text:
    WILLIAM H. HART, Respondent, v. GEORGE SHELDON, Appellant.

      Mxiures — when a movable engine and boilm' become afidure so as to be covered by a mortgage on the real estate.

    In 1872 one Wesley having purchased a lot of ground, upon which stood a frame building then used as a tannery, converted it into a tuh manufactory, and placed therein suitable machinery which was run by a stationery steam-engine. In 1875 Wesley sold the premises and all the machinery to Parsons, who as a part of the purchase-money assumed the payment of a bond and mortgage given by Wesley at the time of his purchase. Parsons purchased, with a view of continuing the business established by Wesley. In 1876, the old engine being worn out, Parsons bought a new combined boiler and engine of six-horse power which stood on wheels six inches in diameter. The wheels rested upon the ground and were not in any way annexed or fastened to it or to the building, and the engine could be removed from the building at any time without injury to it. The smoke-stack passed through the roof of the building.
    At the time of purchasing the engine Parsons gave a chattel mortgage thereon, which he subsequently paid. Thereafter he gave other chattel mortgages on the engine and boiler, and some of the machinery in the building, under which the plaintiff claims title to them. The defendant claims title to them as fixtures which were covered by the real estate mortgage given by Wesley.

      Held, that the court erred in ruling, as a matter of law, that the engine and boiler were not fixtures, and that they were not covered by the real estate mortgage; that whether or not they were fixtures depended upon the intention with which Parsons removed them to and placed them in the building; that this question should have been submitted to the jury with instructions to find that they became fixtures if they should find that Parsons intended when he placed them in the building to make a permanent improvement to the property and furnish the power to run the machinery contained therein.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial.
    This is an action on the case in the nature of a suit in trover, for the conversion of one portable steam boiler and engine, one planer, one header, a quantity of shafting and pulleys and other machinery used in a firkin and tub factory. „
    John Parsons was the proprietor of the property. The plaintiffs claim title under certain chattel mortgages executed by Parsons; and the defendant, under a real estate mortgage executed by Parsons’ grantor, Wesley, of premises upon which the factory building stands, tbe property in dispute being claimed by tbe defendant as fixtures. In 1872 one Wesley purchased the premises, consisting of one-half acre, upon which there was standing frame buildings, then used as a tannery, the machinery being driven by a stationary steam-engine. The lands and buildings were of small value, not exceeding $600. Wesley converted the buildings into a factory for the manufacture of firkins and tubs, and placed therein machinery adapted to that purpose, consisting of a planer, lathes, headers and circular saws, all run by steam power. In 1875 Wesley sold the premises and all the machinery to Parsons. At this time the real estate mortgage on the premises was owned by Henry Sheldon. As a part of the purchase-money Parsons assumed the payment of this lien and Wesley was discharged from’ personal liability, Parsons giving his own in lieu thereof. Parsons was a cooper by trade and purchased the factory with a view of continuing the business established by Wesley. In 1876, the engine then in use being worn out and useless, the same was removed, and Parsons purchased the engine mentioned, in suit, and removed it to the factory, and it was there used as the motive power until the real estate mortgage was foreclosed in 1881, and the defendant became a purchaser of the premises. The boiler and engine was of six-liorse power, and was combined and resting in its own frame, standing on wheels or trucks six inches in diameter. When received on the premises it was drawn from the depot by one pair of horses. When placed in position for use it was within the buildings and left standing on the wheels, which rested directly upon the ground, without any other mode of annexing or fastening the same to the soil than by its own weight. It could be removed from the building on the trucks without injuring the same. The shafting in use was fastened to the frame of the building by bolts, bands and screws, in a permanent manner; but the manner in which the engine was connected with the shafting is n'ot stated in the evidence. The smokestack passed up through the roof of the building.
    At the time of the purchase of this engine Parsons gave a chattel mortgage thereon to [secure the purchase-money, which he after-wards paid up in full. In 1878 and 1881 he placed the chattel mortgages on the engine and boiler and some of the machinery in the building. Under these the plaintiff bases his claim of title.

      On the trial it was ruled, as a matter of law, that the engine and boiler were not fixtures, and that the plaintiff was entitled to recover their value, and as to the other articles questions of fact were submitted to the jury and the plaintiff recovered a verdict for the sum-of $597.38, and judgment was entered thereon.
    The defendant moved, at Special Term, for a new trial, which was denied.
    From the judgment and the order the defendant appeals.

      W. L. Sessions, for the appellant.

      P. D. Mwrrcvy, for the respondent.
   Barker, J.:

As the chattel mortgages on the engine and boiler, under which the plaintiff claims title, were executed after these articles were removed to the premises and put in use, the mortgages never attached as liens on the property as against the defendant and those under whom he claims, if they were fixed to the real estate and became part of the freehold. Parsons having acquired his title subject to the real estate mortgage and assumed the payment of the debt secured thereby, by a personal covenant, the ■ question presented is to be considered as one arising between mortgagor and mortgagee. The rule in such cases is the same as the one applied to grantor and grantee, and between these parties everything that forms a part of the freehold passes by a sale and conveyance of the freehold itself, if there be nothing to indicate a contrary intention. Fixtures, and additions in the nature of fixtures, which are placed in a building by a mortgagor after he has mortgaged the same, become part of the realty, as between him and the mortgagee, and cannot be removed or otherwise disposed of by him while the mortgage is in force. These are admitted propositions.

What shall be considered as fixtures, and as such pass with the real estate, is often a vexed question, and is not always easy of determination. Different rules prevail under different circumstances, depending on the relation of the parties and the nature and use of the property and the intention with which the owner of the property removed the articles upon and affixed the same to the land. The principle of law that movables, when attached to land, become part of tlie freehold and pass with it has its origin in the common law. The rule, as anciently established, has been very much relaxed in modern times in favor of sonie parties having no interest in the fee of the land, particularly between landlord and tenant, and also as between grantor and grantee and mortgagor and mortgagee, concerning a class of machinery used in manufacturing establishments. Hardly any two decisions can be found that are precisely alike, each having some distinctive peculiarity which has been seized upon in determining the result. Many of the rules of interpretation, as stated and laid down in some of the cases and followed in particular instances, are hostile and irreconcilable. All of the elementary writers, as well as most of the cases, however, agree that the article claimed to be part of the freehold must be affixed or annexed, in some way to the land or it continues to be personal property. By the old rule, whatever was affixed to the realty by the mere act of annexation immediately became part and parcel of the freehold itself. (Broom’s Legal Maxims, m. p. 295; Lee v. Risdon, 7 Taunt., 190.)

Amos and Farrar, in their treatise on the law of fixtures, remark; that in order to constitute a fixture, it is necessary that the article should be laid into the land, or united to it, or to substances previously united therewith. Based upon this rule as to the necessity of annexation in some form, in its application the slightest attachment has been held sufficient in some instances, and constructive annexation has been adopted in others. As to the boiler and engine, I am of the opinion that it was in fact affixed and attached to the soil, so that it became part of the freehold, if it was the intention of the owner of the land, at the time he removed the same on to the premises, to make it a permanent improvement to the freehold with a view of adding to its value and to propel the machinery used therein. If this view is correct it was error to hold as a matter of law, that, the engine and boiler were personal property, as against the claim of the defendant, and it should have been submitted to the jury as a question of fact, with the instruction that if they found that such was the intention and purpose of the owner of the freehold, then the character of the annexation was such as to constitute the boiler and engine a fixture.

'The evidence was such as to sustain the conclusion, if such was the opinion of the jury, that it was the intention of Parsons to affix the engine and make it a part of the realty. It was the motive power used to drive the machinery in the factory, and well adapted for that purpose. It was used in the building in the place of an engine and boiler which had been removed from the factory because they were worn out and useless. Without motive power of some kind the building and machinery would have been of much less value, and the business in which the owner was then engaged could not have been continued. He was personally liable to pay the debt secured by the mortgage, and so far as I can discover, he had no motive or interest in keeping the engine a movable thing and treating it as personal property. When Parsons purchased the property and assumed the payment of the mortgage he assured the holder of that security, that, he intended to continue the business in the factory and run the same to its full capacity, and that the machinery was attached to the freehold and constituted a part of the property mortgaged, and he promised, also to insure the property and assign the policy to him as a further security. This may not amount to a valid agreement that the motive power thereafter to be brought upon the premises and placed into use should, as between them, be regarded as a part of the freehold, yet it is strong evidence in the defendant’s favor that Parsons intended, when he placed the boiler and enging in position and adopted it as the motive power to be used in the factory, that he intended to annex it to the freehold.

There is evidence that the mortgagor had a contrary intention, which consists mainly in the circumstance that he gave a chattel mortgage to the seller to secure the purchase-imoney. This is not a controlling circumstance, for the reason that he afterwards paid up and discharged the same, and that being out of the way, the real estate mortgage attached, if they had become fixtures.

A subsequent chattel mortgage, under which the plaintiff claims title, embraced tbé shafting and other machinery, which, as between grantor and grantee, mortgagor and mortgagee, were ■fixtures beyond all dispute.

Mere intention to make an article personal a fixture, without annexation to the realty, will not make it one, but when such an intention does exist in the mind of the owner of the land and of the article, then, the slightest affixing will make it a part of the freehold. Such intention often becomes the controlling fact in determining the question whether, in law, the article in dispute is or is not a fixture.

