text:
    Otis L. Remington, Resp’t, v. Edward H. Van Ingen et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    Fraud—Misrepresentation—Opinion.
    If it is assumed that the misrepresentation by a person of his opinion is the misrepresentation of a fact, the opinion or belief expressed must be uttered in bad faith and with the intention to mislead, in order to constitute . legal fraud.
    Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment at trial term, rendered upon a verdict for the plaintiff, which was directed by th,e court.
    Action to recover damages for defendants’ breach of a contract for plaintiff’s employment.
    Logan, Ciarle &' Demond {Walter S. Logan, of counsel), for app’lts; Ilorwilz & Ilershfteld {Otto llorwitz, of counsel), for resp’t.

       Affirming 56 St. Rep. 600.

   Bischoff, J.

The plaintiff sued to recover for the defendants’ breach of a contract to employ him from September 15, 1892, to the next succeeding first day of January, at an annual salary of thirteen hundred dollars, and the defenses, besides a denial that any such contract was in fact entered into, were that the contract was induced by misrepresentations on the part of the plaintiff for which it was subsequently rescinded, that the plaintiff was guilty of conduct which justified the defendants’ refusal to take him into their employ, and an accord and satisfaction. On the trial the plaintiff testified that the difference between his earning subsequent to the defendants’ breach, and the agreed salary, was two hundred and nine dollars and fifty-four cents, %hich was not disputed, the defendants’ counsel assenting that the plaintiff was entitled to recover that amount, if at all. When both sides rested the trial court directed a verdictfor the plaintiff, to which direction the defendants’ counsel duly excepted. The propriety and correctness of the direction are assailed on this appeal. That the contract of employment was concluded by the plaintiff’s letter of September 15th accepting the defendants’ proposition, contained in their letter of the 10th to commence the employment on the 15th, is, in the light of the plaintiff’s testimony concerning this interview on tile 6th with the defendant Edward H. Yan Ingen, corroborated as it is by the latter’s testimony, so apparent that to recapitulate the facts in evidence would be a task of mere supererogation. The defense also of an accord and. satisfaction was without any support and substantially abandoned,, The only actual contention was concerning the plaintiff’s representations to the defendant Edward H. Yan Ingen on September 6th, relying upon the truth of which the defendants’ claimed that they were induced to enter into the contract of employment, and for the alalleged falsity of which representations they urged that they were justified in refusing to receive the plaintiff as an employe at the time agreed. ‘ At the time of the interview alluded to the plaintiff was in the5 employ, of Macullar, Parker & Co., of Boston, and answering the inquiries of the defendant Edward H. Van Ingen, he stated that he was in good standing with his employers ; that they were entirely satisfied with him and his work, and that he could continue in their employ if he so desired. It is in evidence from the testimony of witnesses called for the defendants, and unchallenged, that at the time plaintiff made the representations he had been in the employ of Macullar, Parker & Co. for about three years, during which period his salary had been from time to time voluntarily increased by his employers, and up to which time no expression of dissatisfaction had been uttered by the latter, nor their intention to discharge the plaintiff from their employ intimated to him. Assuredly under such circumstances the plaintiff’s representation cannot be regarded as more than the mere expression of an opinion of his employers’ regard for him. Assuming, however, that the misrepresentation by a person of his opinion is the misrepresentation of a fact, subjectively so, it still remained for the defendants to show that the plaintiff at the time of the interview knew, or had reasons for knowing, that the regard of his employers for him was not such as he stated that he believed it to be, and so, that the opinion or belief expressed was uttered in bad faith and with the intention to mislead. Hot only is the record destitute of everything to that effect, but the fact that ample opportunity was afforded the defendants for inquiry of Macullar, Parker & Co., before the contract with plaintiff was concluded, is evidence, inferentially, to the contrary. On September 10th, when the plaintiff communicated his intention to Macullar, Parker & Co. that he was about to leave their employ, a representative of that firm replied that it was well he did so as the firm had been dissatisfied with the plaintiff for some time and were about to discharge him. Plaintiff testified that this occurred after he had written and mailed his letter of the same day apprising the defendants that he would present himself for duty on the 15fch„ We will, however, assume that it may be fairly inferred from the evidence that the occurrence alluded to was before the letter was mailed. It is claimed for the defendants that the failure to communicate the occurence, and the acceptance of their proposition to employ him, with knowledge of the occurrence, was a fraud by the plaintiff upon them. We do not think that the facts may be so regarded, notwithstanding the remarks of Macullar, Parker & Go.’s representative, and for aught that 'appears, it was still the plaintiff’s honest opinion that but for his voluntary departure from Macullar, Parker & Co.’s employ he could have continued therein. Hext, it was contended for defendants that there was evidence tending to show that shortly before severing his connection with Macullar, Parker & Co., the plaintiff, while on business for his firm, had been in “bad company ” at Cleveland Ohio, and that fearing the fact would come to the knowledge of his employers, in which event he would suffer discharge from employ, he anticipated the discharge by resigning after securing employment with the defendants, and, therefore, that when he represented it to be his opinion that he could continue in tlie employ of Macullar, Parker & Go., if he so desired, he knew the representation to be false and misrepresented his opinion or belief. What was meant, however, by the “bad company ” into which the plaintiff had fallen, was left wholly to conjecture. It\ nowhere appears that the plaintiff was at fault, or -that he was guilty of indiscretion, or worse. Hence there was no evidence from which it could have been reasonably inferred that the plaintiff’s conduct, on the occasion referred to, was such that because of it, he might fairly havé been apprehensive of his employers’ displeasure after they had ascertained the facts, or of his discharge from their emplojL Upon the evidence, therefore, we are of the opinion that the case was properly disposed of by the trial justice, and as no other exceptions are urged for reversal the judgments at general and trial terms of the court below should be affirmed, with costs.

Daly, 0. J., and Pryor, J., concur.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    John Frederick Schwann et al., Resp’ts, v. George W. Clark, App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Pleadings—Statute oe frauds.
    A defendant, by omitting to plead the statute of frauds, waives the benefit of its provisions.
    2. Appeal—Correct decision.
    Where a legally correct decision has resulted from an erroneous ruling, the judgment will not be reversed unless a party has been mislead to his injury through such incorrect ruling.
    3. Same—First instance.
    Where a case has been fully defended and tried, it is not for the appellate court to refuse consideration of a point the force of which, had it been presented to the court below, could not have been obviated by proof or amendment at the trial.

      4. Contract—Construction.
    Under the term “prompt shipment this month,” the “promptness” required does not relate to the carriage of the goods in the regular course of trade after shipment in good faith, but must be construed as intending diligence in accomplishing a proper shipment.
    Appeal from an order of the general term of the city court of New York which affirmed a judgment rendered at trial term upon a verdict in favor of the plaintiff and an order denying defendant’s motion for a new trial; and from the judgment entered upon such order of affirmance.
    Parsons, Shepard & Ogden, {John M. Perry and Edward M. Shepard, of counsel,) for app’lts; Hinrichs & Rudolph, {Frederick W. llenrichs and Alfred E. Ilinrichs, of counsel,) for resp’ts. -

       Affirming 58 St. Rep. 24.

   Bischoff, J.

Plaintiffs sued to recover the difference in amount between the agreed price, of a certain quantity of lead, shipped to defendant according to contract, and the price at which it was re-sold on defendant’s failure to accept and pay for the same upon its arrival. The questions raised by appellant upon this appeal are presented by exceptions taken to the denial of the motion to dismiss the complaint and to portions of the charge of the trial justice below. The exceptions to rulings upon evidence not being pressed are not necessarily the subject of review, Gildersleeve v. Dixon, 6 Daly, 74, but their examination in the few instances where the grounds of the objection were stated, Malcolm v. Lyon, 46 St. Rep. 921; Meyers v. Cohen, 53 id. 223, discloses no prejudice in the rulings as made. It is claimed for the appellant, first, that a valid contract was not proven, second, that there was no sufficient performance and third, that proper notice of the re-sale of the goods was not given. The contract relied upon was in , the form of a letter sent to defendant by plaintiffs’ agent, after negotiations for the sale as follows:

“To Geo. W, Clark, Esq.
Dear Sir s—1 herewith beg to confirm sale of about fifty tons La Cruz soft pig lead of good merchantable quality at 3 8-10 cents per lb. in bond etc. steamer when landed. Prompt shipment per steamer this month. Terms cash against documents on arrival. After shipment has been made according to this contract sellers are not accountable for safe arrival of the load. Please confirm and oblige, Yours, etc.,
Emil Herold,
Agent for Messrs Schwann é Co., London.

This letter is admitted to have been received by defendant and it is not disputed that he gave oral assent to the terms of the contract. When plaintiff rested a motion was made to dismiss the complaint upon the ground, among others, that no compliance with the provisions of the statute of frauds had been shown, whereby the defendant could be charged under the contract, it "appearing that the value of the goods sold exceeded fifty dollars. In denying the motion the justice held that were the contract alone relied upon the plaintiffs’ could not recover, but that evidence of delivery and acceptance, sufficient to take the case out of the operation of the statute appeared. Upon this theory also he charged the jury.

