author: By the Court.—Sedgwick, Ch. J.

text:
    MARY E. SACIA, Respondent, v. NEAL W. O’CONNOR, Appellant.

      Ejectment—new trial in action of.—Judgment by default, what is.

    A judgment entered upon the verdict of á jury, rendered on an inquest in an action of ejectment in which an answer has been interposed, is not a judgment by default, within the meaning of 2 iZ. S. 309, § 38, and the defendant against whom verdict is so rendered is entitled (under Id. § 37) to a new trial, as of course, at any time within three years, upon payment of costs and damages recovered.
    The judgment by default referred to in the statute is a judgment entered upon failure to answer.
    Before Sedgwick Ch. J., and Speir, J.

      Decided December 30, 1880.
    Appeal by defendant from order denying his motion for a new trial on payment of costs and damages.
    The action was in ejectment. Issue having been joined, the cause was called for trial. The defendant did not appear and an inquest was taken.
    The defendant moved for a new trial, under the statute referred to in the opinion, on payment of costs and damages.

      Charles 8. Spencer and John A. O’Brien, for appellant.

      Ira D. Warren, for respondent.
   By the Court.—Sedgwick, Ch. J.

It appeared on the motion below, that the judgment was entered upon a verdict of the jury. An answer had been served and the issue made by it was noticed for trial; the action was regularly called; the defendant’s counsel made a motion for an adjournment of the trial, which "was denied ; the court proceeded to the trial, but the defendant and his counsel refused and omitted to appear upon it, and an inquest was taken, the verdict being for plaintiff.

The learned counsel for respondent argues, that, inasmuch as the defendant did not appear upon the trial, the judgment rendered upon the verdict was a judgment by default; and that, by 2 P. S. 309, § 38, after “judgment in ejectment rendered by default” the court can only grant a new trial, “if such court shall be satisfied that j ustice will be promoted and the rights of the parties more satisfactorily ascertained and established,” and cannot 'grant a new trial as of course under section 37, when it is applied for within three years.

This position is not valid. A judgment is, within the meaning of the Revised Statutes, rendered by default, when it is entered for want of answer, as it is now termed, or of plea, which was the corresponding pleading of the Revised Statutes. Other sections make this clear. By section 33 “ the judgment in the action, if the plaintiff prevail, shall be, that the plaintiff recover the possession of the premises according to the verdict of the jury, if there was such verdict, or if the judgment be by default, according to the description thereof in the declaration.”

In the practice, if the defendant made default at the trial, this was not such a default as would entitle the plaintiff to sign judgment, but he was obliged to proceed regularly to verdict and judgment, which he might do by inquest in open court (1 Graham's Pr. 784).

The language of sections 37 and 38, preserves the distinction. Within three years, by section, 37 the court in which “ such judgment shall be rendered” “ shall vacate such judgment ” upon payment of costs and damages recovered.” The words “ such judgment” refer to the preceding section (36), which provides that every judgment in the action of ejectment rendered, upon the verdict of a jury, &c., shall be conclusive, &c. Section 38 proceeds, as has been said, to provide for judgments rendered by default.

As the judgment in this action was rendered upon the verdict of a jury and not by default, the appellant, having applied for a new trial within three years, was entitled to it, unless certain facts set up by the plaintiff, on the motion below, had deprived him of that right.

It appeared by affidavit of one Sacia, that- it was arranged between the defendant and himself, acting for plaintiff, that the former should withdraw his answer and allow plaintiff to take judgment, and that plaintiff should thereupon give to the father of defendant a lease ; and that such lease was given, the defendant being a witness to its execution. The-lease was produced on the motion.

The proof, however, was clear that the answer was not withdrawn, and the statutory right to a new trial was not abandoned, so far as the actual withdrawal of an answer might be an 'abandonment of it. In effect, therefore, the matters disclosed were mere pieces of evidence, as to the state of the title as between the plaintiff and defendant, and the defendant has a right to assert that, both before the action and after the judgment, he was entitled to possession as against the plaintiff, and has a right to a trial by jury, on the facts. '

For these reasons, I think the order appealed from, should be reversed, with $10 costs, and disbursements ; also, an order should be entered, granting a new trial on the payment of the costs and damages.

Speir, J., concurred.


source: Caselaw Access Project

author: By the Coubt.—Speib, J.

license: Public Domain

text:
    KENNEDY, Appellant, v. KENNEDY, Respondent.

      Divorce.—Gruel and inhuman treatment, what constitutes.

    Where the evidence discloses that the husband on various occasions falsely and maliciously charged his wife with unchastitv and infidelity to her marriage vows, and on other occasions said, “I wish I could murder you,” “ I will keep you here living miserably, and I will make you lead a wretched life yet,”—sufficient ground for a divorce a mensa is presented.

      It seems, that false and malicious accusations of adultery, habitually made by the husband against the wife, constitute cruel and inhuman treatment within the meaning of the statute.
    Before Speir and Russell, JJ.

      Decided December 30, 1880.
    Appeal from a judgment entered upon the decision of a single judge at special term, without a jury.
    The action is brought by plaintiff, the wife of the defendant, for a limited divorce on the ground of cruel and inhuman treatment, and of such conduct on the part of the husband towards his wife as rendered it unsafe and improper for her to cohabit with him.
    The facts appear in the opinion of the court.

      Bevelin & Miller, attorneys, and William A. Beach and John E. Bevelin, of counsel, for appellant, among other things, urged:
    I. Under the decision. of the court of appeals, on review of order for alimony (73 N. Y. 374), the conclusion of law “that the defendant has treated the plaintiff in a cruel and inhuman manner,” is error. This phrase is also loose and uncertain ; but the court of appeals say : “There must be either actual violence committed, with danger to life, limb, or health, or there must be a reasonable apprehension of such violence” (Ib.). There is no justifiable pretense, that defendant was guilty of any violence falling within this description. Plaintiff testifies to the entire absence of “actual violence.”, She does not testify to any apprehension of violence. Nor do the circumstances narrated by her justify any inference that she feared it. In the interests of society, as well as the parties, the evidence of such threats should be most satisfactory (2 Bish. Marr. & D. §§ 47, 38, 653, 657, n., 663).
    II. Decisions under the canon law of England are not quite pertinent, in the construction of our statute. The court of appeals, so far as this case is concerned, have defined and applied it,- and that definition is fully in harmony with preceding law (Bishop M. & D. §§ 715, 717, &c., and note ; Evans v. Evans, 1 Hagg. Con. 35; S. C., 4 Eng. Ecc. 310 ; see cases cited by counsel, 73 N. Y. 371 ; Paisley v. Paisley, Daily Reg. Nov. 29, 1879 ; Ruckman divorce suit, Id. January 6, 1880).

      Roger A. Pryor, for respondent, among other things, urged :
    I. A false and malicious accusation of adultery against the wife is “ cruel and inhuman treatment” in the sense of the statute (Bihin v. Bihin, 17 Abb. 26 ; Whispell v. Whispell, 4 Barb. 219, 220; Barber v. Barber, 7 West. Law Jour. 279; Durant v. Durant, 1 Hagg. Ecc. 769 ; Jamieson v. Jamieson, MS. opinion Van Vorst, J., S. T. Supreme Ct., Oct. 1877 ; Powell v. Powell, 22 Cal. 358 ; 1 Bish. Marr. & Div. § 717; Butler v. Butler, 1 Parsons Sel. Eq. Cas. 329 ; Bailey v. Bailey, 97 Mass. 373, 381 ; Cole v. Cole, 23 Iowa, 433 ; Pomelson v. Pomelson, 22 Cal. 358). As to what constitutes legal cruelty, see' also: Kirkman v. Kirkman, 1 Hagg. Cons. 409, 410; Mason v. Mason, 1 Edw. Ch, 278 ; Kelly v. Kelly & R., 2 L. R. P. & D. 34, 35, 75, 76 ; D’Aquillar v. D’Aquillar, 1 Hagg. Ecc. 774, note Cloborn’s Case, Hetley, 149 ; Saunders v. Saunders, 1 Rob. Ecc. 563; Popkin v. Popkin, 1 Hagg. Ecc. 768, note ; Bromwell v. Bromwell, 3 Hagg. Ecc. 637; Suggate v. Suggate, 1 S. & T. 491 ; Wellscourt v. Wellscourt, 5 N. of C. 132; Popkin v. Popkin, 1 Hagg. Ecc. 768, note ; Morphet v. Morphet, 1 L. & R. P. & D. 704; Brown v. Brown, Id. 46; Sant v. Sant,. 10 Eng. Rep. (Moak’s ed.) 101; Milner v. Milner, 4 S. & T. 241; Moores v. Moores, 1 C. E. Green (N. J.) Ch. 275 ; Patterson v. Russell, 7 Bell’s App. Cas. 357 ; Harris v. Harris, 2 Consist. Rep. 149; Holden v. Holden, 1 Consist. 458; Saunders v. Saunders, 1 Rob. Ecc. 563; Tompkins v. Tompkins, 1 S. & T. 171 ; Lockwood v. Lockwood, 2 Curteis, 302; Best v. Best, 1 Adams Cons. 435, 436; Kennedy v. Kennedy, 73 N. Y. 369.
   By the Coubt.—Speib, J.