Mr. "Washburn says: Whether a thing which may be a fixture becomes a part of the realty by annexing it, depends, as a general proposition, upon the intention with which it was done.” (Vol. 1, page 17.)

In McCrea v. The Central National Bank (66 N. Y., 495), Rapallo, who prepared the opinion of the court, remarked, “ as between vendor and vendee, the mode of annexation is not the controlling test. The purpose of the annexation, and the intent with which it was made, is in such cases the most important consideration, The permanency of the attachment does not depend so much on the degree of physical force with which the thing is attached, as upon the motive and intention of the party attaching it. If the article is attached for temporary use, with the intention of removing it, a mortgagee cannot interfere with its removal by the mortgagor. If it is placed there for the permanent improvement of the freehold, he may.”

Numerous other cases might be cited where the courts have made the intention with which the act of annexation is done the controlling fact in determining whether the article is a fixture or not. This is a reasonable rule by which to determine the controversy, when one arises, whether the article is a part of the realty or not, for the reason that the person whose intention is made the test was, at the time of the affixing, the owner of both species of property.

As to the annexation to the freehold, and whether there was one in the sense of the law, much consideration should be given, in my ■opinion, to the localization which was given to the boiler and engine by its long and continued use in the same position. It was placed within the walls of the building and covered by the roof, and rested directly upon the earth, and was held in position, so that it could be safely and properly used, by its own weight. This may be considered within the meaning of the ancient rule, a letting of the boiler and engine into the earth and annexing it thereto. This rule has not been relaxed in any case, as between grantor and grantee, mortgagor and mortgagee, when applied to the motive power used in propelling machinery on the premises in question, whether such power be water or steam. On the contrary, T think that the cases show that the slightest annexation of the motive power has been held sufficient to constitute the same a part of the realty. As we all know, many valuable farm buildings constructed of wood rest on a few disconnected stones as a foundation, which are not imbedded in the earth, and rest wholly on the surface and are kept in position by the power of gravitation; yet, within the rule, such buildings are deemed annexed to the soil or imbedded therein and go as a part of the freehold. Any frame house with the sills laid directly on the earth would be regarded as attached, within the rule, if the owner of the soil intended to make the same a part of the realty 'when it was erected. Placing a movable on the earth is, in a sense, affixing it to the earth. To complete the annexation it is not necessary to cover any portion of it with the earth or to prepare the surface for it to rest upon. By the law of gravitation it becomes affixed to the spot where it was placed. Whether in any particular instance it is affixed to the land and goes with it as a part of the realty depends upon other considerations.

As to what constitutes an annexation of a movable, so as to make it a part of the realty was fully considered in Snedeker v. Warring (12 N. Y., 170), and the court there said r “ A thing may be as firmly affixed to the land by gravitation as by clamps or cement. Its character may depend much upon the object of its erection. Its destination, the intention of' the person making the erection, often exercises a controlling influence, and its connection with the land is looked at principally for the purpose of ascertaining whether that intent was that the thing in question should retain its original character or whether it was designed to make it a permanent accession to the lands.”

The discussion of the question in the case last mentioned is interesting and instructive. The application of the principle which applies to and governs this class of cases should be applied intelligently to the improvements which are constantly being made in the mechanic arts, and the improved mode of constructing machinery and holding the same in the place intended for use. The mode of Combining engines and boilers as one article ready' for use on leaving the workshop, like the one"in question, is a modern invention. The boiler, ñues and fire-box are constructed together, and the engine combined therewith, and form one .piece of mechanism or machinery placed in a frame adapted to sustain and support the same when in use, and are ready to be operated on being placed on ,any smooth, firm surface, such as the floor of a building, a brick foundation, or directly upon the ground. They are often made portable by mounting the same upon trucks which are used as a means of moving them from place to place. Except when so constructed, they are no more portable than any other piece of machinery of like weight. Designating this combination, of engine and boiler, inclosed in a frame suitable to stay and hold it in position while being operated, as being portable, has no significance whatever, for it is but a name given to a thing.

The circumstance that this engine and boiler were left to stand on the low trucks, which were in some manner attached to the frame, as a means of moving the same, should not be regarded as controlling, and as a reason for holding as a matter of law that they were not fixtures. It is evidence on the question whether or not the owner intended to affix them to the land as a permanent improvement. One engine and boiler constructed after a plan like this may be so slight and its motion so violent, that, it must be set or fastened in some way before it can be used, another is heavy enough to be kept in place by its own weight. There is no reason for saying that one is a fixture and the other is not. It is absurd to say that it is necessary to nail the heavy one to the floor to make it a part of the freehold, when twenty men could not move it a half-inch. In ascertaining when movables have become part of the realty, regard should be had to the manner in which they are annexed. In this ease'the engine and boiler were put in to supply the premises with power, to propel machinery which had become part of the fixtures. They were well adapted for the purpose intended, and without such power the value of the real estate would have been much less, and, if it was the intention of Mr. Parsons, the owner, to permanently attach and use them with the premises, they became fixtures. (Tifft v. Horton, 53 N. Y., 377; Voorhees v. McGinnis, 48 N. Y., 278; Potter v. Cromwell, 40 N. Y., 287.)

As to the mode of affixing, whether by actual physical annexation or by gravitation, wben used in propelling machinery in mills and factories by steam or water power, the following cases may be referred to as bearing on the question: Winslow v. Merchants' Insurance Company (4 Met., 306), Sands v. Pfeiffer (10 Cal., 258), Hill v. Wentworth (28 Vt., 428), Harris v. Haynes (34 id., 220), Sweetzer v. Jones (35 id., 317), Fullam v. Stearns (30 id., 443), Voorhis v. Freeman (2 Watts & Sargt. [Pa.], 116), Pyle v. Pennock (id., 390).

As to tbe articles of machinery used in the building for which the plaintiff had a recovery for their value, we do not discover any error in the rulings of the court, as to whether they were or were not fixtures, although they were actually annexed while in use, the same being necessary to keep them steady and in position, they did not become part of the freehold estate unless such was the intention of the owner when he purchased and put them in use. The question of intention was made controlling, although there was an actual physical annexation, and the cases already cited are authority upon that point.

The defendant did not submit the question to the court and waive the right to go to the jury, as claimed by the learned counsel for the plaintiff. At the close of the evidence the defendant asked the uourt to direct a verdict in his favor, on the ground that the machinery was real estate. The plaintiff at the same time requested the court to direct a verdict in his favor, for the engine and boiler, which the court did, and to which the defendant took an exception.

It is an exception to a ruling made at the request of the plaintiff, and the case does' not fall within the rule upheld in the cases referred to.

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

Smith, P. J., Beadley and Coblett, JJ., concurred.

Judgment reversed and new trial ordered, costs to abide the event.


source: Caselaw Access Project

author: Haight, J.:

license: Public Domain

text:
    MORTIMER F. REYNOLDS, Appellant, v. DE WITT C. ELLIS, as Assignee, etc., and HARRIET F. VAN DAKE, and Others, Respondents.

      Lease — agreement that the lessor shall have a lien on the tenants goods — when it will he construed to he a chattel mortgage— the lessor acquires no title under it until he takes actual possession of the goods.

    A lease given by tlie plaintiff to the defendant’s assignor provided that the lessor should have “ a lien as security for all the rent,” etc., “ upon all goods, wares, chattels, implements, tools and all other personal property which are or may he on the demised premises belonging to the lessee or to any one holding or claiming the demised premises or any part thereof under him as assignee, under-tenant or otherwise,” and that such lien might be enforced on the nonpayment of the amounts due by the taking of the property “and a sale thereof, in the same manner as in the case of a chattel mortgage on default thereof. ”
    On January fifth the defendant took possession of the goods in the store, under a general assignment made to him on that day by the lessee. • At that time there was rent due and unpaid upon the lease. The lease was filed in the' sounty clerk’s office on January sixth, one day after the assignee took possession of the goods:

      Reid, that the instrument was in legal effect a chattel mortgage, and being such was void as to the lessee’s creditor, by reason of the failure of the lessor to file it as required by law.
    That even if the instrument were held not to be a chattel mortgage, but to give a mere equitable lien, yet as the lessee did not avail himself of the right to acquire a lien given by it while the goods remained in the possession of the lessor, the equities of the other creditors were as great as his, and that the court would not interfere to prefer him above the others.
    Appeal from a judgment, entered upon a decision of the Monroe-Special Term dismissing the plaintiff’s complaint, with costs.

      J. A, Stull, for the appellant.

      John M. Davy, for the respondents.
   Haight, J.:

This action was brought to enforce the provisions of a lease executed between the plaintiff, as lessor, and the defendant Henry Yan Dake, as lessee, and especially of the lien clause therein, which is as follows: “And it is further agreed that the lessor shall have a lien as security for all the rent and interest, gas bills and water rates aforesaid, or for any damages to buildings, due from lessee, upon ail the goods, wares, chattels, implements, tools and all other personal property which are or may be on the demised premises belonging to the lessee or to any one holding or claiming the demised premises, or any part thereof, under him as assignee, under tenant or otherwise, and such lien may be enforced on non-payment of any of said rent, interest, water rates or gas bills, by the taking of such property and a sale thereof, in the same manner as in the case of a chattel mortgage on default thereof; such sale to be made upon six days’ notice, posted upon the demised premises or served upon the lessee; such lien, however, shall not be enforced against any property which,, being a part of stock in trade, shall have been sold in regular course of business.” •

The demised premises consisted of a store in the city of Rochester. The defendant Yan Dake entered into possession of the store and occupied the same until January 5, 1881, at which time he executed and delivered to the defendant DeWitt O. Ellis a general assignment of all of his property for the benefit of his creditors. At the time of executing and delivering the assignment to the defendant Ellis, there was rent due and unpaid to the plaintiff. The assignee at once took possession of the store and contents, and entered upon the duty of his trust. The lease was not filed in the office of the clerk until the 6th day of January, 1881, the day after the defendant Ellis entered into the possession of the store and its contents.

