author: Barrett, J.

text:
    JOSEPH BENJAMIN DIMMICK, as Trustee under the Will of JOSEPH BENJAMIN, Deceased, Respondent, v. C. GODFREY PATTERSON, Appellant, Impleaded with Others, Dependants.

      Will — when a remainder, in the absence of words of present gift, does not vest.

    Joseph Benjamin, by his will, directed that his residuary estate should be divided into three parts, the income of one of which he gave to his daughter for life, and of another to his son until he arrived at the age of thirty years, when the testator gave him one-half of his share absolutely, and the income of the remaining half was given to the son until he reached the age of forty, when he was to receive the principal thereof. The will made special provision in the event that the son should die before his share had vested in him, partially or wholly.
    The remaining third of the residuary estate was given to the testator’s wife for life; and it was directed that, after her .death, her share should be equally divided, and one-half thereof should be added to the share of the son and one-half to the share of the daughter, the share of each to be governed by the same provisions as were contained in his will respecting the shares of the son and of the daughter.
    The son, who lived to be over forty years of age, but died before his mother, had assigned, before his death, his interest in his mother’s share of the estate to O. Godfrey Patterson, who, upon her .death, claimed an absolute right to one-half of the mother’s share.
    In an action brought to obtain a construction of the will:

      Held,, that Patterson did not obtain any right because the son’s interest in his mother’s share, which was controlled by the provisions regarding his own share, gave to the son a contingent and not a vested interest.
    That there were no words of present gift to the son, nor any words implying such a gift.

      That the general intention of the will was that his share was not to vest until he was entitled to receive the principal.
    That, in order that his share should vest in him, it was necessary not only that he should reach the age of forty hut also that he should survive his mother.
    Appear by the defendant C. Godfrey Patterson, from so much of a judgment, entered in tbe office of tlie clerk of tbe city and county of New York on tbe 20th day of July, 1892, as directed that one-half of the net balance of the trust fund therein mentioned as belonging to the estate of Joseph Benjamin, deceased, be distributed, according to the interlocutory judgment entered herein, on the 17th day of May, 1892, among the surviving heirs of Joseph R. Benjamin, deceased; and from so much as directed that one-half of the said net balance be distributed among said heirs in the following proportions, that is to say, to the infant defendant Martha S. Benjamin a one-third part thereof; to the infant defendant Lucy S. Benjamin a one-third part thereof; to the infant defendant Bessie H. Benjamin the remaining one-third part thereof; and from so much as directed Joseph Benjamin Dimmick, the trustee therein mentioned, to pay over the shares apportioned to the said infants, as aforesaid, to the Farmers’ Loan and Trust Company, the general guardian of said infants, upon the general guardian furnishing security, as therein prescribed, with notice of an intention to bring up for review, upon the appeal, the interlocutory judgment of said court, entered in the same clerk’s office on the 17th day of May, 1892.
    The action was brought to obtain a construction of the will of J oseph Benjamin, and was tried before the court at the New York Special Term. The answer of the defendant C. Godfrey Patterson, the appellant, alleged, among other things, that, in 1884, Joseph R. Benjamin, the son of Joseph Benjamin, the testator, assigned to the said C, Godfrey Patterson, for value, the interest of J oseph R. Benjamin in his mother’s residuary share of the estate, and that Joseph R. Benjamin died in the year 1885.
    The third clause of the will of Joseph Benjamin related to the residuary estate and was as follows:

      Third. All the rest and residue of my estate, real and personal, and wheresoever situate, I direct shall be divided by my said executors into three equal parts, as nearly as can be; and to my said wife, during her natural life, I give, bequeath and devise the rents, issues, profits and income of one of the said parts, and to my said daughter, during her natural life, I give, bequeath and devise the rents, issues, profits and income of one other of the said parts, and at the death of my said daughter I give, bequeath and devise the said last-mentioned part to her heirs and assigns forever, and to my said son, until he shall attain the age of thirty years, I give, bequeath and devise the rents, issues, profits and income of the remaining one of said parts, and upon his attaining said age of thirty years I give, bequeath and devise unto him, and to his heirs and assigns forever, the equal one-half of said part, and the rents, issues, profits and income of the other one-half of said part unto my said son until he shall attain the age of forty years, and upon his attaining said last-mentioned age I give, bequeath and devise the residue of said part unto him, and to his heirs and assigns forever.
    In case, however, of his death before the said part shall vest, by the foregoing provisions, in Mm, either in part or wholly, then I give, bequeath and devise said part, or such portion thereof as may not then have vested in my said son as aforesaid unto his children, if he shall leave any Mm surviving, and to their heirs and assigns forever; but if he shall not leave any children him surviving, and shall leave a widow him surviving, then I give, bequeath and devise unto such widow, and to her heirs and assigns forever, the equal one-third of said part, and the rents, issues, profits and income of the residue thereof, not as aforesaid vested in my said son, I give, bequeath and devise unto my said daughter during her natural life, and at her death the said residue itself unto the heirs of my said daughter, and to their heirs and assigns forever; and if he die without leaving such widow, or a child or children Mm surviving, then I give, bequeath and devise the rents, issues profits and income of so much of said part as shall not, as aforesaid, have vested in him unto my said daughter during her natural life, and at her death said part or portion thereof itself unto her heirs, and to their heirs and assigns forever.

      Henry Major, for the appellant.

      James It. Ely, for the respondent.
   Barrett, J.

Joseph Benjamin died in 18Y2. By the third curase of his will he directed the residue of his estate to be divided into three parts. The income of one of these parts he gave to his daughter Lucretia for life, with remainder, on her death, to her heirs and assigns. The income of another of these parts he gave to his son Joseph R. until he arrived at the age of thirty years, iipon attaining which age he gave the equal half of said part to Joseph B. and his heirs and assigns forever. The income of the remaining one-half he gave to Joseph B. until he arrived at the age of forty years, upon attaining which age he gave the residue of the p.art to Joseph B. and to his heirs and assigns forever.” Elaborate provision follows in this third clause for the contingency of Joseph B.’s death, before the said part should vest in him either in part or wholly. In the contingency of his death before such vesting, this part is given to Joseph B.’s children, if he should leave any him surviving, and to their heirs and assigns forever. .If he should leave a widow, but no children, another disposition of the part is made; and if he should leave neither widow nor children, there is still another disposition. The income of the third .part of the residue Joseph gave to his wife during her life, and upon her death this third part is disposed of by the fourth clause of the will, which brings up the question presented for our consideration. This fourth clause reads as follows:

Fourth. At the death of my said wife I direct that the said part appropriated, as aforesaid, to her use, shall be equally divided, and the one-half thereof be added to the said part appropriated, as aforesaid, to the use of my said daughter, and the other half thereof be added to the said part appropriated, as aforesaid, to the use of my said son, and each be governed and affected in every respect by the provisions of this my will, touching the said last two mentioned parts, respectively, as fully and particularly as if such additions had originally constituted portions of said parts.”

Joseph B. Benjamin lived to be forty-five years of age, but he died before his mother, the testator’s widow. The appellant’s contention is, that upon Joseph B.’s attaining the age of forty years he acquired a vested interest in one-half of this third part, the income of which was so given to his mother for life, and that, consequently, his assignee, Patterson, became entitled, upon her death, to take and enjoy so much, of that one-half as was attempted to be assigned to him.

We cannot agree with the appellant in this contention. It seems to us very clear that Joseph R.’s interest, under this fourth clause, was contingent and not vested. There are no direct words of gift, and none from which a present gift can be implied. The intention of the testator is apparent throughout. As to the part first appropriated for the use of Joseph R. the intention is not left to inference or implication. It is expressed in jfiain language, namely, that such part shall not vest until he -attains a certain age. Thus the vesting was to take place only when he became entitled to receive the principal of the part. In case of his death before that time the part was to go to his children. If he had no children, it was then to go as directed in the latter provisions of the third clause. The same intent pervades the fourth clause, upon which it will be perceived the third clause is engrafted. Upon the death of the widow, the executors are there, that is in the fourth clause, directed to divide the part previously appropriated to her use, and to add one-half thereof to the part first appropriated to the use of Joseph R., subject, however, to the, provisions of the third clause. We are asked to construe this direction to so divide and add upon the death of the widow, as equivalent to a direction to divide and add upon the death of the testator; and as thus effecting a present addition to the part first appropriated to the use of Joseph R., subject only to the life estate of the widow.

