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    WALTER C. ANTHONY, Appellant, v. HENRY HARRISON, Administrator, AND ELIZA HARRISON, Administratrix, etc., OF GEORGE HARRISON, DECEASED, Responden

      Promissory note — affixing of seal to — effect of— Consideration— when it'must be proved by payee.

    This action was brought upon a sealed instrument, by which the defendants' intestate promised at his death to pay Walter C. Anthony five thousand dollars for value received. This note was given however, and the money collected hereon was to be held and used by said Anthony in trust, to pay it over to a beneficiary therein named. Upon the trial it appeared that no consideration for the promise was given either by the payee or beneficiai-y.

      Held, that the fact that the note was sealed was only presumptive evidence of a consideration therefor.
    That-as it appeared that neither the payee nor the beneficiary furnished any consideration for the note, it rested upon the plaintiff to show what, if any, consideration existed, and by whom the same was furnished, and that upon his failure so to do the action was properly decided against him.

      AprEAL from a judgment in favor of the defendants, entered upon the report of a referee.
    This action was brought to recover upon four instruments in writing*, bearing date October 25, 1873, made by one George Harrison, each being in substance as follows:
    “ At my death I promise to pay Walter C. Anthony * * * * dollars, for value received. The money collected hereon is to be hold and used in trust however,” etc. The persons named in the instruments for whose benefit the money was to be held in trust, with one exception, were collateral relatives of the maker. The total amount agreed thus to be paid is thirty thousand dollars. Each of the instruments expresses on its face that it ivas for “ value received,” and each has a seal affixed to the maker’s name. The defense ivas the want of consideration. The action was referred to Mr. Calvin Frost, as referee, who dismissed the complaint on the ground that the instruments were shown to have been executed and delivered without any consideration.
    The following is the opinion of the referee, Mr. Calvin Frost, referred to in the opinion of the court at General Term:
    “ This action was brought to recover the amount agreed to be paid by four instruments in writing, dated October 25, 1873, made by George Harrison, payable at his death to plaintiff, expressing that they were for “ value received,” and providing for the holding and using of the moneys collected thereon by plaintiff in trust for the persons mentioned in such instruments respectively, who are all described as collateral relatives of the maker of such instruments, except one of them. The amount thus agreed to be paid is $30,000. Each of said instruments is under seal, but neither purports upon its face to have been intended as such further .than by affixing the seal. The large amount involved in this action and the apparent conflict of authority upon the questions to be decided, have led me to make a careful examination of the case and to give my views in writing somewhat at length.
    First. What is the character of the instruments upon which-this action Avas.brought ?
    The defendants claim that inasmuch as there is nothing upon their face to indicate that they were intended to be under seal, they must be held to be simple contracts; that merely affixing seals to them does not make them specialties.
    Independently of authority, I should think that in an action on an instrument, in the bod}»' or attestation clause of which there was nothing tending to show that it was intended to be under seal, and which was not of such a character that it was required by law to be sealed in order to be operative for the purpose for which it was evidently intended, and where the right of recovery depended upon its being held to be a specialty, for instance where the statute of limitations was pleaded, evidence should be given to prove the affixing of a seal at the time of the making of the instrument, or at least that it was on the instrument before the six years limitation had expired, or if no statute had been passed in this State changing the rule of the common law as to inquiring into the consideration of sealed instruments, and objections should be made to evidence offered to prove a want of consideration on the ground that the instrument was a specialty, it may well be doubted whether a court should not require proof that the seal was actually attached at the time of signing. But I do not see that a discussion of these points can throw much light on the question now under consideration, for the doctrine of presumptions would largely enter into the decision of them, and can have no reference to the present case, in -which the fact that a seal was attached to the notes at the time they were signed was proved, and the defendant relies upon the naked proposition that the instruments although sealed when signed, are not specialties because they do not purport to be so in the body of them.
    The cases cited by defendants (4 Munf., 442 ; 7 Leigh, 305 ; 1 Wash., 170; 1 Munf., 487 ; 2 Rand. 446; 15 Grat., 108 ;) are all Virginia cases and are conceded to hold a doctrine not in harmony with the common law.
    The last (15 Grattan), which is latest in point of time (1859), marks the extreme limit to which the courts of that State have gone on this subject, and holds that, when there is nothing in the body of the instrument showing it to have been intended to be under seal, and nothing in its character requiring it to be so in order to accomplish its purpose,’ but simply a seal appearing affixed to the name of the maker, it is a simple contract, and evidence aliunde, not admissible to prove it otherwise. The weight of authority is largely against the Virginia cases, and, if it was not, I should be unwilling to follow them if they led to the result contended for by the defendants. To Overturn an instrument as a specialty, Avhen it appeared that the maker affixed his seal at the time of signing, would work far more serious consequences, in my opinion, by defeating the intention of the parties, than could arise from the opposite rule. The following cases establish the character of the instruments in this case as specialties beyond a question: ( Washer v. Everhart, 3 Gill & Johns, 234; Yarborough v. Monday, 2 Dev., 493; 3 id., 420; Ingraham v. Hall, 1 Hayw., 193; Ralph v. Gist, 4 McCord, 267; Seriggs v. Brackin, 4 Yerger, 528; Bertrand v. Bard, 4 Pike, 195; McRarenv. McGinn, 9 Smedes & Marshall, 34; Taylor v. Glaeser, 2 Serg. & RuavIc, 502; Hubbard v. Routh, 1st Bibb, 492).
    The only reported case in this State touching this question which I have been able to find is that of Merritt v. Cornell, (1st E. D. Smith, 335).
    It is an authority for the proposition that, when a note, the body of which contains nothing to indicate whether it was intended to be sealed or not, is sued on, proof of the maker’s signature is presumptive evidence that it Avas also sealed Avhen a seal appears at the end of the maker’s name, in a case Avhere an action is commenced before the expiration of the time limited for suits upon simple contracts. It is unnecessary, in order to establish the instruments in this case as specialties, to go to the extent of the doctrine of this case. I cite it rather as part of the learning upon the question, than as authority to be relied on.
    Having come to the conclusion that the notes in question are specialties, I proceed to inquire :
    Second. Can the Avant of consideration be shown to defeat them ? It is important at the outset to ascertain the true principle Avhich, at common larv, formed the basis of the doctrine that the consideration of a Avritten instrument under seal was not inquirable into. This important attribute of this class of instruments has been supposed by some to rest upon the manner of their execution, and not upon the idea that a seal imports a consideration, in other words, that no consideration for a sealed instrument is necessary.