Upon a careful examination of the record we see no reason for complaint in regard to the findings of fact by the court below. The only question which it is necessary to examine on this appeal, therefore, is one of law, and which was earnestly discussed by counsel on the argument. The defendant claims that the evidence did not uphold the legal conclusions of the court. In support of this proposition reference is made to the decision of the court of appeals when this case was before it in review of the order for alimony (73 N. Y. 374), when the issues in the pleadings had not been determined. It. was claimed by the defendant that it did not appear from all the papers and proofs presented, that the plaintiff ought to recover, and that therefore alimony should be denied. The court there held that if the facts stated in the complaint are clearly'not sufficient, if true, to constitute a cause of action, alimony cannot be granted. And it also held that it would not pass upon the merits of conflicting allegations or proofs, upon a motion for alimony; that the granting of such a motion being a matter of discretion it would not review the exercise of that discretion by the court below. The only question, therefore, decided by the appellate court was that the court below had the power to allow alimony, and the appeal was dismissed.

The chief justice, in commenting upon the difficulty of defining in precise words what constitutes “cruel and inhuman treatment,” quotes the following, as being both concise and comprehensive : “There must-be either actual violence committed, with danger to life, limb or health, or there must be a reasonable apprehension of such violence ” (1 Bishop Marr. & Div. 717, note 4). The case referred to is no authority, nor could it be, as this case was not before the court. It furnishes us with the definition of ‘c cruel and inhuman treatment,” and so far is useful as an authority.

It seems to us from the expressive words used in the statute that it is not necessary there should be personal violence to constitute cruel and inhuman treatment. It plainly refers in terms to a species of unkind treatment accompanied by threats and words of menace, the inevitable consequence of continued indulgence in which is, that violence may reasonably be apprehended, and result to the wife, unless prevented, in danger to life, limb or health. It is however, of the greatest importance that the cause of apprehension should not only be weighty but such as clearly shows that the duties and obligations of the marriage life cannot be discharged.

The mutual dependence of our mental and physical organization creates a mysterious sympathy, and exists under such conditions, that, when disturbed, it seems impossible to distinguish between them as to cause and effect.

The defendant’s treatment of his wife was cruel and inhuman within the meaning of the statute and such as to render it unsafe for her longer to endure his conduct and continue to cohabit with him. He on various occasions wantonly and maliciously charged her with unchastity, and infidelity to her marriage vows. Shortly after the birth of a child he reproached her with a denial that he was the father of the child. On another occasion he said “he wished he could murder her “I will keep you here living miserably, and I will make you live a wretched life yet.” The charges of infidelity, as appears from the evidence, were frequent and continuous, and were urged maliciously, and without probable cause. • He declared to various witnesses “ that he never believed his wife to be guilty of adultery and never suspected her of such guilt.”

The cases are too numerous for citation that false and malicious accusation of adultery against the wife is “cruel and inhuman treatment” within the sense of the statute. The conduct of the defendant, not only in this respect, but his foul and blasphemous language and threats of violence towards her seem to have been habitual. Under all the circumstances of the case we»are of the opinion, as expressed in some of the cases, “that the court. must not wait till the threats are carried into execution, but must interfere when words raise a reasonable apprehension of violence.”

The judgment should be affirmed.

Bussell, J., concurred.


author: By the Court.—Hobace Russell, J.

text:
    DAVID LEVY et al., Respondents, v. SOLOMON LOEB et al., Appellants.

      Conversion of collateral—does not bar pledgee’s right of recovery.— Contract by broker to purchase and hold government bonds— obligation to deliver identical bonds purchased.

    Conversion of the collateral security by the pledgee does not prevent his recovery of what is due him, but only entitles the pledgor to ofíset or recoup his damage.
    A., a broker, purchases for account of B., at his request, certain United States coupon bonds, and after settlement of accounts between them, makes a loan to B., retaining the bonds as collateral security therefor;-whether A., the pledgee, is bound to deliver the identical bonds originally purchased by him, quaere.

    Before Speir and Russell, JJ.

      Decided December 30, 1880.
    Appeal by the defendants from a judgment in favor of the plaintiff for $1,063.67, recovery and costs, entered upon the findings of the court without a jury.
    The action was brought to set aside a purchase of $200,000 in United States bonds, made by the defendants, as brokers for the plaintiffs, and to recover the sum of $10,746.74, with interest, on the ground of fraud. The findings of the court were as follows:
    “First. That on the 16th day of February, 1876, defendants, as the agents and brokers of plaintiffs, purchased $100,000 of bonds of the United States, known as 1881s, and on the next day rendered plaintiffs an account sales, placing the cost price of said bonds at $123,687.50, in United States currency, and a commission of $62.50.
    “ That said amount included a charge for insurance on said bonds, which had not been paid or incurred by defendants, amounting to 1691.65 reich marks, and a charge for commissions for purchasing said bonds in Frankfort, called “ courtage,” amounting to 205 reich marks, in all 1896.65 reich marks, equal to $577.82 United States currency. That the sum of $577.82 was in excess of the sum actually due defendants, or lawfully advanced by them oh the purchase of said bonds.
    “Second. That defendants on the same day entered a loan to plaintiffs for the sum of $123,750, and for the payment of four per centum thereon agreed to carry the original bonds purchased for plaintiffs’ account.
    “Third. That on the 2d day of June, 1876, defendants, as the agents and brokers of plaintiffs, purchased for their account $1,000,000, United States bonds known as 1867s, and rendered plaintiffs an account sales for said purchase of $121,500 currency, and commissions thereon, amounting to $62.50, and thereupon entered a loan to plaintiffs of $121,562.50 ; and for the payment thereon by plaintiffs of 3% per cent, defendants agreed to carry the original 1867s bonds so purchased for plaintiffs’ account.
    “That the actual price paid by defendants for said bonds.was $121,468.75.
    “Fourth. That both lots of said bonds were coupon bonds, bearing 6 per cent, interest in gold, numbered separately, and liable to call and redemption by the government; and defendants collected the semiannual interest on said bonds as the coupons matured, and applied the proceeds thereof to the payment of. said loans and interest thereon, and rendered accounts thereof to plaintiffs from time to time, extending the original loans with accrued interest added to the date of each account until the 13th day of March, 1877, when defendants rendered an account current to plaintiffs on said loans, claiming the sum of $240,746.74, to be then due them thereon, which amount included the erroneous and illegal items of $577.82, and 31.25 and interest, in all $635.89.

      “That plaintiffs relying npon said account as correct (which account I find was then stated between the parties), thereupon paid defendants on account the sum of $10,746.74, and defendants, in consideration thereof, agreed to carry said original bonds for plaintiffs to the 30th of June, 1877, for which defendants entered a new loan to plaintiffs of $230,000, at four per cent.
    “That on the 30th of June, 1877, a new loan was entered for $226,040,81, for the same purpose, to January 2, 1878, at 3M per cent.
    ‘1 Fifth. That defendants,- on the 9th day of January, 1878, demanded payment from plaintiffs of the sum of $223,989.35, or that in default of said payment defendants would sell the bonds on January 10,1878, at public auction, for account and risk of plaintiffs, and hold them liable for any deficiency.
    ‘ ‘ Sixth. That said sum of $223,989.35, so demanded, was excessive, in that it included the aforesaid erroneous illegal items, amounting to $635.89, and interest thereon from 30th March, 1877.
    “ That plaintiffs did not discover said items were included in any of said accounts or statements, or that any erroneous or illegal items were included in said accounts or demand until after January 10, 1878.
    “Seventh. That after the 30th of March, 1877, and before the 2d day of January, 1878, defendants, for their own account, without the knowledge or consent of plaintiffs, sold the whole of both lots of said original bonds, and plaintiffs did not discover the fact until after the 10th day of January, 1878.
    “Eighth. That on the 10th of January, 1878, defendants sold $100,000 1881s- and $100,000 1887s at public auction, for the sum of $212,575, but these bonds were not bonds purchased or carried for account of plaintiffs, nor were they liable for any deficiency arising from the price realized on the sale thereof.
    “Ninth. That the plaintiffs never paid defendants anything further on account of the said loans, except the coupons collected, and that the same still remain unpaid.”
    And as conclusion of law:
    ‘6 Defendants are not entitled to recover any part of their counter-claim.”
    Judgment was directed for the plaintiffs, for the sum of $713,77, with interest thereon from January 9, 1879, being the amount over paid March 30, 1877, by plaintiffs to defendants, and interest thereon to the date of trial; together with an allowance of $150, and costs.

      William Mann, for appellant.

      Lewis Sanders, for respondent.
   By the Court.—Hobace Russell, J.

The following extract from the opinion of the court below states the proposition of law to be considered on this appeal:

1 ‘ In the absence of an express agreement that the defendants might part with the bonds, or use them, provided a sufficient amount of like bonds were always kept on hand for the defendants, I am of opinion that the defendants were bound to keep in their possession the identical bonds bought for the plaintiffs. I do not see that government bonds have the same kind of equivalency between themselves that measures of grain or undivided interest in capital stock of corporations, evidenced by certificates, have between themselves. Bonds of a government have the characteristic individuality that promissory notes of natural persons have, and a contract in reference to the bonds is to be held, by force of the contract, to refer only to the very bonds.
“ As to whether the express agreement relieves the defendants from their obligations, the defendants, under the circumstances of this case, have to prove it by a preponderance of evidence. On the whole, the conclusion that best satisfies me is that nothing was said on the subject that would amount to an agreement.
. “If the agreement were that the defendants might use the bonds, it would be broken by an absolute disposition of them, even if an equal amount were always kept for the plaintiffs, and the inference in this case is that the defendants have absolutely disppsed of or parted with the bonds.
“ The effect of this is such a breach of the original contract, that the defendants are not entitled to recover any damages against the plaintiffs on their counterclaim.”