Such an interpretation would be contrary to the plain intention of the testator, and contrary also to well-settled rules of construction. The general intent of the testator was, as we have seen, to postpone the vesting until Joseph should become entitled to receive the principal. If he never became entitled to receive such principal, the testator provided most minutely for its disposition. It would be strange indeed if the testator’s intention, so clearly expressed in the third clause, were suddenly to change when giving the directions contained in the fourth clause. No such change is suggested in this latter clause. The vesting thereunder is plainly to take place — as in the third clause — when Joseph R. becomes entitled to receive the added principal, namely, upon the death of the widow, and then only upon his attaining the prescribed age. If the widow had died before he had attained that age, the added part would only have vested when the original part vested, namely, upon his arrival at the prescribed age. The part to be added could not, therefore, have vested in Joseph R. at the death of the testator, nor upon his arrival at the age of forty years in the lifetime of- the widow, for the reason that it was not to be added to the original part, nor was it to come-under the provisions of the third clause of the will until the death, of the widow. The contingency provided for in the third clause is. Joseph R.’s arrival at a certain age. That provided for in the fourth clause is the death of the widow, plus the contingency contained in. the third clause. This was the testator’s intention, and it was in harmony with the rule that, where the only gift is found in a direction to divide at a future time, the gift is future and not immediate.. (Goebel v. Wolf, 113 N. Y., 412; Warner v. Durant, 76 id., 133; Smith v. Edwards, 88 id., 92.)

This general rule is subject to the qualification that a contrary" intention may be collected from particular circumstances. (Leake v. Robinson, 2 Mer., 363.) But every circumstance here points to-an intention in precise accord with the rule. The gift is not to be severed instan ter from the general estate for the benefit of the legatee, as in Warner v. Durant (76 N. Y., 136), nor do the terms of the bequest i/msport a gift, and also a direction to pay at a subsequent time, as in Manice v. Manice (43 N. Y., 369).

Under this will the title was vested in the executors for the purposes of the trust in favor of the widow, and it is only upon the termination of this trust that the remainder is to be divided into two parts and added to the original parts appropriated to the use of the testator’s son and daughter. This remainder, to be so divided and added, vested only upon the death of the widow, and, consequently, Joseph R.’s assignment, made prior to his mother’s death, conveyed nothing to the assignee.

The judgment appealed from should, therefore, be affirmed, with costs.

Yan Brunt, P. J., and O’Brien, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Barrett, J.:

license: Public Domain

text:
    JAMES DOUGHERTY, Respondent, v. LEANDER STONE, Appellant.

      Statute of frauds — what is a collateral promise — cha/rging goods and rendering a hill —judge’s charge.

    In an action brought by James Dougherty against Leanaer Stone upon the latter’s alleged verbal promise to pay Dougherty for certain work and materials, it appeared, upon the trial, that Dougherty knew that the houses for which the work and materials were furnished were owned by Louis M. Mowbray, for whom his father, Anthony Mowbray, was acting as agent; and that Stone was only the custodian of certain moneys which had been advanced by Charles Tiffany to Louis M. Mowbray for the completion of these houses; after the work was done by Dougherty, he charged the goods to Louis M. Mowbray, made out a bill to him and afterwards filed a mechanic’s lien against the houses for work done thereon for Louis M. Mowbray.
    The promise allegedjo have been made by Stone to Dougherty was that Stone would pay for anything put in the houses which was ordered by Anthony Mowbray.
    Upon an appeal from a judgment in favor of the plaintiff:

      Held, that Stone’s promise was not an original obligation, but was clearly only collateral to the liability of Louis M. Mowbray.
    That where the person to whom the goods were furnished was liable at all, the promise of another person to pay for them was collateral and must be in writing.
    That while the charging of the goods and the rendering of the bill to Louis M. Mowbray were not conclusive evidence that Dougherty intended to hold Mow-bray, they were facts which were not explained, and which, in connection with the mechanic’s lien, showed that Stone’s alleged promise was not an original obligation.
    That a verdict should have been directed for the defendant.
    The court read to the jury from a text-book a statement as to the law where credit was given both to a principal and a surety. The defendant’s counsel objected to this, stating that there was no question of a joint obligation in the case, to which the court answered that the proposition was an abstract one, and that if the jury should find that there was no joint contract the proposition would amount to nothing.

      Held, that, although there was no issue as to a joint obligation, the effect of the charge was to allow the jury to find whether there was such an obligation or not, and ■then to apply the law stated to the facts found.
    That this was an error calculated to mislead the jury.
    Appeal by the defendant Leander Stone from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 21st day of December, 1891, upon a verdict for the plaintiff for $1,531.57, rendered on a trial at the New York Circuit before the court and a jury; and also from an order of the same court, entered in the same clerk’s office on the 18th day of December, 1891, denying a motion for a new trial made upon the minutes of the court.
    The action was brought upon an alleged verbal promise made by Leander Stone to James Dougherty that Stone would pay Dougherty for work, labor and materials furnished by the latter to certain buildings owned by Louis M. Mowbray. The answer alleged that Charles Tiffany had agreed to advance to Mowbray certain moneys to complete the buildings in question, which moneys had been placed in Stone’s hands. Upon the trial of the action the court read to the jury the following passage from a text-book relating to the statute of frauds, and its effect upon the rights of a principal ■surety and third person : “ If, however, the credit is given to both (principal and surety) jointly, as neither can be said to be surety for the other to the creditor their enagagement need not be in writing.”

      George 8. Hamlin., for the appellant.

      William W. Wiles, for the respondent.
   Barrett, J.:

The sole question here is whether the defendant’s promise was original or collateral. There are certain undisputed facts which seem to be controlling upon this question — facts testified to by the plaintiff Dougherty himself.

It appears from this testimony that Dougherty knew that the title to the houses in which the materials were to be used was in one Louis M. Mowbray. Anthony Mowbray, Louis’ father, told Dougherty that a mortgage upon the houses had been foreclosed, and that as he, Anthony (who was formerly the owner), could not take the title in his own name (he being insolvent), they had been put in his son Louis’ name. Dougherty negotiated with Anthony Mowbray about estimates and price before he saw the defendant. His testimony on this head is as follows:

“ I undertook the work at this place in this way: Mr. Mowbray asked me to go in and measure the houses. I asked him about what he calculated to spend on glass for the houses, the same as I have been doing work for him for years. He said he thought he ought to get it done for $1,500 — $300 a house. I went and measured all the work in the houses at the time, and I told him I would do it for $1,500.”

He was also asked whether there was an agreement between himself and Anthony Mowbray — “a talk as to limiting the cost to $1,500 ” — to which inquiry he answered as follows:

“A. He said about $1,500; we had a conversation about it; he told me he thought he ought to get glass good enough for $300 a house, and asked me to go in and measure it up, and see if I could do it for that; I told him I could do it for that, all that was there.”

Subsequently the following questions were put to him, and the following answers given:

“ Q. Had any agreement been made at that time ? (The time here referred to was that of the defendant’s alleged promise.) A. He only said he was satisfied with the estimate, and he was in a. hurry for the work; that there were people there looking at the houses.

“ Q. And you said you would do it for that estimate ?' A. Yes, sir.”'

He also stated, on cross-examination, that he was employed by-Anthony Mowbray on his son’s behalf.

Dougherty made the estimates in Louis Mowbray’s name, and he also arranged with Anthony Mowbray that the bill for his work and materials should also be made out to Louis.

Accordingly, he did the work upon the houses, furnished the materials, charged the goods upon his books and made out the bill therefor to Louis. When the work was finished, he took the bill himself to Anthony, who gave him an order on the defendant for $350, which was paid. Subsequently he filed a mechanic’s lien against the property, in which he stated, under oath, that the name of the person by whom he was employed, and to whom he had furnished the materials, was Louis M. Mowbray.

The defendant came into the matter as a mere custodian of certain moneys which were put into his hands to be disbursed. It appears ■ that, prior to the time of the alleged promise, Louis Mowbray had given a mortgage to one Tiffany with the understanding that the latter was to make advances thereon for the completion of the houses. Tiffany made these advances directly to Louis, who turned the money over to the defendant to be disbursed upon Anthony Mowbray’s orders. Dougherty understood all this, and, when the alleged promise was made, he knew just what Stone’s position in the matter was. He testified that Anthony Mowbray told him that Mr. Tiffany had agreed to loan money enough to finish the houses, and that it was in Mr. Stone’s possession,” and that he must see Mr. Stone about his pay. And, again, we quote questions and answers :

“ Q. Have not you just said that he (Anthony) told you that Mr. Tiffany had advanced money for the completion of the houses which were in Mr. Mowbray, and that that money was in Mr. Stone’s hands ? A. Y es, sir.
“ Q. And that you were to be paid out of the moneys i/n Mr. Stone's hands, advanced by Mr. Tiffany ? * A. Yes, sir.''