      The earliest enunciation of the doctrine with respect to the con-, elusive character of sealed instruments which I have been able to find is in Plowden, made about two centuries ago, as follows:
    “And in an action of debt upon an obligation, the consideration upon which the party made the deed is not to be inquired, for it is sufficient to say that it was his will to make, the deed. Thus, although a promise to make a woman an allowance for her maintenance, in consideration of past seduction, is invalid, past seduction being, for reasons given in another place, no consideration in law; yet, inasmuch as an instrument under seal is good without any consideration, a bond for maintenance founded on previous seduction is good.”
    It is upon this theory that the numberless cases in England, and in many of the States in this country, some of which are cited by plaintiff, holding that a voluntary bond is good, except as against creditors of the obligor, have been decided, although in but few of them have the judges taken the trouble to lay down the reason of the rule, but have contented themselves with citing and following, without discussion, antecedent cases which were founded upon the doctrine laid down in Plowden.
    This doctrine is more distinctly announced in Walker v. Walker (13 Iredell [N. C.] Law R., 335), than elsewhere in any modern case. This was an action on a single bill (sealed) for $40. The trial court charged that, “ when the execution of a sealed instrument was proved, the law inferred that it was just and founded upon a just consideration.” The Supreme Court on appeal said, “ In this there is error. We arc not aware of any rule of law by which a consideration is inferred from the fact of the execution of a sealed instrument — no consideration is necessary in order to give validity to a deed. It derives its efficacy from the solemnity of its execution, the acts of sealing and delivery — not upon the idea that the seal imports a consideration, but because it is his solemn act and deed, and is therefore obligatory. No consideration being necessary to give validity to a deed, it follows that the law does not, from the fact of execution, make any inference one way or the other in reference to a consideration.”
    While in a late, case in Pennsylvania (Candor & Henderson's
      Appeal, 27 Penn., 119, cited by plaintiff.) the court in upholding the acts of executors who had paid a voluntary bond of their testator, do not seem to have understood the distinction above discussed —for the opinion says, “ it,” (the bond) “ is under seal, and found expressly to be a voluntary bond. The seal imports a consideration, and creates a legal obligation. In a voluntary bond no consideration is contracted for or expected. The absence of one is therefore no ground of equitable relief from a contract conceded to be good at law without it.”
    I think the true rule at common law was and is, that there must be a consideration to support every contract, whether simple or by specialty — that in cases of simple contract the recitals were presumptive evidence of consideration, which might be disproved, while in cases of specialties the seal was conclusive evidence of consideration, which could not be disproved.
    Independently of direct authority for this position, this rule seems to follow from well settled principles. It is not the instrument, whether sealed or unsealed, which creates the liability. The writing is only evidence of the indebtedness or obligation. It is a fundamental principle that every contract must rest on some consideration. The reason for this, is just as obvious in case of a specialty as in case of a simple contract. There is no higher natural equity in favor of a naked promise, without consideration in one case than in the other. The maxim: “ Ex nudo pacto non oritur actio" applies in both cases, as I shall attempt hereafter to show.
    In Smith on Contracts (6 Eng. ed.), at page 13, the true doctrine is laid down thus, “A contract by deed requires no consideration to support it, or perhaps it might be more correct to say, as a general proposition, that the law conclusively presumes that it is made upon a good and sufficient consideration.”
    This conclusiveness arises from the greater solemnity with which an instrument under seal is executed.
    “ When the agreement is by deed, there is more time for deliberation, for when a man passes a thing by deed, first there is the determination of mind to do it; and upon that he causes it to be written, which is one part of deliberation, and afterwards he puts his seal to it, which is another part of deliberation, and lastly, he delivers the writing as his deed, which is the consummation of his resolution; so that there is great deliberation used in the making of the deeds, for which reason they are received as a lien final to the party, without examining upon what cause or consideration they were made.’’ (Plowden, 308.)
    “And indeed it can only be the same principle which makes reasonable an ancient and well established distinction in the common law, by virtue whereof a contract iinder seal is in general valid, without reference to the consideration, not by way of exception to the rule that no promise can be enforced which was not made for a consideration, but because as it is said the seal implies ■a consideration.” (1 Parsons on Cont. [2d ed.], 354; Story on Cont., § 427.)
    The conclusivencss of the seal at common law and its Implying a consideration, is fully recognized as the ground for upholding a voluntary bond in many of the States. ,
    Thus in Page v. Trufant and others (2 Mass. R., at page 161), Sedgwick, J., says: “ Every bond, from the solemnity of the instrument, carries with it an internal evidence of a good consideration and is to be supported in a court of law, except facts arc disclosed to the court whereby the consideration appears to be immoral, illegal, or against the policy of the law.” And at page 162, Parsons, Ch. J., says: “ A bond, from the solemnity of its execution, imports a consideration the want of which the obligor is estopped by law to plead.”
    “ In contracts under seal, a consideration is necessarily implied in the solemnity of the instrument; and fraud in relation to the consideration is hold to be no defense at law.” (2 Kent’s Com.. [8th ed,], 593-4.) “ It is not to be understood that a voluntary bond would be enforced, if it be admitted by the obligee, by pleading or otherwise, that it was executed without any consideration. The principle is that the bond, from the solemnity of the instrument, implies a consideration, and the defendant is estopped by the seal from averring a want of it.” (Id., note At.)
    ■ These authorities, (although numerous others might be cited to the same effect,) are deemed fully to establish the proposition that a consideration is at common law equally necessary to sustain an instrument under seal as in cases of simple contract, but that in the former the consideration is conclusively implied, and in the latter presumptively.

    I have stated above that there was no higher natural equity in favor of a naked promise without consideration, when evidenced by a sealed than by an unsealed instrument. This proposition is well established by the uniform rule of courts of equity, not to lend their aid to a volunteer seeking to enforce an executory contract. If a bond or other obligation under seal was valid and binding, independent of any actual consideration — if the language-of the cases cited by the plaintiff, and many others which I have examined, to the effect that “ A voluntary bond is good.” “ No consideration is necessary to support a sealed instrument when the rights of creditors do not intervene,” and the like, had any meaning other than that a seal imported a consideration for the instrument, which from the solemnity of its execution, courts of law would not permit the obligor to deny, courts of equity would have been ever ready to enforce such instruments, when courts of law were inadequate for the purpose, but this the former courts have uniformly refused to do upon the very ground that the instruments were voluntary, when the direct question has been presented.
    Thus, “ It has been recently declared that the court will not execute a voluntary contract, and that the principle of the court to withhold its assistance from a volunteer, applies equally, whether he seeks to have the benefit of a contract, a covenant, or a settlement.” (1st Story’s Eq., § 433.)
    In respect'to voluntary contracts inter vivos it is a general principle that courts of equity will not interfere; but will leave the parties where the law finds them. In respect also to gifts and assignments inter vivos, courts of equity will enforce them only when the gift or assignment is perfected or complete, so that nothing further remains to consummate the title of the donee. ” (Id., § 706, a.)
    In respect to voluntary conveyances, or such as are not founded on a valuable consideration, we have already had occasion to state that courts of equity do not interfere to enforce them, either as against the party himself, or as against other volunteers claiming under him. Thus, for example, if a party should enter into a voluntary agreement to transfer stock to another, or to give him a sum of money, or to convey to him certain real estate, courts of equity would not assist in enforcing the agreement either as against the party entering into the agreement or against his personal representatives; for he is a mere volunteer.” (Id., § 793, a.)
    The cases of Ellison v. Ellison (6 Yesey, 661), and Jefferys v. Jefferys (1st Craig & Phillips, 137), in England, and the numerous cases therein cited; Buford's Heirs v. McKee, (1st Dana [Ky.], 107), and the cases of Hayes v. Kershow (1 Sand. Ch. R., 258); Duvall v. Wilson (9 Barb., 487), in this State, hold the same doctrine. Covenants and simple contracts are placed on the same footing, and when executory, are denied the aid of Courts •of Equity.
    The result of all these authorities is to establish beyond question that at common law, both specialties and simple contracts must have a consideration to support them, and that a seal was in an action at law held to be conclusive evidence of such consideration.
    The enforcement of this inflexible rule of the common law led to many embarrassments in the courts — in many instances causing circuity of action, and often resulting in a failure of justice.
    In some states — for instance in Pennsylvania — in the early history of the Commonwealth, the courts departed from this rule and held that, as there was no Court of Chancery in the State, want or failure of consideration might be proved as a defense to an action at law on a sealed instrument, in order to prevent a failure of justice. (Swift v. Hawlcins, 1 Dal., 17; Steinhauer v.„ Witman, 1st Serg. & Rawle, 43.)
    In the State of New York the difficulty was met and removed by statute in 1830 (3 R. S. [5th Ed.],. 691, § 109), as follows : “In every action upon a sealed instrument, and where a set off is founded upon any sealed instrument, the seal thereof shall only’ be presumptive evidence of a sufficient consideration, which may be rebutted in the same manner, and to the same extent, as if such instrument were not sealed.”
    Having in view the precise difficulty which existed and which this statute was passed to remedy, there does not seem to be a question as to its construction. I think that it was designed to strike out the word “conclusivo” and insert in its stead the word “presumptive” in the rule of the common law. If anything more is necessary to confirm the views above expressed, as to the true theory upon which the doctrine of the conclusive character of sealed instruments rested at common law, it is furnished by the legislative declaration of such theory, implied by the language of the statute itself, by which a seal is treated as evidence of consideration. By the uniform course of decision in cases arising under this statute the most liberal construction has been given to it, and I have not found a single case in which a limited one has been put upon it. Indeed I believe every defense of want or failure of consideration pleaded to a sealed instrument, upon which' an action has been brought or defended, has been upheld by the courts, so far as the cases have been reported.
    In the very first case to be found in the books after the enactment of this statute, in which failure of consideration was pleaded to a scaled note, the defence was demurred to, but held good, the court saying, after quoting the statute: “ In this respect there is now no distinction between a note with a seal or without one.” {Case v. Boughton, 11 Wend., 109.) Such has been the language, substantially, of all the numerous cases which have followed. {Johnson v. Miln, 14 Wend., 199; Tallmadge v. Wallis, 25 id., 13; Craver v. Wilson, 14 Abb. Pr. R. [N. S.], 374; Wilson v. Baptist Education Society, 10 Barb., 312; Morgan v. Smith, 7 Hun, 247; Home Ins. Co. v. Watson, 59 N. Y., 395; Burrell v. Root, 40 id., 497; Torry v. Black, 58 id., 190; Adams v. Hull, 2 Denio, 312; McCurtie v.. Stevens, 13 Wend., 529; Russell v. Rogers, 15 id., 359; Mann v. Eckford's Executors, 15 id., 502; Fay v. Richards, 21 id., 626; Van Epps v. Harrison, 5 Hill, 63; Calkins v. Long, 22 Barb., 99.)
    The only one of these cases in which the plaintiff claims to have found any expression favorable to his views is that of Mann v. Eckford’s Executors (15 Wend., 501). I have examined that case with care, for I should have been greatly astonished to find that the Supreme Court had decided that in an action upon a sealed instrument, made after the passsage of the statute, want of consideration could not be shown. A few words of explanation, will suffice to make it clear that the case does not aid the plaintiff. In the first place, the bond upon which the action was brought was made before the passage of the statute under consideration, and the effort of the learned judge who delivered the opinion of the court was chiefly directed towards showing that it could not have a retroactive effect, without coming in conflict with the constitution of the United States, by impairing the obligation of contracts.
    In the second place, the judge at the Circuit had ruled that the defendant might prove want of consideration in the instrument upon which the action was brought, and inasmuch as the verdict ivas in favor of the plaintiff, who did not and could not complain, (a motion for a new trial being made by the defendant), this question was not before the court, and the remarks of Judge Bronson must be regarded as obiter. Indeed, he says at page 521, that,, while he thinks the judge below erred in deciding that want of consideration might have been proved, it was an error of which the plaintiff only could complain. And, at the close of his remarks, upon which the plaintiff relies, near the eiid of his opinion, at page 521, he said that “ it is unnecessary to decide that point in this case.’’
    If further evidence was required to show that Judge Bronson did not intend to hold any such doctrine as is claimed for his opinion in this case by the plaintiff, it may be found in his opinion in the case of Van Epps v. Harrison (5 Hill, 63), where, at p. 66, in passing upon the effect of this statute, he says: “ The next question is whether this defense can be set up in an action on a sealed instrument, when' the evidence does not go to the whole consideration.” And after quoting the-statute, proceeds: “ The language is broad enough to include a case of partial as Avell as total Avant or failure of consideration, and I see no good reason Avhy the defendant should not be alloAved to recoupe damages upon a sealed as upofi m unsealed instrument, If the point has not' been directly adjudged, it has often been assumed that the statute had placed both classes of contracts on the same footing, and that in one case as avoII as the other the defendant might attack” the “ consideration, either in Avhole or in part,” — referring to the cases in 11th, 14th and 25 Wend., but making no allusion to the case in 15 Wend. ■ . .