The defense of the statute of frauds was not raised by averments in the pleadings and it is apparent that the respondents were thus held to the support of- a burden not required by the law. Crane v. Powell, 139 N. Y. 379; 54 St. Rep. 659. Upon all the evidence the jury found in favor of the plaintiffs, the finding being presumed to accord with the charge, Hackett v. Equitable Gas Light Co., 55 St. Rep. 492, and the appellant contends that there was no evidence of an acceptance sufficient to justify the verdict. Even if we assume this to be the fact, still the judgment is not for that reason reversed. The decision in Crane v. Powell, supra, is rested expressly upon the ground that a defendant by omitting to plead the statute of frauds waives the benefit of its provisions aiid, therefore, the fact that'the contract in this case was legally proven is beyond dispute. Where a legally correct decision has resulted from an erroneous ruling a reversal of bhe judgment should not result unless a party has been misled to his injury through such incorrect ruling. Marvin v. Universal Ins. Co., 85 N. Y. 278, and where a case has been fully defended and tried it is not for the appellate ¿ourt to refuse consideration of a point the force of which, had it been presented to the court below, could not have been obviated by proof or amendment at the trial, Beekman v. Frost, 18 Johns., 544; Scott v. Morgan, 94 N. Y. 515. Obviously proof was not available to appellant upon this question and an amendment, for the purpose of setting up this defense, was beyond the power of the trial court to grant. Graves v. Cameron, 9 Daly, 152. Therefore assuming that the finding referred to Was unsupported and that the point here urged by respondents was not raised below, propositions which the record by no means'unquestionably supports, still no prejudice resulted to appellant and upon this question the judgment is not to be disturbed. Again it is contended that the plaintiffs failed to perform the contract with regard to its terms providing for “ prompt shipment this month” in view of the fact that the goods were not placed on board of the carrying vessel until the twenty-ninth day of the month in question, this vessel not sailing until the first day of the next month. Upon the authority of Ledon v. Havemeyer, 121 N. Y. 179; 30 St. Rep. 754, this was clearly a “shipment within the month” and the word “prompt” necessarily had to do with the diligence required of the plaintiffs in so making the shipment within that time. It appeared from the evidence that the 'exact words used in this contract had no settled trade meaning and upon all the evidence submitted on the question of possibilities of earlier shipment, it was for the jury to say whether the plaintiffs have acted in good faith and with diligence in thus making the shipment. Appellant urges, however., that the word “prompt,” here used, brings this case within the. rulings of Tobias v. Lissberger, 105 N. Y. 404: 8 St. Rep. 43, and that therefore the fact that the .vessel did not sail within the month should preclude a recovery. In that case there was no time specified in the contract within which shipment was to be made, and it was held that placing the goods on board of a vessel which obviously could not sail within a reasonable time, by reason of natural causes, was not a compliance with the agreement for prompt shipment, other means of proper compliance being within the power of the contracting party. Here however the vessel sailed within a reasonable time; there was no actual, much less an expected delay as in the Tobias case and upon a fair construction of these two last cited authorities, it seems clear that the “promptness” required does not relate to the carriage of the goods, in the regular course of trade after shipment in good faith, but must be construed as intending diligence in accomplishing a proper shipment. The question was submitted to the jury in accordance with this theory and the verdict is supported by sufficient evidence in this regard. The point raised by appellant that the goods tendered were not those appropriated to defendants order by plaintiffs, is not, we think, well taken. The question was most fairly presented for determination by the jury and there is foundation upon the evidence for their finding that in the understanding of the parties the fact was contrary to this claim. The notice of re-sale, as given to defendant appears to have been quite sufficient under the authorities, Pollen v. Le Roy, 30 N. Y. 549 ; Lewis v. Greider, 49 Barb. 606 ; McGibbon v. Schlessinger, 18 Hun, 225, and the nature of the sale was proper, Pollen v. LeRoy, supra. In view of the evidence it would be difficult to support a finding that the defendants’ rights were disregarded in this part of the transaction.

Upon the record we find no agreement for disturbing the judgment, which is therefore affirmed, with costs.

Daly, C. J. and Pryor, J., concur.


author: Bookstaver, P. J.

text:
    Stephanie S. Seymour et al., App’lts, v. Louis Picus et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    Landlord and tenant—Board of health.
    Where, under a clause in a lease, the tenant is, at his own cost and expense, to comply with and execute all demands, orders and requests of the City Board of Health, hut fails to do so, the landlord may have them complied with and recover from the tenant the amount thus expended.
    Appeal from a judgment of the district court ■ in the city of New York for the first judicial district.

      Abraham L Mkus, for app’lts ; John Callahan, for resp’ts.
   Bookstaver, P. J.

This action was brought by the plaintiff to recover the sum of $154.71 from the defendants, being the amount paid by them for concreting the cellar floor of premises Ho. 504 Canal street in compliance with the order of the board of health of the city of New York. On re-trial it appeared that the defendants had leased the premises of the plaintiff, who were the owners, for a term of five years, which lease contained the following covenant: “ And the said parties of the second part further agree to make all repairs of any and every kind and nature to the premises hereby demised except to the roof and leaders and gutters of the same, at their own cost and expense; and at like cost comply with and execute all demands, orders and requests of the city board of health and all other lawful authorities during said term, anything herein contained to the contrary in any wise notwithstanding.” On May 27th, 1893, plaintiffs’ agent received a notice from the health department of the city of New York requiring them to remove all water from the cellar of the premises in question and have the same made water-tight. On the 9th of following a further order was received from the board of health requiring all water to be removed from the cellar, and that the same should be cleaned, disinfected and made watertight. It is clear from the return that both of these orders were delivered personally to the defendants, and they were notified of the fact of the same having been made. This was followed up by a letter written by plaintiffs’ agent and delivered to them, which is as follows: “ June 19th, 1893. Mr. L. Pious and Mrs. B. Pious, Dear Sir and Madam; I am in receipt of board of health order to make cellar of 504 Canal street watertight. I am getting my carpenter to figure on new heavy floor in cellar. You had better get a figure, as by the terms of your lease you must comply with all city ordinances or pay the cost of the same. Yours Resp’y, Henry J. Scheuber.” Mr. Schepber for the benefit of the defendants, endeavored to get the board of health to change the order so that a wooden floor might be put in instead of the concrete one, but this was refused, and on the 29th of June, Mr. Scheuber wrote again to the defendants as follows:■ “June 29th, 1893. Mr. Louis Picus and Mrs. Bertha Picus; 504 Canal street. Dear Sir and Madam. Ten days ago I notified you to get estimate for new heavy flooring in cellar to comply with board of health requirements, but I liaye not heard from you in reply. The health department refuse to give any longer time and unless you set a man to work at once, I will give orders to my mechanics to comply with orders and hold you for cost of same in compliance with the terms of .your lease. I propose raising the level of the cellar four to six inches and laying heavy flooring, as the most economical way of complying with health order. I am having the rear leader and sewer repaired at owner’s expense. Yours very truly, Henry J. Scheuber." Thereafter he saw the plaintiffs personally and endeavored to'get them to do the work themselves, but they utterly neglected and failed to do anything about it. Whereupon he had the work done at a cost of $154.71, which was frequently demanded of the defendants but they refused to pay the same. Under the covenant in the lease before referred to, the defendants'were bound to comply with the order or orders of the health department of the city of New York, and if they failed tó do so, upon notice being given to them by the plaintiffs or their agent the plaintiffs could have the same complied with and recover from the defendants the amount thus expended. Hull v. Burns, 17 Abb. N. C. 317; Buhler v. Gibbons, 24 St. Rep. 303 ; 3 N. Y. Supp. 815 ; Scott v. Haverstraw C. & B. Co., 135 N.Y. 141; 48 St. Rep. 110; Ernst v. Crosby, 140 N. Y. 364; 55 St. Rep. 732. The plaintiffs could not disobey the order without subjecting themselves to having the same done by the board of health, which would have increased the expense to them and ultimately t.o the defendants. Barnum v. Fitzpatrick, 42 St. Rep. 179. The defendant did not disp.ute the reasonableness of the bill for the work done, nor did they on the trial claim that more was done than was necessary to comply with the order of the board of health, and it is now too late to raise .that contention.

The judgment should therefore be reversed, and a new trial.ordered, with costs to the appellants.

Bischoff, J. concurs.


text:
    Harland V. Smith, Resp’t, v. Peter Wagner, App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Landlord and tenant—Assignee for. creditors.
    An assignee for the benefit of creditors has an election whether or not to accept a lease under the general assignment, -without affecting his right to the other assigned property.

      %, Same.
    If he accepts, he ts liable as for use and occupation during the time he actually occupies the premises.
    3. Evidence—Immaterial.
    In an action for use and occupation, certain evidence was held immaterial.
    Appeal from a judgment of the general term of the city court affirming a judgment in favor of the plaintiff, and from an order denying defendant’s motion for a new trial.

      William Allan, for app’lt; S. V. B. Cooper, for resp’t.

      Affirming 58 St. Rep. 34.

   Bookstaver, P. J.