The respondents claim, first, that the clause quoted in the lease made it a chattel mortgage, and that it is absolutely void as against the creditors of the mortgagor for the reason that it was not filed in accordance with the requirements of the statute; second. That the mortgagee allowed the mortgagor to retain possession of the goods in the store and to sell and convert them into money and to use the proceeds of the sale to meet his liabilities to the same extent as if no mortgage was in existence, and that the fraud consisted in the giving of the mortgagor credit, by allowing him to retain possession of the mortgaged goods and to sell them and use the proceeds in his business, thereby inducing innocent parties to give him credit.

The question as to whether or not this clause in the lease amounts to a chattel mortgage is discussed in the case of McCaffrey v. Woodin (65 N. Y., 459). The wording of the clause in that case is identical in the essential parts with the one under consideration. Dwight, C., writing the opinion of the court in that case, after an elaborate review of the authorities, says: “I think that the instrument is, in substance, a mortgage. No special form of words is necessary to constitute a mortgage. The statement that the creditor is to have a lien, -and that on default he may take possession and sell in the same manner as in cases of chattel mortgage, sufficiently discloses the intent. The parties intended to enter into a transaction having some effect, and the only way to give it validity is to hold that, in substance, it has all the characteristics in equity of a mortgage or of an equitable lien, which for the purposes of this case is equivalent.”

This construction of the commission of appeals upon a lien clause in a lease identical with the one under consideration we regard as binding upon this court. It was, therefore, necessary that the plaintiff should cause his lease to be filed as a mortgage in accordance with the provisions of the statute, and in failing to do so it is void as against the assignee and the creditors he represents.

The appellant claims that this instrument did not pass any title to the goods and therefore cannot be fairly construed as intending to operate as a mortgage; that it gave only a lien on the property .as security, whilst a chattel mortgage gives more; it transfers the legal title thereto. That the clause gives to the lessor an equitable lien which would be enforced against the property of the lessee.

If we are wrong in our conclusion that the instrument is a mortgage, and should adopt the views of the appellant in this regard, even then we fail to see how his position is bettered. If he has but an equitable lien, and no actual lien, then his interest in the property is not so great as it would be if he were a mortgagee having the legal title. If a mortgage conveying title is void as to creditors, upon what principle can it be claimed that an instrument conveying a less interest would not be void % Ordinarily the greater includes the less. An instrument conveying the title includes one which conveys but an equity.

Again, if the plaintiff had but an equitable lien, then it was ■necessary for him to seize and take possession of the property in order to bare an actual lien upon it. Before doing this the property passed into the hands of the assignee for the benefit of the creditors. No actual lien existed against the property at the time it was taken in custody by the assignee. The assignee represents the creditors. It is his duty to prosecute and defend for and on behalf of the creditors; to protect their interest in the assigned property. In the absence of any actual lien upon the property the equities of the creditors are just as great as those of -the plaintiff,, and the court has no power to prefer one creditor over another. In either view of the case we are of the opinion that the judgment must be affirmed, with costs.

SraTH, P. J., and BARKER, J., concurred; Bradley, J., concurred in result.

Judgment affirmed, with costs.


text:
    MEYER GEISMER, Plaintiff, v. THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY, Defendants.

      Common carrier — a strike of Us employees is no defense to an action for delay in carrying property, if the strike originated among such employees.

    An action was brought to recover damages occasioned by the delay of the defendant, a railroad company, in delivering car loads of cattle and hogs which it had; agreed to transport from Toledo to Buffalo; the defendant set up as a defense that the delay was occasioned by a strike of its employees.near Cleveland; that the defendant had the necessary engines and cars and the required number of employees to run them, but were prevented from so doing by the forcible acts-of the strikers. The evidence made it a question for the jury to decide whether or not the strike originated with and was carried on by defendant’s employees, or whether it originated with and was carried on by strangers. The court charged, in effect, that if the strike originated with persons not in the employ of defendant, and they carried on and controlled it, the plaintiff could not recover, but that if it originated with the employees of the defendant and was maintained by them, and terminated when they saw fit, then the plaintiff could recover even though the Strikers were assisted by some outside persons who sympathized with them.

      Held, that the charge was correct, and that a verdict in favor of the plaintiff would not be disturbed.

      MotioN for new trial upon exceptions taken by the defendant, and ordered to be heard in the first instance at the General Term judgment upon a verdict in favor of the plaintiff being in the meantime suspended.

      George L. Lewis, for the plaintiff.
    Greene, McMillan & Gluck, for the defendant.
   Haight, J.:

This action was brought to recover damages alleged to have been sustained by the plaintiff by reason of the delay of the defendant in delivering" several car-loads of cattle and hogs which it was transporting from Toledo to the city of Buffalo/ The delay occurred at Ooilingwood, near Cleveland, and was occasioned by a strike of the employees of the defendant. The defendant had the necessary cars, engines and crews to make up, manage and draw the trains required to carry the stock through to its destination, but was prevented from doing so by the forcible acts of the strikers, who took possession of the locomotives, detached the hose, let out the water, uncoupled the cars, carried away and hid the coupling-pins and links, and placed the engines in the round-house and barricaded the doors. On the trial it was claimed on behalf of the plaintiff that this was done by the employees of the defendant, whilst, on the part of the defense, it was claimed that the strike was commenced and carried on by a lawless assemblage of persons not the employees of the company, but with ■whom some of the employees joined and took part.

The court, among other things, charged the jury that “if the defendant’s employees were willing to carry on- the business, and other men who have been mentioned sought to prevent those who were willing to work from carrying on its business, and continuing their labor; and that it was effective and sufficient to prevent those who were willing from going into the employ of the company; and that this combination was strong and powerful — strong in its moral position, strong in its physical powers to overmass and control the situation and prevent the company from bringing out its engines and starting out the trains, and so extended from Cleveland to Buffalo, embracing Erie, it is no excuse for the delay because, if the strikers were the defendant’s employees, they represented-the defendant, they were its servants, its agents, and their acts were the acts of the corporation.”

■ The court had just been speaking of the striking employees of the company, and by the expression ‘j the other men who have been mentioned,” doubtless referred to such striking employees. The court was requested by the defendant to charge that “ if the jury believed from the evidence that on and after the 21st day of J uly, 1877, the railroad tracks, depots and rolling stock of the defendant were taken forcible possession of by a body or bodies of armed men, among whom were some of its employees, and that they ’continued to hold possession thereof by force of arms for several days, by reason of which the delivery of plaintiff’s stock at Buffalo was delayed until August 4, 1877, the. plaintiff ■ cannot recover.” Also, that if the cause of the detention of plaintiff’s stock arose from forcible resistance of late employees of the defendant, the defendant having at all times a sufficient force of faithful employees ■ to have operated and run the defendant’s road, had it not been for such forcible resistance, then the plaintiff cannot recover.”

The exceptions by the defendant to the charge and to these refusals to charge, raise the only questions to be disposed of upon this motion. The substance of the charge quoted is that if the strike originated with persons not in the employ of the defendant, and they carried on and controlled it, the plaintiff could not recover, but if it originated with the employees of the defendant, was maintained by them and terminated when they saw fit, the. plaintiff could recover, even though they were assisted by some outside persons who sympathized with them.

From the evidence taken upon the trial it became a question of fact as to whether or not the strike originated with and was carried on by the defendant’s employees, and this question was properly submitted to the jury. The jury Having found in favor of the plaintiff, it only becomes necessary now to determine whether or not the defendant is excused from liability by reason of the forcible resistance of its employees. This precise question does not appear to have been passed upon in the courts in this State. In the case of Blackstock v. The New York and Erie Railroad Company (20 N. Y., 48), the damages sustained were for a delay in the carriage of a quantity of potatoes. 'The delay was occasioned by reason of a strike of the engineers of the railroad company. In that case it was held that although the officers of the company were without the slightest fault, the corporation was responsible for the damages caused by a delay in transporting the property, which resulted. from the strike. In that case there does not appear to have been any violence used on the part of the striking engineers. It does not appear, however, that the railroad company was unable' to find other competent men with whom they could safely intrust the running of their engines. The court laid down the rule that the railroad company is liable for the misconduct of its servants, and that it makes no difference whether such 'misconduct was willful or from carelessness, if their action was within the scope of their employment.

In the case of Weed v. The Panama Railroad Company (17 N. Y., 362), the action was for damages sustained by .a passenger by reason of the willful act of the conductor in stopping the tram and detaining it over night. It was held that the company was under contract to transport the passenger with reasonable dispatch to his place of destination, and that by its failure to do so it was guilty of a breach of contract, and that the plaintiff could recover, notwithstanding the act of the conductor in stopping the train was willful; that he was acting within the scope of his employment. The rule, as laid down in this case, is sufficiently broad to cover the case under consideration. The employees of the defendant were engaged . in running the trains of the company. They stopped the trains at Collingwood, detained them there, and thus prevented the property of the plaintiff from being transported to its place of destination, in the same manner as the conductor stopped the train in the case of Panama Railroad Company, and prevented the transportation of the passenger. Under the authority of that case they were servants acting within the scope of their employment. This case is cited with approval in the ease of Mott v. The Consumers’ Ice Company (73 N. Y., 543).