The learned judge who tried this case justified his finding of law that the defendants were not entitled to recover any part of their counter-claim, upon the theory that they unlawfully and improperly sold, in March, 1877, the bonds which they had agreed to carry for the plaintiffs, in such a manner as to constitute a conversion by them, and that the effect of such conversion was to destroy their claim for interest on the loan originally made.

Whether or not, under the law, the defendants were bound to keep on hand for the plaintiffs the identical bonds originally purchased, I do not feel prepared to express an opinion. Conceding that their failure to do so was a wrong, and conceding that the defendants technically converted the bonds remaining with them as a collateral security upon their loan to the plaintiffs —I think the judge’s view of the law, as to the effect of such conversion, incorrect.

In Gruman v. Smith (9 Reporter, 748), substantially the same question of law was before the court of appeals. In that case, the assignee of Fitch & Co., stockbrokers, brought an action to recover $1,596.29, a balance due growing out of a stock transaction. Fitch '& Co. had sold the stock in such a manner as to amount to a technical conversion. The court below nonsuited the plaintiff because of the broker’s conversion. The plaintiff claimed that his cause of action grew out of the original purchase of the stock, and not out of its wrongful conversion after it became a collateral. The general term sustained the defendant’s view that the conversion by the broker was a bar to an action by his assignee for brokerage and interest up to the time of such conversion. The court of appeals (Chubch, Ch. J., writing the opinion) held that the conversion did not operate as an extinguishment of the entire claim of the broker against his customer, but simply gave the customer a cause of action for the damages which he sustained by reason of the conversion, which could be offset against any sum found due the brokers.

In the case at bar the counter-claim was for the debt due the defendants from the plaintiff for advances and interest thereon ; and so this case, in this respect, is precisely similar to that of Gfruman -o. Smith. The effect of the conversion was not to extinguish the just claims of the defendants for their loans with interest up to the time of the conversion, but simply to give the plaintiffs an offset or counter-claim for any damages which they suffered by reason of the sale which was held to amount to a conversion.

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

Speir, J., concurred.


author: By the Court.—Horace Russell, J.

text:
    JOHN J. O’BRIEN v. CHARLES JONES, as Assignee, &c.

      Bale of personalty—when title passes—when vendor may re-sell for account of vendee.

    Defendant, on November 23, 1873, put up at auction certain iron stills in his possession as assignee, upon the following terms of sale: “ Cash on delivery. A deposit required. The iron to be weighed at the expense of the purchaser . . . All articles to be taken down by purchaser at his own expense.” The property was struck down, at a specified price per ton to one Cassidy, who made no deposit, and did not receive possession of the property, nor did he cause the iron to be weighed; thereafter, he assigned his interest to a third party, and a partial payment was made to the auctioneer. On May 5, 1874, defendant notified Cassidy that the property must be removed forthwith, which, not being done, it was on the loth, sold at auction to plaintiff, the purchaser of Cassidy’sinterest being present.
    Held, that plaintiff took good title; that the transaction with Cassidy was intended to be a “ cash sale,” and that title did not pass-thereby, the purchase-price not having been paid in full.

      Further held, that assuming Cassidy took title, defendant, upon giving such notice to remove (which implied notice to pay balance due), had a right to re-sell.

      Quaere, whether title still rested in defendant after sale to Cassidy, on the sole ground that it remained to take down the iron stills from their brick foundations, break them up and weigh them.
    Before Speir and Russell, JJ.

      Decided December 30, 1880.
    This case comes before the court upon exceptions ordered to be heard in the first instance at the general term. The action is for breach of warranty of title on sale of personal property. •
    The plaintiff alleges that the defendant sold to him a quantity of iron stills, for which, the plaintiff paid $1,216.78, the full price ; that the defendant at the time of the sale, warranted that he had full power and authority to sell the property, and would give the purchaser a perfect title, whereas, in fact, at the time of the sale, the stills were owned by one John Carroll, and the defendant had no title to them or authority to convey title.
    The defendant alleged that he became entitled to the property as assignee of the New York Kerosene Oil Company, a bankrupt corporation; that on November 28, 1873, he sold, for cash at public auction, his interest as such assignee in the property, to one Patrick Cassidy, the highest bidder, for $2,827.90; that Cassidy refused and neglected to pay for or remove the property according to the terms of the sale, and thereupon, on May 15, 1874, at Cassidy’s request, and for his account, the defendant sold the property at public auction to the plaintiff in this action.
    The evidence disclosed the following facts: The defendant was duly appointed the assignee in bankruptcy of the New York Kerosene Oil Co., which owned the property in question. The property was situated at Blissville, Long Island, and consisted of twenty-four stills, whose weight when broken up was about one hundred and seventeen tons. On November 23,1873, the property was put up at auction and struck down to Cassidy as the highest bidder. His bid was $14 per ton for eight of the stills, and $13 per ton for the other sixteen. One Jacob Cole was the auctioneer. The terms of sale were, “ Cash on delivery. A deposit required. The iron to be weighed at the expense of the purchaser by a weigher to be appointed by the assignee. All articles to.be taken down by the purchaser at his own expense.”
    No deposit was made by Cassidy, nor was the iron ever weighed. Nothing appears to have been done by Cassidy at all; but on January 27, 1874, he assigned his interest in the property purchased by him, to one John Carroll, in consideration of $700. Carroll went with Cassidy to Cole, the auctioneer, and paid to him the sum of $940. The iron stills which were sold were set in brick, solid, so that before they could be weighed, the brick-work had to be torn away and the iron stills broken up. After the assignment of Cassidy’s interest to Carroll, Carroll went upon the ground at Blissville, Long Island, where the property was situated, and began to break up the stills.
    On May 5, 1874, the defendant notified Cassidy in writing that the property must be removed from the! premises at once. It was not removed. And thereupon another sale of the property was ordered by the defendant through another auctioneer. This sale occurred on May 15, 1874. Carroll, Cassidy’s assignee, would seem to have had actual notice of it, for he was present and forbade the sale, claiming that the property belonged to him. The property was struck down to the plaintiff in this action for $9 a ton for sixteen stills, and $8 a ton for eight stills, amounting, as was determined when they were broken up and weighed, to the sum of $1,011.41. The plaintiff also paid for weighing the iron the sum of $175.37, and to a watchman, the sum of $30, making in all the sum of $1,216.78. The plaintiff sold to Jones, Henry & Co. seventy-one tons of the iron, and delivered it to them. They paid on account thereof the sum of $840, and owed for the balance the sum of $1,152.60, which it seems they declined to pay. The plaintiff sold and delivered the balance of the iron purchased from the defendant to other parties, and was paid $25 per ton therefor.
    The judge on the trial directed a verdict for the plaintiff for the sum of $1,152.06, the balance which Jones, Henry & Co. refused to pay, with interest, $448.67, amounting to $1,600.73.

      Hathaway & Montgomery, attorneys, and Thomas G. Shearman, of counsel, for plaintiff.

      Jones, Roosevelt & Carley, attorneys, and Charles Jones, of counsel, for defendant.
   By the Court.—Horace Russell, J.

There can be no doubt that there was a warranty of title on the sale. The sale of personal chattels by a vendor in possession, carries an implied warranty of title, unless the facts and circumstances of the sale indicate that the vendor did not intend to assert and sell the absolute title, but only an interest in the property (Burt v. Dewey, 40 N. Y. 283; McGiffin v. Baird, 62 Id. 329; Shattuck v. Green, 104 Mass. 42). In this case there was also an express warranty of title by the auctioneer at the sale.

The only question, then, which demands our consideration, is whether there was a breach of this warranty of title, and that depends upon the answer to the two following questions:

1. Whether the defendant’s title to the property in dispute, passed to Cassidy, or his assignee Carroll i And

2. Whether, if it did, Cassidy’s and Carroll’s failure .to pay the purchase-price of the property and remove the same, gave the defendant authority to resell, so that he could give good title ?

The answer to the first of these questions, is, of course, to be determined by the intent of' the parties. There was no conflict of testimony, and it is for the court to look at the agreement between Cassidy and the defendant, the circumstances and surroundings, and then, applying the well-settled principles of law, to say what must be considered to have been the intent of the parties. . Was it that the title then and there passed to Cassidy, or did it remain in the defendant ?

The property consisted of iron stills set in brick. They were very cumbrous, and could not be removed without first tearing down the brick-work by which they were sustained, and then breaking them up by ponderous machinery.

The sale was at auction, the defendant being not a merchant, bat an official, disposing of the property of his bankrupt assignor, for the benefit of the trust estate. The terms of sale were “Cash on delivery anda deposit required, the iron to be weighed at the expense of the purchaser by a weigher to be appointed by the assignee. All the articles to be taken down by the purchaser at his own expense.” A mere statement of the facts shows that this was intended to be a cash sale. By a “ cash sale” is understood one in which delivery and payment are concurrent and in which the title to the property does not pass until the price is paid (Russell v. Minor, 22 Wend. 659 ; Kelley v. Upton, 5 Duer, 336; Decker v. Furniss, 14 N. Y. 611; Parker v. Parmele, 20 Johns. 130; Hammett v. Linneman, 48 N. Y. 399 ; Osborn v. Gantz, 60 Id. 540).