This action was brought to recover $150 for the rent of the premises 874 Eighth avenue for the months of March and April, 1892. The answer denies certain allegations of the complaint on information and belief, and admits that defendant occupied the premises for the month of November, 1891, and paid the rent therefor. It also admits he occupied the premises for the month of April, 1892, at the rent of $75 per month, which the defendant was willing to pay plaintiff. On the trial it appeared that the premises had been leased by the plaintiff to the firm of Chatfield Brothers, which lease expired on the 1st day May, 1892, at the rate of $75 per month, payable in advance. Chatfield Brothers had occupied the premises from May 1st, 1891, to October, 1891, and paid the rent to the first of the following month. In the month of October, 1891, that firm made a general assignment of its property for the benefit of its creditors to the defendant, Wagner, who accepted the trust and entered upon the discharge of his duties. As such assignee he took possession of the premises in question and of the assigned goods, put a man in possession of the premises, and, as the jury has found, on what we think sufficient evidence, remained in possession during the month of March and until the 18 th day of April, 1892, selling the remainder of the goods on hand on the premises in the latter month. It also appeared that the rent of the premises for November, 1891, and January and February, 1892, was paid by a member of the firm of Chatfield Brothers, under an agreement between him and the defendant of which the plaintiff knew nothing. The court correctly charged the jury that their decision turned upon the question as to whether or not the defendant as assignee or otherwise was in the actual use and occupation of the premises during March or April; that if they found that he was, then the verdict should be for the-plaintiff; if ho was not, then still their verdict should be for the plaintiff for the rent or for the value of the use and occupation for the month of April, inasmuch as that was admitted by the answer. The determination of the jury on this question on conflicting evidence is conclusive upon us. The general assignment from Chatfield Brothers to the defendant carried their interest in the lease of the plaintiff to him. Powers v. Carpenter, 15 W. Dig. 155 ; Weil v. McDonald. 21 id. 440. Where a lessee assigns his whole estate without reserving any reversion therein to himself, a • privity of estate is at once created between his assignee and the original lessor, and the latter has a right of action directly against the assignee for rent. Stewart v. L. I. R. R. Co., 102 N. Y., 601, 607; 2 St. Rep. 557. But an assignee for the benefit of creditors has an election-whether or not to accept a lease so assigned without affecting his right to the other assigned property. If he elects to accept the interest of the assignor by entering into possession, or by doing any other act which is equivalent to signifying his acceptance of the term as assignee of the lease, he will' become the tenant of the premises and render himself liable for the rent. Jermain v. Pattison, 46 Barb. 9—12; Journeay v. Brackley, 1 Hilt. 457; Myers v. Hunt, 8 St. Rep. 338. As a rule the assignee of a lease is not liable for rent of the demised premises except for the time he occupies them; Platt’s Leases, 416; Taylor’s L. & T. § 444; this is as true of an assignee under an assignment as of an assignee u;nder a lease. Litchfield v. White, 7 N. Y., 438; Journeay v. Brackley, supra; Stern v. Florence S. Machine Co., 53 How. Pr. 438; Anderson v. Hamilton, 16 Daly, 18; 29 St. Rep. 712; Foster v. Oldham, 4 Misc. 201; 53 St. Rep. 488. But he is liable as for use and occupation during the time he actually occupies the premises, and the jury have found by their verdict, under proper instructions from the court, that the defendant did so occupy them during the two months in question. It is true that in such case the assignee may not be liable under the lease but on a quantum meruit, and that was the theory on which this case was tried. The plaintiff .proved the value of such use and occupation to be $75 per month. Whether the assignee accepted the lease therefore, or did not, he, as representing the assigned estate, was liable for the time he actually occupied the premises, and as the plaintiff can have but one payment for the rent of these months, the defendant’s contention in this respect must fail. Mor is it material whether or not the relation of landlord and tenant existed between the plaintiff and defendant. It is sufficient to sustain the recovery that he as assignee was in actual possession of the premises as found by the jury. Defendant also contends he ought not to be bound by the admission of his answer as to the rent due for the month of April, inasmuch as the landlord did not have any right to give the defendant the use and occupation of the premises, and moved to amend his answer in that respect. But the court yery properly refused to allow such amendment, as there was no evidence in the case to warrant it. As before shown, the general assignment ®f all their .property carried with-it the lease in question and gave to the defendant the right to accept the same or not, as he saw fit. During the progress of the trial certain evidence was given as to an arrangement between one of the firm of Cliatfield Brothers and the assignee of the firm.. This in due time plaintiff moved to strike out, and the motion was granted, to which defendant excepted. Inasmuch as the action on defendant’s own motion was for use and occupation, and not under the lease itself, it was wholly immaterial to the issue what, if any, arrangement had been made between Chatfield Brothers and their assignee. So too it was immaterial what, if any, rent one Eisert paid for the use of a certain portion of the premises, inasmuch as there was no pretence that it was paid to the plaintiff or to any one representing him, or on account of the rent for which the defendant was liable. Nor was it material to the issue actually tried whether or not this Eisert remained in possession of a portion of the premises if the assignee was in actual occupation and control of them. And it was immaterial as to how or in what form the Chatfields took receipts for the rent, provided the defendant, as assignee, was in actual possession. Nor was it material to the issue to show that the Chatfields, of one of them, carried on business in a portion of the premises, or had no place elsewhere, or that he had any property of his own on the premises, - or whether he, Chatfield personally, paid the rent to the plaintiff out of his own pocket for the months of January and February preceding, and inasmuch as the Chatfields by the general assignment had conveyed their interest in the premises to Wagner it was immaterial whether the latter concluded to accept that or not, and any conversation had with the plaintiff on that point was immaterial. The court charged the jury, “it was entirely immaterial how Wagner occupied the premises.” To this defendant excepted. The judge having in his charge clearly defined what the real issue was as before stated. The only question the jury had to decide was whether or not the defendant, as assignee, was in actual possession; whether he claimed to be in possession under the lease or as assignee was immaterial. All the other exceptions come under one or the other of the questions heretofore considered, and fell with defendant’s contention.

The judgment must, therefore, be affirmed with costs.

Bischoff and Pryor, J. J., concur.


author: Bookstayer, J.

text:
    Bertha Stearns, Pl’ff, v. Louisa Hesdorfer, Def't.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Deed—Covenant of seizin—Burden.
    The burden of proving the breach of the covenant of seizin is upon the grantee.
    8. Same—What is not-breach.
    Where the grantee is in fact seized of all the lands described in the deed by metes and bounds, the covenant of seizin is not broken, though the front wall of a building thereon slightly encroaches on the street and the side wall on the land of an adjoining owner.
    8. Same—Covenant of warranty—Breach.
    An action for the breach of a covenant of warranty will not lie, in the absence of any payment to discharge or extinguish an incumbrance, or any actual or a constructive eviction from any part of the property, or any disturbance of the title or possession.
    4. Evidence—Parol.
    All prior conversations and negotiations between the parties to a deed are merged in the conveyance and their rights, as between each other, fixed by that instrument.

      Case and exceptions heard in the first instance at the general term.

      llayman & Rosenthal, for pl’ff; M. A. Kursheest (Joseph Fettreich, of counsel), for def’t.
   Bookstayer, J.

This action was brought to recover $20,000 damages for the alleged breach of the covenant of seizin in a deed made by the defendant and one Joseph Hesdorfer of certain premises therein described by metes and bound with the buildings and improvements thereon erected.” The complaint alleges that the defendant was not seized of the premises conveyed, and did not have good right or power to convey the same by reason of the fact that the northerly wall encroached upon the street, and the easterly wall encroached upon the land of the .adjoining owner, and that the alleged encroachments were a breach of the covenant in the deed against incumbrances, and a breach of the covenant of warranty contained in the deed. The answer of the defendant after admitting the conveyance and the covenants therein contained, was in effect a general denial. Upon the trial, the plaintiff reduced the amount of her claim to $5,000. The evidence, tended to show that the easterly wall of the house in question encroached on the land of the adjoining owner from one and a half inches in front to two inches in the rear, and that the front'wall of the house encroached upon the street line of the premises in front from a half an inch on one side to three-quarters of an inch on the other. After the evidence on the part of the plaintiff was all in, the defendant moved to dismiss the complaint, which, after argument was granted, and the exceptions were ordered to be heard in the first instance at the general term. The burden of proving the breach of the covenant of seizin and of the other covenants alleged in the complaint to have been broken was upon the plaintiff, Woolley v. Newcombe, 87 N. Y. 605, 612, which overrules Potter v. Kitchen, 5 Bos. 556: Abbott v. Allen, 14 Johns. 248, and the earlier cases. In the case first cited Judge Rapallo, delivering the opinion of the court, shows that the reason for the old rule which casts the burden on the defendant in actions of this kind no longer exists, the recording act.having done away with the reason for it. There is no evidence in the case, nor as far as we can see, was it contended on the trial, -that the defendant at the time of the conveyance to the plaintiff, was not in fact seized of all the lands'described in the deed to her, by metes and bounds, and the covenant of seizin is not in our Opinion broken, although the front wall encroached over the line of the street to the extent claimed, or the side wall encroached on the land of the adjoining owner to the extent testified to by Mr. Ford, the surveyor; Saserath v. Metzger, 30 Abb. N. C. 407; Burke v. Nichols, 1 Abb. Ct. App. Dec. 260. Plaintiff's counsel contends that the case of Burke v. Nichols, supra, is not in point, as it did not contain the words, “ together with the buildings thereon erected.” But the absence or presence of these words neither enlarges nor diminishes the plaintiff’s right or in our judgment affects the force of that decision ; Griffiths v. Morrison, 106 N. Y. 169; 8 St. Rep. 585. Plaintiff "also contends that the words, “together with the buildings and improvements thereon erected,” mean, in this instance, and were intended to mean the five story double house, the walls of which encroach upon the adjacent property as we have before stated. But we think that there is nothing in this ease which takes this expression out of its ordinary significance as generally employed in conveyances, which is, “ anything which is built upon the land.” In the Burke v. Nichols case, supra, the opinion was concurred in by all the judges, and is as follows: “ It is a familiar rule that a grant of land eo nomine conveys not only the ground or soil, but every corporate thing which is attached to the earth by the coarse of nature, as trees, herbage and water, or by the hand of man, as houses and other structures. Co. Litt., 4 a; 3 Kent’s Com., 486. The defendant is, therefore, correct in claiming that, under his deed from the plaintiff, his rights in respect to the dwelling house and fence, and the lot thereby conveyed, are the same as if such structures had been specifically mentioned in the grant If the grantor had title to them, it passed by the deed; if he had not title to such structures, or any part of them, his covenant of seizin was broken, to that extent, and the defendant has a remedy for the breach. But the rights of the defendant thus acquired do not extend to such parts of the house and fence as are attached to and rest upon the soil of the adjoining lot. Those structures, by the operation of the very principle upon which the defendant relies, are a part of the land on which they stand, and it is an acknowledged rule that land does not pass as an appurtenance to land.” Ño cause of action can be founded upon any allegation of the complaint for the breach of the covenant against incumbrances; first, because no proof was offered on the trial of any incumbrance which was paid off or discharged by the plaintiff, and, second, because without such proof no 'cause of action would lie for more than nominal damages in any event; Hall v. Dean, 23 Johns. 103. Not only was 'there no evidence upon the part of the plaintiff of any eviction or disturbance to the possession or title of the property conveyed to her by the defendaut and her husband, but on the other hand it appears that from the moment of the delivery of the deed to the plaintiff up to the time of the trial, she was in the actual, undisturbed physical possession of the entire house and land on which it stood. This being the case no action for the breach of the covenant of warranty will lie. Kent v. Welch, 7 Johns. 258. Upon the whole case we think the plaintiff failed to show any failure of the title of the defendant to the lands comprised within the metes and bounds described in the deed to her. She also failed to show any disturbaece of her possession of the building or land or any part of either. And she did not show the payment of any money to discharge or extinguish any incumbrance; nor did she show any actual or constructive eviction from any part of the property, or any disturbance of the title or possession. Nor do we think there was any error on the part of the learned judge who tried this case in the admission or exclusion of evidence. Most of these rulings grew out of and are connected with the contention of the defendant that no cause of action was either alleged or proved or could be under the allegations of the complaint, and if 'we are right in the conclusion to which we have arrived as to the cause of action itself, the exceptions fall with it. It may be proper however to notice a few which do not rest upon this contention. Plaintiff on the trial attempted to show that she had made' a contract for a sale of the property and that the purchaser had refused to accept on the ground of the encroachments before mentioned, and also, the commissions she had to pay the broker for effecting the sale and the loss of profits she would have realized had the sale been- carried out ; to all of which testimony the defendant objected and the same was excluded by the court. Clearly this evidence was inadmissible for if the defendant was liable at all in this action for the breach of the covenant of seizin, the measure of damage was not what profit or loss plaintiff had sustained on any attempted sale of the property, or the amount of any brokerage, or other expenses she had paid in that matter, but was either the difference in value between the house contained within the metes and bounds and its value as it stood, or the proportion which the alleged encroachment would bear to the whole piece, or perhaps the cost of removing the alleged encroaching walls within the metes and bounds of the land described in the deed. - Plaintiff also endeavored to show what was said between the plaintiff and Mr. Hesdorfer at the time the purchase was made by her in regard to the subsequent sale of the property, which was objected to by the defendant and excluded. This we think was inadmissible upon the ground that all the conversations and negotiations between the parties were merged in the conveyance and their rights as between each other fixed by that instrument; and also on the ground that anything Mr. Hesdorfer might have said, in ho way bound the defendant in this action without proof or the offer to prove that the defendant had authorized him to bind her .in any such matter. Certain real estate dealers were called by the plaintiff, and they were asked by the defendant on cross-examination what would be the difference in value between a lot 25 feet wide, and a lót 25 feet If inches wide, to which the plaintiff objected, and the objection was overruled and the evidence admitted. We think it was pertinent for the purpose of arriving at what if any difference there would be in the value of a lot of -land of the size described in the deed, and óf that covered by the house itself according to the plaintiff’s surveyor’s testimony, and was one of the elements of ascertaining whether or not there was any damage, the other element being the difference in value between houses of different sizes. We- therefore think that the exceptions were not well taken and should be overruled, and the decision of the trial justice affirmed and judgment directed in favor of the defendant and against the plaintiff dismissing the complaint upon the merits with costs. Daly, C. J. and Bisohoff, J., concur.