In the case of the Indianapolis and St. Louis Railroad Company v. Juntegen (manuscript opinion of the Appellate Court of the Third district of Illinois), the action was for damages occasioned at the same time and by'the same strike which is the subject of consideration in this action. The court in that case held that the plaintiff was not entitled to recover. It, however, placed its decision upon the ground that it appeared from the evidence upon the trial that but a small portion of the strikers had been in the employ of the defendant’s company; that they had left their employment and joined the strike, and that the great body of strikers were men not in the employ of the company. The evidence in the case under consideration appears to be quite different upon this branch, making it a proper question for the jury.

. In the case of the Pittsburg, Fort Wayne and Chicago Railroad Company v. Hazen (84 Ill., 36), the action was for damages occasioned in consequence of a strike. The rule was there stated as follows: “ From the delay resulting from the refusal ' of the employes of the company to do duty, the company is undoubtedly responsible. For delay resulting solely from the lawless violence of men not in the employment of the company, the company is not responsible even though the men whose violence caused the delay had but a short time before been employed by the company.

In the case of the Pittsburg, Cincinnati and St. Louis Railroad Company v. Hollowell (65 Ind., 188), the action was for damages occasioned by the breach of an agreement to ship live stock, and such breach was occasioned by a strike among the employes of the company. The question was raised upon a demurrer to the pleading. The majority of the court held the pleading insufficient but differed in reference to its construction, and not in reference to the rule of law applicable. The rule as there stated is, that whether the persons causing the delay complained of were the employees of the defendant or not, was a question of fact for trial, and that where the delay was caused by a strike or mob composed solely of the employees ^of the railroad company, the company will not be excused from carrying the freight in accordance with its contract.

This case appears to be in point and in. accordance with the weight of authority in this State. We do not regard it as in conflict with the case of the Pittsburg, Fort Wayne and Chicago Railroad Company v. Hazen (supra). In that case the evidence, tended to show that the striking employees had been discharged by the company, and that the acts of violence took place after they had ceased to be employees. In that respect it is distinguishable from the case under consideration.

We are, therefore, of the opinion that the motion for a new trial should be denied, and that the plaintiff should have judgment on the verdict.

Smith, P. J., and Beadlet, J., concurred; Baekeb, J., not sitting. '

New trial denied and judgment ordered for the plaintiff on the verdict.


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    OTIS BROWN, Appellant, v. ALBERT CASSADY, Respondent.

      Practice — a neic trial cannot be had in the County Court on an appeal from a judgment in summary proceedings — Code of Civil Procedure, secs. 2260, 3068.
    Upon an appeal to the County Court from a judgment entered in summary proceedings to recover the possession of land, instituted before a justice of the peace, a new trial cannot be had in the County Court. A new trial can only be had in cases in which either party in his pleading demands judgment for a sum exceeding fifty dollars. (Code of Civil Pro., § 3068.)
    Appeal from an order of the County Court of Allegany county, denying appellant a new trial in the County Court, on an appeal from a final order of a justice of the peace in summary proceedings.

      Daggatt c& Norton, for the appellant.

      E. E. <& Q-. W. Harding, for the respondent.
   Haight, J.:

The appellant, as landlord, instituted summary proceedings before a justice of the peace to remove the respondent from the premises described in the petition. The respondent filed an answer to the petition, and a trial was had before a jury who rendered a verdict in his favor. The justice thereupon entered a final order in the proceedings adjudging costs against the appellant. An appeal was then taken to the County Court of Allegany county, and in the notice of appeal the appellant demanded a new trial in the County Court. The County Court beld that he wás not entitled to a new trial; that the appeal could only be heard on argument. From the order entered upon such decision this appeal was taken.

The,only question that it becomes necessary to consider is, whether or , not the appellant was entitled to a new trial in the County Court. Section 2260 of the Code provides: “ An appeal may be taken from a final order made as prescribed in this title, to the same court, within the same time, and in the same manner as where an appeal is taken from a judgment rendered in the court of which the judge or justice is the presiding officer and with like effect.”

Summary proceedings may be instituted before the county judge, special county judge, justice of the peace and other officers mentioned in section 2234. An appeal may be taken from a final order made in the proceedings, in the same time and manner and with like effect as a judgment. So that in case the proceedings are before the county judge the appeal must be to the Supreme Court; if before a justice of the peace, to the County Court. Conceding, therefore, that the appeal is the same as from a judgment, it remains to be determined whether or not the appellant would be entitled to a new trial in such case.

Section 3045 of the Code provides for an appeal, by any party aggrieved by a judgment rendered by a justice of the peace, to the County Court, etc. The sections following provide for the return and the papers upon which the appeal is to be heard, the court at which it shall be brought on for argument, etc., excepting cases prescribed in section 3068. That section provides that “ where an issue of fact, or an issue of law was joined before the justice, and the sum for which judgment was demanded by either party in his pleading exceeds fifty dollars, * * * the appellant may, in his notice of appeal, demand a new trial in the appellate court, and thereupon he is entitled thereto,” etc.

It is only where the judgment demanded by either party exceeds fifty dollars that a new trial can be had. Is there or, can there be any such demand in these proceedings? Section 2249 provides what the final order shall be. If the verdict or, decision is in favor of the petitioner it must award to him the possession of the property, etc., and if in favor of the person answering, the judge must make final order accordingly, awarding costs, etc. No judgment can be given for rent or damages, and none is asked in these proceedings.

It follows that these proceedings do not come within the, provisions of section 3068, and consequently no new trial can be had.

The order should be affirmed, with ten dollars costs and disbursements.

Barker, P. J., Bradley and Lewis, JJ., concurred.

So ordered.


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    EBENEZER ALLEN, Respondent, v. ARLON M. VOSE, Appellant.

      Chattel mm'tgage — when the mortgagee ma/y take possession under a clause authorizing ' ” him to so do when he deems himself unsafe.

    A chattel mortgage given upon a growing crop of wheat and a mare, provided “ that in case the said Arton M. Yose (the mortgagee) shall at any time deem himself unsafe it shall he lawful for him to take possession of the said property and to sell the same at public or private sale previous to the time above mentioned for the payment of said debt, applying the proceeds upon the mortgage after deducting all expenses of sale and keeping said property.” On July seventeenth, the crop having proved to be a failure, the mortgagor sold his interest therein to the defendant for ten dollars, which was applied on the debt. The mortgage was given for $100. The mare was worth not more than" fifty dollars. On July eighteenth the mortgagee took possession of and sold the mare under the above mentioned clause.

      Held, that he had reasonable cause to deem himself unsafe and was justified in acting as he did.
    The right of a mortgagee to take possession of the mortgaged property under such a clause, considered by Haight, J., and the cases bearing thereon collated.
    Appeal from a judgment, entered in Steuben county upon the report of a referee, in favor of the plaintiff, for $130.97, besides costs.

      D. M. Darrin, for the appellant.

      J. W. <& D. J. Dininny, for the respondent.
   Haight, J.:

This action was brought to recover damages for an alleged conversion of a mare and for damages resulting to her Colt, by reason •of taking her from it before it was old enough to wean. The defense was justification under a chattel mortgage. On the 1st day -of April, 1875, the plaintiff entered into a contract in writing with the defendant, in and by the terms of which he leased the defendant’s farm in the town of Thurston, Steuben county, for the term •of one year, to work upon shares, and in the fall of the year to sow and put in a quantity of winter wheat and rye, and to harvest the same the next summer when the crops should mature. The plaintiff, pursuant to the lease, entered into the possession of the farm .and worked the same during the term embraced in the lease. On the 18th day of April, 1876, the parties had an' accounting and .settlement of their transactions under the lease, whereby it was found and agreed that the plaintiff was indebted to the defendant in the sum of $100, to secure .which the plaintiff executed and •delivered to the defendant a chattel mortgage upon all his interest in the winter wheat and rye growing upon the farm and also in one sorrel mare, conditioned that the plaintiff would pay the defendant the sum of $100, and the interest thereon on the 1st day of December, 1876. The mortgage contained the following clause: “That in case the said Arlon M. Yose shall at any time deem himself unsafe, it shall be lawful for him to take possession of the said property and to sell the same at public or private sale previous to the time above mentioned for the payment of said debt, applying the proceeds upon the mortgage, after deducting all expenses of sale and keeping said property.”

On the 17th day of July, 1876, the parties entered into an agreement in and by the terms of which the plaintiff sold to the defendant his share and interest in the wheat then standing upen the defendant’s farm for the sum of ten dollars, and that amount was indorsed upon the mortgage. On the 18th day of July, 1876, the defendant caused the sorrel mare mentioned in the mortgage to be taken from the possession of the plaintiff under and by virtue of the mortgage, without his authority or consent, and caused the same to be advertised and sold at public auction. It was for this taking that the plaintiff alleges conversion.