Dougherty’s testimony as to the promise itself was brief: “ I asked him (Anthony Mowbray) who was to pay me ? He said Leander Stone.” Shortly afterwards Stone arrived. Dougherty was introduced to him by Anthony as the man who was going to do the stained glass work, and the promise is said to have been then made. This is the plaintiff’s entire testimony with respect to it: “I asked Mr. Stone if I done this work, if he would pay for it ? He said, yes; I will pay for any work yon put in those buildings, ordered by Mr. Anthony Mowbray.”

It is impossible, upon all the facts, to treat this promise as original. It was clearly collateral to the originul liability of Louis M. Mow-bray, and the facts overwhelmingly show that the plaintiff so understood it, and so relied upon it. If Louis Mowbray was liable to the plaintiff, then the promise was necessarily collateral, there being no question of a joint liability. And the rule is well settled that, if the person for whose use the goods are furnished be liable at all, any other promise by a third person to pay that debt must be in writing, otherwise it is void by the statute of frauds. (Brady v. Sackrider, 1 Sandf., 514; Dixon v. Frazee, 1 E. D. Smith, 32; Allen v. Scarff, 1 Hilton, 212; Matson v. Wharam, 2 T. R., 80; Bugbee v. Kendricken, 130 Mass., 437; Cahill v. Bigelow, 18 Pick, 369.) How can it be seriously contended, upon the facts above stated, that it was not contemplated that Louis Mowbray should be liable at all ? The estimates were made out in his name, the goods were charged to him, the bill was rendered to him, and the plaintiff, under oath, asserted that he was employed by and furnished the goods to him.

The charging of the goods and rendering of the bill to Louis are facts which may not, of themselves, be conclusive. All the facts to which we have adverted are undoubtedly susceptible of explanation. Blit tlie trouble is that no sufficient explanation was given. There was no mistake or inadvertence about what was done. The plaintiff says that he charged •the goods and made out the bill as he did because Anthony Mowbray told him to do so. This may explain why he did not charge them to Anthony Mowbray, but it does not explain why, if the sole credit was given to the defendant, they should have been charged to either of the Mowbrays. As to the Mechanic’s lien there was no attempt at explanation, and it is indeed difficult to see how* such an affidavit could be explained 'away. Instead of weakening the force of the affidavit, the plaintiff, strengthened it by showing that it was deliberately made. He testified that when he filed the mechanic’s lien he supposed the statement was true, and that he would not have sworn to it if he had not thought so; that he went to the county clerk’s office and got a young man there to draw it up, and, that he furnished all the information upon which the young man acted .in preparing the paper. And he also admits that he made this affidavit after he had received the $350 from the defendant on Anthony Mowbray’s written order.

These facts are much stronger against the claim of an original promise than the facts in many of the cases where, notwithstanding absolute expressions of the promisor, the engagement was held to-be collateral. (Matson v. Wharem, supra; Anderson v. Hayman, 1 H. Bl., 120; Dixon v. Frazee, supra; Langdon v. Richardson, 58 Iowa, 610; and see Browne on Statute of Frauds [4th ed.], p. 229; Wood on Statute of Frauds, § 98, and 2 Parsons on Contracts. [7th ed.], p. 11.)

We think, therefore, that the complaint should have been dismissed at the close of the plaintiff’s case.

We think, also, that a verdict should have been directed for the defendant when the testimony was all in. Even if there was enough in the terms of the promise, notwithstanding the interpretation placed upon it by the plaintiff’s own acts, to justify the denial of the nonsuit, it is quite clear that the plaintiff’s testimony, weakened as it was by his acts, could not stand for a moment against the-defendant’s denial, corroborated as it was with regard to the surrounding circumstances by the Mowbrays. The plaintiff’s testimony, as to the expression used by the defendant when the promise was made, does not harmonize with his subsequent acts and statements. And this testimony should not have been submitted to the jury as against positive denials — denials, too, which were corroborated with regard to important circumstances, without, at least, some plausible or rational explanation of these subsequent acts and statements. For all such acts and statements plainly indicated that the plaintiff must have understood the defendant’s promise to be collateral to the-original liability of Louis M. Mowbray.

It was also error to instruct the jury, as the learned judge did in substance, that the effect of charging the goods and rendering the bill to Louis Mowbray was sought to be neutralized by testimony on the plaintiff’s part, that these acts were done under the direction of the agent of the defendant. The learned judge here referred to Anthony Mowbray, who was the agent of his son Louis, but not of the defendant. We presume this was an inadvertence, but what was said tended to confuse the jury, and it is not improbable that their strange verdict resulted from some idea that the defendant was himself responsible for the very acts which foreclosed the plaintiff.

Inhere is still another point which should be averted to. What was said about a joint contract was inapplicable to the undisputed facts, and, consequently, a false issue was submitted to the jury. When the learned judge’s attention was called (by the defendant’s exception) to what he had said as to the law governing a joint obligation, he stated that the proposition already charged was an abstract one. He added that if, on all the evidence, the jury should find that there was no joint contract, then the proposition would amount to nothing. Thus it was left to the jury to decide whether, as matter of fact, there was a joint contract, and if there was, to apply the.proposition already stated. This question of a joint contract was not in the case at all, and should not have been submitted to the jury in any form. It should rather have been eliminated from the case entirely, if the jury were to be kept from wandering from the real issue.

The judgment and order denying the motion for a new trial should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Yan Brunt, P. J., concurred.

• Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event.


author: O’Brien, J.: Barrett, J.:

text:
    THE W. J. JOHNSTON COMPANY (Limited), Appellant, v. WALTER T. HUNT and Another, Respondents.

      Equity — an injunction to restrain aformer employee of the plaintiff from rendering services to another.

    Walter T. Hunt, who had been connected with a newspaper for a long time, and had become familiar with its methods, and particularly with those which related to advertising, of which department he had had charge, knowing the patrons of the newspaper, and the manner in which their advertising could be obtained, after having agreed to give the journal his whole time, without cause left its . employment and attached himself to a rival newpaper in the same capacity and solicited advertising for it.
    In an action brought by the first-named newspaper to restrain Hunt from giving his services to its rival, it appeared that such action on the part of Hunt had been hurtful to the plaintiff, but there was no evidence that it had caused any irreparable loss to it.
    Upon an appeal by the plaintiff from a judgment dismissing the complaint Held, that, whether the services rendered were so unique and extraordinary that an injunction would be granted to restrain the person from serving another, might be answered by determining whether the services could be rendered by a substitute.
    That, as in this case, a substitute had rendered the same services, although at some loss, it was not a proper case for an injunction.
    That there was no absolute rule of law that where damages were shown, but no right to an injunction was made out, the court must retain the case for legal relief in damages.
    That, whether or not the court should so retain it, rested in its discretion.
    That the court could properly retain an action of this nature in order to afford legal relief where, at its commencement, the facts warranted legal, and also equitable relief, although, by reason of a change in facts or circumstances subsequent to the commencement of the action, such equitable relief was no longer necessary, or upon the facts proved upon the trial, could not be granted. That where the suit was brought in equity and it appears that at the commencement thereof the plaintiff was not entitled to any equitable relief, the court, upon dismissing the equitable claim, might require the plaintiff to proceed by an action at law for the legal remedy he was entitled to. (Barrett, J., dissenting.)
    Appeal by the plaintiff, tlie W. J. Jolmston Company (Limited), from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 12th day of May, 1892, dismissing the complaint, with costs, after a trial by the court at the New York Circuit.

      Thomas J. Keigham, for tlie appellant.