. It seems now to be pretty well settled that where a sale is for cash, not only does the title to the property not pass while the possession of the property remains in the vendor, but even if possession has been transferred to the vendee, the title still remains in the vendor.

In Hirschorn v. Canney (98 Mass. 149), the plaintiffs, who were tobacconists in Hew York, sold to one Eaton, a tobacconist in Boston, a quantity of cigars on condition that Eaton should send his notes in payment therefor. The plaintiffs shipped the goods to Boston, and mailed to Eaton a bill of lading of them, at the same time requesting him to send his notes in payment. He never did so. Eaton sold the goods to Canney. The plaintiffs replevied from Canney, and their action was sustained, on the ground that, inasmuch as the payment by note and the delivery of the property were to be simultaneous, and the notes were not forwarded in compliance with that agreement, no title to the property ever passed.

In Hammett v. Linneman (48 N. Y. 399), it was held that, although a delivery without requiring payment is presumptive evidence of a waiver of the condition that the payment should be made upon delivery to vest the title in the vendee, yet whether or not such delivery is absolute or conditional, so as to pass the title, depends upon the intent of the parties, which may be inferred from their acts or the circumstances of the case. In that case, Hammett sold Linneman a quantity of coal, for cash on delivery. The coal was delivered and carted to Linneman’s yard and mixed by him with other coal. Three days after the delivery, the plaintiff called for payment. Hot obtaining it, he called again in two or three days, and was then informed that Linneman had sold out. The sheriff seized the coal under process against Linneman. The jury found from the circumstances that the payment of the price was a condition precedent to the passage of the title, not waived by delivery of possession, and their verdict was sustained (see also Cole v. Mann, 62 N. Y. 1; Osborn v. Gantz, supra).

If nothing is said in the contract about the mode of payment, a sale will be regarded as having been made for cash, and the payment and delivery will be deemed to be concurrent and interdependent acts (Martineau v. Kitching, L. R. 7 Q. B. 436; S. C., 2 Eng. R. 539). And where it is not the intention of the vendor to part with the possession of the property until he has been paid the price agreed upon in money, he will not lose title to the property by inadvertently allowing the purchaser to get possession thereof without payment (Miller v. Jones, 66 Barb. 148).

In the case at bar, there was no delivery of possession. It remained in the vendor. The deposit required by the terms of sale was not made. The price bid by Cassidy was never fully paid nor tendered, either by him or by his assignee. No equities of any third parties have intervened. We may stop far short of the point to which the rule has been carried in the cases above cited. It is clear that it was not the intent of the parties that the title to this property, sold at auction, should pass to Cassidy, except upon payment of the price. The contrary intent is shown beyond question, by the terms of sale, by the retention of the property by the vendor, and by the vendor’s claim of right to again sell the property, upon Cassidy’s non-compliance with his agreement.

It was urged on the argument of this case, by the defendant’s counsel, that the title to the property did not pass to Cassidy, because, by the terms of sale, it remained to take down the stills from their brick foundations, break them up and weigh them. And in support of that theory was quoted the rule that ‘ ‘ where any thing remains to be done to thegoods for the purpose of ascertaining the price, as by weighing, measuring or testing the goods, where the price is to depend on the quantity or quality of the goods, the performance of these things shall also be a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in the state in which they ought to be accepted” (Benjamin on Sales, § 319 and note by American editor, Judge Perkins).

This case would seem to come within the rule, unless we should say that nothing more remained to be done' by the vendor, and the things to be done by the vendee were only for the purpose of determining the total amount, where the whole property had been sold by the ton, and so was analogous to Kimberly v. Patchen, 19 N. Y. 330; Burrows v. Whitaker, 71 N. Y. 291; Groat v. Gile, 51 N. Y. 431; Tyler v. Strang, 21 Barb. 198 ; Coe v. Curtis, 31 How. Pr. 410.

This is certainly a border case. It is not without doubt on this point alone. The things remaining to be done by the parties before there was a transfer of possession, have much to do in determining whether there was an intention to transfer title before possession, in view of the facts that delivery' and payment were to be concurrent. Inasmuch as the decisions on the subject of conditions precedent in England and in this country, and even in this State, are inharmonious, I prefer to consider this branch of the subject, not independently, but in connection with the one I have been discussing, and which I regard as conclusive.

Cassidy could convey to Carroll no better right than he himself had (Ballard v. Burgett, 40 N. Y. 314), and before Carroll could claim that the title to the property passed to him, it was his duty to pay not only the $940, but to pay or tender the balance of the purchase-money which Cassidy agreed, to pay,—over $600. Until that was done, the contract remained executory.

The defendant in this action cannot be said to have waived any rights, so far as the question here considered is concerned, by receiving $940 from Carroll on accóunt of Cassidy’s purchase. He waived nothing, and, least of all, the right to retain the property until the full purehase-pricé was paid. Until that time, as I have indicated, the title to the property remained in him, full payment being the condition of transfer of title. If the title to the property remained in the defendant, and his agreement with Cassidy or his assignee was only an executory contract of. sale, then the defendant, by the sale which occurred on May 15, gave good title to the plaintiff in this action, and Cassidy, or Carroll, has only an action for breach of a contract to sell (Burt v. Butcher, 34 N. Y. 493; Tyler v. Strang, 21 Barb. 198).

If we should assume that the title of the property passed at once to Cassidy- upon the auction sale in November, or to Carroll, upon the assignment by Cassidy to him, and his payment of $940 to the defendant —the defendant still holding possession of the property—I am of opinion that the defendant, upon giving notice to remove (which implied, of course, a notice to pay the balance due), had a right to re-sell.

“If the buyer unreasonably refuses to accept of the article sold, the seller is not obliged to let it perish on his hands and run the risk of the solvency of the buyer. The usage, on the neglect or refusal of the buyer to come in a reasonable time after notice and pay for and take the goods, is for the vendor to sell the same at auction and to hold the buyer responsible for the deficiency in the amount of sales” (2 Kent Comm. 504). It is common to insert a provision for re-sale in the terms of sale, but I think it may be stated as the settled rule of law in the United States, though not perhaps in England, that where the price remains unpaid, the right to re-sell exists, even in the absence of any express stipulation, and that the purchaser is responsible for any loss that may occur, although he did not consent to the re-sale (Sands v. Taylor, 5 Johns. 395 ; Dustan v. McAndrew, 44 N. Y. 12; Crooks v. Moore, 1 Sandf. 297; Lamkin v. Crawford, 8 Ala. 153 ; Bell v. Offutt, 10 Bush. 632; Saladin v. Mitchell, 45 Ill. 80; Redmond v. Smack, 28 Ind. 365 ; Barr v. Logan, 5 Harr. [Del.] 52; Hughes v. United States, 4; Ct. of Cl. 64 ; Gordon v. Norris, 49 N. H. 378; Rosenbaums v. Weeden, 18 Gratt. [ Va.] 785).

It would seem that the re-sale need not be made at auction or in any other particular manner, the only requirement being that it should be made in good faith, in such a manner as would be best calculated to produce the value of the property sold. And while it. is the duty of the vendor to notify the vendee of his general intention to re-sell, it has been held that he is not bound to give notice of the day and place of sale, even though it be at auction (Rosenbaums v. Weeden, supra; Gaskell v. Morris, 7 Watts & S. 32; Pollen v. Leroy, 30 N. Y. 549; Messmore v. N. Y. Shot and Lead Co., 40 N. Y. 422).

The object of the notice of the intention of the vendor to re-sell where the vendee is in default, is to hold the vendee for a deficiency. What is reasonable notice to the vendee, depends upon the circumstances of each particular case.

In Bogart v. O’Regan (1 E. D. Smith, 590), a resale made three or four days after notification, was held to be in reasonable time.

In the case at bar, Cassidy was notified to remove the property on May 5. That notice seems to have been communicated to his assignee, Carroll. A re-sale was advertised, which occurred on May 15. Carroll had actual notice of that, for he was present. Whether or not the proceedings for a re-sale were irregular so that Carroll could recover the amount of money paid by him to the defendant, it is not necessary to express an opinion. We are only concerned with the question whether, on that re-sale, the defendant gave good title to the purchaser—the present plaintiff. I think he did, and that for that reason there was no breach of his warranty of title.

The defendant’s exceptions should be sustained, and a new trial should be ordered, with costs to abide the event.

Speie, J., concurred.


author: By the Court.—Speir, J.

text:
    INSLEE A. HOPPER, Appellant, v. RUSSELL SAGE, Respondent.

      Sale of stock and “dividends declared during the time,” &c.—what dividends pass.

    Under a written contract to accept stock at a specified price, within a limited period of time, which contains the following clause: “ The undersigned is entitled to all the dividends or extra dividends declared during the time,” &c., dividends declared before making the contract and payable after the time therein limited, do not pass ;—this, though there be a custom among brokers in the city of New York (where such contract was made and to be executed), allowing such dividends to the purchaser.
    Before Speir and Freedman, JJ.

      Decided February 7, 1881.
    Appeal from decision of referee dismissing the complaint.
    The facts are fully stated in the opinion.

      Thomas Darlington, for appellant.

      A. D. Pape, attorney, and Henry 8. Bennett, of counsel, for respondent..
   By the Court.—Speir, J.

The plaintiff put in evidence the contract referred to in the complaint;

“ Few York, May 23, 1878.

“For value received, the bearer may deliver me one day’s notice, except last day. when notice is not required, five hundred (500) shares of the common stock of the Chicago & Northwestern Eailway Company at forty-nine (49) per cent., any time in thirty (30) days from date.