The referee has held and decided that under the clause contained in the mortgage, “that in case the said Arlon M. Yose shall deem himself unsafe it shall be lawful for him to take possession,” etc.,' the defendant must prove and establish to the satisfaction of the jury or referee that he deems himself unsafe before, he is justified in taking possession of the property, and whether he is actually insecure and unsafe does not rest in the mere whim, caprice or arbitrary will of the mortgagee, but becomes a question of fact to be heard and determined like other important questions of fact and governed by the same rules. That in .this case the evidence did not justify the defendant in deeming himself unsafe, and that consequently he had no right to take possession of the mare at the time he did. This question presents the important question in the case for review.

^ The appellant relies upon Huggans v. Fryer (1 Lans., 276), Roy v. Goings (96 Ill., 361), Farrell v. Hildreth (38 Barb., 178), and Hall v. Sampson (35 N. Y., 274).

In the case of Huggans v. Fryer the mortgage was upon a yoke of oxen and contained the clause, that “ if the mortgagee deems himself unsafe it shall be lawful for him to take possession of the property and sell the same at public or private sale previous to the time mentioned for the payment of the debt.” In that case the mortgagee deeming himself unsafe took possession of the property before the mortgage came due and sold the same without giving personal notice to the defendant. The question considered upon, the appeal was whether or not the sale was illegal and void for want of personal notice to the defendant. It was held that the sale v^as valid. It does not appear from the case, as reported, that any -evidence was given upon the question as to whether or not the plaintiff was unsafe when he took possession of the property, and that question does not appear to have been argued. The court, in •commenting upon the case, says: “ The taking possession of the property and the advertisement of its sale was in strict conformity with the condition that when the mortgagee deemed it unsafe he ■could sell and apply the proceeds to the payment of the debt.”

In the case of Farrell v. Hildreth the action was for conversion ■of a wagon and heifer, which property the plaintiff claimed by virtue of a chattel mortgage executed to him by one John Farrell, •containing the danger clause. The defendant, as sheriff, levied upon the property liy virtue of an execution issued upon a judgment against John Farrell. The plaintiff demanded the property of the sheriff, which was refused, and the property was sold on the execution. The question raised upon the appeal in that case was whether or not, at the time of the levy or the demand by the plaintiff of the property, the mortgagor had an interest in the property liable to be levied upon and sold on execution.- The court held that where the mortgagor has retained no other interest in the property .than an equity of redemption, such interest is not the subject' of levy and sale, and that there was abundant ground for a feeling of insecurity on the' part of the mortgagee. The sale was forbidden and the property demanded, and the jury would have been warranted in finding that the mortgagee felt himself insecure and unsafe. The question as to whether or not it was necessary for the jury to so find does not appear to have been raised or discussed.

In the case of Hall v. Sampson the action was for the conversion of a piano forte, which was claimed by the plaintiff under a chattel mortgage containing the danger clause. The defendant, as sheriff, levied upon the same under an attachment and the same was subsequently sold upon execution in the attachment suit. The mortgage covered a large amount of household furniture, embracing other articles besides the piano. At the time the piano was attached the mortgage was not due. Subsequently the plaintiff deemed himself insecure and took possession of the mortgaged property except the piano. At this time he knew the piano had been attached, and his reason for not taking it into his possession with the other property was that it was at a distance of ten miles from his residence and he-had no co nvenient place to put it. The court held that the execution of the mortgage vested the plaintiff with title subject to be-defeated by the subsequent performance of the condition; that the mortgage specifically defined the circumstances under which the grantee should become entitled to the right of possession,, and that this evinces the mutual intent of the parties that until vested in the mortgagee it should remain in the mortgagor. His possessory right was to terminate on the failure to pay the-debt at the time named, or at such earlier time as might be fixed by the election of the mortgagee if in good faith he should deem-himself insecure; that the mortgagor’s interest terminated when the plaintiff, finding his debt insecure, exercised his right under the-mortgage to treat tlie condition as broken; that his act in taking possession of the bulk of the property was an assertion of his claiming enforcement of the forfeiture. From that time he had the right o£ possesion as well as the legal title, and the authority of the sheriff ended with the interest of the debtor.

In Roy v. Goings the case was decided in the Supreme Court of Illinois. The rule as stated by the court, is, that under a clause in .a chattel mortgage that if the mortgagee shall, at any time before the debt becomes due, feel himself unsafe or insecure he shall have the right to take possession of the mortgaged property, the mortgagee has the right to determine the crisis for himself subject only to the limitation that his judgment of insecurity must be exercised in good faith upon reasonable grounds or probable cause. That this rule does not require that there should be actual danger, or that the proof should furnish the court, at the time of the trial, with reasonable grounds to decide that there was actual danger. But it will be sufficient if at the trial it appears that at the time of the taking of possession there was apparent danger, such that a reasonable man might in good faith act 'upon. That the feeling of insecurity has reference to such feeling as is produced by some subsequent cause, or some cause not in being when the mortgage was executed.

In the case of Smith v. Post (reported in 1 Hun, 516), the action was to recover property which had been levied upon by virtue of an execution, and which property had been sold by virtue of a chattel mortgage in favor of the defendant. In this case the General Term of the Third Department held that the provision in the mortgage that in case of default in payment, or in case the mortgagee should at any time deem himself unsafe, he might take possession of the property and sell the same, was for the benefit of the mortgagee and authorizes him to take possession when there was default, or when, in his judgment, he deemed it best for the safety of his demand. And no proof was required to show that ■ he considered himself unsafe, as the legal presumption would be that such was the fact when possession was taken before it was due.

Thomas on Mortgages, at page 443, states the rule to be that “ where there is a clause in the mortgage which authorizes the mortgagee to take possession at any time when he may deem himself insecure, the mortgagee may take the property away from the mortgagor at any time when he may think it best for his own interests, and if the power contained in the mortgage justifies such a course, he may sell the property and thus bar the equity of redemption even before the debt becomes due.”

Jones, in his new edition, just published, on chattel mortgages, at section 431, says: “A provision that the mortgagee may take possession whenever he shall deem himself unsafe is for his benefit, and authorizes him to take possession, when, in his judgment, he deems it best for his safety to do so, and upon his taking possession before default no proof is required to show that he considered himself unsafe, as the legal presumption is that such was the fact. He is made the sole judge of the happening of the contingency upon which he may take possession. It is immaterial whether his apprehensions of loss be well or ill founded. Being entitled to possession of the property for such cause he may maintain an action for the possession of it against any one who detains it, or trover for the conversion of it. He may, moreover, take possession without making any previous demand for payment. Such a clause vests in the mortgagee an absolute discretion to take possession of the property when ever he may deem himself insecure, and the exercise of this right does not depend upon the fact that he has reasonable ground for deeming himself insecure. Nor is such a contract a hard and unconscionable one, especially as the right of possession passes with the'legal title by force of the mortgage, in the absence of any agreement to the contrary. „ When the parties have made their own contract the courts will not set that aside and make a new one for them. Such a provision in a mortgage is a contract right, and therefore it cannot be impaired by subsequent legislation. If the mortgagor wishes to retain possession of the property until the mortgagee shall have reasonable grounds to deem himself insecure, he can insert, or have inserted, a stipulation to that effect in the mortgage; or if he wishes to go still further, and retain possession of the property until the mortgagee shall become in fact insecure, he can have a stipulation put into the mortgage to that effect. But if he chooses only to have inserted in the niórtgage a clause that he shall have the right to possession of the property until the mortgagee shall deem himself insecure, then he can only retain the property until the mortgagee does in fact deem himself insecure; and he has no right to question the grounds upon which the mortgagee entertains such feeling of insecurity. He cannot say to the mortgagee, £ You are unreasonable; you have no right to feel insecure; there are in fact no grounds for such feelings of insecurity.’ The only question at all material in such a case is, whether the mortgagee does in fact so feel; and if the mortgagee claims that he has such a feeling, and afterward on the trial testifies that at the time he took possession of the property he had such a feeling, and if, upon the facts of the case, it is possible at all to believe that any person, however timid and fearful he might be, might have had such a feeling, then it should be held that the mortgagee had a right to take possession of the property. Hnder a clause authorizing the mortgagee to take possession whenever he should deem himself insecure, he is entitled to exercise this right if he has good reason to think, and did think, that he had been overreached in regard to the value of the property.”

We have thus briefly referred to the principal decisions in our ©wn State and of Illinois, and have given the rule as stated by our recent elementary writers upon the question. There are numerous decisions in other States which we have examined. Whilst there is some conflict in the decisions, we are of the opinion that the weight of authority is in accordance with the rule stated by Jones.

In the case under consideration the defendant testified that at the time he took possession of the mare he did in fact deem himself unsafe. We are of the opinion that there existed reasonable grounds for such feeling. The mortgage was upon the wheat and rye growing upon the defendant’s farm. These crops were relied upon in chief to pay the defendant’s claim. The crops had substantially failed. The plaintiff, when he examined the crops on the Sunday prior to the sale, reported that he did not believe the crops would pay the expenses of harvesting. He sold his interest in the crops to the defendant for ten dollars. The defendant, when he harvested the crops, realized therefrom but the sum of thirty-nine dollars, whilst it cost him forty-seven dollars to harvest them. The crops having substantially failed, the mare only was left to secure the defendant for the amount still unpaid upon the mortgage. The mare, as the defendant claims, was worth but the sum of fifty dollars. Other witnesses corroborate him upon the value of the mare. We think, therefore, that the evidence establishes the fact that he, in good faith, believed himself insecure. If so, within all of the authorities, he would have the right to take possession of the maré under the mortgage.