      I have been referred by the plaintiff to several cases in the courts of Kentucky, where a statute authorizing the defense, of want or failure of consideration to be set up as a defense to a sealed instrument was enacted about, the year 1800, to show that a construction of the statute of that State had been given inconsistent with the defense set up in this action. As these cases bear upon the construction of a statute similar to our own, they will be briefly noticed.

      Thompson v. Buckctnnan (2 J. J. Marshall, 420), was an action on a bond for the support of an illegitimate child of the obligor given to a guardian. There was a plea denying that there was any consideration. The court held, that inasmuch as the statute authorized specialties to be impeached only so far as writings without seal, might have been impeached at common law, and that a writing without seal acknowledging a consideration could not, at common law, be impeached by parol testimony that there was no consideration, or one different from the one expressed, unless fraud or mistake was alleged and proved, hence the plea was not good. The case does not help the plaintiff in the least, but is rather an authority against him, as it proceeds upon the theory that both kinds of contract under the statute stand on the same footing.

      Allen v. Lueket (3 J. J. Marshall, 164), was an action on a bond given on granting an injunction. Plea denying injunction, etc. The court held precisely the same doctrine as in above case in .2 J. J. Marshall.
    In Wibble v. Oldham, (5 J. J. Marshall, 144), no reference is made to the statute.
    I think it impossible to resist the conclusion that, so far as relates to the consideration of sealed instruments, they are placed by our statute on the same footing as written instruments not under seal. The plaintiff, if he can ucceed at all, must then stand on the proposition that, when a written instrument, promising to pay money, recites a consideration, the want of consideration cannot ue shown.
    The numerous cases cited on his points upon this branch of the case, if they have any bearing on it, tend to show that if a written instrument recites a consideration, such recital cannot be contra-dieted. Do they establish such a proposition? A brief analysis of them will clearly show that they do not.

      Kuhn v. Stevens, 36 How. 275. Action for breach of a sealed •contract to deliver 7,000 cords of wood — defense that before breach of the contract a subsequent parol agreement was made that all of the wood lying on a certain farm should be delivered, and that the agreement should be cancelled as to the balance and the party bound be discharged from his obligation to deliver it— held that until after breach subsequent, parol agreement could not modify and discharge the contract under seal.

      Clough v. Murray, 3 Robt., 7. This case involved the question as to the acceptance of an agreement not under seal, in discharge of a prior agreement under seal, and has no reference to the question under consideration.

      McCrea v. Purmort, 16 Wend. 460. This case is cited as authority for the decisions in all or nearly all of the cases relied on by plaintiff on the particular question now under consideration, and seems to be relied on largely by plaintiff in this case. I will examine it therefore with some particularity. A bill in Chancery was filed, the particulars of which it is unnecessary to detail or refer to,further than to say that the chancellor received parol evidence to show that the consideration of a deed dated about the year 1819, delivered and acted under, which was in it recited to be $6,100, in hand paid, was not money but iron of a certain quantity, and estimated at a certain value (p. 465). Cowen, J., delivered the opinion of the Court of Errors, and admitted that there was a conflict of authority upon the point greater than he had supposed (p. 465).
    The plaintiff is' greatly mistaken in supposing that this case defined the effect of the statute upon the rule of estoppel. Neither in the opinion of the Court of Errors, nor in the brief of counsel, nor in the opinion of the chancellor, in 5 Paige, 620, where the case was first reported, is any reference made to this statute. The deed was executed long prior to its passage, which it was net claimed even by counsel could affect the case.
    The only question discussed upon this point, or -which was involved in the case, was whether a different consideration from that expressed in the deed, could properly be proved by parol, and the effort of Judge Co wen was directed solely to this question. He established the doctrine beyond a. doubt, that upon common law principles and upon the authority of cases decided in this and other States and in England, long before ..the statute was passed, the consideration expressed in a deed might be disproved and another and different consideration shown. No question under the facts stated could possibly have been before the court, as to the rule with respect to proof of want or failure of consideration in executory agreements — so that whatever expressions were made by the learned judge as to cases in which want of consideration could not be shown, or the effect of such proof in cases different from that before the court were merely obiter. But the expressions quoted by plaintiff from the opinion, when read in connection with the facts of that case, throw no light whatever upon the question which I am considering. There was no question before the court whether proving another or different consideration would affect the validity of the deed.
    In Commercial Bank of Lake Erie v. Norton, (1 Hill, 501), the ■action was on an acceptance of a bill of exchange. The case does not show that any objection was made at the trial to the proof of want of consideration. The only question made upon this branch ■of the case was as to whether there was proof enough to sufficiently negative the presumption of consideration. The court held that there was not. It did not appear even that the bill contained the words, “ value received.”
    The remarks of Judge Cowen, in his opinion at page 509, on this point, are entirely obiter, and besides a reference to the cases, which he cites, will show that no such doctrine as he quotes them to sustain, is even hinted at. For instance, he says that in the case of liidout v. Bristow, in Exchequer R. (1 Cromp & Jervis, 231), it was held that the words “value received” could not be met and overcome by parol. The case referred to does not so decide, but the contrary is assumed throughout by counsel and court. No question did or could arise, under the facts stated in that case, whether it was competent to show want of consideration for a promissory note, reciting that it wa.s for “ value received.” The action was to recover on a promissory note made by a widow, x-eciting “ for valxxe received by my.lato husband.” The plaintiff himself gave evidence to show consideration, by proving that the testator of plaintiff incurred liabilities for his son (the husband of defendant). The defendant proved that plaintiff’s testator admitted that his son died worse than nothing, for he owed him several hundred pounds. The evidence was left to the jury, and there was a verdict for the plaintiff. No objection to testimony was made. Neither counsel raised the point that want of consideration for a promissory note could not be shown, and no such proposition was-stated in either of the opinions of the court. Indeed, Bailey, B.;. said (p. 235): “You may prove failure, or want, or illegality of consideration, but I am not aware of any case in which a party has been allowed to prove a difference of consideration. But it is not necessary to decide that point in this case, because, upon the evidence, it appeared that various sums had been paid, which the evidence for the defendant, if admissible, did not disprove.”
    The case of Woodbridge v. Spooner (3 Barn. & Aid., 233), cited by Judge Cowen, is equally far from sustaining the proposition in favor of which it is quoted, and could never have been examined by the judge, or it would not have been cited by him. The question was whether parol proof was competent to show that it was agreed at the time of making a note, payable on demand, that it should not be payable until after the death of the maker. This is the entire head note of the case, and a careful reading of the case shows that this was the real point determined. The note purported to be “ for value received and kindness h> me.” Abbott, Ch. J., before whom the cause was tried, said: “ There is no doubt that a proper and sufficient consideration existed for this note, and the evidence does not negative that part of the case. But its object was to show that a promissory note which in terms appeared to have been payable on demand was .agreed not to be payable until after the decease of the maker.”
    Holkoyd, J., said: “This evidence ivas adduced not to show a want of consideration, or that the consideration for the note was illegal, or that it was not delivered to the party, to be made use of for his own benefit. The utmost extent to which it could go was an attempt to prove that the note was not payable, as on the face of it, it imported to be.”