      Thomas Heriby Hull, for tlie respondents.
   O’Brien, J.:

This action was brought to obtain an injunction restraining the ■defendant Hunt from working for the defendant, the Electric Age Publishing Company, in the capacity of an advertising solictor or :agent, and for damages, on the ground that Hunt had agreed “ to devote his entire time and attention to the interests ” of the Johnston ■Company “ in the capacity of advertising solictor, and to do similar work for five years from the 1st day of June, 1890.” Upon the "trial the written agreement between the parties was produced. By its terms, in addition to the provision above quoted, it further provided that the defendant Hunt, while in the employment of the plaintiff, would not “ devote any of his time or attention, during business hours or otherwise, in the interests or to the advantage of any •other corporation, company, person or firm, electrical or otherwise, without the written consent ” of the plaintiff. This agreement, as .shown by the testimony, was wantonly and without any just cause or excuse broken by tlie defendant Hunt. Being dissatisfied with a former agreement entered into between them, he induced the plaintiff to cancel the same, and further induced him to pay $4,000 in cash, and thereupon executed the agreement which it is now .sought to enforce against him.

Upon such a state of facts, and, concededly, out of no consideration for the defendant Hunt, whose bad faith was made apparent, the learned trial judge dismissed plaintiff’s complaint, upon the ground that the contract was of such a nature as not to entitle plaintiff to an injunction restraining the defendant Hunt from giving his services to the other defendant, who, it appears, carries on a paper similar to that conducted by the plaintiff and in competition with it.

The question thus presented, as stated in Daly v. Smith (38 Sup. Ct., 158; 49 How. Pr., 150), is whether or not a court of fequity will interfere by injunction to prevent a breach of a contract for personal services, or whether the complainant must look to his damages at law as Ms sole redress. TMs case (Daly v. Smith), as well as all the cases germane to the subject, observe the distinction which is to be noted between affirmative and negative covenants in such an agreement, and while the court does not possess the power to compel a person to render services which he has agreed to perform, yet when he has stipulated not to work for another, the court can and will, in a proper case, prevent his doing so. It is not, however, in all cases where contracts are made for personal services that a court of equity will intervene, but only in cases where, as stated in Pomeroy’s Equity Jurisprudence (vol. 3, § 1313), “ a contract stipulates for special, unique or extraordinary services or acts, or for such services or acts to be rendered or done by a party having-special, unique and extraordinary qualifications, as, for example, by an eminent actor, singer, artist and the like.”

As said by Mr. Justice Barrett, in Strobridge Lithographic Company v. Crane (35 N. Y. St. Rep., 4J3): “ It may sometimes be difficult to say just what is a special, unique and extraordinary service,, or whether the employee possesses special, unique or extraordinary qualifications. The solution may generally be reached by an inquiry as to whether a substitute for the employee can readily be obtained, and whether such substitute will substantially answer the purpose of the contract; in other words, whether the individual service specially contracted for is essential to prevent irreparable injury. The foundation of the jurisdiction is the inability of the law to afford adequate redress.”

By the evidence in this case it was shown that the plaintiff, immediately after the defendant had broken his contract, substituted in his place another; and. while there is some slight evidence to show that the effect of the withdrawal of the defendant Hunt and the substitution of another resulted, for the time being, in some loss of advertising to the plaintiff’s paper, yet it failed to establish what is required in cases of this kind, viz., that the injury was irreparable, not capable of being ascertained and redressed by a suitable action at law, and that Hunt possessed “ special, unique or extraordinary qualifications ” as an advertising agent or solicitor. There can be no doubt that his services were valuable, because this is evidenced by the character of the agreements, the efforts put forth by plaintiff to retain his services, and the consideration provided in the agreement for his compensation. Regarding, however, the character of the work which he was to perform, and the other considerations adverted to, we do not think that there is presented a case which should demand the equitable interposition of the court.

The appellant, however, urges, and with much force, that though the court concluded upon the evidence that the plaintiff was not entitled to equitable relief, still, having the action for oné purpose, and it being shown that damages resulted by reason of defendant’s breach of the agreement, the court should have proceeded and ascertained the same, or sent the case to a referee or jury for that purpose.

This question has been many times presented, and we do not pretend to reconcile the cases; and while there is seeming authority for the position taken by appellant, that it was within the power of the court, in an action in which both equitable and legal relief were sought upon the same state of facts, to retain the action and dispose of the question of legal relief as though the action had originally been brought only for such relief, yet we find no case which goes to the extent of holding that the court, upon reaching the conclusion that no equitable relief should be accorded, must retain the action for such legal relief.

In determining the question as to when the discretion vested in the court should be exercised, we think it is properly employed by retaining the case for the purpose of affording legal relief in cases where, at' the time of the commencement thereof, the facts warranted legal relief and would have justified a decree in equity, and where, by reason of a change in facts or circumstances, subsequent to the commencement of the action, such equitable relief is no longer necessary, or, upon the facts proved upon the trial, could not be granted. In such cases, the plaintiff, having properly brought his suit in equity, should not, by reason of subsequent events, be denied relief; it being a proper exercise of the discretion vested in the court to retain the action for the purpose of disposing of the question of legal relief in the manner provided for the trial of legal actions, thus saving the delay, labor and expense incident to the commencement of another action at law. On the other hand, where a suit is brought in equity, and the evidence discloses the fact that at the commencement thereof the plaintiff was not entitled to any equitable relief, then the court, upon dismissing the equitable claim, can require that the plaintiff, for any other relief to which he may be entitled, must proceed in the ordinary way by an action at law.

Having concluded that the plaintiff was not entitled to the injunction prayed for, and that, as to this part of the relief, the complaint should be dismissed, the trial judge was not then obliged, even though a motion was made by the plaintiff to that effect, to send the case to the circuit for trial, but could, as he did, dismiss the complaint without prejudice to an action at law.

We are of opinion that the judgment should be affirmed, with costs.

Yan Brunt, P. J., concurred.

Barrett, J.:

I dissent upon several grounds. First, the learned judge at Special Term should not have dismissed the complaint upon the ground that jurisdiction in equity was not shown when no such point was taken by counsel. The defendant moved to dismiss upon other grounds, and the learned judge, without passing upon these grounds, dismissed the complaint, generally assigning as a reason that the remedy was at law. Second, the defendant did not insist in his answer, or suggest upon the trial, that an adequate remedy at law existed. On the contrary, he treated the action throughout as properly an equitable one, and even demanded, in his answer, equitable relief as against the plaintiff. Third, upon the case made by the pleadings and proofs, the contract was for the performance of personal services requiring special aptitude, skill and experience, for the breach of which an action at law would not have afforded the plaintiff an adequate remedy. The plaintiff’s revenue comes almost entirely from advertising. Hunt was an advertising solicitor, and he •controlled this advertising to a large extent personally. This was because a large proportion of such advertising was obtained through his personal solicitation. He had been in the employ of Fir. Johnston, or of the plaintiff, for several years, and he grew up, so to speak, with the journals which they published. The business was built up with Fir. Johnston’s, or the plaintiff’s money, which was expended for Hunt’s salary, and for his traveling expenses when engaged in the business of soliciting advertisements. When Hunt notified Johnston that he was about to leave, he said that it was principally owing to his services that the business was what it was, and that, at least, a portion of the business ought to belong to him. He, at least, must, then, have felt that his services were special, unique and extraordinary,” for he shamelessly demanded $10,000, and declared that if it were not paid he would break his contract, connect himself with another journal, and take away half of the plaintiff’s advertising business. In his answer, Hunt did not deny the allegation of the complaint that: By reason of his long connection with the plaintiff’s said newspaper, he had become thoroughly familiar and well acquainted with the method of carrying on the plaintiff’s business, and especially with the methods of carrying on its advertising business, and the methods of soliciting or securing’ such advertisements, and with the customers or patrons of the said plaintiff.”

Nor did he deny that the knowledge which he possesses on the subject of this special advertising was acquired while in the employ of Mr. Johnston, or the plaintiff.

In the same way, he admits that his large and extensive acquaintance with advertisers was formed by means of money furnished to him by Johnston or the plaintiff to enable him to secure, for their benefit, a business standing with persons, firms and corporations who-needed to use the journal in question as an advertising medium.

His conduct in securing an advance of $1,000 in cash, as an inducement to execute the new agreement under consideration, and in subsequently demanding $10,000 more as an inducement to be honest in fulfilling it, is properly characterized by Mr. Justice O’Brien. That, at least, was certainly unique and extraordinary conduct. Ana it was based upon the undoubted fact that his services were essential to the plaintiff, and that no substitute could readily be obtained.

I think the facts of this case bring it fully within the principle enunciated in Strobridge Lithographic Company v. Crane (35 N. Y. St. Rep., 173), which Mr. Justice O’Brien quotes, and the authorities there referred to; and that the judgment should be reversed and a new trial ordered.

