rested on the inner one of the two horizontal timbers at its elevated end and the outer one of the two horizontal timbers at its depressed or lowest end. The timbers, however, on which the plank rested, if sound, would have supported a dead weight of several thousand pounds more than they were bearing at the time of the accident. It is claimed by the plaintiff that the cause of the timber's giving way was a defect in the horizontal timber on which the upper end of the plank rested. On the part of the defendant it is claimed that that timber was in fact sound, and was broken by reason of the plank on which the plaintiff stood being negligently raised from its position on the horizontal timber on which it rested, and dropped upon that timber with sucli force as to break it, and that such negligence was that of the plaintiff himself or his fellow servants. The question as to what caused the timber to break was sharply litigated, and the jury found as a fact that it was by reason of defects which were perfectly apparent on an examination of the timber. The evidence was ample to warrant the finding. James Sheldon, a witness on the part of the plaintiff, saw and examined the timber that broke after the accident occurred, and he says there were two knots in it, one near the top and the other near the bottom, and that the break extended from one to the other. There are no exceptions in the case except to the ruling of the court that the evidence warranted its submission to the jury.

The defendant invokes as a protection from liability in this case the doctrine that where an appliance or a machine not obviously dangerous has been in daily use for a long time, and has uniformly proved adequate, safe and convenient, its use may be continued without the imputation of imprudence or carelessness. The doctrine is sound, and if the facts make it applicable to the defendant, it cannot be held responsible to the plaintiff. The evidence relied upon to bring the defendant within the protection of the rule is furnished by the witnesses Alexander E. Brown, John Trotter and De Wilton Skinner. The substance of the evidence as to the soundness of this particular structure is as follows: Brown says: “ These same caps had been used in two previous places before shipping here; part of it in Ashtabula harbor and part of it in Chicago; I tested this stuff for nearly a year and a half or two years.” This witness did not see the structure as it was erected in Cheektowaga. Trotter says: “ I had charge of putting up this false work; the caps of this bent had all been used before; I inspected it when I put it up; yes, sir; I looked it over, and had some of the men respike it; I did not see any defect in this work after my inspection; I did not notice the knots in the plank before it broke; I saw the knots in the plank that was broken, [after the accident], I saw it was broken where the knots were; the break ran from onedcnot to the other.” Skinner says: “This stringer that broke had been used before; I don’t know where; I saw the material of which this structure was composed, and did not see any defect in it; I did not make any personal inspection of the timber.” As to whether or not this timber that contained the knots had ever before been used in the precise place and manner in which it was being used when it broke is not, even on this evidence, conclusively established, and from the description of the apparatus 'and manner of its use the jury may have found it had not been. In my opinion, this evidence, on the part of the defendant is not conclusive on the question of the soundness or sufficiency of the structure which gave way. It fails to conclusively establish the fact that the structure was not obviously dangerous, or that it had been in daily use for a long time. There does not seem to have been any claim made by the plaintiff that the timber which broke had become defective by use, injury or decay, or that the accident was attributable to a lack of inspection and failure to discover such injury or decay, but his claim was and is that the timber was inherently defective and insufficient for the purpose which it was intended to serve, and that defectiveness and insufficiency were the proximate cause of the injury. No claim of contributory negligence is made on the part of the defendant. It was the duty of the defendant in the first instance to have made the structure which gave way and caused the injury complained of safe and sufficient for the purpose it was intended to serve. The jury have found that it failed to discharge that duty, and therefore I am of the opinion that the judgment appealed from is supported by the evidence, and that it and the order denying the motion for a new 'trial should be affirmed, with costs.

Hatch, J., concurs.


author:
Hatch, J.
      White, J. (dissenting.)

text:
    Anna Bensler, App’lt, v. William H. Locke, Resp’t.

      (Superior Court of Buffalo, General Term,

      Filed July 14, 1893.)

    Sale—Acceptance.
    In an action for the purchase price of certain mantels alleged to have heen sold and delivered by plaintiS’s assignor to defendant, it appeared that they were not according to the order, but were allowed to be put up for defendant to see how they looked. Plaintiff's evidence tended to show that after they were rejected defendant’s wife refused to allow them to be removed; that defendant ordered plaintiff's agent to remove them, and that his wife again refused to permit it to be done. Defendant’s wife testified that said agent never visited the house but once, and then did not demand the mantels; that she was sick and directed him to see her husband. On removing from the house defendant took the mantels and had them put up in the house to which he removed. Held,, that upon this evidence the court properly found that there was no acceptance, nor any demand and refusal.
    (White, J., dissents.)
    Appeal from judgment of the municipal court of Buffalo, in favor of defendant

      George Wing, for app’lt; John G. Romer, for resp’t.
   Hatch, J.