author: Bookstaver, J.

text:
    Simon S. Stern et al., Resp’ts, v. Abraham Meyer et al. App’lts.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Judgment—Release—Bankrupt’s discharge. -
    On a motion to discharge a judgment on the ground that it was extinguished by a discharge in bankruptcy, an objection that the debt which is the basis of such judgment was created by fraud is unavailing where it is a simple money judgment and no order of arrest was ever obtained in the action and no claim to that effect was made until more than seventeen years after the entry of such judgment.
    3. Same—Section 5117 op U. S. R. S.
    Section 5117 of the U. S. Revised Statutes was not intended to nor did in any way effect or change the laws of the several states as to what constitutes a fraud, embezzlement, defalcation or fiduciary relation.
    Appeal from an order entered at special term, denying defendant’s motion to be discharged from the plaintiffs’ judgment entered against them, on the ground that that judgment and claim were discharged by the defendant’s discharge in bankruptcy, and referring the question whether the debt or claim in suit was created by the fraud of the defendants or of either of them.
    JBoadly, Lauterbach and Johnson {Williain F. Cohen and B. JD. Washburn, of counsel), for app’lts; James Murphy {Myer J. Stein, of counsel), for resp’ts.
   Bookstaver, J.

The motion was made under section 1268 of the Code of Civil Procedure, which provides that “ at any time after two years have elasped since a bankrupt was discharged from his debts pursuant to the Acts of Congress relating to bankruptcy, he may apply upon proof of his discharge to the court in which the judgment was rendered against him for an order directing the judgment to be canceled and discharged of record. If it appears that he has been discharged from the payment of that judgment, an order must be made accordingly, and thereupon the clerk must cancel the discharge the docket thereof as if the proper satisfaction piece of the judgment was filed.” These provisions are mandatory and imperative, and entitle the defendants to the release asked for unless the j udgment is one of those excepted by § 5117 of the Revised Statutes of the United States. Am. Exch. Bk. v. Brandreth, 12 Hun, 384; Arnold v. Oliver, 64 How. Pr. 452 ; Townsend v. Simpson, 13 Week. Dig. 450; Fellows v. Kittredge, 56 How. Pr. 498. The plaintiffs do not in these proceedings attack the validity of defendant’s discharge in bankruptcy, but oppose his application on the ground that under § 5117, supra, the judgment sought to be canceled is not such a claim or debt as the bankrupts were or could be discharged from under that act. The section is as follows: “Ho debt created by the fraud or embezzlement of the bankrupt or by his defalcation as a public officer or while acting in any fiduciary character, shall be discharged by proceedings in bankruptcy, but the debt may be proved and the dividend thereon shall be a payment on account of such debt.” Plaintiffs claim that the debt on which their judgment was founded was created by fraud. This is the first that any such claim has been made by the,plaintiffs so far* as appears from the papers submitted to us. From these papers it appears that the defendants purchased certain goods of the plaintiffs in the fall of 1871, which were not paid for. The action resulting in the judgment under consideration was not commenced until January, 1877, more than five years after the cause of action accrued. The summons was the ordinary summons for a money judgment only ; the complaint was the ordinary complaint for goods sold and delivered; the demand was the ordinary demand for a money judgment. The judgment was entered without any application to the court and is a simple money judgment. No order of arrest was ever obtained in the action, and we think the plaintiffs cannot now after the expiration of more than twenty-two years from the time of the original sale and purchase and more than seventeen years after the'entry of judgment, be allowed to come into court and show for the first time by proof aliunde that there was fraud on the part of the defendants in contracting the debt sued upon. In Shuman v. Strauss, 52 N. Y. 404, the proceedings were in every respect similar to those in this place, except that the complaint in that case contained allegations of fraud which the court said if properly verified would have justified an order of arrest. And the court there held that the plaintiff had waived his right to arrest, and that the question of fraud was entirely eliminated.from the case so far as the rights and obligations of the parties depended upon the laws of this state. And in Palmer v. Preston, 45 Vt. 154, it was held that the recovety of a judgment upon a contract induced by a fraud is a waiver of the fraud, and the judgment is not a debt created by fraud within the meaning of the Bankrupt Act, and the plea of a discharge in bankruptcy was a good defense to an action of debt founded upon such judgment. See also Bump on Bankruptcy, 10th ed. p. 743. It is quite true that a number of cases are cited by the plaintiffs in support of their contention, but we think in all of the cases so cited, it will be found that there were either allegations of fraud in the complaint " itself and the judgment, or that an order of arrest had been obtained in the action founded upon affidavits which were of record in the court in.which the application was made; and that no case can be found where the application for a discharge of the judgment was successfully resisted by proof entirely outside of the record of the court in which the judgment was obtained. To allow such evidence at this late day would in effect be to convert a mere money judgment into one of fraud, and that without any opportunity for the defendants to contest such an issue before a juty, and notwithstanding more than six years have passed since the discovery of the fraud, which is the time limited for the commencement of such actions bj' § 382 of the Code. Moreover, we do not think that § 5117 of the U. S. Rev. St. was intended to or did in any way affect or change the laws of the several states as to what constitutes a fraud, embezzlement or defalcation or fiduciary relation, as is apparent from the conflicting decisions of the courts of the United States and of the several states in regard to whether a factor or commission merchant does or does not act in a fiduciary capacity in the conduct o£ his business. § 3, Am. and Eng. Encycl. p. 389, note 3, and cases there cited.

We therefore think that the plaintiffs in obtaining the judgment they did, and in their subsequent proceedings, have waived any fraud there may have been in contracting the debt and cannot now be heard to assert it for the first time by proof aliunde the record of this court. Beside, this is not a question which should be determined upon a summary application of this kind as was said in Shuman v. Strauss, supra, 406.

The order of the special term mnst therefore-be reversed with costs of this appeal, and an order entered discharging the judgment with $10 costs.

Daly, 0. J. and Bischoff, J., concur.


text:
    Arrowitz Wolff et al., App’lts, v. Edward C. Horn, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    Costs—Fees—-Stipulation.
    Where parties, by their counsel, enter into agreements or stipulations to pay fees larger than the law prescribes, the court cannot he called upon to aun.il or disregard them in the absence of fraud, collusion or deceit.
    Appeal from an order retaxing plaintiff’s bill of costs, and disallowing certain sums paid the referee and stenographer.
    17 17. Culver, for app’lts; Thomas O' Callaghan, Jr., for resp’t
   Bookstaver, J.

While the bill as taxed by the clerk appears to be very large considering the amount involved, yet-we think on the papers presented to him and printed in the appeal book, he was correct in taxing the amount he did. It was in strict accordance with the stipulation made between the parties to the action by their counsel, which was as follows: “ It is stipulated by the respective parties that the fees of the stenographer shall be taxed as a disbursement in favor of the successful party ; also that the fees of the referee shall be $10 for a hearing of two hours, $15 in excess of two hours, and $5 for an adjournment.” It is true that on the'argument of this appeal respondent’s counsel claimed that it was understood between the parties and the referee that no adjournment fee would be charged in case notice was sent before the hour set for the hearing; and it was also claimed that the referee especially charged two adjournments to the appellants herein and which are not to be taxed as costs and that other adjournments were had for the referee’s own convenience. But there is nothing in the papers submitted to us on which such a contention can be based. Nor is there anything in the papers to show why $30 was deducted from the fees charged by the stenographer which are sworn to by him to be fair and reasonable and according to the custom obtaining in such matters regarding stenographers’ fees. It also appears that both the referee and stenographer yrere paid the full amount for which their fees were taxed by the clerk; and we think the appellants were justified in paying the amounts they did under the stipulation. If parties by their counsel will enter into agreements or stipulations to pay fees larger than the law fixes such agreement being allowed by law, Thurman v. Fiske, 80 How. 397; Covell v. Hart, 14 Hun, 252 ; Code, § 3296; Mark v. City of Buffalo, 87 N. Y. 184, the court cannot be called upon to annul or disregard them in the absence of fraud, collusion or deceit. If the fact was as claimed on the argument in regard to the adjournments and to the stenographer’s fees, they should have been presented by affidavit. We cannot be controlled in our decisions by the statements made by counsel on the argument and which were not before the clerk for his consideration when he taxed the bill.