“ The undersigned is entitled to all the dividends or extra dividends declared during the time. Expires —1. 3—4 o’clock p. m.

“ Russell Sage.”

The plaintiff, on the admission of the defendant’s signature to the contract, on June 22, 1879, between one and half-past one o’clock—within the thirty days —tendered a certificate for five hundred shares of the common stock named in the contract, and demanded forty-nine per cent, of the value thereof, to wit: $24,500, which the defendant refused, but offered to pay forty-six per cent., being $23,000.

On May 16, 1878, at a meeting of the directors of the railway company, a dividend of three per cent, upon the said stock was declared payable at the office of the company on June 27, 1878, and the transfer books of the company were closed for .the purpose of such dividend on Tuesday, June 18, and reopened on Saturday, June 29, 1878.

The dispute between the parties relates to this dividend of three per cent, declared on the stock, and as to which party was entitled to it under the concluding clause of the contract.

The contract is called “aput” among the dealers in stock—a privilege bought by the plaintiff of the defendant, by which he might deliver the stock in question, at any time within the thirty days thereafter, at $49 per share; so that in case the market should decline to any point below that figure, the plaintiff, under the protection he had thus secured, could, during the existence of the privilege, deliver his stock at $49 per share.

This dividend of three per cent, was declared on May 16, before the contract existed, and was payable on June 27, after it had expired. I am of the opinion that the last clause in the contract is not ambiguous, or so open to explanation as to call for any custom or usage, for the purpose of ascertaining that it was intended by the parties to be interpreted in any other sense than as 'is there plainly written down by this defendant. The language used is too direct and plainly simple to suppose that the evidence, offered and admitted by the learned referee, under exception, was for the purpose of explaining any ambiguity. But even for the purpose of varying the import and legal effect of a written instrument, upon the ground of a custom or usage among a class of dealers, we think it was improperly allowed. The only dividends the defendant is entitled to claim under the clause are such as were declared during the time of thirty days, which was the limit of the privilege. Any other construction would enable the defendant to collect not only the dividend in controversy but all other dividends declared outside the limit and uncollected, if any such there were. Under a contract to sell shares of stock the dividend payable after the day for the delivery of the stock does not pass with the stock. Dividends are not an incident to stock, as to pass with, the stock. They belong to the corporation, and are divided among the shareholders and may be sold or assigned without parting with the stock. They are not earned, like interest, by money represented in the stock. The custom or usage received in the case was therefore improperly admitted as against the settled rules of law (Spear v. Hart, 3 Robt. 420; Brundage v. Brundage, 1 T. & C. 89 ; Currie v. White, 37 How. Pr. 355).

Custom may be incorporated in a contract, where it appears to have been the intention of the parties to contract with reference to it, and will be construed to become a part of it. In the present case there is no evidence tending to show that the parties had an intention to contract differently from what is expressed in the concluding clause of the privilege ; nor does anything appear from the surrounding circumstances which leads to such a conclusion. Nor do I think the special clause inserted in future privileges, as stated by the witnesses to have been adopted, giving the dividend to defendants similarly situated, will remove the objection of appealing to a local custom. A local usage in the city of New York should not control the settled law of the State in respect to contracts by which such vast interests are involved. The rights and obligations of parties to paper in such general use, should not only be clearly defined, but universally known to be uniform and stable.

The judgment should be reversed, the order of reference vacated, and a new trial ordered, with costs to abide the event.

Freedman, J., concurred.


author: Bv the Court.—Speir, J.

text:
    THORP, Appellant, v. THORP, Respondent.

      Marriage outside of State, of person forbidden by decree of divorce to marry—validity of. '
    Where a resident of this State, whose former wife has obtained a decree of divorce from him, forbidding his marriage during her lifetime, goes into another State with intent to evade such prohibition, and there contracts a second marriage, immediately thereafter returning to this State, his former wife being still alive,—such second marriage is void.

    Before Speir and Freedman, JJ.

      Decided February 7, 1881.

      Appeal from an order and judgment dismissing the complaint in an action for an absolute divorce on the ground of adultery.
    The referee appointed by the court to take proof and report with his opinion found for the plaintiff. Upon a motion made to confirm the referee’s report, the court dismissed the complaint, and judgment of dismissal was entered accordingly, with costs.
    The facts appear in the opinion of the court.

      D. M. Porter, for appellant, among other things, urged :
    Under a statute of Massachusetts similar to ours, a marriage out of the State was held to be valid (Medway v. Needham, 16 Mass. 157, 159 ; West Cambridge v. Lexington, 1 Pick. 505, 508; Commonwealth v. Lane, 113 Mass. 458). The Federal courts have decided that a marriage like the one in question is valid (Pensford v. Johnson, 2 Blatchf. 61; Meister v. Moore, 6 Otto, 76). Other courts have also so decided (Dickson v. Dickson, 1 Yerg. 110; Stephenson v. Gray, 17 B. Monr. 193 ; Hutchins v. Kimmel, 31 Mich. 136 ; Webb’s Estate, 1 Tack. 372; Fuller v. Fuller, 40 Ala. 301, 303, 304; Simonin v. Mallock, 2 Swab. & Trist. 67. The supreme court of this State, in the case of Kerrison v. Kerrison (N. Y. Daily Reg. Dec. 16, 1880) decided that a marriage like the one at bar is valid, and also that the dissenting opinion of Judge Daniels in the case of Marshall v. Marshall, (2 Hun, 238), is the better law ; see the article of Mr. Van Santvoord in the Albany Law Journal (Vol. 21, 486), on this subject. See also Mr. Van Santvoord’ s citations upon the subject of Gretna Green marriages ; and also Potter’s Dwarris on Statutes, 361.

      Alvin Burt, for respondent, among other things, urged:
    The alleged marriage between plaintiff and defendant, although in Philadelphia, was void under the laws of the State of New York (Marshall v. Marshall, 2 Hun, 238 ; Williams v. Oates, 5 Ired. [N. C.] 535; see also Story Conf. Laws, % 124, and note 8). While the disability of the offending party lasts divorce in our State is not absolute, and therein differs from a common law divorce (Wait v. Wait, 4 N. Y. 95).

       The above doctrine has been overruled by the court of appeals in Van Voorhis v. Brintnall (Oct., 1881; reversing S. C., 23 Hun, 260).

       8 Abb. N. C. 444, and note.

   Bv the Court.—Speir, J.

The answer in substance denies the adultery charged in the complaint, and sets up counter-charges against the plaintiff ; and as a defense alleges a former marriage of the plaintiff with one Emma C. Reed in 1855, and a judgment of divorce in an action brought by her against the plaintiff in this action, for adultery, in the supreme court, Kings county, in October, 1861, and a decree entered in November, 1861, in the usual form, forbidding the plaintiff to marry again during the life of the said Emma, and that the said Emma was living when the plaintiff married the defendant herein.

The defendant gave no evidence as to the adultery charged in her answer, nor did she give any testimony contradicting the charges against her in the complaint, but rested her defense solely upon the invalidity of the alleged marriage between her and the plaintiff.

It appears in the case that the plaintiff and the defendant, both residing here, to evade the laws of this State and said judgment and decree, went from the State of New York to the city of Philadelphia, entered into the contract of marriage mentioned in the complaint, returned to this State and continued their residence therein ever since said marriage.

When the plaintiff left this State for Pennsylvania and had of marriage ceremony there performed, it was—as must be assumed from the immediate return of the parties—their intention to continue to make this State their domicile and enjoy the protection of its laws. A marriage contracted by a person situated as is this plaintiff, is forbidden by express statute of the State. “Whenever a.marriage shall be dissolved pursuant to the provisions of this article, the complainant may marry again during the life-time of the defendant; but no defendant convicted of adultery shall marry again until the death of the complainant.” By another section it is provided that any violation of this provision “shall be absolutely void.” '

It must be admitted that the validity of a marriage-like the present has been heretofore an open question. We are not informed that the court of last resort in this State has determined any of the questions presented in this case. The supreme court in this district has decided against the validity of such marriages, by a majority of the court, upon able opinions delivered by two of the learned judges on both sides of the question (2 Hun, 238), and we believe the supreme court in the-second district has lately adopted the same views.

Among other objections to this position, it is urged that the statutes are fully satisfied by a construction which limits their prohibition to a second marriage-contracted within this State. If this be conceded, it, necessarily follows that the intention of the statutes is-to permit either party to the contract, divorced for either his or her adultery, to go outside of the jurisdiction of the State and marry again while the former husband or wife is living within that jurisdiction. It seems plain to us that this view of the case wholly overlooks the object and intention of the legislature. The statute not only forbids the marriage by prohibitory words, declaring it . to be wholly void, but also attaches to the violation of the contract of marriage a punishment, by depriving the guilty party of the power of entering into the marriage state during the life-time of the injured party.

The question is one of the policy of the law in its administration. It is the duty of those who administer the laws to see that they shall not be disregarded or violated by any of its citizens while enjoying their protection and privileges.. The plaintiff in this case, by a decree of the court exercising jurisdiction, being forbidden to enter into the contract of marriage during the life of the partner he was bound to cherish and protect, goes into a foreign jurisdiction, sets at defiance the mandate of the court of his domicil, by a second marriage, and now asks to be relieved from the consequences of a contract illegal and void by the laws of Ms own State.