Upon the record it stands admitted that the mantels delivered were not such as were ordered. It is also admitted that objection was immediately taken to them, before they were placed in position. At the solicitation of the vendors, they were permitted by defendant’s wife, defendant not being present, to place them in the house for the sole purpose of enabling defendant to see them in position, in the hope that he might be induced to accept them. When defendant saw the mantels thus placed, he immediately rejected them, and notified the vendors to take them away and restore the walls. This was not done, and thereafter the vendors presented their bill, which included the mantels. Defendant repudiated the bill to that extent, and paid the balance, which was accepted. Thereafter, negotiations were bad to purchase the mantels at a less price. These proved abortive. The vendors now made a general assignment for the benefit of creditors, and their assignee attempted to sell the mantels to defendant, but failure attended his efforts, blow arose the only contested question in the case. When the assignee went to defendant to see about the bill, no agreement was reached, and the assignee said he would take the mantels away. Defendant told him to do so, and fix up the walls. Plaintiff’s proof tended to establish that thereafter Bensler, as agent of the assignee, went to defendant’s house, and demanded the mantels of defendant’s wife, whom he found in charge; that she refused to allow them to be removed. Thereupon Bensler went to defendant, and was by him again directed to get the mantels, and, visiting the house again for that purpose, was again refused delivery of them by the wife. At a prior time he had visited the house for the purpose of removing the mantels, and found it locked.

This testimony was corroborated by Bensler’s son, who accompanied him, and constituted plaintiff’s evidence upon this branch of the case. Defendant’s wife testified that Bensler never visited the house but once, to her knowledge, and then said he came to see about the mantels, but made no demand for them; that at the' time she was sick, and directed him to see her husband; and that she never saw him thereafter. Defendant testified that he did not see Bensler but once, and that was in the presence of the assignee, when he told him to take the mantels away, and fix up the walls.

Upon this testimony the court below was authorized to find that there was never an acceptance of the mantels, and that no demand for their delivery had ever been made and refused. The witnesses were all interested, as Bensler was one of the firm of vendors of the property, interested in the assigned estate, and husband of the plaintiff. The court had the benefit of their presence, and observed their manner, and we see nothing which calls upon us to disturb its conclusion thereon. This finding left the mantels the property of the assignee of the vendors, and no action could be maintained for their purchase price, or for conversion by him; and plaintiff, as assignee of this account, occupies no better position. This result is supported in Brown v. Foster, 108 N. Y., 390; 13 St Rep., 805. Defendant occupied no other or different position with reference to this property than that of a gratuitous bailee. When it was not taken away upon notice, in the proper discharge of his duties he was authorized to properly protect it, by storing or otherwise. Dale v. Brinckerhoff, 7 Daly, 45. It was proper care to remove it from the house when defendant moved, and keep it safely. The use to which he put it might have evidenced an acceptance of it, and consequent liability. It was also entirely consistent with, proper care for it, for delivery to the owner, and the court below has adopted the latter view. The present plaintiff, as assignee, is entitled to the delivery of the mantels to her, upon demand, but, upon the facts found, she is not entitled to maintain this action. The judgment appealed from is affirmed, with costs.

Titus, Oh. J., concurs.

White, J. (dissenting.)