Judgment affirmed, with costs.


author: O’Brien, J.:

text:
    CAROLINE A. MIDDLEBROOK, Respondent, v. MARY E. TRAVIS and Others, Appellants, Impleaded with Others, Dependants.

      Pcm'tition — tenants by the courtesy initiate as parties thereto — when a demurrer is improper — misjoinder of parties — another action pending — motion to striJce out an answer as frivolous.

    Stephen Allen, by his will, which was proved in 1852, devised certain lands to his executors, in trust, to pay the rents, issues and profits thereof to his daughter, Mary Ann Hart, for life, with remainder, after her decease, to her children living at her death.
    Mary Ann Hart died July 21,1892, upon the next day one of her daughters, Mary E. Travis, began an action to partition the premises, to which she made parties defendants the heirs of Mary Ann Hart and the lessees in possession of the premises, but the husbands of certain of the tenants in common were not made parties to the action.
    Upon July 23, 1892, the present action for partition was brought by another daughter of Mary Ann Hunt, named Caroline A. Middlebrook, against the same defendants, to whom were joined the husbands of the tenants in common, but the lessees in possession were not made parties.
    Subsequently Martin Van Burén Travis, husband of Mary E. Travis, interposed a demurrer to the complaint in this latter action upon the ground that the complaint did not, as to him, state facts sufficient to constitute a cause of action. Other defendants, tenants by the curtesy initiate, answered in this action, setting up as the defenses a misjoinder of parties, and the pendency of the action begun by Mary E. Travis.
    Upon appeal from an order overruling the demurrer of Martin Van Burén Travis as frivolous, and striking out the answers of the other defendants as frivolous; Held, that the demurrer was properly overruled, the remedy being by answer. That the answers should not have been stricken out.
    That where a pleading is not frivolous upon its face and upon inspection the proper practice is to demur to it.
    That a motion to strike out a pleading as frivolous is not, in such a case, a substitute for a demurrer.

      Qumre, whether a husband is a proper party to an action of partition in which his wife seized of an interest in the premises, is a party?
    Appeals by tbe defendants, Virginia H. Mills and James C. Mills, from an order of tbe Supreme Court, entered in tbe office of tbe clerk of tbe city and county of New York on tbe 14tb day of November, 1892, nunejpro tune as of tbe 5tb day of November, 1892, ordering judgment upon tbe answers of certain defendants, and referring the matter to a referee to take proof of title.

      Also an appeal by the defendants, Martin Van Burén Travis and Mary E. Travis, his wife, from the same order, and particularly from that part which overruled the demurrer of Martin Van Burén Travis as frivolous, and directed that the plaintiff have judgment thereon, and upon the answers of the defendants, Mary E. Travis and others, as frivolous, and referring it to a referee to take proof of title.
    Also an appeal by the defendants, Mary A. Shearman, and George Shearman, her husband, Caroline C. Bowne and Addison Bowne, her husband, from so much of said order as directed judgment upon their answer as frivolous, and ordered a reference.
    The action was brought July 23, 1892, to obtain a partition of certain lands which, under the will of Stephen Allen, were given to his executors in trust to pay the rents, issues and profits thereof to his daughter Mary Ann Hart for life, and passed, upon the death of his daughter Mary Ann Hart, to her children living at her death. Certain of the children of Mary Ann Hart, entitled in remainder after her decease, were married and had husbands living, who were made parties to this action, as were also the heirs of Mary Ann Hart.
    In the affidavits used on an application for judgment, it appeared that upon July 22, 1892, Mary E. Travis, a daughter of Mary Ann Hart, began an action for the partition of the same premises in which the parties defendant were the same persons as in this action, except that the husbands of the daughters of Mary Ann Hart were not made parties, and the lessees in possession of the premises were made parties.

      Edward Wells, Jr., for the appellant Mills.

      Michael M. Gardozo, for the appellants Shearman and Bowne.

      Wilson M. Powell, for the respondent.
   O’Brien, J.:

This is an action for partition. It comes to the General Term upon an appeal by the defendants, Virginia H. and James C. Mills, Mary E. and M. V. B. Travis, Mary A. and George Shearman and Caroline C. and Addison Bowne, from an order of the Special Term overruling the demurrer of the defendant M. V. B. Travis as frivolous, and ordering judgment upon the answers of other said defendants as frivolous, and oi’dering the usual reference on title.

Under the will of Stephen Allen, who died in 1852, the title was tied up by a trust for the life of his daughter Mary Ann Hart, upon whose death, on July 21, 1892, the title passed in fee to her children and grandchildren who, with their husbands, were made parties to this action. The complaint, after setting forth the interests of the various parties, alleged, with respect to certain of the appealing defendants, “ that they had a tenancy by the curtesy initiate in the share of said premises of which the wife is seized.”

To this complaint the defendant Martin Yan Burén Travis demurred, upon the ground that as to him it did not state facts sufficient to constitute a cause of action. Upon the authority of Barnes v. Blake (59 Hun, 371), and Townsend v. Bogert (126 N. Y., 370), this demurrer was properly ovomxled as frivolous.

Other defendants who, as above, were stated to be tenants by the curtesy initiate, answered and set up either or both of two separate defenses.: -(1.) A misjoinder of parties. (2.) The pendency of a prior action for the partition of the same premises sought to be partitioned herein, and including the same parties except the hxxsbands of the tenants in common. To the answers thus interposed a motion was made for judgment upon the same as frivolous, which was granted, and from the order directing judgment on their answers as frivolous these defendants appeal.

~We might well dispose of this case by what was said in a per curiam opinion delivered by this court in the case of National Broadway Bank v. Swift (36 N. Y. St. Rep., 998): The order appealed from has been argued * * * precisely the same as though it came before this court upon a demurrer, and the question involved is certainly not so clear in favor of the respondent as to justify the court in stinking oxxt the answer as frivolous.” In other words, we have frequently called attention to the fact that a motion to strike oxxt a pleading as frivolous is not a substitute for the practice which requires a demurrer to be interposed to a pleading which, upon its face and upon inspection, is not frivolous.

Here the questions, which, upon a motion to strike out a pleading as frivolous, were disposed of by a learned opinion at chambers, are supplemented upon this appeal by a voluminous brief of the respondent, and are presented as though they were raised and disposed of by demurrer. That a demurrer and not a motion was the proper practice is evident when we come to consider the questions involved.

The first to which attention has been called is, whether or not a husband is a proper party defendant in an action involving the partition of property in which his wife is seized of an interest. Reference to the opinion in the case of Barnes v. Blake (supra) will show that this question is by no means settled. And the other case of' Townsend v. Bogert {supra) is authority for the practice that, while a demurrer would not lie to the complaint in a partition suit making a husband a party, the question could be raised by answer. In the opinion written in this very case, the learned judge at Special Term places great stress upon the fact that here the husbands might have an interest in the property of their wives, for the reason that, as “ the remainder in the property vested in the parties to this action in the year 1852, * * * it might be doubted whether the subsequent statutes affecting the rights of married women would affect the tenancy by the curtesy initiate that had vested prior to the passage of the act; ” and we do not say, hut correctly, that “ the husbands of the owners of the fee were clearly improper parties.”

With respect to the second defense, he, in effect, held that the pleading was not sufficiently definite to set forth the defense of a prior action pending, his criticism of the form of the plea being that “none of these answers allege that the prior actions were between the same parties to this action. All that they allege is, that some of the parties to this action were parties to the prior action, and the parties to this action, who were not parties to the prior action, being proper parties to the action for partition, the pendency of the prior action is not a defense in this action.” It will thus be seen that stress was again placed upon the point that the husbands were proper parties, and that the form of the plea of' a prior action pending was thus defective.

The answers of the different defendants, though dissimilar in phraseology, are substantially the same; and for the purpose of disposing of this question we can refer to this defense of a prior action as pleaded, for illustration, by Shearman and Bowne, which is as follows:

“ Tlie said defendants allege that at the time of the commencement of this action there was pending in the Supreme Court, in and for the city and county of New York, another action for the partition or division and sale of the lands and premises described in the complaint in this action, wherein the defendant, Mary E. Travis, is plaintiff, and the plaintiff herein, Caroline A. Middle-brook, was a defendant, and that the other parties named as defendants therein are the defendants in this action; and that, as said defendants are informed and believe, said action, brought by said Mary E. Travis against said Caroline A. Middlebrook and others, was commenced prior to the commencement of this action.”