The order should be reversed and the .clerk’s taxation affirmed, with costs of this appeal.

Daly, C. J., and Bischoff, J., concur.


text:
    Harry C. Adams, Resp’t, v. The New Jersey Steamboat Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Oaeeiehs—Liability.
    A steamboat company is liable for the loss of a passenger’s money to an amount which might reasonably be Carried for traveling expenses, retained by him in his designated stateroom, without proof of negligence upon the part of the company; and, where the contract of carriage and the assignment of the stateroom are undisputed, the passenger, upon showing that the loss occurred without contributory negligence on his part, establishes a prima facie case.
    8. Appeal—Exception.
    An exception to a specific propo.sition or to particular remarks of a judge in his charge to the jury should be so definite as to leave no doubt as to the real character of the exception, or as to what was actually intended.
    Appeal from a judgment rendered upon a verdict and from an order denying a new trial. The action was brought to recover a certain sum of money alleged to have been lost to plaintiff when a passenger upon one of defendant’s steamboats. This money was retained by plaintiff in the stateroom assigned to him by the defendant upon his taking passage, and during the night time an article of clothing containing this property was taken from the stateroom by some unknown person. Snob article of clothing was afterward found in , another room upon the boat, but the money had been abstracted. The door of the stateroom was provided with a lock and the window blind was fitted with a catch.

      W. P. & P. K. Prentice (W. P. Prentice, of counsel), for app’lt; Gibson & Davis ( William J. Gibson, of counsel), for resp’t.
   Bischoff, J.

The most important point in the case, and that toward which the argument of counsel upon this appeal have been principally directed, relates to the correctness of a rule with regard to proof, followed by the learned trial judge in his charge to the jury, and in his disposal of requests to charge and of a motion to dismiss the complaint. The rule referred to was, in effect, that the defendant company was liable for the loss of plaintiff’s money, to an amount which might reasonably be carried for traveling expenses, retained by him in his designated stateroom, . without proof of negligence upon the part of defendant, and that, upon showing that the loss occurred without contributory negligence on his own part plaintiff established a prima facie case, the contract of carriage and the assignment of the stateroom in question being undisputed. The above rule is in conformity with decisions rendered by this court in cases of Mudgett v. Bay State S. S. Co., 1 Daly, 151, decided 1861; Gore v. Norwich & N. Y. Trans. Co., 2 id. 254, decided 1867, and Macklin v. N. J. S. S. Co., 7 Abb. N. S. 229, decided 1869, where it was held that a liability, analagous to that of an inn keeper, attached to the class of carriers to which this defendant belongs, with regard to a loss of personal effects taken into' his stateroom by the passenger. In these cases the rule was clearly so expressed, and the facts in the present case afford no basis for a distinction in applying the principle there declared. This same rule of liability was held to obtain in Van Horn v. Kennit, 5 E. D. Smith, 453, and Crozier v. Boston, N. Y. $ N. S. S. Co., 43 How. Pr. 466, and has not as yet been disapproved in this state, so far as research has disclosed. Appellant relies, however, upon the authority of Carpenter v. N. Y., N. H. & H. R. R. Co., 124 N. Y. 53; 34 St. Rep. 854, where the court of appeals held that sleeping car companies are not liable as “carriers or innkeepers ” for the loss of a traveler’s personal effects, when the same are retained by him near his person upon retiring for the night. Of course, in such a case, the word “ carrier ” has reference to a liability for baggage actually placed within the carrier custody, it being the general rule that such retention of his effects by the traveler renders the carrier only liable for their loss when occurring by reason of its negligence. Tower v. Utica & S. R. R. Co., 7 Hill, 47. The question then arises: Does the adoption of such a rule, with regard to sleeping car companies, in effect, overrule the case where an opposite principle of liability has been applied to these carriers by water ?

The rule absolving a sleeping car company from liability as an innkeeper, in the regard considered, is not new to the jurisprudence of this state, for the principle was so declared by the superior court of Buffalo, as early as 1874, in the case of Welch v. Pullman, etc., Co., 16 Abb. Pr. N. S. 352. The courts of our sister states also, whenever the question has arisen, have uniformly enunciated the same rule. Pullman Co. v. Smith, 73 Ill. 360; 24 Am. Rep. 258; Woodruff Co. v. Diehl, 84 Ill. 474 ; 43 Am. Rep. 102; Illinois R. Co. v. Handy, 56 Am. Rep. 846, and note at p. 852; Lewis v. R. R. Co., 143 Mass. 267; 56 Am. Rep. 852, note; Bevis v. Balto & O. R. Co., 56 Am. Rep. 850, note, where mention is made of the unanimity with which the rule has been adopted, See cases there cited. 22 Central Law Journal, 58; Albany Law Journal, Oct. 23d, 1893, p. 354, the authority which appears to have been a leading case upon the subject being Pullman Co. v. Smith, supra, decided in 1874, a few months prior to the Welch case. And here it is expedient to note the grounds upon which the'decisions have proceeded. In the first place sleeping car companies are not carriers at all; the railroad company issuing the ticket to the traveler is the carrier, and the sleeping car company merely supplies extra accommodation to the parties contracting with the carrier for transportation, upon the payment of a certain separate consideration. Moreover, were these companies to be held to the responsibility of carriers, they could not be burdened, with liabilities, as insurers, for loss of the passengers’ effects as “baggage,” for they take no custody of baggage in any way, this duty being assumed by the railroad company, the actual carrier. See Centr. L. J. Vol. 22, p. 52. Failing this responsibility, then, as carriers with custody, a liability as insurer has been sought to be applied to these companies by reason of their analogy to innkeepers, but the courts have denied that the rule relating to innkeepers should be so extended, this denial proceeding upon the ground that in the absence of precedent for applying the common law rule principle in that regard to a new case arising out of circumstances and emergencies developed by the progress of society, the application should not be made, unless it appears to be essential to the enforcement of justice, Welch v. Pullman, etc., Co.; Pullman Co. v. Smith, supra, and various distinctions have been pointed out, as existing between these companies and the innkeeper, which should oppose the application to the former of the latter's common law liability. Thus, in the case last cited, it is said with reference to a sleeping car company, “It does not, like the innkeeper, undertake to accommodate the traveling public, indiscriminately with lodging and entertainment. It only undertakes to accommodate a certain class, those who have already paid their fare and are provided with a first class ticket, entitling them to ride to a particular place. It does not undertake to furnish victuals and lodging, but lodging alone, we understand.” The court here say, however, thas even if victuals were furnished it would not alter the result of the decision, as this is merely one element of distinction among many. Again the court say, “The innkeeper is obliged to receive and care for the goods and property of the traveler whicli he may choose to take with him upon the journey. Appellant does not receive pay for, nor undertake to care for any property or goods whatever, and notoriously refuses to do so. The custody of the goods of the traveler is not, as in the case of an innkeeper, accessory to the principal contract to feed, lodge and accommodate a ‘ guest for a suitable reward, because no such contract is made.” Further distinction is made with regard to the traveler’s necessity for accepting these extra accommodations and thereby attempting a transfer to the sleeping car company of liability for a loss of baggage, custody of which would have been assumed by the carrier, had control over same been ceded to it. And again it is said that the sleeping car company is not bound to furnish these accommodations, the service not being mandatory by the law, as in the case of an innkeeper. In the Welch case a further distinction was noted with regard to the innkeeper’s lien. The courts being unanimous, as shown above, in enunciating the law with regard to these companies, it becomes important to note the adjudications bearing upon the responsibility of carriers by water in the aspect considered. Here the decisions in the various states are in marked conflict, yet in this state harmony is found where different courts have had occasion to rule upon the question. In Crozier v. Boston., N. Y. & N. S. S. Co., supra, the supreme court held that a steamboat company was liable for the loss of personal effects of ordinary value, (including money) as insurer, when the same were taken from the stateroom of a passenger during the night, the decision proceeding upon substantially the same lines as were followed in the early cases decided in this court, and as remarked above, we have not found that the rule has been questioned by later adjudication. Without the state a different view has in many instances obtained. Steamboat Crystal Palace v. Vanderpool, 16 B. Mon. 302 (Ky.); Abbott v. Bradstreet, 55 Me. 530; Clark v. Burns, 118 Mass. 276; 19 Am. Rep. 456; The R. E. Lee, 2 Abb. U. S. 49. The Steamboat Crystal Palace v. Vanderpool, supra, decided in 1855, it was held that the carrier was not so chargeable, the decision being based upon a lack of precedent for applying the rule of an innkeeper’s liability to the plaintiff in error. The court, however, expressed the opinion that there might be many good reasons for applying such a rule to these carriers, but inclined to the view that it was a matter to be regulated by statute. So, again, in 1868, the court held in the case of Abbott v. Bradstreet, supra, that the steamboat owners were not liable for such a loss, as innkeepers, upon the ground merely that no authority in favor of applying such a rule of liability had been found, and the superior court of Massachusetts, in 1875, enunciated the same doctrine upon the authority of the two cases last cited. Clark v. Burns, supra.