      Averíll v. Loucks (6 Barb., 19). This was a motion to compel the owner of a judgment entered on a bond and warrant of attorney to enter a satisfaction, etc. Affidavits were offered to show that the bond and warrant of attorney, although absolute on their face, were in fact given-to secure the persou to whom they were given for past and future indorsements. The court held that parol evidence was admissible for such purpose, and in the course of the opinion, Paige, J., made the remark quoted in the plaintiff’s points, with reference to the decision in McCrea v. Purmart (16 Wend., 460). It was no part of the object or duty of the court in making this decision to inquire as to what cases would .not come within the rule allowing parol evidence to vary or contradict the consideration clause in a written instrument, only as to those which would, and it was enough to answer the purposes of that case that previous decisions warranted the introduction of parol proof to prove the object of the bond and warrant of attorney, and the remarks quoted were incidental and had no direct bearing on the case.

      Itosboro v. Peck, (48 Barb., 92). The same remarks which I have made with reference to the last case will apply to this.

      Belamater v. Bush, (63 Barb., 168). The action was brought upon a covenant to pay $450 for rent of stone quarry. The report of the facts is extremely meagre, the opinion simply stating that “ Evidence was admitted against objection and exception, that the sum to be paid was $250, and not $450, as mentioned in the agreement, and the court say, “ While in deeds and other instruments, you may tor certain purposes, prove the consideration to be different from that expressed, it is not admissible to contradict an agreement or covenant to pay a certain sum.” That this case does not come within the principles applicable to cases of want or failure of consideration, is evident from the brief statement of facts, and also that it was not so understood is evident from the further statement hi the opinion. “ So, too, that previous oral negotiations .are merged in the writing, is a reason why such proof should not be admitted.”

      Barker v. Bradley, (42 N. Y., 316). The same remarks apply as to the above cases of Avenll v. Loucks, and Itosboro v. Peck.

      Cocks v. Baker, (49 N. Y., 107). The referee admitted parol .evidence offered on behalf of defendant to prove a different consideration from that mentioned in the recitals m the bond, but nevertheless reported in favor of the plaintiff, and the Court of Appeals said in the opinion at p. 110, “ The defendants were-allowed to give in evidence all that passed between the parties-on that subject, and it was clearly insufficient to prove that the bond was given upon any other or different consideration than that expressed in the recital.” It is therefore apparent that the question as to the admission of parol evidence to prove a different consideration from that recited in the bond, was not before the court for review. In the next place, as the precise character of the parol evidence offered in this respect is not stated, I infer from the cases referred to by Judge Allen, as authority, (Renard v.. Sampscm, 2 Kern., 561, and Holliday v. Hart, 30 N. Y., 474)) that the question raised was as to the merging of prior parol agreements and negotiations in the written agreement or bond. It is clear that the court did not intend to lay down any rule of law affecting proof of want or failure of consideration of written instruments.

      Bucldin v. Bucldin (1 Keyes, 141). This was an action to foreclose a mortgage made to a trustee for the benefit of plaintiff, then an infant— it was held to be a voluntary executed gift — no proof was offered or attempted, so far as the case shows, to show anything with reference to the pecuniary consideration of one dollar mentioned in the mortgage, as to whether it had or had not been paid. The court held that “ though nominal, it is as adequate to waive” (“raise,” probably,) a use as though it were the full value of the land.” And the remark with reference to it which follows, (p. 146,) and which plaintiff has cited on his brief, “ and although it may not have been paid, the defendant is estopped by his deed from denying its payment,” was entirely unnecessary — not applicable to any facts in the case or points raised.
    The only remaining case to which I shall refer is that of Isenhdrt v. Brawn, (2 Edwards Ch., p. 341). The broad doctrine is-laid down in this case that voluntary bonds given by the testator will be operative against the estate and preferred to legacies. In the first place, the bonds in question in that case were given in the year 1820, and being before the statute, could not probably have been affected by it. In the second place, no question upon this statute was made •— no discussion of the right to inquire into the consideration of the bonds. In the third place, it is evident that the bonds were contested mainly, if not entirely, on the ground of incapacity of the testator and fraud and improper influence in obtaining them. It does not appear that the point was raised by counsel that the bonds being voluntary were not good. The vice chancellor assumes that they were, without discussion upon this point, referring to two or three of the older English cases.
    Having thus examined all the cases in this State, cited by plaintiff, (and if I am right in my construction of them), found none in which it has been held that in an action upon an executory contract under seal made since the enactment of the statute in question, want of consideration cannot be proved, the only remaining proposition which remains to be stated is, that consideration of a promissory note is presumed, whether a valuable consideration is dr is not expressed on the note. (Chitty on Bills [9 Am. ed.], 78; Story on Promissory Notes, § 51.)
    That such want of consideration may be proved, whether the note contains the words “ value received ” or not. (Story on Promissory Notes; Chitty on Bills, p. 70; Holliday v. Atkinson, 5 Barn. & Cress., 501; Hill v. Buckminster, 5 Pick. [Mass.], 390; Fosters. Jolly, 1 Crompton, Meeson & Roscoe [Exchq. R.], 703; Abbott v. Hendricks, 1 Manning & Granger, 791; Sawyer v. Chambers, 44 Barb., 42; Bookstaver v. Jayne, 60 N. Y., 146.)
    Third. I will consider briefly the proposition of plaintiff that the notes in question can be upheld on the ground that the promise of the trustee to accept and execute the trusts contained in them, was a good consideration for the promise to pay the money contained in them.
    1. There is no promise on the part of the trustee mentioned in the notes, or any of them, to accept the trusts.
    ' 2. If there had been it would not have aided the plaintiff. I have not been referred to any authority, and I do not know of any, or of any principle upon which it can be claimed that a voluntary promise to pay money to one person for the benefit or use of another, is of any different character than that of a promise to pay ■ made directly to such person. It is unnecessary to cite authorities at length to disprove this proposition, as none have been cited to sustain it. I will only refer to the case of Colyear v. The Countess of Mulgrave, (2 Keese [Eng. Ch. R.], 82); Stewart v. The Trustees of Hamilton College, (2 Denio, 403); Trustees, etc., v. Stewart, (1 Cornst., 581).
    In conclusion, I intend to decide these distinct legal propositions:
    1st. That the instruments in question are specialties.
    2d. That a consideration is equally necessary to support a sealed as an unsealed instrument.
    3d. That at common law a seal imported a consideration, which was conclusive in an action at law.
    4th. That the want of consideration might, at common law, be shown to defeat a recovery on all executory instruments not under seal, whatever might be the recitals contained therein.
    5th. That sealed executory instruments, under the statutes of this State, are placed in this respect on the same footing as those not under seal, and that want or failure of consideration may be shown in all cases in the former as well as in the latter class of instruments, in the same manner, to the same extent, and with like effect.
    CALVIN FROST, Referee.

      E A. Brewster, for the appellant.
    A consideration was affirmatively shown in the trustees’ promise to accept and execute these trusts. (Briggsy. Tillotson, 8 John., 304; 46 N. Y., 460; Houghtáling v. Ronden, 25 Barb., 21; Steioart v. The Trustees, die., 2 Denio, 410; Chitty on Contracts, page 31.) Even if there was no consideration, and if that fact had been proved, these insti u ments would still be valid, as voluntary bonds, (Toller on Executors, Index “ Bonds, Voluntary”; Williams on Executors, Index “ Bonds, Voluntary ”; Isenhart v. Brawn, 2 Edwards’ Chau., 341; Redfield on Surrogate’s Courts, p. 286; McClellan’s Probate Practice, pp. 246-7; Walker v. Walker, 8 Iredell’s Law Rep., 336; 1 Dessau, 332; 27 Penn., 119; Sherk v. Endress, 3 Watts & S., 256). A bond is in itself a gift, in law, of the money. (Harder, 200-1; 1 Equity Cases, Abridged, 84; Gilbert’s Equity Rep., 154; 3 Bur., 1639; 7 Term Rep., 471; Comyn’s Dig. Fait B.. 4, b. note c.; Nottbeck■ v. WiUes, 4 Abb. Prac., 318; Mannv. Eckford's Execu

      tors, 15 Wend., 521; Made's Appeal, 68, Penn., 231). A party is estopped from denying the consideration of a contract under seal, which expresses a consideration. (Commercial Bank v. Norton, 1 Hill, 509; Averill v. Loucks, 6 Barb., 19; Bosboro v. Peck, 48 id., 92-95; Belamater v. Bush, 63 id., 168; Barker v. Bradley, 42 N. Y., 316, 320; Codes v. Barker, 49 N. Y., 110; Bucklin v. Bucklin, 1 Keyes, 146). This distinction is also illustrated by the decisions as to sealed receipts. (In England, see •Smith on Contracts, § 16; in Maryland, see State ex rel. Barnard v. Gott, 44 Md., 341; in Delaware, see State v. Meeside, 1 Hous., 347, and in Illinois, see 111. Cent. R. R. v. Welsh, 52 111., 183; Tribble v. Oldham, 5 J. J. Marshall, 144; Allen v. Luckett, 3 id.,. 166; Thompson v. Buckannon, 2 id., 420; Guard v. Bradley, 7 Ind., 600; Siviftv. Hawkins, 1 Dal., 17; Steinhauer v. Whitman, Admnstr., dec., 1 Sarg. & E.., 443; Hopkins v. The JR. R. Co., 3 Watts & S., 410; Purkholder v. Plank, 69 Penn., 225). In Newell v. Newell, 34 Miss., 385, the statement under seal that the subject of a gift had.been delivered, was held to estop the donor from denying such delivery. In Nutting v. Hurbert, 35 N. H., 264, it was held in an action on the covenants in a deed, that want of consideration would not entirely defeat a recovery.