This is an appeal by the plaintiff from a judgment of the municipal court of Buffalo, of no cause of action, rendered on March 8, 1892, in favor of the defendant, and against the plaintiff. The plaintiff claims that in May, 1890, the plaintiff’s husband and one Hughson, as co-partners, sold and delivered to the defendant a quantity of furniture, including two mantel tops, at the agreed price of $239, payable upon the delivery of the goods, and that the goods were worth the sum agreed upon. The complaint admits that $199 thereof was paid, and seeks to recover the alleged balance of $40, with interest from May 9, 1890. The complaint also alleges that the claim sought to be enforced was assigned by the plaintiff’s husband and his. partner to one John Streicher, and that Streicher reassigned it to the plaintiff, before suit was brought. The answer denies the value of the property purchased by the defendant from the plaintiff’s husband and his partner, and their alleged assignments of the claim, and alleges payment in full for all he purchased. The substantial issue in the case is whether or not the two mantel tops were purchased by the defendant, or whether he became liable to the firm of Bensler & Hughson for their value. If this issue is to be decided in favor of the plaintiff, the judgment appealed from must be reversed. The transaction between the defendant and the firm of Bensler & Hughson was, in the first instance, conducted by Hughson, on the part of the firm, with the defendant, personally. Hughson testifies that he made the sale, and that the mantel, tops were charged by him to the defendant at $40, and that the defendant’s wife assisted him in selecting the articles, and that the mantel tops were to be made from a plate exhibited by him to them at the time of the selection. He says he delivered the articles, including the mantel tops, at the defendant’s house, to his wife, who expressed her disapproval of them. In fact, they were not according to contract. But she consented that they be put in place, on the suggestion of Hughson that she might then be satisfied with them, and she told him die would not payfor them until they were made right. Afterwards,' Hughson went to the defendant, at his office, with the bill for the goods, including the mantel tops; and the defendant told him to take the mantel tops away, but made an offer for them, which Hughson declined. Another bill was made out, omitting the mantels, and defendant then gave his note for the balance of the goods, $199, which was duly paid. The plaintiff’s husband says, after the assignment to Streicher, he asked defendant to pay for the mantels; that defendant offered ten dollars for them, which was refused, and that defendant told him to take them away from the house; that he went for them, and informed Mrs. Locke of the arrangement made with her husband to take them away,' but she refused to let him take them. This was reported to defendant, who again told Bensler to take them away. On again applying to Mrs. Locke, at the house, for them, she again refused to allow him to take them. He says, further, that defendant never refused, by word of mouth, to give up the mantel tops, but told him each time to go and get them, and his wife refused to deliver them up. Charles Bensler corroborates the statements of his father as to the refusal of Mrs. Locke to allow the mantel tops to he taken out of the house. The defendant’s wife virtually admits that Bensler came and demanded the mantel tops, and that she refused to allow him to take them. The inference that she did refuse is irresistible. Defendant removed the mantel tops from the house in which Hughson placed them to another house, afterwards purchased by him, and put them up himself, and has since used them in the last-mentioned manner. The plaintiff contends that these mantel tops were ordered by the defendant, and in this we think she is clearly in error. It is undisputed that the mantel tops delivered and put up by Hughson were not the ones contracted for at the sum of forty dollars. Hughson himself so testifies. It is further undisputed that the defendant never agreed, in terms, to pay forty dollars for the-mantel tops delivered. Ho one, in fact, claims that he did. But he knew from the start that these mantel tops were furnished instead and in place of those ordered, and that the price charged for them was the same, and that if he accepted them he was expected to pay that price. The record shows that Mrs. Locke took part in selecting the goods purchased by her husband. On the trial below the defendant was permitted, over the objection of the plaintiff, to prove the statements of Mrs. Locke to Hughson concerning the defects in the mantel tops, or the respects in which they varied from those ordered, and the arrangement with her under which they were put up in the first place. Ho exception was taken to the admission of this evidence, but its admission at the instance of the defendant shows that he relied and tried In's case upon the theory that his wife acted as his agent in their dealings with Bensler & Hughson, and, having had the benefit of that theory on the trial, he should not be permitted to repudiate it now. The only theory upon which the wife’s evidence was admissible to show a rejection of the mantel tops was that of agency for her husband. If she were not his agent, her testimony would have been incompetent in reference to that transaction. Independently, however, of the position taken by the defendant, in this respect, upon the trial, the conduct of the defendant and his wife, for which he should be held responsible, fixes his liability for these mantel tops at the price charged. While it is true that the marital relation alone raises no presumption of authority on the part of the wife, yet slight evidence of actual authority in domestic matters is enough. The faót that she joined her husband in the selection of the goods, and in fact was the only person in a situation to receive them when delivered, and that they were found by him to have been put up in shape for use, and thereafter actually appropriated by him, together with her refusal, on two occasions, to allow them to be taken away, when informed that her husband had said they might be, and the failure of the husband to take any steps towards their return after these demands upon his wife, all tend, in my mind, to the conclusion that the defendant deliberately determined to keep and use the mantel tops as his own, notwithstanding their variance from those contracted for. The defendant should either have made it possible for Bensler to get the mantel tops, at any rate on his second demand, or be held to have accepted, and compelled to pay for them. When the defendant left his house in charge of his wife, he thereby constituted her his agent to receive the mantel tops; and, by'the same principle, she, as his agent, was bound to deliver them up on demand of Hughson. No sufficient reason is given for her refusal to do that, and therefore it constituted a legal acceptance of them by the defendant. While the amount involved in this litigation is comparatively small, the principle to be vindicated, as Ilook at the case, lies at the foundation of honesty and fair dealing among men.

I think the judgment appealed from should be reversed.

Judgment affirmed, with costs.


author: Titus, Ch. J. Hatch, J.

text:
    The American Preservers Co., App’lt, v. James J. Drescher, Resp’t.

      (Superior Court of Buffalo, General Term,

      Filed July 14, 1893.)

    Bailment—Death of hired horse excuses failure to return.
    Performance of a condition in a contract of hiring of a horse that he shall be returned on one day’s notice in the same condition as received is excused by the death of the horse from natural causes, without fault on the part of the hirer.
    Appeal from judgment of the municipal court of Buffalo, dismissing the complaint.