The case before us is not one of domicile in Pennsylvania, for it is stated that the parties were domiciled here and went to Pennsylvania in fraud of our law. If the law of Pennsylvania allows such a marriage, and though it be true that (he marriage is to be judged by the lex loci contractus, yet it is but reasonable that every State should so far respect its own laws and their operation upon its own citizens, as not to allow them to be evaded by acts done in another State for the purpose of defeating them.

We are of the opinion that in determining the matter before us, a preliminary consideration is presented ; that is, the capability of the party to contract the second marriage, and the question is whether that capability is to be determined by the law of Pennsylvania or the law of New York.

The plaintiff appeals to the tribunal of the State to which he owes allegiance, and presents for its decision the question whether he has the capacity to contract a marriage out of the State, and which by a decree of one of its tribunals he was absolutely forbidden to contract.

The answer to this question is settled by a direct adjudication in Conway v. Beasely (3 Hagg. 639),— which is precisely our case,—in which persons domiciled in England were divorced in Scotland, and then one of them married again in Scotland, and upon coming again into England, that second marriage was declared null, though it was admitted to be good by -the law of Scotland.

The plaintiff has chosen the tribunal exercising jurisdiction within the State of his residence to decide a question involving the validity of a contract- entered into by him outside of that jurisdiction, which he was forbidden to make by a judgment or decree, of one of his own tribunals.

The order and judgment appealed from should be affirmed, with costs.

Freedman, J., concurred.


text:
    HENRY J. JACKSON, Executor, &c., Respondent, v. THE TWENTY-THIRD STREET RAILWAY CO., Appellant.

      Gift of stock—w7iat sufficient evidence of, certificate not Tiaving been delivered.

    8., the president of defendant, a stock company, bought and paid for thirty shares of its capital stock directing that the same be set aside in the name of Y. The company thereupon gave to Y. its receipt for a certain sum in full payment ’ for thirty shares of its stock, and thereafter on Y.’s order transferred three shares thereof to a third person, and issued to Y. its certificate for the remaining twenty-seven siiares, which certificate was retained by the company. Dividends on the stock were paid to Y. during his life.

      Held, that Y.’s executor was entitled to recover the certificate of said twenty-seven shares of stock, &e., from the company; further held, that the above facts show an executed gift of said stock by S. to Y.

      Before Speir and Freedman, JJ.

      Decided February 7, 1871.
    Appeal" from, a judgment at special term in favor of plaintiff.
    The action was to compel the defendant to issue and deliver to the plaintiff a certificate for twenty-seven shares of its capital stock, and for certain dividends thereon. On July 11, 1872, Jacob Sharp, then and at the time of the trial being the president of the defendant company, paid the defendant $2,250, for thirty shares of its capital stock, and directed that the same be set aside in the name of Sidney A. Yoilmans, and the defendant thereupon issued and delivered to "said Youmans its receipt for said sum in full payment for thirty shares of its stock. On May 10, 1873, Youmans gave Sharp a written order on the defendant to transfer three of said thirty shares. Thereafter and before Youmans’ death a certificate for twenty-seven shares was duly issued by the defendant for and in the name of Youmans (with the knowledge of Sharp), which certificate is in the possession of defendant, it never having been delivered to Youmans. Youmans died, and by his will said twenty-seven shares of stock were bequeathed in trust for certain of Youmans’ relatives. Before this action the plaintiff demanded a certificate for said stock and an account and payment of dividends, but the same was refused by defendant. While Youmans lived he collected the dividends on said shares.
    The following is the opinion of the court below:
    “ Sedgwick, J.—There must be judgment for plaintiff. The legal title to the stock was in the deceased. If the company be at liberty to set up that such legal title was held in trust—take all the testimony, irrespective of the legal incompetency of some of it—there is no proof of what the trust was, or that the stock should be discharged from the trust, in favor of Mr. Sharp.
    “ The transaction between the deceased and Mr. Sharp, in its most favorable view to defendant, was in substance a gift to the deceased, for there is no competent evidence that the stock was to be returned to-Mr. Sharp.”

      Flanagan & Bright, attorneys, and Osborn E. Bright, of counsel, for appellant.

      Grey, Stanton & Cass, attorneys, and Henry Stanton, of counsel, for respondent.
   By the Court.—Speir, J.

The transaction, as stated by Mr. Sharp, who was then and had been since the organization of the road, its president, is very plain and simple. He swears that he knew Mr. Youmans, who had married his niece, and Youmans and his wife had adopted a child, in the care of whom t.he witness had a special interest. The niece died and Youmans married again, and his second wife did not continue the care of that child.

With this explanation it is easy to understand what was intended by Sharp and Youmans in this transaction and how far they succeeded in carrying out their intention. -We think the twenty-seven shares of this stock were an executed gift by Mr. Sharp, the president of the company, to Mr. Youmans, for the benefit of his, Sharp’s, niece. The title to the stock was by him voluntarily transferred after he had bought and paid for it, and possession was given to Youmans, who accepted it without any consideration—Youmans paid nothing for the stock. A gift, as implied by its definition, must be without consideration. The delivery need not be to the donee; a delivery to a third party to hold for the donee is sufficient. Mr. Sharp paid the defendant the price of the thirty shares of stock, and directed that the stock be set aside in the name of Sidney A. Youmans; and in pursuance of this direction delivered to Youmans its receipt for the sum in full payment of the thirty shares. Sharp applied to Youmans for a written order on the company to transfer three of said shares. The defendant had refused to transfer these three shares unless Sharp procured Youmans’ order permitting the company to transfer them. Thereafter the defendant issued to Youmans a certificate for the twenty-seven shares of the thirty mentioned in the receipt, and he continued to collect the dividends on it during his life. The stock was in the hands of the defendant, but the evidence of title was placed in the hands of Youmans, and there is no evidence that it was to be returned to Sharp.

Youmans undoubtedly held the title to the twenty-seven shares; and the collecting the dividends during his life, with the knowledge of both Sharp and the defendant, is, in addition to the receipt given for the money and the transfer of the certificate, evidence that an executed gift was made to Youmans in trust for the benefit of his first wife, but the character of the trust is not disclosed. The plaintiff, as executor of You-mans, finding this stock among the testator’s assets, brought his action after demand, and we think he is entitled to recover. 1

We think the judgment should be affirmed, with costs.

Freedman, J., concurred.


text:
    GEORGE C. HOWARD, Respondent, v. GEORGE HAYES, Appellant.
    I. TRIAL, CONDUCT OF.
    1. Right to open and close.
    Answers containing allegations in form affirmative,
    WITHOUT ANY DIRECT DENIAL OR ALLEGATIONS IN FORM DENIALS.
    1. Right to open and close does not belong to the defendant ■ when.
    1. A complaint set forth a contract whereby plaintiff agreed to make, for defendant, a machine capable of performing certain work for a certain price, and all leged the delivery of the machine in pursuance of the agreement; the answer alleged that at the time of making the agreement in the complaint alleged, the plaintiff further agreed that it should be capable of performing the work designated in the complaint, and should be delivered within a certain time, and then affirmatively alleged that the machine was not delivered within the designated time, and that the machine which was delivered was not capable of performing the designated work.
    Held,
    that plaintiff had the opening and closing.
    H. APPEAL.
    1. Motion for new trial on minutes.

      (a) Decision denying motion entered on the minutes not
    APPEALABLE.
    1. A formal order of denial must be entered, and an appeal taken therefrom.
    1. Want of order not cured. The fact that the notice of appeal states that the appeal is taken from the judgment and also “ from the order entered herein denying defendant’s motion for a new trial on the judge’s minutes,” does not cure the defect.
    2. Exception, what not available on appeal.

      (a) Exception to decision denying a motion for a new trial on the minutes.
    1. It is not available on an appeal from the judgment; nor is such a decision of itself appealable. A formal order must be entered and appealed from.

      3. Case not containing all the evidence, effect of.

      Assumed by the appellate court, when the question is on the sufficiency of the evidence that that which is not returned warranted the ruling and justified the verdict.

    HI. SPECIAL WARRANTY.
    1. What does not constitute.
    (a) Plaintiff wrote to defendant, “ We will make you a perforating machine for No. 32 iron, 30 inches wide, with two sets of feed rollers, for $900.” To which defendant answered, “I accept your estimate for perforating machine, viz.: $900, for machine complete, with feed rollers capable of perforating 23 iron, 30 inches wide.”
    Held,
    not a warranty.
    1. Obligations of parties under such a contract.
    Plaintiff is bound to make and deliver a machine designed for and fit to perform the work.
    Defendant is not bound to accept a machine unless it meets these conditions.
    But

      (a) Waiver. Unless he returns, or offers to return, after a reasonable time for examination, he waives all imperfections and objections.
    1. Annexing conditions. He can annex no conditions to the return or offer to return.
    Before Speir and Freedman, JJ.