With respect to this answer, assuming the correctness of the criticisms passed upon it by the learned trial judge, viz., that it is defective in not showing that the defendants in this action are named as defendants in the other — which might go to the extent of showing that there was a defect of parties —-the fact that there was such defect of parties in the prior action would present a serious question whether this rendered the plea bad. We do not, however, think it is necessary to resolve these questions, but have pointed out the character of the questions presented by the answers of these defendants, which were stricken out upon a motion as frivolous, for the purpose of showing that, instead of having these answers stricken out as frivolous, the proper manner of raising the questions would have been upon a demurrer.

Eor this reason we think that, while the order appealed from, so far as it overrules the demurrer interposed, should be sustained, the rest of the order appealed from should be reversed, and the motion to strike out the answers as frivolous denied, with costs of motion and of this appeal to the defendants whose answers were thus stricken out and who appealed from the order.

Yan Brunt, P. J., and Barrett, J., concurred.

Order sustained, so far as it overrules the demurrer interposed, and reversed as to the remainder; the motion to strike out denied, with costs of motion and of this appeal to the defendants whose answers were thus stricken out and who appealed from the order.


author: Lawrence, J.:

text:
    AARON HEALY and Others, Plaintiffs, v. ISAAC BRANDON and Others, Defendants.

      Sales — implied warranty — invisible defect — when not covered by the warranty— expert testimony.
    Aaron Healy & Sons, wlio had bought of Isaac Brandon & Bros, certain articles described in a bought and sold note as Panama hides, found, upon an attempt being made to tan these hides, that it could not be done, and thereupon brought an action against the vendors to recover the damages resulting from an alleged breach of warranty. The complaint in this action alleged that the reason why ■ the hides could not be tanned in the ordinary way was that they had been, before the sale, subjected to some process which made subsequent tanning impossible, and that, as the plaintiffs were informed and believed, the defendants did not, when they made the sale, know of the defect.
    There was no question, however, but that the articles delivered were Panama hides, although" upon a subsequent sale of them by the plaintiffs for the defendants’ account the former realized less than one-half the purchase-price paid by them to the defendants therefor.
    Upon an appeal from a judgment in favor of the defendants:

      Held, that as the hides delivered were skins known as Panama hides, as no special warranty had been given that they could be tanned, as no fraud was claimed to have been committed by the defendants, and as the defendants were not manufacturers, the plaintiffs could not recover.
    That an expert witness should not be allowed, no custom or usage to that effect having been alleged in the complaint, to testify that there were no skins called hides, or known as such by leather dealers, which had not the quality of being converted into leather by tanning.
    The rule as to implied warranties considered.
    Exceptions of the plaintiffs, Aaron Healy, A. Augustus Healy and Frank Healy, taken upon the trial of an action had at the New York Circuit before the court and a jury, at which the complaint was dismissed and the exceptions of the plaintiffs were directed to be heard in the first instance at General Term.

      Thomas Q. Shearman and Everett P. Wheeler, for the plaintiffs.

      James 3. Bennett, for the defendants.
   Lawrence, J.:

The appellants, on the 19th of August, 1887, purchased 501 Panama hides of the respondents, at fourteen and a half cents per pound. The contract between the parties is evidenced by Exhibit “A,” which is as follows:

“ Pickard & Andresbn,
Brokers in Hides and Skins 89 Gold Street.
' P. O. Box, 808.
New York, August 19, 1887.
Sold, for a/c Mess. Isaac Brandon & Bros., to Mess. A. Healy & Sons, 509 Panama hides, ex. “Newport,” at Pier 42, N. R., at 14¿c„ pr. lb. cash, less 1% to be weighed up as they are.
PICKARD & ANDRESEN,
Brokers.”

It appears, from the evidence in the case, that after this contract had been made, the plaintiffs received from the defendants certain articles, purporting to be hides, but which the plaintiffs now allege were not hides, as that term is known and used in the tanning and leather trade. The goods were duly weighed, as provided by the broker’s note or contract, and the following receipt was signed by the plaintiffs:

“New York, Aug. 19, 1887.
Messrs. A. Healy & Sons, 5 Ferry St.,
To Isaac Brandon & Bros., Hr.
35 Broadway.
Terms : Net cash this day.
Y. To 501 hides weighing 12,692 lbs., at 14^c........$1, 840 34 sÁs- > Less 1 % for cash.................. 18 40 E. &O.E. ’ ‘ j. ----- $1, 821 94.
Received payment, 23, 8, ’87. =====
ISAAC BRANDON & BROS.”

It also appears that there was a difference of eight skins in the amount delivered and the amount called for by the contract, but no point is made of this; and the shortage is not material in the disposition of the case. > It is alleged in the complaint that all genuine hides possess certain inherent qualities which enable them to be converted into merchantable leather, and it was only such hides that, “ at the time herein mentioned, the defendant professed to sell, no other hides having any value for tanning purposes.” It is further averred that when the plaintiffs purchased said 501 articles, they believed the same to be genuine hides, capable of being converted into merchantable leather, and purchased them for the sole purpose of converting them into merchantable leather; all of which facts were, as plaintiffs are informed and believed, known to the defendants at the time of the transaction. It is also alleged that, shortly after purchasing said articles, the plaintiffs attempted to ■convert them into leather by the usual process of tanning employed in such cases; and in the course of such process it was discovered that the said articles did not possess the qualities essential to enable them to be converted into merchantable leather, and that it was not possible for the plaintiffs, by any exercise of skill and labor, to convert them into merchantable leather, for the reason that, prior to ■said sale, the said articles had, as plaintiffs are informed and believed? been subjected to some treatment which deprived them of the said qualities. It is averred that the said defects could not have been ■discovered prior to the attempt to convert them into merchantable leather, except by chemical tests made by an expert, and there was nothing in their appearance which in anyway indicated such defects, .and that the plaintiffs were ignorant of such defects at the time of purchase, and would not have purchased the said articles if they had known that they were not genuine hides; and, as plaintiffs are informed and believed, the defendants were ignorant of any such •defects, and sold the said articles to the plaintiffs, supposing that they were genuine hides, and could be converted into merchantable leather in the usual way. Jt is further alleged that, after discovering the facts, the plaintiffs gave notice to the defendants of such facts, and offered to return the property purchased, and demanded repayment of the purchase-price, which was refused; and the plaintiffs thereupon gave notice to the defendants that they would sell the said articles for the account of the defendants, and that, pursuant to said notice, they did make a sale of the same for $794.09, which was the best price which could possibly be obtained for the same, and which was, in fact, much larger than the same were actually worth. It is also averred that the plaintiffs laid out and expended for carting and transporting, and for work, labor and services, in respect to said articles, certain sums of money. The action is brought.to recover the damages alleged to have been sustained by them by reason of the premises. .The defendants, by their answer,, deny any knoAvledge as to the business of the plaintiffs, and deny that the defendants were engaged in the business of selling hides for tanning purposes, and, generally, they deny the material allegations in the complaint, upon which the alleged cause of action rests.

JVIost of the exceptions which were taken to the rulings of the justice at circuit relate to questions which were propounded for the purpose of establishing that the articles in question were not hides, and if those exceptions are not well founded it follows that the case was properly disposed of at the circuit. It is now perfectly well settled that in order to constitute a warranty upon a sale it is not necessary that the representations should have been intended by the vendor as a warranty, and that if the representation is clear and positive and not a mere expression of opinion, and the vendee understands it as a warranty, and relying upon it purchases, the vendor cannot escape liability by claiming that he did not intend what his-, language declared. It is also well settled that there is no distinction in principle between a representation as to the quality and condition of an article, and one as to its character, and that what would amount to a warranty in the one case is a warranty in the other. (See Hawkins v. Pemberton, 51 N. Y., 198; White v. Miller, 71 id.,. 118, and the cases cited.)