      O. W. Weyer, for app’lt; B. S. Farrington, for resp’t.
   Titus, Ch. J.

This action is brought to recover $175, agreed valuation of a horse let by the plaintiff to the defendant for hire. So far as 1 am able to gather from the evidence, the defendant had used the horse in connection with another for about seven weeks, for which he agreed to pay a dollar a day. Some time in August the horse was taken sick and the plaintiff demanded the return of the horse, pursuant to the terms of the contract. The horse then died, while in the possession of the defendant, which raises the question to be decided. These facts present an ordinary case of bailment for hire. The bailee is required to exercise ordinary care in protecting the property, and the written agreement that he was to deliver the property back on one day’s notice, in the same condition as when received, does not change or enlarge his common-law liability, as he would be required to deliver the property on demand without that express agreement. Fairfax v. Railroad Co., 67 N. Y., 11; Claflin v. Meyer, 75 id., 260. The claim made by the defendant is that the horse died before he was in default under the notice, without any fault on his part, and consequently he is not liable. I am inclined to take his view of the case. The facts seem to bring it within the ordinary rules applicable to cases of bailee for hire. It does not appear that the defendant was guilty of any want of care in using the horse, or that such want of care-in any way contributed to his sickness or death, which was clearly the result of natural causes, aud no human skill or foresight could have prevented it. The plaintiff claims that the defendant cannot raise the question of his inability to deliver the horse under a general denial; that he should have interposed the defense by the answer. This may be conceded, but no objection was made to the evidence on that ground in the court below. All of the facts were proved before the court without an intimation of the question now raised, and, we think it is too late now to raise that objection here for the first time.

The judgment should, therefore, be affirmed, with costs

Hatch, J.

This is little, if any, dispute in the evidence appearing in the return of the court below, so far as the essential reature of the case is concerned. The defendant hired of plaintiff a team of horses, which hiring was under a written agreement, viz:

“ The American Preservers Company, of Buffalo, hereby rent to James J. Drescher, of Buffalo, one team horses, (one bay and one black,) at one dollar per day, payable weekly, on Monday, at 95 Ohio Street. It is further agreed by J. J. Drescher, that upon one day's notice he will return the above team and horses in same condition as received. The said Drescher further agrees to secure the American Preservers Company against any accident to the said team, in the sum of $350 (three hundred and fifty dollars), being one hundred and seventy-five on each horse. We hereby .accept the above.
“American Preservers Co.
“ Chas. T. Tomes, Manager.
James J. Drescher
“Witness: Jno. Reiser.”

The contract was dated June 13, 1892. In pursuance of this agreement defendant took said team, and on the next day returned them, as one of the horses was sick; but he was induced by plaintiff’s manager to try them again, which he did, and continued thereafter to use them, paying therefor the stipulated price, until the 11th day of August, when the same horse again sickened, and thereafter died. This action is brought to recover $175, the claimed value of the horse. As defendant did not, on June 14th, when he returned the horses, actually surrender them to plaintiff, or. if he did, he was thereafter induced to take them again, without any other or different arrangement than the contract expressed, he must now be held bound by those conditions, and the legal results which flow therefrom. It satisfactorily appears that the death of the horse was due to natural causes, and defendant was guilty of no act of negligence which contributed thereto, either in the use of the horse before the attack, or his care of the animal thereafter. Plaintiff seeks to charge liability upon defendant, based upon his failure to return the horse after notice so to do, before its death. But this claim is not borne out by the testimony. If we assume that plaintiff’s manager, Tomes, was sworn as a witness, which the record does not disclose, it only appears that about the 10th day of August he wrote defendant a letter to deliver the horses, stating therein : You will please accept this as notice to deliver said team to us within specified time, (one day’s notice.)” The horse was taken sick on the 11th, and died on the 12th of August. There is no evidence that this letter was ever sent to defendant, by mail or otherwise, or that he ever received it, or in any wise had notice that a demand was made upon him to return the horses. Consequently, he cannot be held liable for retaining possession of the horses after notice to return, as the proof fails of establishing notice to him to do so.

The further claim is made that the contract is unconditional,, binding defendant to return the horse in the condition he took him, and that he is not excused from compliance therewith, even though he be prevented from fulfillment by omnipotent power. It is quite true that where a person contracts to perform a certain thing, not impossible of performance at the time when'it is made,, and being lawful in character, he will not be excused from performance, unless performance is made unlawful, or unless prevented by the other party. While this is the undoubted general rule, many exceptions have been ingrafted upon it, dependent upon the construction to be given the contract. The rule governing the construction of this contract is not obscure. It is-stated by Blackburn, J., in Taylor v. Caldwell, 113 E. C. L., 824: “ The principle seems to us to be that, in contracts in which' the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance, arising from the perishing of the person or thing,, shall excuse the performance.”

This rule has been adopted by our court of appeals, Dexter v. Norton, 47 N. Y., 62, and cited with approval many times since. Booth v. ClevelandRolling Mill Co., 60 N. Y. 491 ; Spalding v. Rosa, 71 id. 40.

In this case the power to return the horse depended upon its-continued existence. The law, therefore, incorporated into the contract a condition that the parties contracted with reference thereto; and when the thing was destroyed without fault upon the part of defendant, and by inevitable cause, he became excused from performance.

The further claim is made that defendant is liable for a failure to secure plaintiff against accident. The proof is that defendant caused the horses to be insured against fire, and delivered the policy to plaintiff, who accepted and retained the same. It was competent-for plaintiff to waive this provision of the contract, and as they accepted the policy of insurance without objection, and demanded no further or other or different security, it was competent for the-court to find that they waived any other. I see no reason for disagreeing with such conclusion. Having litigated the case below upon the merits without objection, plaintiff cannot now urge that, the answer is insufficient to admit defense. The answer can now be deemed amended in that regard, if essential to support the judgment. It follows that no error is found, and the judgment appealed from is affirmed, with costs.