      Cassecly d? Brown, for the respondents.
   Gilbert, J.:

The referee has discussed the questions presented in this case with so much learning and ability, that a brief expression of our own views will suffice. 1. No cause of action arises from a bare agreement, with or without seal. A consideration of some sort is necessary to the forming of a contract. 2. The instruments sued on are promissory notes (1 R. S., 768, § 1). The affixing the seals to them did not alter their legal effect. If no seals had been affixed to them, they would have imported a consideration, and evidence of a want of consideration would have been just as essential to preclude a recovery upon them, as it is to defeat this action (2 Kent. Com., 584). 3. At common law there was a conclusive presumption that all contracts under seal, whether in the form of promissory notes or: otherwise, were made upon a good and sufficient consideration; but that rule has been abrogated by the Revised Statutes, which provide that "in every action upon a sealed instrument, etc., the seal thereof shall only be presumptive evidence of a sufficient consideration, which may be rebutted in the same manner, and to the same extent, as if such instrument were not sealed.” (2 R. S., 406, § 77.) This language is too plain for dispute as to its meaning. Accordingly it has been uniformly held that the effect of that statute was to obliterate the former distinction on the point here involved, between a note with, and one without a.seal. (Case v. Boughton, 11 Wend., 109; Johnson v. Miln, 14 id., 199; Tallmadge v. Wallis, 25 id., 113; Craver v. Wilson, 14 Abb. [N. S.], 374; Home Ins. Co. v. Watson, 59 N. Y., 395.) 4. The evidence showed very satisfactorily that there was a total want of consideration for the notes. They purported on their face to have been given, not as evidence of any debt due to the payee, but for the purpose of enabling the payee to collect the amount thereof after the death of the maker, for the benefit of other persons named therein. The payee is the plaintiff; and he testified that he gave no consideration, and that he had no knowledge of - any consideration having been given for the notes. Like testimony was given by the beneficiaries named in the notes. Surely that testimony was sufficient to rebut the presumption of consideration, and to shift upon the plaintiff the burden of proving a consideration. The plaintiff asserts that the notes were given upon a valuable consideration, and proves the allegation by a legal presumption. The defendant asserts that the notes were given without consideration, and proves that the plaintiff gave nothing for them. According to the natural and usual course of busmess, if any consideration was given for the notes, it must have proceeded from the plaintiff. But it may have proceeded from some one else, and if it did, the plaintiff, and not the defendant must be presumed to know from whom it did proceed. In Rex v. Turner (5 Maule & Sel., 206-211), Bayley, J., remarked: “ I have always understood it to be a general mle that if a negative averment be made by one party which is peculiarly within the knowledge of the other, the party within whose knowledge it lies, and who asserts the affirmative, is to prove it, and not he who avers the negative.” And in Elkin v. Jansen (13 M. & W., 655-662), Alderson, B., on these remarks being quoted, said: “ they are right as to the weight of the evidence, but there should be some evidence to start it, m order to .cast the onus on the other side.” The fact that no person gave consideration for the notes, is not one that is susceptible of direct proof. If proved at all, it must be by means of circumstances or admissions, from which the fact is a necessary or reasonable inference. To reject such proof would put on the defendants the burden of proving an impossible negative. In Sawyer v. Warner (15 Barb., 285), this court held that a defendant may overcome a presumption arising from the plaintiff’s proof by proving facts inducing a contraiy presumption. (See, also, 1 Gr. Ev., § 79.) Such a rule is in accordance with general principles of frequent application in civil and criminal cases, and, in many instances, has been found to be indispensable to the attainment of justice. We think it should be applied in this case.

The result is that it became a question of fact for the referee to decide, whether the notes were given with or without consideration. We think that he correctly decided it in favor of the defendants.

The judgment is, therefore, affirmed with costs.

Barnard, P. J., and Dykman, J., concurred.

Judgment affirmed with costs.


source: Caselaw Access Project

author: Gilbert, J.:

license: Public Domain

text:
    THE WATERS’ PATENT HEATER COMPANY, Respondent, v. LEWIS TOMPKINS, Appellant.

      Contract of sale or return — what constitutes a sufficient offer to return, under — Agency.

    The defendant, a manufacturer at Fishkill Landing, purchased of the plaintiff,, of Meriden, Conn., a heater, agreeing to pay therefor, sixty days after its receipt, by his note at six months, unless the heater should fail to work in such manner as it had been represented that it would, in which case defendant was to be at liberty to return the heater at the end of the sixty days. On the trial of an action, broug-ht for the purchase price, evidence was given tending to show that one -Whitehill, of Newburgh, was an agent of the plaintiff, and that defendant had been directed to go to him for any thing pertaining to the heater; that the heater would not work, and was practically useless; that, within the sixty days, the defendant pointed out the defects to Whitehill, and offered to return it ; that the latter told him he had better keep it; that he thought the defects could be remedied. Nothing was ever done to correct the. defects, nor was any other reply given to defendant’s offer to return. Upon the trial, a verdict was directed for the plaintiff.

      Held, that this was error; that the case should either have been submitted to the jury, with instructions that, if W. had authority to receive the heater or accept defendant’s offer to return it, the latter had done all that he was required to do, and that plaintiff was not entitled to recover, or else the court should have held that Whitehill, had such authority, and have directed a verdict for the defendant.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court.
    The action was brought to recover the price of a heater, claimed to have been purchased of the plaintiff by the defendant.

      Milton A. Fowler and Hornet' A. Nelson, for the appellant.

      Richard II. Huntley, for the respondent.
   Gilbert, J.:

The sale in this case belongs to a class of sales on condition, •often called “ contracts of sale or return.'’ In these, says Mr. Parsons (1 Parsons’ Cont., Bk. 3, chap. 4, § 6, 5th Ed., p. 539), “The property in the goods passes to the purchaser, subject to an option in, him to return them within a fixed time, or a reasonable time, and if he fails to exercise this option by so returning them, the sale becomes absolute, and the price of the goods may be recovered in an action for goods sold and delivered.” The defendant, who is a manufacturer of hats, at Fishkill Landing, ordered from the plaintiffs, who are manufacturers of heaters, at West Meriden, in Connecticut, a heater for use in the defendant’s factory. The defendant agreed to pay the plaintiff $410 for the heater in sixty days from the receipt thereof, in his note at six months, unless the heater should fail to work as represented in a circular or prospectus of the plaintiff, in which case the defendant reserved the right to return the heater at the end of said sixty days. That is a written contract, plainly expressed. As the defendant did not return the heater within the time fixed by the contract, he is liable for the price, unless the obligation to return it within that time has been discharged. (Moss v. Sweet, 16 Q. B., 493; Benj. on Sales, 442; 1 Chit. Cont. [11th Am. Ed.], 618.)

The judge at the Circuit directed a verdict for the plaintiff on the ground that a breach of warranty had not been shown. I do not perceive that any question of a breach of warranty was presented by the facts of the case. If the contract had contained a warranty perhaps the defendant might have resisted a demand for payment of the price of the heater, without returning or offering to return it, on the ground of a breach of the warranty. (Douglas Axe M. Co. v. Gardner, 10 Cush., 88.) But a parol warranty cannot be interpolated into a written contract. (Mumford et al. v. McPherson et al., 1 J. R., 414; Wilson v. Marsh, id., 503; Van Nostrand v. Reed, 1 Wend., 424, 432; 1 Chit. Cont. [11th Am.Ed.], 637.) The true inquiry is whether the defendant returned the heater, or did that which was binding on the plaintiff as an equivalent for a return thereof. Evidence was given, on the part of the defendant, that Mr. Whitehill, of Newburgh, was the plaintiff’s agent for matters pertaining to the heaters which the plaintiff vended, and that the defendant was told'that, if he wanted anything pertaining to the heater in controversy, to go to Mr. Whitehill. It was undisputed on the trial that such heater would not work; that it was practically useless in the defendant’s business; that, within sixty days after the defendant received the heater, he mentioned the defects in it to Mr. Whitehill, and offered to return it; that Mr. Whitehill told him he had better keep it; that he (Whitehill) would- see Mr. Wilcox, the plaintiff’s president, and that he thought the defects might be remedied. The inference certainly is a reasonable one, that if that request had not been made the defendant would have taken the steps necessary to effect a return of the heater. It further appears that no attempt to remedy the defects in the heater was made, and that no other reply was ever given to the defendant’s offer to return it.