      Decided February 7, 1881.
    The complaint was as follows :
    “ The complaint of the plaintiff by Edward GL Black, his attorney, respectfully shows, on information and belief: That on or about the 22d day of January, in the year 1876, the said plaintiff and defendant entered into an agreement in writing, whereby the plaintiff agreed to make for the said defendant a perforating machine for perforating ¡Number 22 iron, 30 inches wide, with two sets of feed-rollers with feed-gear, with continuous and intermittent feed, for the sum or price of nine hundred dollars, which said sum or price the defendant promised and agreed to pay therefor.
    “ On information and belief plaintiff further alleges, that thereafter and on or about the 20th day of July, in the year 1876, in pursuance of the aforesaid agreement, the plaintiff duly delivered to the said defendant one perforating machine for perforating Number 22 iron, 30 inches wide, with two sets of feed-rollers, with feed-gear, with continuous and intermittent feed.
    “Thatthe plaintiff has frequently demanded payment of said sum of nine hundred dollars from said defendant, but that the said defendant has wholly failed and neglected to pay said sum, or any part thereof, and still remains indebted to the plaintiff for the same, with interest thereon, from July 20th, 1876.
    “ And for a second and further cause of action plaintiff alleges on information and belief, that on or about the 29 th day of February, in the year 1876, the said defendant in writing ordered and directed the said plaintiff to make for him two sets of dies or punches, and that in pursuance of said order and direction, said plaintiff duly made and delivered to said defendant two sets of dies or punches as ordered, and that said dies or punches were reasonably worth the sum or price of two hundred and eighty dollars, and that said defendant promised and agreed to pay said sum or price therefor.
    “ That the plaintiff has frequently demanded payment of said sum of two hundred and eighty dollars from said defendant, but that the said defendant has wholly failed and neglected to pay said sum, or any part thereof, and still remains indebted to the plaintiff for the same, with interest thereon from July 20th, 1876.
    “Wherefore plaintiff demands judgment against said defendant for the sum of eleven hundred and eighty dollars, with interest thereon from July 20th, 1876, besides costs.”

      The answer, so far as it affects the questions passed on by the court, is as follows :
    “ Defendant admits that at or about the 22d day of January, 1876, the plaintiff and defendant entered into an agreement whereby the plaintiff agreed to make for the defendant a perforating machine for perforating Number 22 iron, and that thereafter the defendant directed the plaintiff to make for him, the defendant, two sets of dies or punches, which said dies or punches defendant alleges to have been a necessary accompaniment to said perforating machine, and that plaintiff agreed to make and furnish said machine and dies for the sum of $1,180, as stated in the complaint.
    “And defendant, further answering, alleges that at the time of making said agreement, and as a part thereof, the plaintiff agreed to and with the defendant that said perforating machine and dies so to be made for defendant should be, in all respects, capable of perforating N umber 22 iron, and that said machine and the accompanying dies, or punches, should be manufactured and delivered to defendant within eight weeks from said 22d "day of January, 1876.
    “That said machine and dies, or punches, were not manufactured and delivered to defendant within said eight weeks, and were not completed until on or about the 20th of July, 1876, although defendant continually urged the plaintiff to complete and deliver the same.
    “That on or about the 20th day of July, 1876, the plaintiff delivered to defendant a certain machine and dies, which, upon trial thereof, were found to be wholly incapable of perforating Number 22 iron, and were of such wrong and bad construction, as to be wholly useless to the defendant and wholly worthless for any purpose whatever.
    “ That thereupon the defendant duly notified the plaintiff of said defects in said machine and dies, and that the same were wholly unfit for the purpose for which defendant had purchased the same, and not according to said agreement, and refused to accept said machine and dies, but the plaintiff wholly neglected to remedy said defects or to fulfill said agreement.”
    ■ On the trial various letters were read in evidence. Defendant read the following one:
    “Officeof Geo. C. Howard,
    Foundry and Machine Works,
    17 S. Eighteenth Street,
    Philadelphia, January 23, 1876.
    “Geo. Hayes, Esq.,
    71 8th Avenue, N. Y.:
    ‘ ‘ Dear Sir: We will make you a perforating machine for No. 22 iron, 30 inches wide, with two sets of feed-rollers, for nine hundred dollars ($900.00). Bound punches, dies, and rollers for 1-15, 1-8, 3-16 diam., will cost seventy-five dollars per set. The rectangular punches 1-16, 1-4, 5-8, 1-2, inch we find we cannot satisfactorily estimate. They would have to be made by time and material cost. A multiple rowed die would cost about $65.00 for each row of punches, and the stroke and strength of the machine would have to foe made to correspond, as well as the price of machine.
    “Bespectfully yours,
    “ Geo. C. Howard.”
    Plaintiff read the two following:
    “New York, January 22, 1876.
    * Geo. C. Howard, Esq.,
    177 S. 48th street, Philadelpia.
    “Dear Sir: Yours of 21st to hand. I accept your estimate for perforating machine, viz.: $900 for machine complete, with feed rollers, capable of perforating 22 iron 30 in. wide and feeding continuously or alternately in bands.
    “As to the dies, I will reconsider what dies I will now order, and communicate with you.
    “ I have two estimates for building a machine; both are lower, one much lower. I, however, accept vonrs, believing that I am going to have a good machine, and I think it quite possible that ere long I shall be the purchaser of - more. I called on Town in Worcester on Wednesday, but he acted very cautious, and did not invite me to see his machine ; anyway I think we can get along without.
    “ Will the dies you make be hardened ? One party who built the Sylvester machines says no one can make such a die as he can.
    “Respectfully yours,
    “Geo. Hayes.”
    “ Office of Geo. 0. Howard,
    Foundry and Machine Works,
    17 S. Eighteenth Street,
    Philadelphia, Jan. 24, 1876.
    “ Geo. Hayes, Esq.,
    71 8th Avenue, New York.:
    “ Dear Sir : We have yours of the 22d ordering one perforating machine for No. 22 iron 30 in. wide, with two séts of feed-rolls and feed gear, price $900.00. We will use every effort- to complete the machine in eight weeks. I propose to temper the die and punches when you order them. You stated that you were unable to see Town’s machine. Have you been successful in seeing Messrs. Jacocks & Co.’s %

    “Respectfully yours,
    “Geo. C. Howard.”

      Defendant read the following :
    . “Howard Foundry and Machine Works,
    No. 17 South Eighteenth Street,
    Philadelphia, Pa., July 31, 1876.
    “ GIeo. Hayes,
    81 8 th Avenue, N. Y.:
    “Dear Sir : We sent you perforating machine yesterday via Clyde line—we found that the No. 55 set of punches nowin would perforate No. 8 nicely—the previous attempt to punch No. 9 always broke or bent one or more punches. To save trouble and expense, would it not be best to use this set only on No. 8 until worn short, enough to stand No. 9? Trusting you will receive and succeed in operating it profitably, we are respectfully yours, “GIeo. C. Howard.”
    The above is not the order in which the letters were read. Those of January 22d and 24th were first read, then that of January 21, and then that of July 31.
    There was other evidence which is referred to in the opinion.
    The jury rendered a verdict for the plaintiff; after the rendition of the verdict defendant moved for a new trial on the minutes of the judge ; the motion was denied and defendant excepted. A formal order denying the motion was entered.
    From the judgment entered on the verdict defendant appealed; he inscribed in his notice of appeal the following: “ also from the order entered herein the 9th day of April, 1880, denying defendant’s motion for a new trial on the judge’s minutes.”
    The appeal book did not contain all the evidence given in the trial.

      B. F. Watson, attorney, and of counsel, for appellant, urged:—I.
    The court erred in ruling that the plaintiff was entitled to the opening and close. There was no denial in the answer of any allegation contained in the complaint. The answer set up an affirmative defense, therefore the burden of proof was upon the defendant. The party holding the affirmative upon an issue of fact, has the right, upon trial, to open and close the proof, and to reply in summing up the case to the jury. This is a legal right not resting in the discretion of the court, anda denial thereof may be excepted to, and the'ruling reviewed upon appeal from the judgment (Miller v. Thorn, 56 N. Y., 402; Penrhyn Slate Co. v. Meyer, 8 Daly, 61). In the case last cited, the court held that the allowing to the defendant of the right to open, was error sufficient to justify the granting of a new trial. In that case it will be observed that the answer, in the closing paragraph thereof, denies each, and every allegation of the complaint not before expressly admitted, whereas, in the answer in the case at bar, there is an entire absence of any denial whatever. The answer of the defendant must contain: 1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. 2. A statement of any new matter constituting a defense or counter-claim, in ordinary and concise language, without repetition (Code Civ. Pro. § 500; Code Pro. § 149). Where the substantial allegations in a complaint are not directly denied, and no issue is taken upon them in the answer, but the defendant states other facts, inconsistent with those set forth by the plaintiff, this will not be construed as a denial of the complaint, so as to prevent the allegations of the complaint from being taken as true. Merely making a counter statement, or giving a different version of the matter from that contained in the complaint, without denying the allegations of the plaintiff, is not specifically controverting such allegations (Wood v. Whiting, 21 Barb. 190; West v. Am. Exchange Bank, 44 Barb. 175).