White, J., concurs in result.


author: Bartlett, J. Lawrence, J.

text:
    Sarah Mygatt et al., Trustees, Pl’ffs, v. Lowry Somerville et al., Defts.

      (Supreme Court, Special Term, Kings County,

      Filed February 20, 1893.)

    Foreclosure—Judgment not more favorable than the relief demanded IN THE COMPLAINT.
    Where the complaint in an action of foreclosure prays that the premises be sold according to law and the mortgagor and his wife, and all persons claiming under them subsequent to the commencement of the action, be barred and foreclosed, and the owner of the equity of redemption is made a party but does not appear or answer, a decree against all the defendants is not more favorable to plaintiff than the relief demanded, as the owner of the equity of redemption is clearly baned under the provisions of 3 R. S., 6th ed., 199, § 102, and § 1632 of the Code.
    Motion to compel purchaser at foreclosure sale to complete purchase.
    The purchaser objected to the title tendered by the sheriff upon the ground that two judgments of foreclosure rendered in 1873 and 1876, through which the title to the property was derived, were in each case as against the owner of the equity of redemption more favorable to the plaintiffs than the relief demanded in the complaint, inasmuch as the complaints in those actions both prayed that the mortgagor and wife, and all persons claiming under them or either of them subsequent to the commencement of the action, might be' barred and foreclosed; and should properly have demanded that all the defendants, and those claiming under them, be barred- and foreclosed. The mortgagor, with his wife, had conveyed the premises prior to the commencement of the foreclosure, and the owners of the equity failed to appear or answer.
    The owners of the equity of redemption were in each case parties. Objection based on Old Code, § 275.

      Edward E. Sprague, for pl’ffs ; Wm. H. E. Jay, for purchaser.
   Bartlett, J.

I think the title in this case is good. The foreclosure suit was certainly effectual so far as the sale was concerned. The complaint prayed that the premises might be decreed to be sold according to law. The owner of the equity of redemption was a party to the suit, and hence it seems to me was clearly barred under the provisions of the Revised Statutes (now substantially reproduced in § 1632 of the Code), which declared that “ such deeds shall be as valid as if the same were executed by the mortgagor and mortgagee, and shall be an entire bar against each of them and against all parties to the suit in which the decree for such sale was made, and against their heirs respectively, and all claiming under such heirs.” 3 R. S. (6th ed.), 199, § 102.

This provision and its effect seem to have been overlooked in the case of Bradley v. Murray, upon which the defendants chiefly rely.

Motion granted, without costs.

The opinion in Bradley v. Murray, referred to above, is as follows:

Lawrence, J.

the action was for the foreclosure of a mortgage, and the prayer of the complaint was that the defendant, Ellen Murray, and all persons claiming under her subsequent to the commencement of this action, may be barred and foreclosed, etc. The case went by default, and in the judgment it was provided “ that the defendants, and all persons claiming under them, or any or either of them, after the filing of such notice of pendency of this action, be forever barred and foreclosed,” etc. The purchaser objects to take title because, as the complaint did not ask or demand that any one other than Ellen Murray, and those claiming under her, should be barred, etc., the judgment was more favorable to the plaintiff than that demanded in the complaint. In this contention I think that counsel for the purchaser is right. See Code, § 1207. In Simonson v. Blake, 12 Abb. Pr., 331, the action was for the foreclosure of a mortgage. Ho answer was put in, and, although there was no demand to that effect in the complaint, a judgment was granted for a deficiency. It was held by the court that such judgment was not merely irregular, but was void or voidable, and unauthorized. To the same effect is the decision of the general term of the second department in Andrews v. Monilaws, 8 Hun, 65. See, also, Grant v. Van Dercook, 8 Abb., N. S., 455.

Motion granted, with costs.


author: McLaughlin, S.

text:
    In the Matter of the Application of Mary B. Will, Ex’rx, for leave to sell real estate.

      (Surrogate’s Court, Essex County,

      Filed March, 1893.)

    Guardians—Liability op estate <§>, eor property op ward.
    The mere fact that a guardian in a foreign country had several years before possession of property of his wards, is not of itself sufficient to establish a claim in favor of the wards against the guardian's estate in a proceeding taken by creditors to sell real estate for the payment of debts. Before such a claim can be established, either the property or the proceeds thereof must be traced to the specific property sought to_ be sold, or else the liability of the guardian must be fixed by an accounting had in some court having jurisdiction.
    Application for leave to sell real estate for the payment of debts.

      B. B. Bishop, for petitioner ; F. A. Smith, for James Will, tutor of infant parties; P. J. Finn„ W. H. Carr and W. T. Foote, Jr., special guardians.
   McLaughlin, S.