This testimony, although uncontradicted, may be open to criticism; but it was competent, and it was the province of the jury to determine its effect. Again, how was the heater to be returned ? Was the defendant to send it back to Meriden by a ■carrier, or would a delivery of it to Mr. Whitehill have accomplished that purpose ? If Mr. Whitehill had authority to receive the heater, or to accept the defendant’s offer to return it, his. request that the defendant should keep the heater until an effort could be made to remedy its defects, superseded the necessity of making a formal delivery of it back to the plaintiff in any manner until such effort should have been made. At least it extended the time for the exercise of the defendant’s privilege, if it did not discharge it altogether; for a party cannot take advantage of an act or omission of the other party which was caused by the former.

I think the testimony referred to should have been submitted to the jury with instructions, that if Mr. Whitehill had the authority which has been suggested, the defendant’s offer to return the heater under the circumstances disentitled the plaintiff to recover, or else the court should have held, as matter of law, that Mr. Whitehill had such authority, and directed a verdict for the defendant.

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

Dykman, J., concurred; Barnard, P. J., not sitting.

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


author: Barnard, P. J.

text:
    ISAAC S. WATERS, Respondent, v. EMELINE SHEPHERD, Appellant.

      Referee — notice by, to one party that report was ready — if within the sixty days time for making report, other party cannot therefter elect to end reference though the report is left in the referee's hands— Code of Procedure, § 273.
    Appeal from an order adjudging the report of a referee herein to have been regularly filed, and the judgment entered thereon to be regular.
    This action was tried before a referee. The case was submitted for final determination on the 14th of February, 1877. On the 26th of February, 1877, the referee made his report in favor of the plaintiff for $218.31. On the same day, the referee gave written notice to the attorneys for the plaintiff and the defendant that the report was ready for delivery, and that it was in favor of the plaintiff for $218.31. The report lay in the hands of the referee until May 2d, 1877, when the defendant served a notice in writing upon the referee and plaintiff’s attorney that she elected to end the reference. In September, 1877, the plaintiff’s attorney took the report from the referee and entered judgment upon it. Upon a motion made by plaintiff, the court at Special Term ordered the judgment to stand as regularly made.
    Upon an appeal from this order, the court at General Term said: “ This order docs not seem to conflict with the decision of .the Court of Appeals in Gregory v. Oryder (10 Abb. N. S., 289). Section 273 of the Code then in force required the referee to make and deliver his report, ■ within sixty days from the time the action was finally submitted. In Gregory v. Cryder, the Court of Appeals decided that; when a referee failed to make and deliver his report within sixty days, he lost all right to make or deliver the same after that time. In this case, it was made and delivered within the time. It was made, and the parties notified of its-terms, and tnat it could be obtained on application from him. What more should the referee do to entitle himself to receive his fees? Neither party asked for it, or objected that it should remain in the referee’s hands for them until called for. Either party could have taken up the same at any time. It was a completed thing, and beyond the power of the referee to withhold or change-it after the service of the notice. I think the order should be-affirmed, with costs and disbursements.

      O. W. Sandford, for the appellant.

      John Berry, for the respondent.
   Opinion by

Barnard, P. J.

Present — Barnard, P. J., and Dykman, J.; Gilbert, J., not sitting.

Order affirmed, with $10 costs and disbursements.


author: Dykman, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM H. RAY, Appellant, v. WILLIAM BURRILL, Comptroller of the city of Brooklyn, Respondent.

      President of Board of Aldermen in Broooklyn — acting as mayor in the latter’s absence — nut entitled to additional compensation therefor.

    Appeal from an order denying a motion for a mandamus.
    The relator is an alderman of the city of Brooklyn and presi-' dent of the board. By the amended charter of the city the duties-of mayor are devolved upon the president of the board of aldermen, ■whenever that officer is prevented from attending to them himself. During the months of June, July and August-, 1877, the mayor of the city ivas absent for several days, and the relator performed the duties of his office, and now wants a mandamus from the court to compel the city comptroller to pay him for his services while so acting at the rate of $7,500 a year.
    The court at General Term said': “ In our view of the case there is neither principle nor authority for the claim. The salary of the relator as president of the board of aldermen is $2,500 a year. Pie accepted the position in full view of all the duties and responsibilities which it imposed upon him, and he knew that he was liable to be called on to perform the duties of mayor, and that when so called on the law required his compliance. His salary was fixed with reference to all this, and the amount named was intended as full compensation for all his services. The statute gives no extra compensation to the - relator, and for the court to award it in the absence of any such provision would be entirely without precedent so far as our research has extended.”
    The order appealed from should be affirmed with costs.

      Jesse Johnson, for the relator.

      D. JP. Barnard, for the respondent.
   Opinion by

Dykman, J.

Present — Barnard, P. J., and Dykman, J. Gilbert, J., not sitting.

Order affirmed with $10 costs and disbursements.


author: Barnard, P. J.,

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM D. BURBANK and others, as Trustees, etc., v. JAMES R. ROBINSON, Treasurer of Richmond County.

      Payment, out of money raised for contingent expenses of county, of uncollected school taxes against non-residents — 1S64, chap. 555, title 7, § 75 — amended by chap. 647, of 1865 — law cannot be executed.

    Appeal from a judgment for costs, entered against relators iñ a proceeding for a peremptory mandamus to compel the Treasurer of Richmond County to pay to the Relators, Trustees of School District No. 1, of the town of Middletown, in said county, the amount of three certain lists of non-resident taxes against lands in said district unpaid, and from an order denying a motion for a new trial.
    By section 75 of Title 7 of chapter 555, Laws of 1864, as amended by'chapter 647 of Laws of 1865, certain uncollected school taxes are required to be returned by the district collector to the trustees of the district. The trustees, by section 76 of the same law, are required to transmit the officer’s return with a certificate of their own to the correctness of the same to the treasurer of the county. The treasurer is by section 77, directed to pay the amount of the uncollected tax “ out of any moneys in the county treasury raised for contingent expenses.” By subsequent sections of the law the treasurer is directed to lay the officer’s return and the trustees certificate before the board of supervisors, “ who shall cause the amount of such unpaid taxes to be relevied to reimburse the amount so advanced.”
    Under the provision of this act, there was returned in District No. 1, Middletown, Richmond county, a list of unpaid school taxes in the year 1874, for $345.84. There were so returned for 1875, $429.67, and for 1876, unpaid taxes amounting to $608.41. The lists were properly, in each year, transmitted with the proper certificate to the county treasurer of the county, who neither paid the claim nor delivered the lists to the board of supervisors. The county treasurer during these years was Hugh McRoberts. McRoberts ceased to be treasurer of Richmond county hi January, 1877, and the defendant was elected to fill his place. Soon after Robinson entered upon the duties of the office his attention was -called to the lists and payment then asked from him. He then had no money. Afterwards he received money raised for contingent expenses and has paid it all out, and there is a deficiency of $5,000 or $6,000 to be made up before the creditors of the county can be paid. After the expenditure of the moneys called “ contingent expenses ” by the defendant he, as treasuerr, made legal warrants to the several claimants for the amounts due to them.. The trustees seek, by these proceedings, to compel payment of the three lists of unpaid taxes above stated by mandamus.
    The court at General Term said: “ In this particular case the evidence shows no money of any description in the treasury. As county treasurers are to receive the public money and pay the same out ‘ in the manner required by law,’ and as the proof shows this to have been done, leaving debts against the county yet unpaid, no case for a mandamus is made out.”
    I am unable to perceive how the law can ever be executed under the present state of legislation. Boards of supervisors are bodies of limited powers. “ Contingent expenses necessarily incurred for the use and benefit of the county ” may be paid as county charges. These expenses may be raised in advance (1 R. S. 359), that is, the supervisors determine what sum is needed to meet a certain class of expenses to be necessarily incurred for the use and benefit of the county. The legislators by the law in question take a portion of this fund, representing certain county creditors, and divert it to pay uncollected district-school taxes. No power is given to the supervisors to raise the money in .advance to do this, and thus the State Legislature seems to order money out of the county treasury, which is not there. One of two things must result from this state of things, either the boards of supervisors must illegally increase the sum raised for necessary ■expenses so as to include unpaid school taxes or the creditor for vrhom the “ contingent expenses” are raised must go without his debt until the county is “ reimbursed ” by a new tax levy. I think the county creditor is entitled to be paid out of this contingent expressed portion of the general tax levy, before this uncollected school tax, and that the treasurer is not bound to pay out money under this law raised for other purposes. The county cannot pay because it has not been empowered to raise the money. The supervisors cannot lay the tax on the uncollected list without payment. The law cannot in this respect be legally executed.
    The judgment should he affirmed with costs.