Judgment should be reversed and new trial ordered before another referee, costs to abide the event.

Smith, P. J., Barker and Bradley, JJ., concurred on the last ground stated in the opinion.

So ordered.


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    GARRETT VAN SICKLE, Respondent, v. SAMUEL K. NESTER, Appellant.

      Contrast for the sale of property — when all the property contracted for must be delivered —- when a refusal to receive a portion relieves the other party from the necessity of making a further tender.

    The plaintiff agreed with the defendant to sell to him‘all the barley that he should raise during the season of 1880 on two farms, one of which was worked by the plaintiff himself, and the other by a tenant under a contract that the latter should have one-half of the crops raised thereon. He delivered the barley raised on .the first farm and his half of that raised on the' second, his tenant having sold his half to other persons. The defendant claiming to be entitled to all the barley raised on the second farm it was agreed that the plaintiff should be allowed to purchase and deliver an amount of merchantable barley equal to the tenant’s half, 306 bushels, in fulfillment of his contract. The plaintiff accordingly purchased barley and tendered three loads to the defendant, one of which consisted of barley x-aised on his own farm and retained for seed. The defendant refused to accept either of the three loads upon the ground that the barley was not merchantable or of the quality agreed upon. The evidence as to the quality of the barley was conflicting and the jury found in favor of the plaintiff.
    In an action to recover a balance due on the barley delivered, in which the failure of the plaintiff to deliver the said 306 bushels was set up as a defense:

      Held, that it was not intended that the whole 306 bushels should be delivered in one body and at the same time, but that the plaintiff might deliver the same in wagon loads from time to time.
    That a wrongful refusal of the defendant to receive the three loads of the barley so tendered to him, was a breach of the contract on his part and relieved the plaintiff from the necessity of making any further tender.
    'That the agreement did not impose upon the plaintiff the duty of having had the whole amount of the barley ready for delivery, but that he might purchase and deliver it from day to day.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury recovered at the Ontario County Court, and from an order of that court denying a motion for a new trial.

      John Gillette, Jr., for the appellant.

      D. G. Latten, for the respondent.
   Haight, J.:

This action, was originally brought in a Justice’s Court. From the judgment entered therein an appeal was taken to the Ontario County Court and a new trial was had in that court. The jury rendered a verdict in favor of the plaintiff for seventy-four dollars and sixty-nine cents.

It appears from the evidence contained in the appeal book that the plaintiff was the owner of a farm at Shortsville and one at Geneva; that the farm at Shortsville was worked by himself, and the one at Geneva was worked by one Wright, under a contract that he should have one-half of the crops raised thereon. In the spring of 1880 the plaintiff entered into a contract with defendant to sell and deliver to the defendant all the barley that he should raise during the season upon the two farms, excepting such as should be necessarily reserved for seed, for seventy-five cents per bushel, and that he should plant eighty acres. In pursuance of . this agreement the plaintiff delivered to the defendant the barley raised upon the Shortsville farm'. He also delivered 306 bushels of the barley raised upon the Geneva farm, being his half thereof. The tenant Wright sold and delivered his barley to other persons. The defend-ant made payments on account of the barley delivered, and there remained a balance of sixty- nine dollars and eighty-one cents. When the plaintiff demanded this balance the defendant refused to pay, upon the ground that only half of the barley raised upon the Geneva farm had been delivered to him, and that under, the contract' he was entitled to the other half. The parties then entered into further negotiations, and it was subsequently agreed between them that the plaintiff might fulfill the contract by purchasing and delivering to the defendant other merchantable barley of equal quality with the barley raised upon the Geneva farm. In pursuance of this agreement the plaintiff purchased barley and tendered to the defendant three loads, one of the loads consisting of the barley raised by him upon the farms and reserved for seed. The defendant refused to accept either of the three loads of barley so tendered, upon the ground that the barley was not merchantable and was not of the quality agreed upon. The evidence as to the quality and weight of the barley so tendered is conflicting.

The appellant contends, in the first place, that the court erred in refusing to nonsuit the plaintiff on the ground that the plaintiff could not recover in the action under the complaint. The complaint was for balance due on sale of barley. The evidence in reference to the supplemental contract was given without objection, and when the motion for nonsuit was made, the plaintiff asked leave to amend the complaint so as to conform it to the evidence given, and this motion was granted, and under the circumstances, we think, properly. The power to amend upon the trial is given by the Code. It does not appear that the defendant was surprised or prejudiced by such amendment. (Code, § 294A.)

Again it is contended on the part of the appellant that the court erred in refusing to charge that the evidence of the plaintiff as well as of the defendant establishes the fact that the plaintiff sold to the defendant all of the barley grown on the two farms, except that reserved for seed, and that it was his legal duty under such agreement to deliver all so growing, no matter whether as between himself and Wright, Wright, as cropper, might claim his share of the barley raised on the Geneva farm. This request was made and refused after the court had concluded its charge to the jury. The court had already held and decided that under the original agreement the plaintiff was bound to deliver all of the barley, except that reserved for seed, raised upon the two farms and had so instructed the jury and taken that branch of the case from its consideration. The only question which the court submitted to the jury was the question as to whether or not there was a breach under the supplemental agreement. Inasmuch as this branch of the case had been taken from the jury it was not necessary to repeat the legal effect of the original agreement.

Again, the defendant requested the court to charge that, under the modified agreement, if the plaintiff did not purchase or have enough barley of the quality required to make the amount to be delivered, he cannot recover; .that in order to enable the plaintiff to recover he must have offered, or had ready for delivery, enough barley of proper quality to make u,p the amount which had not been delivered; that if any portion of the three loads of barley tendered was of an inferior quality to that required, the defendant had a right to decline to receive all of the barley offered, and the plaintiff cannot recover. These requests to charge were refused by the court, and the court charged instead thereof that if one of the loads so tendered was raised on the Geneva farm, and was of the same quality of that previously delivered, it was the duty of the defendant to have received that load, whether the other two loads complied with the contract or not. To the charge as made, and the refusals to charge, the defendant duly excepted, and this presents the only remaining question to be considered upon this appeal.

In the case of Hill v. Heller (27 Hun, 416) the defendant agreed to purchase of the plaintiff 100 tons of refined alkali, to be shipped to New York by a January sailing ship. In April the ship arrived with the quantity of alkali contracted for contained in ninety-two casks. Thirty-five of the casks, however, had been damaged by water so that the defendants were not required to accept them. The defendants offered to accept the remaining fifty-seven casks if the plaintiff would allow them to take the casks to their works open and examine their contents. This the plaintiff refused to do. It was held that the defendants, by offering to accept the fifty-seven casks, if allowed to examine them, had not waived their right to insist that the failure of the plaintiff to tender the whole amount of alkali required by the contract prevented him from maintaining the action.

In the case of Husted v. Craig (36 N. Y., 221) there was an entire contract, by which the plaintiff agreed to furnish oil-cloths and carpets and to carpet the defendant’s house. He did a part of it in an unskillful and unworkmanlike manner. It was held that the defendant had the right to return the goods and avoid the contract.

In the case of Baker v. Higgins (21 N. Y., 397) the contract . was to deliver 75,000 bricks. A cargo consisting of 21,000 bricks was delivered upon, the contract and payment demanded, which, was refused until the whole amount was delivered. It was held, under the peculiar contract in that case, that the contract was entire to deliver the 75,000, and that there was no contract to pay until the whole was delivered.

In the case of Dunham v. Mann (8 N. Y., 508) the contract was for the sale of a quantity of iron. It was held that the contract was for the delivery of the entire quantity before payment, and that it was necessary to tender the whole before a recovery could be had.

In the case of Hamilton v. Ganyard (34 Barb., 204) the defendant agreed to sell and deliver, in merchantable order, his crop of corn then growing on thirty-five acres of ground. Threefourtlis of it turned out to be unmerchantable. He tendered the good and bad together, without proposing or offering to deliver any except in that way. It was held that he was bound to deliver the merchantable corn, and that the purchasers were not bound to receive the corn tendered in fulfillment of the agreement, but might treat the contract as broken and bring their action to recover damages.

These authorities are relied upon by the appellant in support of his claim. Reference has thus been made to them for the purpose of showing that they do not decide the question here presented. No question is made in reference to the proposition that in case one party sells another, property to be paid for upon delivery, that the property must be delivered or tendered in order to maintain an action.

In this case, however, the respondent claims that the appellant was guilty of a breach of contract; that he tendered to the defendant barley of the kind and quality called for by the contract, and that the defendant refused to accept it and was therefore guilty of a breach. In this regard the case is distinguishable from all of the cases cited.

The plaintiff was a farmer; the barley sold was to be raised upon his farms ; the barley was to be delivered at the defendant’s warehouse. It was delivered^ by teams, in wagon-loads. It does not appear that there was any other way in which it could be delivered. No question was raised as to the mode or manner of making the delivery. It would hardly be possible, nor do we think it was within the contemplation of the parties that the entire crops raised were to be delivered in one body and at one time. Neither do we think it to be within the contemplation of the parties that the 306 bushels remaining to be delivered under the modified or supplemental agreement was to be delivered in one body, but by wagon-load, as the barley had been previously delivered.