It will be seen, however, upon reference to those cases, and several others to be found in the reports, which hold the same-doctrine, that they really proceed upon the fact that the article sold, was a different thing from that which was contracted to be sold, and not the same in substance. In Hawkins v. Pemberton (supra) the article was sold as blue vitriol, sound and in good order; the article delivered was salzburger vitriol, composed of a small proportion of blue vitriol, the residue being green vitriol, Earl, Commissioner, in his opinion, at page 207, says: The article sold, if it was known at all in market, Avas known by another name. It had only from seventeen to tAventy-five per cent of blue vitriol in it. It was not an inferior article of blue vitriol, but a different substance with a small admixture of blue vitriol." So, too, in the case of White v. Miller, Andrews, J., in delivering the opinion of the court, says, at page 129 and 130 : “We think the modern doctrine ripon the subject is reasonable and proceeds upon a just interpretation of the contract of sale. A dealer who sells an article, describing it by the name of an article of commerce, the identity of which is not known to the purchaser, must understand that the latter relies upon the description as a representation by the seller, that it is the thing described, and this constitutes a warranty.”

Applying the principles enunciated in these cases to the case at bar, we think the rulings of the justice at circuit were correct. It is alleged by the plaintiffs, in their complaint, and assumed on this argument, that the defendants were ignorant of the fact that the articles delivered were not hides. No offer was made to show that the articles in question were not Panama hides, which was. what the brokers sold note called for (see Exhibit A), nor was it offered to show that they were not ex. Newport, at Pier No. 42, North River. There is no evidence in the case, and none was offered, to show that the defendants were guilty of fraud or deception. The defendants were not manufacturers of the article sold, and they delivered exactly that which they contracted to sell, to wit, the articles purporting to be Panama hides, from the Newport, at Pier 42, North River. Without attempting to reconcile all the decisions which have, been rendered in the courts in this State, upon the subject of implied warranties upon the sale of goods, we think that the decision of the Court of Appeals, in the case of Dounce v. Dow (64 N. Y., 411), lays down the legal principle which controls this ease, and sustains the view adopted' by the learned justice before whom the cause was tried. In that case, the defendant ordered of the plaintiff, a dealer in, but not a manufacturer of iron, ten tons of “ XX pipe iron,” to be used in the manufacture of castings for farming implements which required soft, tough iron. ' Plaintiffs forwarded iron of the brand specified, and billed it as such, which was accepted by the defendant without testing, and a large portion used, when it was discovered to be hard and brittle and unfit for the required purpose. In an action upon a note given for the purchase-money, wherein the defendant set up as a counter-claim the damages sustained by the use of the iron, it was held that there was a warranty of the character of the iron as “ XX pipe iron,” but not as to any certain quality of that brand, as the plaintiff could not be presumed to know the precise quality of every lot bought and sold by him, and that the plaintiff, in the absence of fraud, was only bound to deliver iron of the specified brand, and that it was not enough that he knew the purpose for which it was required, to bind him to deliver the quality required; that the defendant should have exacted a specific warranty which would have survived the acceptance. Churoh, Chief Justice, in delivering the opinion of the court, says, at page 415 : “There was no fraud, both parties suppose, doubtless, that the iron was first quality for the purpose for which it was intended, but it is not enough that the plaintiff knew such purpose. The defendant should have exacted a specific warranty, and then both parties would have acted understandingly. * * * Here both parties acted in good faith. The defendants ordered simply XX pipe iron, supposing that such iron was always tough and soft. The plaintiff forwarded the iron under the same impression. The iron proved to be brittle and hard, and the question is which party is to bear the loss. The plaintiff (in the absence of fraud) was only bound by his contract; which was to deliver XX pipe iron, and we are now assuming that such iron was delivered. If so, he was relieved from liability.”

In the case at bar, both parties supposed the articles to be hides. The contract called for Panama hides. As already stated, there was no evidence offered to show that in point of fact the articles were not Panama hides. We think, therefore, that the defendants delivered and the plaintiffs received the articles which the one had sold and the other had purchased, and that under Dounce v. Dow (supra), no recovery could be had by the plaintiffs for the damages alleged to have been sustained by them. Again, even assuming that there was an implied warranty that the articles in question, were suitable for the purpose for which the plaintiffs say they designed them, the fact that, upon a sale at auction in open market, the goods which were purchased for $1,840.34 brought the sum of $794.09, nine months after the original sale, goes far to show that the article could not be said, under any circumstances, to be entirely unmerchantable. However that may be, we are of the opinion that the rule of caveat em/ptor here applies, and there having been no fraud and no expressed warranty, the plaintiffs, after acceptance of the article, cannot be heard to say that they were not the articles which the plaintiff contracted to purchase, and which the defendant contracted to sell.

Almost all of the exceptions taken to the rulings of the court at circuit relate to evidence offered to show that the goods in question were not hides ; and it necessarily results from the view which we have expressed that those exceptions are of no avail to the plaintiffs.

There was a further exception to the ruling of the court, striking out the answer of the witness Healy to the question, whether or not any skins are called hides in the trade, or known as such, which have not this quality of being converted into leather by the process you have described. The answer was “ No, sir, not that I know of; never heard of any.” We think there was no error in striking out this testimony, because the question was clearly improper under the rulings already made; and also because it called for the opinion of an alleged expert upon the meaning of a word -which required no definition or explanation from an expert. The word “hide” is defined by Webster to be “ skin of an animal, either raw or dressed, more generally applied to the undressed skins of the larger domestic animals, as oxen, horses,” etc. There was no dispute of the fact that the articles delivered under the contract between the parties were skins. Indeed, the question itself designates them as skins. To allow an expert, under such circumstances, to say that there was a hidden meaning in the contract, no custom or usage having been pleaded in the complaint, would have been improper; and it was the duty of the court, upon its attention being called to the answer, by motion, to strike it out. The exception to the question as to the items of expenditure, which the plaintiffs sought to show increased the value of the goods, is, in our opinion, unavailing.

The result of our examination of this case, is, that none of the exceptions are'well taken, and that the defendant is entitled to judgment, with costs and disbursements.

Yan Brunt, P. J., and O’Brien, J., concurred.

Judgment ordered for defendant, with costs and disbursements.


author: Yan Brunt, P. J.: O’Brien, <1.:

text:
    WARREN S. SILLCOCKS, Respondent and Appellant, v. PETER W. GALLAUDET and Others, Appellants and Respondents.

      Brokers — hypothecation of customer’s securities — customer’s right to regain them — purchases on mcvrgins — general creditors.

    In 1890 Warren S. Sillcocks employed tlie firm of P. W. Gallaudet & Co. to buy stocks for him on margins, and as security for such purchases left with them certificate No. 27938 of the stock of the New York, Ontario and Western Railway Company. Various purchases and one sale were made by the firm for Sill-cocks, who subsequently deposited with the firm, as further security, certificate No. 27937 of the same stock. None of the stocks purchased for him by the firm were actually delivered to him, but the firm pledged them and many other stocks purchased for other customers for loans made by it. The firm failed, owning at the time no stocks of its own, but carrying for customers many stocks of which its assignee, C. Elliott Minor took possession. A bank, one of the creditors of the firm, having sold out certain stocks, including certificate No. 27938, which Gallaudet <& Co. had pledged to them, Sillcocks claimed that he could trace this certificate, and also certain of the stocks which had been bought on a margin for him. Certificate No. 27937 had, in fact, disappeared, but the firm, when it failed, held certificate No. 26939 for the same number of shares of the same stock.
    In an action brought by Sillcocks to recover these securities:

      Held, that, as to the stocks purchased by the firm for Sillcocks upon margins, he stood in the same position as other customers for whom the firm had purchased other stocks in a similar manner, and had no better equity than they to obtain possession of the stocks purchased, even though he could, and they could not,
    ■ identify their purchases.
    That certificate No. 27938 stood in a different position; that as Sillcocks had pledged it only as security for his operations, he was entitled to regain it since, after its hypothecation, he was able to trace it. (O’Brien, J., digsenting.)
    That Sillcocks was not entitled to the possession of certificate No. 26939, which he ■had never owned, merely because certificate No. 27937 had disappeared, and No. 26939 was for the same number of shares of the same stock.
    That the court could not presume that the firm had reserved No. 26939, in place of No. 27937, which they had disposed of without authority.
    Appeal by the plaintiff Warren. S. Sillcocks from that part of a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 20th day of May, 1892, which, after adjudging that the defendant C. Elliott Minor, as assignee, had received $1,483 from the proceeds of a sale by the National Bank of Commerce of certain securities held by it as collateral to loans made by it to P. W. Gallaudet & Go., and that he had received the further sum of $16,Y4:3.12 realized by him, asussignee, from sales of securities formerly belonging to said firm and delivered to him, said Minor, by said bank, adjudged that said sums were charged in equity, in the hands of said assignee, with a trust in favor of the plaintiff, which should be limited to the extent to which the value of the said 100 shares of stock of the New York, Ontario and Western Railroad Company of the plaintiff, included in said loan (meaning certificate No. 27938), bore to the value of all the securities composing and contained in said loan which belonged to other customers of said defendants Gallaudet & Go., but subject, however, to an accounting between all the parties concerned in said securities as to the amount which should be contributed by the owners of the securities not sold by said bank to the owners of those securities which were sold by it to pay the loan for which all were pledged, and as to the amount due from the plaintiff and the other customers of Gallaudet & Co., upon their said respective securities to said Gallaudet & Co., for monej^s advanced by Gallaudet & Co. on the respective purchases by said firm of said securities for the plaintiff and the other customers of said firm similarly situated in respect to said loan, and that the plaintiff Warren S. Sillcocks was a'general creditor of the said assigned estate of Gallaudet & Go. for any balance due from said firm after deducting whatever may be awarded to him upon said accounting.
    Also an appeal by the defendants, Peter W. Gallaudet, Henry Pitch, Jr., and C. Elliott Minor, as assignee for the benefit of creditors of Peter W. Gallaudet and Henry Pitch, Jr., from so much of the said judgment as adjudged that the plaintiff recover costs of the said defendants.