      George P. Avery. for the relator.

      Theodore C. Vermilye, for the defendant.
   Opinion by

Barnard, P. J.,

Gilbert, J., concurred; Dykman, J., not sitting.

Judgment affirmed with costs.


author: Per Curiam:

text:
    LAWRENCE G. RENO, Appellant, v. LEWIS MILLSPAUGH, Respondent.

      Justice's Court — Appeal to County Cmm't — Amendments to pleadings in County Court — what- cannot be allowed— Code, § 366, sub. 5.
    Under subdivision 5 of section 366 of the old Code, authorizing the County-Court to allow either party to amend his pleadings upon such terms as shall be just, in cases where a new trial may be had in that court, the court cannot allow an answer, interposed in the Justice’s Court, consisting of a general denial, to be amended by inserting therein new and affirmative defenses, such as payment, set-off or counterclaim.

      Semble, that no amendments should be allowed which will entirely change the issues in the court below, but only such as will enable the parties fully and fairly to try such issues.
    Appeal from an order of the County Court of Schuyler county allowing defendant to amend his answer.
    This action was commenced before a justice of the peace. The complaint demanded judgment for sixty dollars. The answer in that court was a general denial, and the case was adjourned for trial. The defendant was not present at the trial, nor did any one represent him there, and judgment was taken against him by default. The defendant appealed to the County Court, and moved that court, on affidavits and due notice, for leave to amend his answer. The County Court granted the motion, and ordered that the proposed answer stand as the amended answer in the case.
    The amended answer consisted of a general denial, a plea of payment, and of a set-off or counterclaim.

      M. M. Mead, for the appellant.

      W. L. Morton, for the respondent.
   Per Curiam:

The law seems to give to defendant on appeal in cases like this a new trial if desired in the County Court. But we do not think it was intended that the issues joined in the court below should be affected by the introduction of entirely new and affirmative defenses. Such a power would work very great injustice to the plaintiff in many cases, by reason of the provisions under which he might be charged with the costs in the.event of the recovery being-reduced.

We think, tnerefore, that the power to amend was not intended to be so exercised as to allow an entire change of the issues joined in the court below, but only to allow such changes of the pleadings as to enable the parties fully and fairly to try such issues.

If, however, we are in error on this point we still think the allowance of such radical amendments, as the introduction for the-first time in the County Court of new and affirmative defenses, such as payment, set-off and counterclaim, would not be just and proper, and ought -not in any case to be allowed. The consequences of such a practice would be mischievous in the extreme, and would render the bringing actions injustices’ courts a dangerous and often a serious experiment on the part of the plaintiff. The granting of a new trial in the Comity Court is bad enough-in itself. But if the issue joined in the justice’s court may be wholly changed by the introduction of other and new defenses, the plaintiff’s condition would become intolerable and great wrongs be perpetrated under the forms of law.

The order of the County Court appealed from should be reversed with $10 costs and printing disbursements, and the motion to amend denied.

Present — Learned, P. J., Boardman and Tappan, JJ.

Order reversed with $10 costs and printing disbursements, and motion denied.


author: Bocees, J.:

text:
      J. PHILIP WEYER and MARY WALZER, Respondents v. WILLIAM BEACH, Impleaded, etc., Appellant.

      Mechanic's lien‘— action to foreclose by sub-contractor — Apersona! judgment based on agreement of owner to pay contractors debts cannot be recovered in — >Statute of frauds.

    The defendant Beach entered into a contract with S. & B. by whicn the latter agreed to erect a house for the former; the contract reserving the right to Beach to retain moneys due to the contractors to pay for materials used by them. The plaintiffs entered into a contract with S. & B. to furnish brick, and delivered a portion of the brick thereunder. One of the plaintiffs testified that subsequently, doubting the solvency of the contractors he called upon defendant who agreed that if he (plaintiff) would keep him posted as to the amount due from S. & B. he (defendant) would keep back money enough to pay him; that he would “ see him through.” In this action brought to foreclose a mechanic’s lien, the referee found that at the time of the filing of the lien nothing was due to S. & B., and nothing had been paid to them by the defendant with intent to avoid the lien law; and gave a personal judgment against the owner upon his alleged agreement with the plaintiffs.

      Held, that as it appeared from the facts found by the referee that the plaintiffs acquired no lien upon the property by filing their notices of claim, they could not in an action to foreclose their alleged lien recover a personal judgment against the owner upon a separate and independent contract.
    That in any event the alleged contract made by defendant and the plaintiff being a parol one, to answer for the debt of another, was void by the statute of frauds.
    Appeal from a judgment in favor of tbe plaintiff entered upon the report of a referee. The action was brought under the General lien law of this State, to enforce a lien claimed by the plaintiffs to have been perfected by them against the property of the' defendant Beach. Stone and Bassett had agreed to erect a build-in o; for Beach, and plaintiffs had furnished brick to the said contractors, for which they had not been paid. The notice by which the action was commenced alleged, among other things :
    “That, before the delivery of the said brick, it was agreed by and between the said William Beach and the said Weyer & Walzer that, in case the said Weyer & Walzer should sell and deliver to the said Stone & Bassett the said brick for the said building, and notify him (the said Beach) of any amount the said Stone & Bassett should fail to pay to said Weyer & Walzer, when it might occur that said Stone & Bassett failed thus to pay, he (the said Beach) would retain in his hands enough of the moneys which might be owing from him to said Stone & Bassett, and apply and devote the same to the payment of such amount; and, upon the failure of said Stone & Bassett to pay the sum aforesaid, they (the said Weyer & Walzer) notified said Beach of said failure.
    That, as they are informed and believe, there was then, at the time of his being so notified, enough in his hands to pay said sum, owing by said Beach to said Stone & Bassett upon the contract for the erection of said building, but he (said Beach) has neglected to pay said sum to said Weyer & Walzer, though requested so to do.”
    The referee held that the lien of the plaintiffs was invalid and ineffectual under the facts shown, but decided that the plaintiffs, upon their case as alleged and proved, were entitled to a personal judgment against Beach, which the report directed, and from the judgment accordingly entered the defendant Beach has brought this appeal.
    The plaintiffs have also appealed from that part of the judg. ment which decides that their lien is invalid and ineffectual.

      David B. Hill, for the appellant.

      Hart & McGuire, for the respondents.
   Bocees, J.:

It was proved and found by the referee that there was nothing due from Beach, the owner, to the contractors Stone & Bassett, on the building contract between those parties, when the plaintiffs filed their notice of lien; and nothing accrued to the contractors thereafter from the owner; nor is there any sufficient evidence to sustain the plaintiffs’ claim that Beach, the owner, paid “any money or other valuable tiling on such contract by collusion for the purpose of avoiding or with intent to avoid the provisions ” of the lien law. (3 R. S. 791, § 3, 6th ed.) The conclusion of the referee, therefore, that the plaintiffs acquired no lien upon the property of Beach, the owner, by the filing of their notice of lien was entirely correct. It should be here remarked that the lien was not sought to be established on the ground that the plaintiffs had furnished materials (brick) directly to Beach, the owner; for the notice by which the action or proceeding was commenced, and which takes the place of a complaint in pleading, states that the plaintiffs furnished the brick to Stone & Bassett, the contractors, at their request. It follows that the plaintiffs’ appeal in this case has no support either in law or fact. And it is difficult to see why the findings of the referee, to wit: That there was nothing due from Beach, the owner, on the building contract; and that he had paid nothing thereon collusively or in fraud of the lien-law, did not end all rights which the plaintiffs, who claimed for materials furnished Stone & Bassett, could enforce as against Beach, the owner, under the statutory proceeding taken by them. (Crane v. Genin, 60 N. Y., 127; Cheney v. The Troy H. Association, 65 N. Y., 282; Thompson v. Yates, 28 How. 142.) The proceeding to foreclose a lien under the provisions of the law known as the mechanic’s lien law, is purely statutory. It has no foundation in the common law. So it has been well said that it can be used for no other purpose than such as the statute contemplates. It would be inharmonious as well as unauthorized to join a claim on a promissory note, or other independent right of action, with a claim enforceable under the provisions of this law.