On the other hand the supreme court of Wisconsin in 1878, lent appróval to the views expressed in Mudgett v. Bay State S. S. Co.; Macklin v. N J. S. S. Co.; and Gore v. Norwich and N. Y. Trans. Co., while holding that where the door of the stateroom was not provided with a lockthe room could not' be considered as a place designated for the deposit of personal effects and that, in such a case, the carrier was not liable prima facie without proof of its negligence. Gleason v. Goodrich Co., 32 Wis. 85; 14 Am. Rep. 716. In Mc Kee v. Owen, 15 Mich. 115, direct approval was given to the rule as laid down by this court in Mudgett v. Bay State S. S. Co., in a carefully considered opinion devoted to a discussion of the duties and liabilities of these carriers by water. In the case of the R. E. Lee, supra, this rule of liability was not approved but that authority did not alter the court’s favorable view of our earlier cases in Gleason v. Goodrich, supra. From the foregoing it will be seen that the same unanimity with which the courts have adopted the rule, now approved by the court of appeals, with regard to sleeping car companies, has not obtained in cases where the liability of a carrier by water has been considered (see note 20 Fed. Rep. 433) and it appears in this state, apart from the cases in this court upon the subject, the strict rule referred to was early applied to steamboat companies, Crozier v. Boston, N. Y. & N. S. S. Co., and its application denied in the case of a sleeping car company within a few years later, Welch v. Pullman, etc., R. R. Co. Some instances of distinction pointed out by the courts when refusing "to apply the innkeeper’s rule to sleeping car companies may be regarded as applicable to the class of carriers whose liability is now considered but in other of these instances the analogy of the latter to innkeepers strongly obtains, and it is in view of these elements that the rule has been thus extended by the courts. Attention should be directed to the fact that the steamboat company is actually the carrier, see Mudgett v. Bay State S. S. Co., providing sleeping accommodations as an incident, in practical effect, to the main contract of carriage, instead of merely furnishing special facilities to parties contracting with an independent carriel1 for their transportation. Thus the character of a “ traveling inn,” Macklin v. N. J. S. S. Co., supra, is, with regard to liability for loss of baggage or personal effects, borne out strongly in the case of these carriers where, in one essential particular it fails when sought to be applied to the sleeping car companies ; for the steamboat company as carrier, is charged under its contract with the passenger to transport such passenger’s baggage, and, in other main essentials giving accommodation as an innkeeper, the analogy of the flatter’s position, with regard to personal effects placed in a designated locked room appears. This, again, is a possible distinction between the classes of transporters' considered as noted in Gleason v. Goodrich, supra. What value other distinctions, which might be suggested, would have as bearing upon the question of liability ponsidered we need not now determine, for in view of the present aspect of authority in this and other states, stare defisis would require that effect to be given to the rule as heretofore laid down, in the absence of a contrary expression by the court of last resort. That the case of Carpenter v. N. Y., N. H. & H. R. R. Co., may be taken as such an expression is not an authorized assumption, and the rulings of the learned trial judge in this aspect of the case are therefore to be supported. An examination of the other points relied upon discloses no prejudice to appellant. In the rulings upon evidence and in the instructions to the jury, relative to the amount of money which the plaintiff was justified in carrying' upon his journey, the law was followed as laid down by the authorities, Merrill v. Grinnell, 30 N. Y. 594, 609; Carpenter v. N. Y., N. H. & H. R. R. Co., supra, and so with regard to instructions bearing upon the effect of the notice claimed by defendant to have been placed in the plaintiff’s stateroom, and which plaintiff denied having seen. Macklin v. N. J. S. S. Co., supra; Hollister v. Nowlen, 19 Wend. 241. In ruling upon a question as to what watch was kept upon the boat during the night the court said, addressing counsel; “ I think I shall have to charge in accordance with the decisions of this court, that the responsibility is that of a hotel keeper and that the mere fact of the loss would make the defendant liable to pay for it unless the jury are convinced from the evidence that it arose through negligence of the plaintiff. .Defendant's counsel;—“I accept to that.” The court s —“ I am only stating now what I think I must do under the decisions.” Appellant now claims that the use of the word “ convince" might well have misled the jury in fixing a standard by which they were to weigh the evidence, and there would indeed be force in the contention had the jury been actually so charged, under a proper objection. B.ut this remark was addressed to counsel in the course of argument, at some time before the case was closed and was entirely unconnected- with the charge itself, wherein the jury were most fairly instructed upon this question of plaintiff’s contributory negligence. Moreover were this statement, to be in any way construed as an instruction, the exception was obviously too general in character to present error in this choice of a word. “When it is intended to except to a specific proposition or to particular remarks of a judge in his charge to the jury, the counsel making the exception should put his finger on the proposition clearly and distinctly, beyond any question, and employ language antirely plain, so that there can be no doubt as to the real character of the exception, or as to what was actually intended. This is essential to enable the judge to correct, modify or change the language used, if he deems it proper and to prevent any misconception or misapprehension as to what portion of the charge the exception was intended to apply.” Mc Ginley v. U. S. Life Ins. Co., 77 N. Y. 497 ; see Walsh v. Mead, 8 Hun, 387, 394. There was sufficient evidence in the case to justify a submission of the question of plaintiff’s contributory negligence to the jury and the verdict is to be supported. No further points are found which would require discussion.

Judgment affirmed, with costs.

Daly, 0. J. and Pryor, J., concur.


text:
    American Surety Company of New York, Resp’t, v. George A. McDermott, App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

      1. Contract — Parties.
    Where the language is explicit and precise and excludes any idea of the instrument being executed in an official capacity, the party, though he describes and signs himself as receiver, is bound personally.
    8. Receiver—Power.
    A receiver has no power, without an order of the court, to bind, by an executory contract, the assets of the estate.
    3. Evidence — Parol.
    In the absence of ambiguity in a bond or undertaking, parol evidence to vary or contradict its terms is inadmissible.
    Appeal from a judgment entered upon a trial before the court without a jury.

      John Franhenheimer, for app’lt; John J. Grawford, for resp’t.
   Bookstaver, J.

On the trial certain evidence was admitted provisionally, and upon the decision of this action the court ruled such evidence was inadmissible, and it was therefore stricken out, and to this ruling the defendant excepted in due season, and the main question upon this appeal relates to the admissibility of the evidence so stricken out. The learned judge who tried the case, correctly ruled, we think, upon this question, and for the reasons so clearly stated by him in .his opinion, there is left but little to add thereto. The intention of the appellant to bind himself personally, and not in his representative capacity, is clear from the provision which states, “said George A. McDermott shall and will pay in cash, to said American Surety Company,” etc., the premium or charge of $12, made by aid company “for executing said instrument and continuing the same,” etc.; alid by the further provision that “said George A. McDermott shall and will at all times indemnify and keep indemnified,” etc. This language is explicit and precise and excludes any idea of the instrument being executed in an official capacity, although he described and signed himself as receiver. We fully concur with the learned judge who tried the case, that the defendant, as receiver, had no power without an order, of the court, to bind the assets of the estate of which he was receiver by an executory cbntract; and in addition to the case cited by him, we would cite Vilas v. Page, 106 N. Y. 439, 451; 11 St. Rep. 416; Roger v. Wendell, 54 Hun, 440, 543-5; 28 St. Rep. 301. There being no ambiguity in the bond or undertaking, it follows, for the reasons stated by the learned judge below, that the evidence stricken out was not admissible; and this case affords an excellent illustration of the «propriety of such a rule. Appellant claims that the arrangements were made with Mr. Eltiier, the president of the company, and that he agreed he would look for indemnity to the assets which might be realized by the receiver, and would not look to the defendant personally. Mr. Elmer is now dead, and it is quite impossible for plaintiff to disprove defendant’s statements. If he were alive it is not improbable he might show that the defendant had not recalled all the facts correctly; and it is inconceivable that he could have thus agreed, because it would have been absolutely no security what soever to the respondent in that event, for the appellant testified that all the estate he took as receiver was the right of action on which he brought the action. The undertaking was necessary to protect the respondent only in case that action should fail, for then only would the appellant have been liable for costs, and then had the agreement been as contended for by him, there would have been no estate whatever, out of which he could have paid them. In the only event in which by its terms such a contract could be enforced, it would be unenforceable for want of assets.

The judgment should therefore be affirmed, with costs.

Daly, O. J., and Bischoff, J., concur.


author: Pryor, J.

text:
    David Boyd, as Administrator, etc., App’lt, v. Robert Boyd, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Payment—Judgment.
    No lapse of time short of twenty years since the rendition of a judgment, raises a presumption of its payment.

      X Same.
    A lapse of less time in connection with other circumstances, may authorize the jury to find the fact of payment.
    3. Same.
    The wealth of the debtor alone is no evidence of payment, but in connection with lapse of time and other circumstances may he sufficient proof of payment.

      4. Same.
    In rebuttal of the presumption of payment from lapse of time and other circumstances, evidence of the poverty of the debtor is admissible.
    5. Evidence—Admission.
    A party’s statement out of court relevant to the issues, is original evidence as an admission, and may be proved without previous interrogation of the witness.
    Appeal from judgment of general term of city court, affirming judgment on verdict. Action by administrator on judgment recovered by his intestate against the defendant. The opinion states the case.

      Johnston <& Johnston (Edward W 8. Johnston, of counsel), for app’lt; Kohn, Buck & Lippman {August Kohn, of counsel), for resp’t.

       Reversing 57 St. Rep. 647.

   Pryor, J.