It is true that under the agreement it was the duty of the plaintiff to have continued to purchase and deliver until he had delivered the entire aifiount of 306 bushels before he could maintain his action, unless, in the meantime, the defendant was guilty of some act which amounted to a breach upon his part or a waiver of the necessity of delivering the entire amount. This rule is expressly recognized in the case of Avery v. Willson (81 N. Y., 341), and appears to be controlling upon the question. If the plaintiff drew to the defendant a load of barley and tendered it upon the contract, and the barley in all respects corresponded with that required by the terms of the contract, and the defendant refused to accept it, it cannot be that the rule is that the plaintiff must continue, day after day, to draw other loads to the defendant and have them refused until he has drawn and tendered the whole amount required by the contract. Such a rule would be a hardship and unjust. The defendant, by refusing to accept, was guilty of a breach of the contract, and this breach dispensed with the necessity of the plaintiff’s offering to, deliver the rest. If there had been no breach of the contract on the part of the defendant; if the barley was not of the quality required by the contract, then he had a right to refuse to accept, and it would then have been the duty of the plaintiff to have purchased and delivered other barley. But upon this question the evidence is conflicting. It was submitted to the jury and the jury have found in favor of the plaintiff.

Neither do we think that it was the duty of the plaintiff to have the whole amount on hand ready for delivery. Under the terms of the agreement he had the right to go out and purchase barley of others and to deliver the same upon the contract. He had the right to continue to purchase from day to day until he had purchased loads enough to amount to the number of bushels required. He had the right to tender the barley upon the contract load by load as lie purchased it, and it was not necessary after a breach of the contract by the defendant to continue on purchasing other barley to be offered and refused.

' But again it is contended that the plaintiff tendered three loads and that the defendant refused to accept the three loads; that on the defendant’s refusing to accept the three loads, that then it was the duty of the plaintiff, if one of the loads complied with the contract and the other two did not, to .have offered to deliver that one load. We are of the opinion, however, that under the evidence in this case a tender of that one load separate from the others was not necessary. The barley of one of the loads consisted of the barley reserved for seed and was raised upon the plaintiff’s farms. It does not appear to have been mixed or mingled with the barley contained in the other loads. The defendant sampled and tested the barley in each of the loads. He then refused to accept the three loads, and refused also to accept the one load unless the plaintiff would consent to his taking fifty pounds for the bushel, when forty-six pounds was the standard weight. His refusal to accept this load, except upon the condition named, rendered it unnecessary for the plaintiff to separately tender it in any other form or manner than he had done.

We are of the opinion that the judgment and order should be affirmed.

Smith, P. J., Barker and Bradley, JJ., concurred.

Judgment and order affirmed.


author: Corlett, J.:

text:
    MULFORD VIAL, Respondent, v. ELIJAH MATHEWSON, Appellant, Impleaded with Others.

      Fraudulent conveyance — cm agreement by a son to support his parents as apart of the consideration of a conveyance, does not necessarily show it to be fra/adulent as to the grantor's creditors.

    In an action by a judgment creditor to set aside'a conveyance made by the debtor, by which he transferred all his property to his son in consideration of the latter’s discharging debts due to him from the grantor and assuming certain other debts of the latter, a referee set aside the conveyance upon the ground that it appeared that the son also agreed, as a part of the consideration, that he would support the grantor and his wife during their natural lives, holding that this agreement rendered the conveyance void as to the creditors of the grantor, without regard to the value of the other consideration furnished by the son, and withonl considering whether or not he had knowledge of the debts of the grantor or of any fraudulent intent on his part.

      Held, that the referee erred in so holding.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was in the nature of a creditor’s bill, and was tried before a referee who reported in favor of the plaintiff, upon which report a judgment was entered, from which the defendant Elijah Mathewson appealed to this court.-

      John O. Beoord, for the appellant.

      Julius A. Parsons, for the respondent.
   Corlett, J.:

On the 3d day of January, 1878, one Oorydon Putnam and the defendant Daniel made their promissory note of which the following is a copy:

“ $500. “ Stooktown, January 3, 1878.
“ One year after date I promise to pay Mulford Yial, or bearer, five hundred dollars for value received, with annual interest.
“OORYDON PUTNAM.
“DANIEL MATHEWSON.”

It was given for money loaned to Putnam, and signed by Mathewson as surety. After its maturity the payee brought an action against both makers of the note. Service was only made upon Mathewson, but Putnam resided in Chautauqua county and might have been served. Judgment was finally obtained against Mathewson upon which execution was issued and returned nulla bona. No judgment was recovered against Putnam or any steps taken to collect the note from him.

Prior to the 16th day of October, 1878, Putnam was the owner of forty-eight acres of land described in the complaint, which he conveyed on that day to Daniel Mathewson, in consideration of the payment of certain notes which he had signed as surety for Putnam. ,The plaintiff claims tbe above note was one of them. Tbe referee, upon conflicting evidence, found that such was tbe fact.

Previous to the 2lstday of October, 1878, Daniel Mathewson was the owner of about 179 acres of land, also described in the complaint which, as the referee found, was worth $é,000, subject to a mortgage of $3,250. On the day last mentioned Daniel Mathewson conveyed both of said pieces of land to the defendant Elijah Mathewson, his son, who was then married, thirty-six years of age, living with his father for whom he had worked for many years. And the referee found that on the day of such conveyance hi's father owed him for such labor $1,890.

The evidence on the part of the defendant tended to show that the consideration for such conveyance was the said debt of $1,890, the assumption of the above mentioned mortgage of $3,250 and the payment of certain debts owing by Daniel Mathewson to the amount of $800. The referee found that the consideration was the assumption of said mortgage and the payment of notes (of which the above was not one) to the amount of at least $800 and their actual payment. The referee does not find either way as to whether said debt of $1,890 was a part of the consideration. The defendant’s testimony is to the effect that it was and was extinguished upon the execution of the deeds, while the plaintiff gave no evidence on the subject.

The evidence on the part of the defendant also tended to show that at the time of the purchase Elijah Mathewson knew nothing of the existence of the above note, and did not learn of the same until long after he took the deeds and made all the payments, and that he had no knowledge of any debts owing by his father, except such as he agreed to pay. The referee omits to find either way on those questions.

There-was a conflict in the evidence as to the value of the forty-eight acres, and the referee omits to find -the same, but he does find that after the purchase Elijah sold that land for $1,200, which the defendant’s testimony tends to show was all it was worth. The referee found, upon sufficient evidence, that in addition to the other consideration, Elijah agreed to support his father and mother during their lives. (Both were old at the time of the conveyance.) There was also evidence on the subject of the ownership of the stock on the farm, that of the defendant tending to show that he owned and had, for a great many years, all the stock. The referee made no finding on that subject.

The referee, in his conclusions of law on the facts found, determined that the deed of the 179 acres was fraudulent and void as against creditors, but reaches no conclusion as to the forty-eight acres or the personal property. An examination of the evidence and the referee’s report makes it very clear that he was of the opinion that Elijah’s agreement to support his father and mother as a part consideration for the purchase, made the conveyance void as against creditors, without regard to the other consideration paid by him, or whether he had knowledge, at the time of the purchase, of any other indebtedness owing by his father, except such as he paid, or assumed to pay, relying probably on Young v. Heermans (66 N. Y., 374-382), Grover v. Wakemam, (11 Wend., 187), Jackson ex dem. Cary v. Parker (9 Cow., 73-85), and that class of cases.

The referee evidently reached the conclusion that as soon as it appeared that there were creditors, and the debtor had conveyed all his property to a purchaser, and that a portion of the consideration was an agreement to support the vendor, that this in law made the conveyance void as to those creditors, whether the purchaser, aside from that, paid a valuable consideration, or whether he knew of the existence of the debt or had any knowledge of the vendor’s fraudulent intention (if it existed). Otherwise the referee would have passed upon the questions of fact which he omitted. The findings made and the omissions to find clearly show that such was the conclusion he reached. In reaching such a conclusion the learned referee fell into an error. It was not wrong of itself for Elijah to-provide a home for his father and mother, assuming that no creditors were thereby defrauded. On the other hand it was not only commendable, but the law, under certain circumstances, imposes that duty.

Assuming that the forty-eight acres were only of the value of $1,200, which it was sold for, and the referee does not find that it was worth more than that, and assuming that the defendant owned the personal property (the reverse of which is not found) it is evident that Elijah paid much more for the land than it was worth.. He paid in cash, more than $800. His own debt was about $2,000. The larger farm was incumbered within $750 of its value. The forty-eight acres were worth $1,200, making less than $2,000 in all, while the amount paid was about $2,800 besides the incumbrances, or $800 more than the land was worth.

The rule is now well established that when a grantee is innocent of any fraudulent intent, and pays a valuable consideration without knowledge of outstanding equities, the conveyance can never be found absolutely void. The most that can be done is to direct a sale of the lands subject to the amount paid by the purchaser. (Van Wyck v. Baker, 16 Hun, 168; Davis v. Leopold, 87 N. Y., 620-622; Pond v. Comstock, 20 Hun, 492.) Fraud is not to be presumed. (Jaeger v. Kelly, 52 N. Y., 274.)

If in the present case it should be found that the defendant Elijah Mathewson occupied that position, he is entitled to protection to the extent of the consideration paid, and a creditor’s remedy would be confined to the value of the land; beyond that, neither the findings of fact or conclusions of law by the referee were sufficient to present this question. The other questions argued need not be determined. *

J udgment reversed and new trial ordered before another referee, costs to'abide the event.

Present — Smith, P. J., Headley and Parker, JJ.