Grover, J., says in Dowdney v. McCullom (59 N. Y., 367), "The proceeding is entirely statutory, and the court can exercise no power except such as is conferred by the statute. That confers power only to determine the amount due the lienors, the priority of their respective liens, to order the sale of the property subject to the liens, and distribute the proceeds according to the rights of the parties, and to give a personal judgment in the proper case against the parties liable to pay the amount found due, and issue execution against such parties for its collection." Unquestionably, a personal judgment may be rendered in some cases in proceedings under this law. The statute so provides, so it was held in Glacius v. Black (67 N. Y., 563), and a personal judgment was held proper in favor of the contractor against the owner when the lien had been lost by lapse of time. In this case the lien existed when the proceeding was instituted, and the judgment was awarded on the contract on which the lien was predicated. But can a personal judgment be rendered in these proceedings against the owner, as was done in this case where the proceedings were taken by a material man for materials furnished to the contractor, and there was nothing due from the owner to the contractor, and where nothing had been paid by the owner in fraud of the law ? The law manifestly contemplates the rendering of a personal judgment against the owner when necessary to pi’otect the claimant in his rights as regards his lien; as for instance where the owner has made payments in fraud of the law to the injury of the claimants; also for costs of the action where costs are awarded against him; also against any party to the action or proceeding -where necessary in any way to secure, determine or adjust the lien or liens if there be several (§ 15). This presupposes a lien to exist or to have existed at some time within the purview of the lien law. Now in the case in hand the judgment against Beach was awarded on a claim wholly disconnected with any right of action given by the lien law. The recovery was based on a purely common law right, simply on contract, entirely personal in character. As the referee found, the right of recovery under the provisions’ of the hen law as set forth in the complaint (notice) wholly failed. It never. had any foundation in law; every fact essential to jurisdiction under the lien law remained unproved; and the case was left to stand simply on the promise of Beach to pay for property which the plaintiffs agreed to deliver, and which as they assert, they did deliver on the faith of his promise. The case resolved itself into an action for property sold and delivered; or it was decided by the referee on that theory. The recovery was not for any balance due and unpaid from Beach to the contractors, intercepted by a proceeding under the lien law; nor for money paid in fraud of the law; nor did the plaintiff's recover on the theory that they had furnished materials directly to the owner and thus, according to the provisions of that law, had acquired a right of lien on the building or premises therefor, as material men. But the recovery, under the rulings of the referee, was on a claim as distinct in character from one enforceable under the provisions of the lien law, as if it had been a promissory note given by Beach to the claimant for borrowed money. We are of the opinion that the personal judgment rendered against Beach under the facts of this case was improperly granted.

But if in error in this conclusion, and if it be admitted that a personal judgment against Beach might be rendered in this case, as in a common law action, the question remains whether the promise proved was not within the statute of frauds and void.

It appears that Beach, the owner, entered into a written agreement with the contractors, Stone & Bassett, by which the latter agreed to erect a building for the former on his premises, the contractor to furnish the material therefor. There was a clause in the agreement which permitted Beach to retain moneys due thereon to Stone & Bassett for the purpose of paying for material used by them, and he was authorized to make such payments and have them applied as payments on the contract. Stone & Bassett then contracted with the plaintiffs for the brick necessary to erect the building at a stipulated price per thousand. After the plaintiffs had made delivery to Stone & Bassett of a small portion of the brick they became distrustful of the latter's responsibility and thereupon, on meeting Beach, they enquired if he would retain moneys on his contract with Stone & Bassett for the building of the house, sufficient to pay for such brick as they should deliver to S. & B. and pay them therefor, in case they would keep him informed from time to time of the amount remaining unpaid. According to the testimony of one of the plaintiffs Beach replied that he would do so, this however Beach flatly denied. Now, in the first place, it becomes important to see prec'sely-what the arrangement was between the parties, if any was in fact made; and in determining this fact we are not concluded by the decision of the referee, though there was a conflict of evidence, but it becomes our duty on the appeal to examine the case de novo on the proof submitted. Such seems now to be the rule laid down by the Court of Appeals. (Godfrey v. Moser, 66 N. Y., 250.) We must therefore examine the evidence and determine the nature and extent of the alleged contract between the parties for ourselves.

The plaintiff Weyer, alone testified to the arrangement on the part of the plaintiffs. He gave the conversation between himself and the defendant, Beach, as follows: “ I asked him if I should keep him posted as to what they (S. & B.) owed me, whether he would keep money enough back out of his contract to pay me. Mr. Beach said he would. I said I would commence drawing, and he said all right.” This occurred after some of the brick had been delivered. On his cross-examination, the witness gave the conversation as follows: “ I asked him if he would retain money if I would keep him posted, and he said he would see me through. I think that was it; and I replied, then I can commence delivering brick, and he said all right; this was all there was said. * * I am sure that the remark of Beach was, “ I will see you through.” The witness also testified to various facts, showing that the plaintiffs made the delivery to Stone and Bassett on their contract. He (Weyer) called on them for payment, and obtained payment of part from or through them; and on one occasion ho told Beach that he “ would not have drawn the brick if he (Beach) had not agreed to he security.” Besides in the notice which stands as a pleading, the plaintiffs state that the brick were furnished to Stone and Bassett. Thus it is made entirely certain that there was no surrender or abandonment of the first contract for the brick, made between the plaintiffs and Stone and Bassett. This contract was not terminated or superseded by the alleged agreement between the plaintiffs and Beach. It continued in force, and the brick was delivered under that contract. It must follow then that the alleged arrangement between the plaintiffs and Beach was collateral to it, and was in the nature of a guaranty of its performance by Stone and Bassett as to payment. And so the plaintiff, Weyer, who made the arrangement understood it. He testified that he told Beach that he would not have drawn the brick if he (Beach) had not agreed to be “ security.” Such is the plain import of his evidence. He says, UI asked him if I should keep him posted as to what they owed me ” — (that is, as to the amount Stone and Bassett should become indebted on the brick contract from time to time) “ whether he would keep money enough back out of‘his contract to pay me;” and when afterwards he called the defendant’s attention to the conversation, he said he should not have drawn the brick had he (Beach) not agreed to be “security.” It is very manifest that the plaintiff, Weyer, understood the arrangement as one of security on the part of Beach; that is, that he (Beach) would be responsible for whatever amount Stone and Bassett should fail or omit to pay. Therefore, accepting the arrangement or promise to be as proved by the plaintiffs, it was a promise to answer for the debt or default of Stone and Bassett, hence having been oral merely, it was void by the statute of frauds. The statute declares that every special promise to answer for the debt, default or miscarriage of another person shall be void, unless such agreement, or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith. (3 R S., 142, § 2, sub. 2, 6th ed.) It is said in Brown v. Weber (38 N. Y., 187), that the language employed in the statute shows that the test to be applied to every case is, whether the party sought to be charged is the principal debtor, primarily liable; or whether he is only liable in case of the default of a third person. In Cowdin v. Gottgetreu (55 N. Y., 650), it is laid down, that while a person may become liable upon a parol promise for goods purchased which are delivered to and are intended for the use of another, in order to make him so, the debt must be his only; he must be exclusively liable therefor. In Duffy v. Wunsch (42 N. Y., 243), A promised to pay the debt of B, if C would discontinue a suit for its recovery, then pending against B. The promise was held to be within the statute of frauds, and void. .Lott, J., in this case, remarked, that the promise was not made or accepted in the place or as a substitute of the original debt, or in its extinguishment; on the contrary, B continued liable for the amount or balance thereof Avhich the defendant agreed to pay. So here the promise by Beach, as testified to by the Avitness, Avas not made or accepted in place of, or as a substitute for the original contract betAveen the plaintiffs and Stone and Bassett, or in extinguishment thereof; on. the contrary, Stone and Bassett- continued liable for the amount or balance which Beach agreed, to pay. (See, also, Mallory v. Gillett, 21 N. Y., 412; Loonie v. Hogan, 9 N. Y.,435; Larson v. Wyman, 14 Wend., 246; Paynev. Baldwin, 14 Barb., 570.)

No new terms of payment or conditions of delivery were agreed upon, or even considered, between the plaintiffs and defendant. The contract with Stone & Bassett determined all that, and it was to continue in force. Delivery of the brick and payment therefor was to be made according to its terms, and the promise of the defendant, according to the proof, was this, in legal effect: That he would answer to the plaintiffs for the default of Stone & Bassett in making payment as they had agreed. Not having been made in writing, it was void by the statute of frauds. Nor does the clause in the agreement between Stone & Bassett and Beach, by which the latter was at liberty to retain money which should become due the former thereon, and apply it in payment for materials used by them in erecting the building, aid the plaintiffs’ case. This was merely permissive as to Beach, not obligatory on him; and this clause in no way validated his otherwise invalid promise. The judgment against Beach must be reversed on his appeal with costs to abide the event. But one bill of costs on the appeal to be allowed.

Learned, P. J., and Osborn, J., concurred.

Judgment against Beach reversed on his appeal, costs of appeal to abide event; reference discharged; new trial granted as to Beach.