The action is on a judgment, and the defense is payment. The summons was not served till the lapse of more than nineteen years since the rendition of the judgment. Proof of actual payment was attempted, hut the effort was scarcely a success. The fact depended upon the testimony of a solitary witness, and besides the inherent infirmity of his evidence, it was discredited by at least one instance of deliberate false swearing. Then, too, the checks with which it is pretended the intestate’s judgment was paid, had been the subject of a suit against another man, in which the defendant, prosecuting that action, swore they represented loans he had made to that man. How loans to David Boyd could operate as payment of Samuel Boyd’s judgment, passes comprehension. The defense of actual payment, if not a total collapse, was, to say the least, sustained by evidence of an inconclusive character. In aid of it, the length of time since the recovery of the judgment and the wealth of the defendant, were adduced to raise an inference of payment. Neither pecuniary ability, nor the lapse of less than twenty years, creates a presumption of payment. Daby v. Ericsson, 45 N. Y. 786 But lapse of time in conjunction with ability to pay and other circumstances, may authorize the jury to find the fact of payment. Bean v. Tonnele, 94 N. Y. 381; Macaulay v. Palmer, 125 N. Y. 742, 744; 36 St. Rep. 175. The inference, however, is not irrebuttable, and .“the indigent circumstances of a debtor, his hopeless insolvency and inability to pay his debts, are properly admissible in evidence for the purpose of repelling the presumption of payment or satisfaction of the judgment, arising from lapse of time.” Farmers' Bank v. Leonard, 4 Harr. (Del.), 536; McLellan v. Crofton, 6 Me. 307-334. So, the return of an execution nulla Iona is a circumstance repelling the presumption of payment of a judgment. Black v. Carpenter, 3 Baxt. 350. To intercept the inference of payment from the wealth of the defendant and the time elapsed since the judgment, the plaintiff proposed to prove admissions of poverty by the defendant in a supplementary proceeding, but the offer was rejected by the court. The ground of exclusion was the supposed immateriality of the evidence. But, how can evidence be immaterial which is of efficacy to disprove a defense ? The payments alleged by the defendant were at different times between September, 1878', and March, 1883. The order for the examination of the defendant, was of date 16th May, 1879. The order proceeded, of course, upon a judgment, execution and return of nulla bona. The examination of the defendent extended from 16th May, 1882, to 6th June, 1883, during which period he avowed himself to be utterly destitute of the means of paying his debts. Thus, at the very time he pretends to have satisfied plaintiff’s judgment, the defendant confessed his absolute indigence. The evidence, therefore, was material in a three-fold aspect; first, in rebuttal of the presumption of payment from lapse of time; second, in disproof of the fact of an actual payment; and, third, in answer to defendant’s evidence of his opulence. On the argument the defendant sought to sustain the ruling of the court upon other grounds, but this he may not do; he must stand or fall by the particular objection presented on the trial. Mead v. Shea, 92 N. Y. 122; Marston v. Gould, 69 N. Y. 220; Cary v. White, 59 N. Y. 336. Looking, nevertheless, at the points of objection now urged against the proffered evidence, we find them untenable. The examination of defendant in the supplementary proceeding was not tendered, as assumed by the court below, to impeach the witness by proof of contradictory statements, but as the admission of a party. As such, although unsworn, it was original evidence of unquestionable competency, and as such it was admissible without previous interrogation of the witness. Cook v. Barr, 44 N. Y. 156; Wright v. Nostrand, 94 N. Y. 31; Kennedy v. Wood, 52 Hun, 47; 22 St. Rep. 132; Larrison v. Payne, 23 St. Rep. 438, 440; Meyer v. Campbell, 1 Misc. 283; 48 St. Rep. 666. The error in the exclusion of the evidence is so radical as of itself to compel a reversal of the judgment, and we are dispensed, therefore, from the consideration of other points argued with apparent effect by the appellant.

Judgment reversed and new trial ordered, costs to abide the event. Bookstaver, P. J., and Bischoff, J., concur.


text:
    Harriet A. Brady et al., as Executors, etc., Resp’ts, v. Patrick Cassidy et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Evidence —Parol—Ambiguity.
    To create an ambiguity that opens a contract to parol explanation, it must be established by proof of circumstances known to all the parties to the agreement and available to all in selecting the language employed to express their meaning.
    3. Appeal—Charge.
    All that is required of the court is that its charge as a whole correctly in- . structs the jury on the questions of law which are involved.

      3, Contract—Performance—Waiver.
    The vendee, by receiving part of the goods, negotiating for the residue not delivered, and claiming damages in consequence thereof, waives strict performance and admits his liability for the price agreed upon, less the charge made for damages;
    4 Same.
    In order to entitlfe the vendee to such recovery, it is essential that such special damage be alleged in the pleading; and, if not alleged, it cannot be proved on the trial.
    5. Witnesses—Credibility.
    The court cannot instruct the jury as to the respective credibility of witnesses.
    Appeal from a judgment in favor of plaintiffs entered upon the verdict of a jury at trial term and from an order denying defendant’s motion for a new trial.

      Horwitz & Hershfield (Otto Horwitz, of counsel), for app’lts ; Weekes .Brothers (Henry A. Foster and John A. Weekes, Jr., of counsel), for resp’ts.
   Bookstaver, J.

The first trial of this action resulted in a verdict in favor of the plaintiffs and the judgment entered thereon was affirmed by the general term of this court, but reversed in the court of appeals. Brady et al. v. Cassidy et al., 104 N. Y. 147; 5 St. Rep. 569. On such reversal the court of appeals held that on the facts then presented, the contract the basis of this action, was plain and unambiguous in its language and was susceptible of but one construction; that it stated the subject of the sale was the entire manufactured stock in good condition, consisting of pipes, fittings and zincs, &c., “ now on hand at foundry and store rooms on Fifty-fifth and Fifty-sixth streets, Tenth and Eleventh avenues.” It further held that no technical words were used in the description and no difficulty existed in applying the language used to the subject of the contract, with certainty and exactitude, and that therefore it was neither necessary nor proper to refer its meaning to the jury, and that the evidence as to the surrounding circumstances established no case showing that any uncertaintWexisted as to the identity of the property intended to be sold ov$ to the meaning and intent of the contract. The opinion of the court also stated that “ whatever notion might have been entertained as to the undertanding of the plaintiffs in respect thereto, there was not the slightest evidence to show that the defendants had- any reason to suppose that the contract had any other meaning than that expressed by the literal signification of its language. It is not enough to render parol evidence competent that there are circumstances known to one of the parties, but unknown to the other which might have influenced such party in making the contract ; but to create an ambiguity that opens such a contract to parol explanation it must be established, by proof of circumstances known to all of the parties to the agreement and available to all in selecting the language employed to express their meaning.” We think the part of the opinion quoted necessarily indicates that it was proper to admit proof of circumstances known to all the parties to the agreement which were available to all in selecting the language employed to express the meaning of both parties; hence, that the learned judge who tried this case did not err in admitting under defendant’s objections the conversations and negotiations which took place between the parties prior to the making of the contract or bill of sale and at the time the sale was made, and that this evidence tended directly to establish on this trial what had not been established on the former. But even if. this were not so and it were error to admit evidence of such conversations and negotiations, we think it manifest the defendants were not injured thereby; for the court in a very elaborate and careful charge which on this point was not excepted to by the learned and careful counsel for the defendants, submitted' to the jury the following question: “Did the plaintiff's deliver to the defendants all the articles of merchandise which the plaintiffs contracted to sell and deliver?" To which the jury replied in the negative, thus finding in favor of the defendants upon that point. But defendants now contend that this question left it to the jury to determine what was and what was not included in the contract, and thus to construe that contract. And in support of this urge the refusal of the court to charge at their request, “that the plain meaning of the contract of sale is that all of the goods in the premises of the plaintjffs on the 20th day of June, 1883, were sold to the defendants,” and also “the words, goods on hand, mean goods physically in the premises at the time of the use of such words." If these requests and refusals stood alone, they would certainly raise a very serious question as to whether-or not this judgment could be affirmed. But. they do not. For at defendants’ request the court charged, “ that if the jury determined that the defendants were led to believe by the plaintiffs that the entire stock at the foundry on June 20th, 1883, was included in the contract of sale, the defendants are entitled to recover'their damages for the undelivered portion of said stock, whether the same had previously been sold by the plaintiffs or not.” And also, “ that thq*jvidence in this case does not show any change of title from th^plaintiSs of the undelivered stock prior to June 20th, 1883.” And also, “ that if the undelivered stock was ordered by various parties prior to June 20th, 1883, and nothing further was done in connection with such orders, except to enter them in the order book up to June 20th, 1883, that would not constitute a sale of such undelivered stock, and plaintiffs were bound under the contract of sale to deliver said stock to the defendants, unless by express agreement with defendants, all of said undelivered stock was excepted from the sale.” And also, “ that the defendants were entitled, under the contract of sale, to a delivery to them of all the manufactured stocks on hand at the foundry on June 20th, 1883, irrespective of any sale of any part of said stock to anyone else prior to June 20th, 1883, unless the defendants assented to such sale.” And also, “ that the defendants were entitled under the contract of sale, to a delivery to them of all the manufactured stock on hand at that foundry on June 20th, 1883, if the jury believe that the same—that is all—was pointed out to them as the stock intended to be sold to them.” And also, “ that the evidence does not show any change of title of the pipe from the plaintiffs to Mr. Eewcombe prior to June 20th, 1883, and that the pipe which Mr. Eewcombe told Mr. Finch- he, said Eewcombe, would take, did not thereby at once become the property of said Eewcombe.” And also, “ that the mere fact that Eewcombe told Finch that he, said Eewcombe, would take all the pipe there was, or words to that effect, did not constitute a transfer of the title of that pipe from the plaintiffs to said Eewcombe, and did not excuse said plaintiffs from delivering said pipe to the defendants." And finally, that it was undisputed “that the evidence shows that the pipe which Eewcombe told Finch he, said Eewcombe, would take, were not included in the inventory, and were not delivered to the defendants." Which we think were as clear and explicit instructions as to the contract and its interpretation as the defendants could have demanded under the facts proven in the case. All that is required of a court is that its charge as a whole correctly instructs the jury on the questions of law which are involved. When this has been done, the court is not bound to adopt the exact language of counsel or to charge further requests however correct they may be. Mining Co. v. Cheeseman, 116 U. S. 530, 532; Ins. Co. v. Muskegon Bk. 122 U. S. 502, 510; Indianapolis v. Horst, 93 U. S. 291, 295; Laber v. Cooper, 7 Wall. 566, 571; Rexter v. Starin, 73 N. Y. 601 ; People v. Wayman, 128 N. Y. 585, 587; 38 St. Rep. 747. And par-ti miar words and expressions in the charge which if taken alone would be erroneous, will he disregarded. Chellis v. Chapman, 125 N. Y. 215, 223-4; 35 St. Rep. 17 ; Hichenbottom v. D., L. & W. R. R. Co , 122 N. Y., 91, 98-100; 33 St. Rep. 312; Losee v. Buchanan, 51 N. Y., 491-2; Caldwell v. N. J. Steamboat Co., 47 N. Y., 282, 286-7; Sperry v. Miller, 16 N. Y., 413. Moreover, the plaintiffs on this trial at no time claimed that the contract had been strictly performed, but it was tried by them on the theory that the defendants had waived the strict performance of the contract. On the former trial they claimed that the goods removed after June 20th had been sold to third persons before June 20th, and as the plaintiffs did not own them when the contract of sale was signed they were exempt from its terms, which contention was expressly condemned by the court of appeals. On the present trial the jury was charged that none of the undelivered goods had been sold before June 20th, and in substance that the defendants were entitled to a delivery of all the goods on the premises on June 20th, even though the plaintiffs did not then own them, unless the defendants had acquiesced and assented to their removal. On the former trial it was not proved that the defendants had any reason to suppose that any portion of the stock on hand had been agreed to be sold to other parties. On the present trial it appeared that the stock agreed to be sold to third persons had been separately piled, marked with the names of the respective purchasers, and pointed out to the defendants, who were informed that plaintiffs had agreed to sell it.