      II. Upon the concession that the contract for the punches and dies was embraced in the written contract for the perforating machine, to wit, the three letters of January 31, 22, and 24, 1876, in connection with the letter of February 39, 1876, selecting by the defendant from the punches referred to in the aforesaid three letters, thus making one entire contract in writing instead of two separate ones in writing as alleged in the complaint, then the verdict of the jury was clearly against the evidence, which showed a warranty to deliver “complete” a perforating machine capable of perforating Ho. 33 iron, 30 inches wide, while the plaintiff’s own written acknowledgment accompanied the delivery of the machine, admitting that the warranty had not been performed. In the latter case the evidence is absolute of the non-performance of the warranty.
    III. The parties contracted together in writing for a perforating machine. Their contract was not for a machine that could be altered into a perforating machine, but for “a perforating machine complete.” The only means through which the machine in question or any other machine could perforate are punches and dies, therefore in carrying out the intention of the parties the plaintiff sent a perforating machine, that is to say, a machine with dies solidly imbedded therein, and with corresponding punches securely attached thereto. Doubtless different punches and dies may be used in the same perforating machine, if their respective capacities are made to agree, but a machine to be a perforating machine must of necessity contain some punches and dies. That such was the intention of the parties, viz.: that the contract for the machine was for a complete perforating machine, the machine being valued ata given price and the- punches and' dies to make it a perforating machine when designated to be valued at a given price, it is evident from the lengthy and careful correspondence between the parties as to the kind of punches and dies selected and the arrangement of the same in the machine. The fact is patent that the arrangement of the punches and dies in the machine, the length and strength of the punches and “the throw” of the machine, which brought the punches to their work, were important-elements in the making the success or want of success of the perforating machine. The plaintiff’s own testimony admits that as to these elements he was to exercise his own skill and judgment, without dictation from the defendant. Therefore : First.—If the plaintiff has failed to prove an agreement in writing for the punches and dies, the verdict is erroneous in including their value. Second.—If the punches and dies were component parts of the perforating machine, included in the contract in writing, evidenced by the three letters of January, 1876, then plaintiff’s letter of July, 1876, is unanswerable proof that the plaintiff is not entitled to recover under his pleadings, unless acceptance or waiver is affirmatively established. Third.—If in the contemplation of the parties the perforating machine complete included the punches and dies, then the refusal of the judge to instruct the jury as requested, that no separate recovery could be had for the punches and dies, was erroneous.
    TV. The evidence is overwhelming from both sides that there was never any waiver of the warranty or acceptance of the machine by the defendant.

      Fdwar.d G. Black, attorney, and of counsel, for respondent, among others made the following:
    I. The court ruled that plaintiff was entitled to the opening and close. Defendant excepted. The test by which to determine who has the right to begin, is to be found in the answer to the question, which party should have a verdict if no evidence be given (Huntington v. Conkey, 33 Barb. 218; Hoxie v. Greene, 37 How. Pr. 101). He who has to give evidence to prevent the verdict from going against him, must begin (Glack v. Ingall, 14 Mees & W. 95). Or, as it is stated in Elwell v. Chamberlain (31 N. Y. 612): “ The party having the affirmative issue upon the record, is always entitled to begin.” The averment in the answer contained a denial of the plaintiffs allegations, that he, pursuant to the contract, delivered machines which conformed to the requirements thereof, and threw on plaintiff the burden of proving that he had performed his contract, as a condition precedent to recovery. This case, in respect to the right of plaintiff to open and close, is on all fours with one in which the counsel for the defendant claimed the same rights under a similar pleading, which right on appeal was held to be the plaintiff’s (Penrhyn Slate Co. v. Meyer, 8 Daly, 61).
    II. A denial of a motion for a new trial made upon the judge’s minutes is not the subject of an exception, and such an exception presents no question of fact for review upon appeal (Matthews v. Meyberg, 63 N. Y. 656 : Gregg v. Howe, 5 Jones & S. Super. Ct. 420).
    III. On the question of the appeal from the order denying the motion for a new trial, it is submitted that the defendant has no standing here upon which the matter can be considered. In the language of West-brook, J.: “It is an elementary principle that in the absence of all the evidence given upon the trial the appellate court will assume, when the question is upon the sufficiency of the evidence, that that which is not returned to it warranted the ruling and ¡ustiñed the verdict” (Mahoney v. People, 3 Hun, 205). It is here shown that all the evidence is not contained in the case.
    IV. Ho warranty other than the law implies was given, nor is any other claimed by the defendant. The plaintiff’s legal obligation under the contract was to furnish a machine suitable and proper for the perforation of a certain kind of iron, and having certain specified parts. On July 21, 1876, the plaintiff delivered a perforating machine with the dies and punches ordered, in performance of his contract. If it was incapable of doing the work the plaintiff had agreed it should do, or was not possessed of the specific parts, then there was a failure on plaintiff’s part to perform his contract. On the other hand, if the defendant received the machine, dies and punches, and after a reasonable time for their examination failed to return or failed to offer to return them, on the ground of their failing to meet the requirements of the contract, then he waived any and all imperfections and accepted the performance tendered. The earliest cases on this point are considered by Judge Paige in Hargous v. Stone (5 N. Y. 73), and the subject and doctrine have been examined and affirmed immany late reported cases. The leading ones among them being: Reed v. Randall, 29 N. Y. 358; McCormack v. Sarson, 45 Id. 267; Dutchess Co. v. Harding, 49 Id. 321 ; Gaylord v. Allen, 53 Id. 516 ; Parks v. Morris Axe Co., 54 Id. 590 ; Neaffie v. Hart, 4 Lans. 4 ; Chapin v. Dobson, 78 N. Y. 82. The words warranty, or implied warranty, used in these cases, must not be mistaken for, or confused with, the special warranty sometimes required and given in addition to the contract to make and deliver an article designed for and fit to perform certain work. This is made very clear by the late Judge Alleít, in Gaylord v. Allen (53 N. Y. 516): “ Incorporating into the agreement the obligation which the law implies would superadd nothing to the contract or vary its nature or affect the remedy upon it” (Sprague v. Blake, 20 Wend. 64): “ Whatever agreement there was, whether expressed or implied, was a part of the contract, and was not a special warranty or agreement collateral to it. And in the absence of fraud or artifice in inducing an acceptance of the article, did not survive the execution and performance of the contract.”
   By the Court.—Speir, J.

The appeal is from a judgment entered upon the verdict of a jury. The complaint alleges the making of two separate contracts whereby the plaintiff first agreed for $900 to make and deliver to the defendant a machine for perf ora ting No. 22 iron, 30 inches wide, with two sets of feed-rollers, with feed gear, with continuous and intermittent feed; and by the second the plaintiff for $280 agreed to make and deliver to defendant two sets of dies and punches. That under both agreements the defendant failed and neglected to pay the several sums of $900 and $280 therefor, or any part thereof, although the goods had been delivered to him. The answer admits making the contracts, but raises an issue as to whether plaintiff ever delivered the machines pursuant to the contract, which conformed to the requirements thereof, and thus cast on the plaintiff the burden of proving that he had performed his contract as. a. condition precedent to a recovery. In pleading the performance of a condition precedent in a contract it is not necessary to state facts constituting performance, but the pleader may state generally that the party or his representative duly performed all the conditions on his part.

The objection is made by the defendant that in this case he held the affirmative upon an issue of fact and was entitled to open and close the proof and to reply in summing up to the jury. This is a legal right not resting in the discretion of the court, and when denied, as it was in this case, he is entitled to a review upon this appeal. But the plaintiff held the affirmative. The answer raised the issue of non-performance of the contract, by a delivery of the machines which did not conform to the contract. and the plaintiff was bound to establish performance.

On the rendition of the verdict by the jury the defendant excepted to the denial of a motion made by him. for a new trial on the judge’s minutes. The trial had then ended, and any exception to be available on an appeal from a judgment must be to a decision made upon the trial of the action. No order for a new trial had been entered and the defendant relies simply on the extracts from the judge’s minutes.

All the evidence is not contained in the case, although if appears the late learned chief judge commented on the testimony of seven or eight witnesses in his charge to the jury, none of which appears in the record. In Mahony v. People (3 Hun, 202), it is stated to be an elementary principle that “in'the absence of all the evidence given upon the trial the appellate court will assume, when the question is upon the sufficiency of the evidence, that that which is not returned to it warranted the ruling and justified the verdict.”

In addition to the foregoing I am of the opinion there is good ground for affirming this j udgment. The action is based upon executory contracts for the manufacture and sale of personal property, and was wholly in writing. The agreement was that the plaintiff would make for and deliver to the defendant a perforating machine capable of perforating No. 22 iron sheets, 30 inches wide, with two sets of feed-rollers, with feed gear, with continuous and intermittent feed. The legal obligation under the contract rested upon the plaintiff to furnish a machine proper and well fitted to do this work upon this description of iron, with feed-rollers and gear as described in the agreement. This machine, with the dies and punches, was delivered by the plaintiff to the defendant in performance of his contract. If there was a failure to do the work the plaintiff had agreed to do, or if the machine did not contain any of the specified requisites, there was a failure on the plaintiff’s part to perform his contract. If, on the other hand, the defendant received the machine, dies and punches, and after a reasonable time for examination failed to return or failed to offer to return them because they did not meet the requirements of the contract, then he waived all imperfections and accepted the performance tendered. In short, whatever the agreement was, whether express or implied, it was embodied in the contract itself and was not a special warranty or agreement collateral to it. There was no special warranty given in addition to the warranty implied by law to the contract, to make and deliver a machine designed for and fit to perform the work. It is not pretended that the defendant was bound to accept the property except upon, this condition. This he was to determine upon the receipt of the property, and in fact did decide to retain it. He did not return it nor offer to return it except upon condition that the plaintiff would pay him §300 without prejudice to any suit. To make a valid tender it must be made without the imposition of any condition, restriction or qualification (Roosevelt v. Bull’s Head Bank, 45 Barb. 379; Wood v. Hitchcock, 20 Wend. 47). A party who seeks to rescind a contract must rescind in toto, and place the opposite party in the position he was in before the contract was made. If the defendant did not accept the performance tendered by the plaintiff, the burden rested upon him to show a return or offer to return the machine. This he not only failed to do but testified himself to the contrary.

The several exceptions taken in the case cannot, we think, change the result.

The judgment and order appealed from must be .affirmed with costs.

Freedman, J., concurred.