Judgment reversed and new trial ordered before another referee, costs to abide the event.


text:
    MARY A. NUNDY, Respondent, v. JAMES N. MATTHEWS, Appellant.

      Offer by Utter — an answer proposing modifications in it must be expressly accepted— mere inaction on the part of the prn'ty making the first offer is not am acceptance.

    Where, in answer to a letter proposing terms for the settlement of an existing controversy, a letter is written offering a settlement, the terms of which differ materially from those contained in the first letter, it is incumbent upon the party : who wrote the first letter, if he desires to accept the modified offer, to expressly notify the writer of the second letter of that fact. His mere mental determination to accept the modified offer, evinced by his ceasing to take further steps in the pending controversy until after the expiration of a time fixed in the amended offer, is not a sufficient acceptance thereof to render its proposer liable thereon.
    Appeal from a judgment, entered upon the report of a referee.

      B&rvjamvn Folsom, for the appellant.

      H. G. Kmgsbury, for the respondent.
   Corlett, J.:

The plaintiff recovered against one Austin L. Wells three judgments, amounting in the aggregate to more than $3,000. In August, 1879, proceedings supplementary to execution were instituted on one of the judgments and the defendant was examined before a referee. By virtue of such proceedings the examination was continued from the 15th day of August, 1879, until the thirteenth day of September, when they were held open by agreement and no further steps were taken.

The defendant is a son-in-law of the judgment debtor, and the plaintiff opened a correspondence with him upon the subject of her demands against his father-in-law, with a view to obtain payment or a’ settlement from the defendant; and this action was brought to recover the sum of about $700 which the plaintiff alleges the defendant bound himself in writing to pay. The alleged contract upon which a recovery was had in this case is contained in two letters, of which the following are copies:

“Westfield, September 21, 1879.
“ Mr. Matthews :
“ Dear Sir.— The time has expired that you wrote me you would endeavor to be in Westfield to see what could be done concerning the business between Mr. A. L. Wells and myself. I write once more to ask you if you intend to do anything about it. I let the matter rest because you gave me encouragement you would. 1 ■game you my terms.
“If I can have $700 to pay up the mortgage on my store, which is now due, I will wait a suitable time for the rest, if you, will see that I have my pay, which is no more than right.
“ I have had a talk with Mr. W. He says he will let me have $150 in October, if I will wait, but I am in a place where I must have more or lose a great deal.
“ Please let me hear from you soon, as the papers is now in the-hands of Mr. Kingsbury; but will wait to hear from you as I want to do the fair thing.
Yours, with respect,
“MANY A. NUNDY.”
“ Bueeado, N. Y., Januwry 8, 1880.
“Dear Madam.— I have shown your letter to Mr. Wells and consulted with him freely on your proposition. I infer you have-been listening to bad advice. Not one step will I proceed toward any settlement which assumes that he has acted otherwise than honorably in the matter.
“ That sort of pressure will not stir me an inch. If you wish me to take any interest in your affair, drop it.
“ Still, I am sorry for your trouble and wish to see you safely out of it.
“ But he is confident he can raise the money out of his own resources, and I desire to give him the chance.
“Now, what I propose is this: he shall have one year to pay the-$700 you demand in full of dll obligations to you.
“ He shall take care of your present mortgage interest, etc., and the mortgage shall be paid within the year.
“ If he fails to do this out of his own resources . I will make up the deficiency. You are to have no further trouble about it and must not cause him any. Not a cent beyond the $700 will I help to pay ; nothing for costs; nothing for advice. Such outlay will be-worse than wasted.
“ Now, if this is satisfactory to you, well. If not, please do not trespass any further upon the time or patience of
“ Yours, very sincerely,
“ J. N. MATTHEWS.
“ Mary A. Nundy, Westfield, N. Y.”

The plaintiff’s contention on the trial was that the defendant’s letter amounted to a substantial acceptance of the plaintiff’s offer-embodied in her letter, and the plaintiff’s claim was adopted by the learned referee, who, in his opinion, says: “ In the construction which I give to defendant’s letter to plaintiff, January 8, 1880, I hold that it was' not incumbent upon her to notify him of an acceptance; that his letter was an acceptance of her proposition, with some amendments, and did not require her to formally accept.”-

The plaintiff’s proposition was that slie would accept $700 down, and that she would wait a suitable time for the balance, if the defendant would see that it was paid. There is no confusion or ambiguity about her offer. The defendant, instead of accepting her proposition, makes a counter offer by proposing that the judgment debtor should have one year to pay the $700, in full of all obligations to the plaintiff; that he should take care of the interest on her mortgage, and that if he failed to do this out of his own resources the defendant would make up the deficiency.

Tt is very clear that the defendant’s letter was in no sense a substantial acceptance of the plaintiff’s proposition or any part thei'eof. Her judgments against "Wells aggregated more than $3,000, and her offer amounted in substance to a proposition to give time for the payment of all except $700 in case the defendant would see her paid. Whereas the défendant’s counter proposition was that Mr. Wells should have a whole year in which to pay this $700, and that in case he failed within the year the defendant would pay the deficiency, but that he would in no event be bound or liable beyond the $700.

It is impossible to so construe those letters as to show a contract between them — a meeting of the minds of the parties. The law upon this subject is simple and elementary. In 1 Parsons on Contract (6 ed., 176-178) the rule is stated thus: “But there are cases where the answer either in words or in effect departs from the proposition, or varies the terms of the offer or substitutes, for the contract tendered one more satisfactory to the respondent.” In these cases there is no assent and no contract. The respondent is at liberty to accept wholly or-to reject, but one of these things he must do; for if he answers not rejecting, Tout proposing to accept under some modification this is a rejection of the offer. All the cases adopt this view. (Hutchison v. Bowker, 5 M. & W., 535; Vassar v. Camp, 11 N. Y., 441; The Chicago and G. E. R. R. Co. v. Dane, 43 id., 240; 32 Am. Rep., 35-51.)

Winslow v. Moore et al., decided at the June Term, 1883, by this court, where Smith, P. J., speaking upon this subject says: “ Doubtless an acceptance in order to bind a party making an offer must be an unconditional and unqualified acceptance of all the material terms of the offer.”

It follows, therefore, upon this branch of the case, that the defendant did not accept the plaintiff’s offer, but on the contrary rejected it. It is a familiar rule that there is no contract unless the parties thereto assent, and they must assent to the same thing in the same sense. The obligation must be mutual. The minds of the parties must meet. (Dana v. Munro, 38 Barb., 528; Bruce v. Pearson, 3 Johns., 535; Tucker v. Woods, 12 id., 190; Wells v. Thompson, 13 Weekly Dig., 256; Mactier v. Frith, 6 Wend., 103; Fullerton v. Dalton, 58 Barb., 236.)

The plaintiff did not accept the defendant’s offer or assent to its terms. It is well established that a mental determination to accept, including an acting upon that determination by waiting for the expiration of the time or the happening of the event embodied in the offer, will not amount to a legal acceptance. There must be an overt assent or acceptance and actual consent to the terms of the offer, evidenced by an overt act, to create a contract so as to bind the parties. In other words, both parties must agree. Acting upon the faith of the offer, without an agreement to accept, creates no binding contract. (Beekman v. Hale, 17 Johns., 134; White v. Corlies, 46 N. Y., 467; Howard v. Daly, 61 id., 362-366; Trevor v. Wood, 36 id., 307; Dickinson v. Rawson, 12 Weekly Dig., 563.)

The learned referee seems to have assumed that if the plaintiff evinced her acceptance by performance, she was entitled to recover in the absence of an agreement on her part. He says: “ If she in fact performed according to the spirit and terms thereof, that was. sufficient to enable her to recover in the action.” While the report is based upon the assumption that the defendant accepted the plaintiff’s offer, and therefore the contract was complete without acceptance, still importance seems to have been attached to the fact that the plaintiff waited a year before calling on the defendant for payment. And it seems to have been assumed, on the part of the plaintiff and by the learned referee, that even if the defendant’s letter was not an acceptance of the plaintiff’s offer, still the waiting on the part of the plaintiff, and her omission to carry on legal proceedings during the year, amounted to an acceptance of the defendant’s offer, and that she could recover on this ground. The plaintiff testified that she did not answer the defendant’s letter or in any manner acknowledge its receipt, and that she did not send any word, verbal or written, in regard to it, either to the defendant or Mr. Wells. • In other words, no claim is made that there was any acceptance or assent by any overt act on the part of the plaintiff, and the very most that can be said is, that in her own mind she determined to accept the defendant’s offer and acted accordingly. As has already been shown, this was not such an acceptance as the law requires to make a binding contract between them. The only consideration for the defendant’s promise was a promise on the part of the plaintiff ; that is, if the defendant became bound to pay the $700; the plaintiff also became bound to discharge the judgments against Wells and to wait a year for the payment of the $700. Nothing can be gleaned from the letters which would enable any person to maintain an action against the plaintiff to extinguish her claims against Wells upon the payment of $700. She made no such contract, and unless she did the defendant’s promises would be without consideration. What occurred in the winter of 1881, between the parties, is of no importance. Even if both parties supposed that a binding contract existed between them, it was of no importance unless in fact such an agreement had actually heen made. (12 Week. Dig., 566, supra)

The judgment must be reversed.

Present — Smith, P. J., (Bradley and Barker, JJ.

Judgment reversed and new trial ordered before another referee,, costs to abide the event.