Charles Will, in or about 1870, married Rebecca Anderson. Rebecca died in 1880, and at the time of her death resided in Canada. She left her surviving Alexander, David, Arthur, John and Elizabeth T., the only issues of such marriage, all of whom were, at the time of her death, under the age of fourteen years. Shortly after her death, the father, Charles Will, made application, and was appointed, under the Canadian statutes, tutor (corresponding under our statute to general guardian) of all the infants, and as such tutor, in September, 1881, he made and filed an inventory of the property left by his wife, Bebecca, and belonging to his wards. This inventory shows that at the time of her death she was possessed of personal property of various kinds and an interest in certain real estate in Canada, the possession of which, at the time the inventory was made, was passed over to the tutor. By this inventory the tutor agreed “ to represent the same when and where duly required.” Shortly after the filing of the inventory, and during the same year, Will married the petitioner herein, and removed. with her and the children above named from Canada to Essex county, this state. Two children were born of the second marriage, Mary B. and James B. Will. Charles Will died about January 1, 1888, and left him surviving his widow, Mary B., the petitioner herein, and all the above-named children. At the time of his death he was the owner and in possession of certain real estate situate in the county of Essex, FT. Y., and which real estate is now sought to be sold for the payment of his debts, his personal property being insufficient for that purpose. After the death of Will his last will and testament was admitted to probate by the surrogate of this county, and letters testamentary thereon issued to the petitioner herein on the 20th of February, 1888. She immediately entered upon the discharge of her duties, filed an inventory of his estate, and on September 7, 1888, commenced the publication of a notice for the creditors to present claims, which notice was published as required by law. In pursuance of such notice a large number of claims were presented. The personal property was disposed of, and some time during the year 1890 she made application to this court for judicial settlement of her accounts as such executrix, and a final decree was entered in August of that year. The personal property left by the deceased was insufficient to pay his debts in full, and the decree directed that the moneys in the hands of the executrix at the time of such final settlement be paid pro rata among the creditors thereof. Among other creditors of the estate was the petitioner herein, and this proceeding is instituted by her for the purpose of selling the real estate owned by the deceased at the time of his death for the payment of his debts. Upon the return of the citation herein, James Will, who, after the death of Charles, was appointed tutor in Charles’ place, under the Canadian statutes, of the children of the first wife, appeared and presented a claim as such tutor against the estate of Charles Will, amounting, besides interest, to the sum of $1,400 ; and the only question difficult of solution is whether such claim can be allowed as a valid claim against the estate of Charles Will, deceased.

Assuming that all the evidence offered in support of such claim is admissible, which is by no means clear, I am of the opinion that the claim cannot be allowed. It is unquestionably the law that an action on the bond of a guardian or administrator will not lie against the sureties until there has been an accounting by the guardian or administrator, or, in case of death, by the personal representatives. Hood v. Hood,, 85 N. Y., 561; Girvin v. Hickman, 58 How., 244. In other words, no action will lie against the sureties until there has been some judicial determination, in a direct proceeding taken for that purpose, fixing default on the part of the principal. I see no reason why this rule is not applicable to the case at bar. There is here no proof that any accounting has ever been made, either by Charles Will, as tutor, or, after his death, by his personal representative or successor, James Will. There is no presumption that the property mentioned in the inventory signed by Charles was converted by Charles to his own use, or that the proceeds of that property went into the real estate subsequently purchased by him, and now sought to be sold. On the contrary, the presumption is that Charles did his duty as tutor, and did not convert such property to his own use, and at the time of his death held such property as tutor, or had previously accounted therefor. There seems to me to be an insurmountable objection to the allowance of this claim until there has been some judicial determination, fixing default on the part of Charles as tutor, either under the Canadian jurisdiction or in our own courts. The inventory itself, relied on by the claimant as showing the receipt by Charles, as tutor, of property belonging to the infants, would seem to indicate that such course was absolutely necessary before proceeding against the decedent’s estate. The condition upon which he received the property as tutor was that he would “ represent the same when and where duly required.” Has he been required to represent [return] it? If so, when? Where? To whom? The present tutor, James, was appointed in 1888. Has he, as tutor, received this property, or any part of it ? Although present in court, he was not sworn as a witness, and there is absolutely no light thrown upon the question as to what has become of the property of these infants by him. It can hardly be assumed that the laws of a foreign country would permit property belonging to infants to pass beyond its jurisdiction without at least requiring an accounting or security of some kind. Clearly, as against the creditors and others interested in this estate, it cannot be assumed that the deceased took the property of the infants, and converted it to his own use, or used the same in purchasing the real estate in question.