Appellants also contend that the court should have dismissed the complaint on defendants’ motion at the close of plaintiffs’ case, and also when all the evidence was in, on the following grounds : (1) That the plaintiffs had not established a cause of action; (2) that they had failed affirmatively to establish a fulfillment of the contract on which the action was based; (3) that the evidence produced upon the part of the plaintiffs showed that the contract-had not been fulfilled, and, (4) that the plaintiffs having offered no proof as to the reasonable value of the property delivered could not recover upon a quantum meruit. But we think when plaintiffs rested they had given testimony which if credited by the jury warranted the court in not dismissing the complaint. At that time it appeared that the defendants knew plaintiffs intended to sell some of the goods covered by the bill of sale to third persons, had told the plaintiffs to take them away, had taken some away in their own carts, and were paid for doing so by the plaintiffs, and bad permitted others to be removed after they had taken possession of the factory and were operating it, and notwithstanding these facts had appropriated the goods they received to their own use, and -subsequently claimed not that they were discharged from liability to pay any part of the contract price, but that they were entitled to damages for the non-delivery of the goods they did not receive, and thus we think they had waived their right to require a complete delivery; and became liable to pay the contract price of the goods delivered, less the damages resulting from the nondelivery of the remainder. Avery v. Wilson, 81 N. Y., 341; Vanderbilt v. Eagle Iron Works, 25 Wend. 665; Krom v. Levy, 3 T. & C. 705. In the first of these ‘cases the court said: “ The question presented is whether the defendants are liable to pay for the boxes of glass actually received and retained by them without the delivery of the remainder * * * p. 345. The defendants were not bound to accept a delivery of a portion of the boxes of glass and had a right to reject or retain the same as they saw fit, yet, if they elected to receive the part delivered, appropriated the same to their own use, and by their acts evinced that they waived this condition, they became liable to pay for what was actually delivered. This rule is established in numerous reported cases, and the question of waiver is frequently one of fact to be determined by the circumstances and the evidence * * * p. 847. Assuming, then, that the defendants, after accepting and appropriating the glass received by them, had a right to demand a delivery of the residue, the question arises, whether they intended to insist that the remainder should be delivered before they paid or became liable to pay for the portion which had already been received and accepted, although they received and accepted a portion of the boxes of glass without actual knowledge that the balance would not be delivered (in this case the defendants had actual knowledge that a portion could not be delivered) the evidence shows that they used the glass without any notice to the plaintiffs that they insisted on a delivery of the remainder or any reservation of the condition precedent * * * p. 348. In no part of the correspondence did the defendants claim to take the position that they were not liable to pay for the boxes received in case the remainder was not delivered. They insisted (as in this case) until a final disagreement took pltice, that they were entitled to an amount which was named, and which they stated that they charged to the plaintiffs’ account * * * for damages which they had sustained by reason of the nondelivery of the remainder, and not that they were not bound to pay for what had been delivered. They received part, negotiated for the residue not delivered, claiming damages in consequence thereof, and thus waived strict performance and admitted their liability for the price agreed upon, deducting the charge made for * * * damages. This position is inconsistent with the claim now made that they were not liable at all.” As was well stated by the learned judge in his charge to the jury, when the defendants took possession of the factory and learned that the plaintiffs had removed a part of the goods covered by the bill of sale, and claimed a right to remove others, they had an election of remedies; they could prevent a removal of any more goods and assert that they were discharged from any liability to pay for what they had received unless the goods were returned, or they could permit the plaintiffs to remove more goods and could require the damages they sustained from the nondelivery of the goods which had been removed to be offset against the price of the goods they had received. These remedies, however, are inconsistent, and the defendants having chosen the latter, their right to pursue the former is gone forever, as an election once made is conclusive. Morris v. Rexford, 18 N. Y., 552; Rodermund v. Clark, 46 N. Y., 354; Fowler v. Bowery S. Bank, 113 N. Y., 450; 23 St. Rep. 130; Conrow v. Little, 115 N. Y., 387; 26 St. Rep. 527; Terry v. Munger, 121 N. Y. 161; 30 St. Rep. 746.

On this branch of the case the appellants contend that the complaint should have been dismissed because the market value of the goods had not then been proved, and because the plaintiffs could only recover on a quantum meruit. But where the substantial performance of a contract has been waived by the defendant, the plaintiff is entitled to recover the contract price of what was done less the defendants’ damages resulting from what was left undone. Avery v. Wilson, supra; Parke v. Franco-American T. Co., 120 N. Y. 51 ; 30 St. Rep. 275 ; Heckman v. Pinkney, 81 N. Y. 211; McKnight v. Devlin, 52 N. Y. 399 ; Cassidy v. LeFevre, 45 N. Y. 562, 566; Crouch v. Gutmann, 134 N. Y. 45; 45 St. Rep. 470; Flaherty v. Miner, 123 N. Y. 382 ; 33 St. Rep. 681. Where there has been a deviation from the terms of a contract by mutual consent, the contract price is to bo paid for all work done under the contract. Clark v. Mayor, 4 N. Y. 338; Hollinshead v. Mactier, 13 Wend. 276; 2 Sedg. on Dam. (8 ed.) § 655. If the court was justified in refusing the motion to dismiss the complaint at the close of the plaintiff’s evidence, it certainly was justified in submitting the case to the jury at the close of all the testimony, because we think the facts subsequently shown, abundantly justified it in submitting the question of waiver to the jury. We do not think the court erred in excluding the testimony of the witnesses Finch Adler as to the condition of the building trade at the season of the year when the contract was entered into and its demands for the class of material sold; or whether or not the defendants were compelled to mill up the stock into old iron, or whether the merchandise could be procured in the open market or manufactured within a reasonable time. It is quite true as contended for by the appellants that where there is no market for the article which is to be delivered, or it .cannot be replaced and cannot be had with reasonable diligence, and the buyer suffers damages because of the seller’s failure to deliver, such special damage may be recovered. But in order to entitle the plaintiff to such recovery it is essential that such special damage be alleged in the pleading and if it be not alleged it cannot be proved on the trial; Parsons v. Sutton, 66 N. Y. 92, 98, and cases cited. The defendants in various forms requested the court to charge that the fact that neither Mrs. Brady nor Mr. Winterbottom testified on the , former trials to any pointing out of goods agreed to be sold and marked with check marks, was a suspicious circumstance which the j ury should take into consideration in weighing their credibility inasmuch as the issues were the same upon the foriner trials as this. In the first place the learned counsel for the appellants has fallen into an error in supposing that the issues were the same as upon the former trials, because after the second trial the complaint was amended in such a way as to set up the collateral agreement and the waiver. Besides, the reason the plaintiffs did not testify to this fact on the former trials was that they were not asked about "it. In addition to this, the jury are the sole judges of the credibility of witnesses ; Becker v. Koch, 104 N. Y. 394, 404; 5 St. Rep. 688; People v. Chapleau, 121 N. Y. 266, 275; 30 St. Rep. 989; Honegger v. Wettstein, 94 N. Y. 253; Thornton on Juries, § 133. Mor can the court instruct the jury as to the respective credibility of witnesses; Weaver v. Grant, 56 Hun, 104; 29 St. Rep. 920; Uransky v. D. D., E. B. & B. R. R. Co., 37 St. Rep. 543 ; Thornton on Juries, § 133. In Massachusetts it has ever been held that it is improper to instruct the jury to receive the evidence of a detective with great caution; Commonwealth v. Mason, 135 Mass. 555 ; Commonwealth v. Trainor, 123 Mass. 414; and in this state it has been held that it was error to instruct a jury to find a particular verdict if they believed a particular witness. Dolan v. D. & H. Canal Co., 71 N. Y. 285 ; Chapman v. Erie R. R. Co., 55 N. Y. 579. The court charged the jury as follows : “ If you find there was a defective delivery and that the defendants oil discovering that incomplete delivery did waive the incomplete delivery in the sense I have expounded the term to you, that is, agree, consent to take a partial and incomplete delivery, ^and to pay for that partial and incomplete delivery with the deduction for non-delivery of the residue, then you will find a verdict for the plaintiffs.” It is now contended that this was error on the part of the court, but no exception was taken to this portion of the charge at the trial, nor was its attention in any way directed to it at the time, and although moré than thirty requests to charge were made by the defendants there was none asking for a different instruction on this point. We therefore do not think they can now be heard to allege this as error warranting a new trial in this action even if the facts were as claimed by them. But we do not think that a fair construction of the testimony supports defendants’ contention, and having gone over this ground when considering the question of the dismissal of the complaint, we do not deem it necessary to rehearse what we there said. Many other exceptions were taken to the charge as delivered and to the refusal to charge defendants’ requests, and also to portions of the charge made at plaintiffs’ request. But the astute and laborious counsel for the defendants did not argue any of them either orally or in his brief and we therefore assume that in view of the verdict of the jury and on reflection he has concluded to abandon them, and we do not deem it necessary to examine them in detail. Appellants also contend that the verdict of the jury was contrary, to the weight of evidence and that the motion for a new trial upon that ground should have been granted. But in our judgment there was no such preponderance of evidence as to lead us to believe that the jury were influenced by bias, passion, prejudice or mistake ; on the other hand, we think there was quite sufficient to warrant the verdict rendered. The judgment should therefore be affirmed with costs. Daly, 0. J. and Bischoff, J., concur.