The wisdom of the rule requiring the principal to account before proceeding against a surety, or before proceeding against a principal’s estate, in case of death, is well illustrated in the case at bar. All of the evidence given in favor of this claim may be true, and yet all of the property mentioned in the inventory filed by Charles Will, deceased, may have been turned over to his successor, James Will, immediately upon James’ appointment. James may still have all of that property, or all of it may stand to the credit of or in the name of the infants. It will not do to permit claims to be established against a decedent’s estate by such evidence. The mere fact that a guardian in a foreign country had several years before possession of property of his wards is not of itself sufficient to establish a claim in favor of the wards against a guardian’s estate in a proceeding taken by creditors to sell real estate for the payment of debts. Before such a claim can be established, either the. property or proceeds thereof must be traced to the specific property sought to be sold, or else the liability of the guardian must be fixed by an accounting had in some court having jurisdiction. In Hood v. Hood, 85 N. Y., 561, it appeared that the executor had received certain property, but the court held that that fact alone was not of itself sufficient to establish liability without an accounting. See, also, Matter of O'Brien, 45 Hun, 284; 10 St. Rep., 414. The evidence fails to satisfy me that the claim presented by James Will, as tutor, is a valid claim against the estate of Charles Will, deceased; and an order can be entered to that effect, and directing a sale of the premises in question for payment of claims allowed; order to be settled on notice. On settlement of order question of costs will be considered. Order accordingly.


author: Coffin, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of Henry Jones, Ex’r.

      (Surrogate's Court, Westchester County,

      Filed January, 1893.)

    Executors and administrators—Accounting—Claim by executor AGAINST ESTATE.
    On the judicial settlement of the accounts of an executor or administrator he may prove any debt due to him from the decedent, but not one due to himself and others.
    Judicial settlement of accounts.

      F. T. Lee, for executor; W. Thompson, for contestants.
   Coffin, S.

The executor claims a balance of account of §2,000 against the deceased, growing out of dealings and transactions between the latter and the copartnership firm of Jones, Hall & Co. That firm was composed of Henry Jones, the executor, Thomas Hall and William Edgar. The other members of the firm are interested in this claim. It is therefore a claim of the firm, and not of the executor, and is contested by the legatees, Mrs. Martin and Mrs. Cage. Much of the evidence taken relates to items of the account resulting in the balance claimed.

Hothing is better settled than that this court can try and determine the disputed claim of an executor or administrator on his accounting, and that it cannot so try and determine the disputed claims of other creditors. In the case of Shakespeare v. Markham, 72 N. Y., 400, it was held, before the adoption of the eighteenth chapter of the Code, under 2 R. S. 88, § 33, that “ this section must necessarily refer to all claims in which an executor is interested, and the circumstance that he is jointly interested in a demand, or owns a portion of that in which he has an interest by assignment, does not affect the authority of the surrogate to adjudicate in regard to it.” There he did own a portion of the claim, and had paid the other joint owners their shares previous to the accounting, and thus became subrogated to their rights, and was regarded as their assignee. Hence it would seem that the dictum “ that where he is jointly interested in a demand " the surrogate has jurisdiction to adjudicate it may justly be regarded as obiter. I have great respect for the learning ol the able jurist who delivered the opinion in that case, and have grave doubts as to whether he considered this immaterial point with the accustomed acumen displayed by him upon any material matter. Indeed, it is plain that his attention was given solely to the facts of that case upon this point, for he says: “ As he, the executor, was entitled to have his interest determined, it does not deprive him of that right because he has procured a transfer of other rights.” And again, in closing, upon this branch of the case, he says: “ I am unable to discover any reason why the surrogate should not try and determine the question as to the claim of the appellant.” Let us see into what difficulties we might be led by following the dictum referred to. A surrogate can only decree the payment to an executor of what he may find due to him. Now, in this case, about $2,000 is claimed to be due from the deceased to three persons composing the firm; one of them being the executor, and the others mere creditors. Shall the decree award the whole sum to the executor, to the exclusion of the othermembers of the firm, or shall he decree an equal division among the three ? But they may not be equally interested, and may differ among themselves as to their respective rights. Must this court then hear and adjudicate their respective interests, and so assume burdens that do not properly belong to it, and over which no statute gives it jurisdiction ? The Revised Statutes, supra, provide that “ no part of the property of the deceased shall be retained by an executor or administrator in satisfaction of his debt or claim until it shall have been proved to, and allowed by, the surrogate.” The provision of the Code, § 2739, leaving the above section unrepealed, is that “ upon a judicial settlement of the account of an executor or administrator he may prove any debt owing to him by the decedent. Where a contest arises between the accounting party and any of the other parties respecting any property alleged to belong to the estate, but to which the accounting party lays claim, or respecting a debt alleged to be due by the accounting party to the decedent, or by the decedent to the accounting party, the contest must be tried and determined in the same manner as any other issue arising in the surrogate’s court.” These provisions clearly contemplate a debt of which the executor or administrator is sole owner, or solely owes, and, if the former, when established, must be followed by a decree directing the payment or allowance thereof to him, and not to him and others. Had Hall and Edgar assigned their interest to the executor before these proceedings were commenced, then the case would have fallen within the principle decided in Shakespeare v. Markham, 72 N. Y., 400. Surrogate Rollins, in the case of In re Eisner, 5 Dem., 383, recognized, without much apparent consideration, the validity of the dictum in the case above criticized as applicable to every case where a claim of a firm of which the executor is a member is involved. To this I find myself unable to yield assent. It will not do to say there is no other mode provided by which such a claim may he determined. The doors of equitable jurisdiction of superior courts are wide enough to admit, and then entertain and adjudicate, such a claim. But the necessity of a resort to such a court may be readily obviated. The executor may pay the firm, he would not be likely to dispute its claim, and, on filing a voucher therefor, ask credit for the amount on the accounting. He will not thus violate the statute, which forbids him to retain property of the estate in satisfaction of his debt, and on such accounting any interested party may question the propriety of the act of payment. He may show, for instance, that the claim of the firm was barred by the statute of limitations, or that the amount paid was more than was actually due. The surrogate will not thus be trying what is known to the statute as a “ disputed claim," which is one disputed by the executor, but simply testing his act in paying an alleged debt of the deceased, which is claimed not to be a proper charge against the estate. The statute, as is well known, allows the executor to prove before the surrogate a debt due to him. This is not a debt due to him, and it is not an incident of such power, which the surrogate may exercise, to allow the proving of a debt due to him and others. That would be to exercise a chief, and not an incidental, power.

The objection of the contestants is, therefore, sustained.


author: Welant, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of Millard F. Onderdonk, Ex’r of Edward D. Hesdra, Deceased.

      (Surrogate's Court, Rockland County,

      Filed June 19, 1893.)

    1. Subbogate’s coubt—Decision—Findings.
    An irregularity in the decision of a surrogate by reason of its failure to state separately the facts found and conclusions of law is waived by a failure of the aggrieved party to take an appeal and avail himself of his rights under § 2545 of the Code.
    2. Same—Laches.
    Motion to vacate the decree on the ground of a failure to file findings of facts and conclusions of law cannot be made after the expiration of one year.
    Motion to set aside the decree settling the executor’s accounts.

      Snider & Hopper, for executor; Charles S. Dunham,, for creditors ; L. Napoleon Levy, for legatee ; George S. Wyre, for legatee and devisee.
   Welant, S.

This is a motion to vacate and set aside a decree made in the above-entitled proceeding on November 6, 1891, adjusting and judicially settling the accounts of the executor, on the ground that the surrogate failed to file in his office his decision in writing, stating separately the facts found and the conclusions of law, in compliance with the requirement of § 2545, Code Civil Procedure. It is true that, while a written decision was filed by the surrogate, yet it did not separately state the facts and conclusions found. Two objections are advanced, waiver of the irregularity, if any ; and want of power in the court to grant relief at this late day, either of which is sufficient to defeat this motion. First, it would seem that the moving party has waived the irregularity, if auy, by his own failure to take an appeal and avail himself of his rights under § 2545 of the Code as to findings, requests to-find, and exceptions. In Matter of Hood, 104 N. Y., 108-106 ; 5 St. Rep., 501, Judge Finch, writing the opinion, says, in answer to the suggestion of counsel that, in the absence of requisite findings, the decree is irregular :

“ That does not follow. It is the duty of the party appealing to procure to be made such findings or refusals as will present, through appropriate exceptions, the questions which he desires to argue. If he suffers this necessary step to be omitted he will find himself without the means of reviewing the rulings of which he complains.” The second objection is well taken. It is now too late to obtain the relief sought. “ A motion to set aside a final judgment for irregularity shall not be heard after the expiration of one year since the filing of the judgment roll.” Code, §§ 724, 1282 ; Corbin v. Westcott, 2 Dem., 559 ; Hood v. Hood, 5 id., 50; Matter of Filley's Estate, 47 St. Rep., 428 ; Matter of Post, 38 id., 1; Matter of Foulks' Estate, 10 N. Y. Supp., 515. A surrogate’s court has ¡tower “ to open, vacate, modify, or set aside ” its decrees or orders. Code, § 2481, subd. 6. But “ the powers conferred by this subdivision must be exercised only in a like case, and in the same manner, as a court of record and of general jurisdiction exercises the same powers.” Id.; Matter of O'Neil, 46 Hun, 500 ; 12 St. Rep., 419 ; Matter of Carr v. Estate of Tompkins, 46 id., 585; In re Filley s Estate, 47 id., 428. Thus it appears that §§ 724, 1282, are specifically made applicable to surrogates’ courts, and the time within which the motion could have been made has expired. Corbin v. Westcott, supra ; In re Hood, supra ; In re Tilden, 98 N. Y., 434-442 ; In re Foulks' Estate, supra. Even if it be assumed that it is an irregularity for the surrogate to fail to make and file such a decision with such statement of facts and conclusion of law, and the court had the power to hear the motion, yet it is not an absolute right of a complaining party to have the decree made and entered set aside. Hood v. Hood, 5 Dem., 50. Upon the merits, even if the power existed, it is clear, within the authorities, that the motion should not be granted because of the laches of the applicant. “ Where a party has had his day in court he must show that it was not his fault that he did not improve it before he can get another day on the same matter.” In re O'Neil, supra ; In re Filley’s Estate, supra. The motion is accordingly denied, with ten dollars costs.