      W. A. Poste, for the plaintiff, appellant.

      George W. Wingate, for the assignee, defendant, appellant.
   Yan Brunt, P. J.:

Prior to November, 1890, the defendants, Gallaudet & Pitch, were partners doing business as stock-brokers in the city of New York. In July, 1890, the plaintiff employed the said defendants to purchase for him 200 shares of the capital stock of the New York, Ontario and .Western Eailway Company, and left with them, as security for the purchase-price, 100 shares of the same stock, represented by a certificate thereof numbered 27988, which order the defendants, Gallaudet & Fitch, executed. In August, 1890, the plaintiff employed the same firm to buy for him 100 shares of •quicksilver mining stock, which they did. In October, they bought for the plaintiff 100 shares New York and New England Eailroad Company stock, and subsequently the plaintiff deposited with them, at their request, as additional margin, 100 shares of New York, Ontario and Western Eailway stock, represented by certificate No. 27987. Subsequently said firm sold for the plaintiff fifty shares of American Tobacco Company stock, and received the cash therefor. Gallaudet & Fitch never delivered to the plaintiff any of the shares so purchased, nor the proceeds thereof, nor returned to bun the certificates deposited by him. In making the purchases for the plaintiff, they advanced for the. payment thereof $4,175, and the same remained unpaid to them at the time of their assignment.

It appears that at the time of their assignment the brokers themselves owned no stocks; all that they held belonging to customers for whom they were carrying them upon margin. All the stocks were hypothecated upon various loans, and on closing out these loans in a few cases, a balance of money was delivered to the assignee, but in most cases there was a deficiency. The plaintiff claims that he has been able to trace certain stocks which were pledged as margins, as having been bought for him, and that, therefore, he is entitled to a superior equity over and above other creditors who have not been able to identify any particular stocks as having been purchased for them. This contention we do not think can prevail. These stocks were purchased upon margin, precisely the same as the stocks of other customers, and the same course was pursued with them as with the plaintiff’s stocks. And, therefore, there would appear to be no foundation for the plaiaintiff’s claim to impress a superior lien upon any of the assets of the firm, because of the disposition of these securities, from that of all the other creditors who were dealing with the stock-brokers upon the same basis. And it is for this reason that it has not been deemed necessary to state, in the foregoing summary of the facts, the particulars in reference to the claims which have been made in respect to the stocks bought.

"We think, however, that the plaintiff’s claim in respect to the stocks deposited as margin, belonging to himself, stands upon a somewhat different basis; and that, so far as he is able to trace those stocks and their proceeds, he is entitled to a superior equity over the other creditors, whose stocks were purchased upon a margin. There seems to he no reason in equity why such a preference should not be given to property belonging absolutely to the plaintiff, and which the defendant firm only held as security for the advances which they might make in the execution of the orders given by the plaintiff, there being none others similarly situated.

And this brings us to a consideration of the case in respect to the two certificates Nos. 27988 and 27987. It appears that, prior to the assignment, the said firm hypothecated to the Bank of Commerce, with other securities, as collateral against a loan to them from the bank, said certificate No. 27988, and also a certificate of the same stock, No. 26939, hereinafter mentioned. The bank, on default of payment, sold out a part of the securities so pledged, including said certificate No. 27988. The sale made a surplus over the amount due to the bank of $1,483.84. The certificate in question sold for $1,600. The stock which was so hypothecated, that was not sold, was returned by the bank to the assignee, who, after surrendering eight shares of American Cable Company stock to a claimant, sold the rest for $16,743.12. This certificate was directly traced, as above stated, and, pursuant to the principles which have been heretofore enunciated, it would seem that the plaintiff, instead of being entitled to have impressed upon the surplus arising from such sale, a trust limited in its character has a superior equity, and in case no sale had been made, would have been entitled to have insisted upon the sale of the other securities first, so that he might receive his securities intact, and that this right ought to follow the proceeds of the securities pledged.

In respect to certificate No. 27987, it appears that that was sold on the 13th of November, 1890, without the direction or knowledge of the plaintiff; and it is claimed that because at that time the said firm had in their hands another certificate, No. 26939, for the same number of shares, the plaintiff became the equitable owner of such certificate, and that it must be assumed that the firm had reserved and set it aside for him as a matter of fact, and that he was entitled to follow it when it was put up as a collateral to the Bank of Commerce loan. This we think is a violent assumption, as there is no evidence whatever, except the existence of this certificate, which would justify the same, and this single fact is manifestly insufficient. It seems to be based upon the claim that by the mere pledge of the stock, which the firm had bought for the plaintiff' upon margin, they converted the same to their own use, a proposition which we neither admit nor deny because it does not seem to be necessary for the disposition of the questions involved in the case at bar.

We are of opinion, therefore, that the plaintiff was entitled to additional relief to that which was given by the referee, and a new trial must be had. It is, consequently, unnecessary to discuss the question raised by the appeal of the defendant assignee as to his liability for costs.

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

Lawrence, L, concurred.

O’Brien, <1.:

I dissent, for the reason that I think the judgment of the referee correct, both in the extent of the relief granted to plaintiff, and in awarding him costs.

As to the 100 shares of New York, Ontario and Western, represented by certificate No. 27988, I agree with the presiding justice in the view (being plaintiff’s property, and directly traced to the bank) that, in case no sale had been made, he would have been entitled to have insisted upon thé sale of the other securities first. But other parties similarly situated, and upon a like showing, would have a like equity and a like right. Where, therefore, securities, which belong to third persons, are pledged by the insolvents as collateral for a loan, all have an equal right to have other securities sold first. But the- plaintiff here, as against owners of identified stock so pledged, has no superior right or equity. Such superior equity only holds good as against general creditors or persons not establishing title to the identical securities pledged.

It here appears that, among the other securities so pledged to the bank, were some where the persons make a similar claim to that presented by plaintiff. All these securities, as well as plaintiff’s, were sold; and the contest is as to their respective rights in the surplus.

I think the referee correctly states the rule that, while plaintiff is entitled to follow his certificate of stock as far as it can be traced, “ even his diligence in prosecuting his claim cannot avail to give him prior equities over other creditors of the insolvent firm similarly situated with himself.” They are all entitled to be heard and to have their rights determined, and to do justice it would require that they should all be brought in, either by suit or on the final account ing” of the assignee.

Upon the question of costs, the referee, in the exercise of his discretion, awarded them to plaintiff. As affecting such discretion, the judgment is more favorable than was conceded by defendants before action.

I find no valid ground presented for interfering with the discretion so exercised by the referee, and I, therefore, think the judgment should be affirmed.

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


text:
    JACOB SCHMIDBERGER, Appellant, v. JOHN BLONER and GEORGE BLONER, Respondents.

      Forcible entry and detainer — an entry by consent — what threats do not constitute a forcible detainer.

    Jacob Schmidberger brought an action against two persons, named Bloner, for the alleged forcible entry and detainer of certain premises, upon the trial of which it appeared that Schmidberger had hired the premises of one of the defendants, and that while both the defendants were upon the premises, engaged in constructing a house for Schmidberger, a quarrel ensued between the parties; that the defendants attacked Schmidberger and drove him from the premises, and that they afterwards said that if he returned there would be murder. Schmidburger never returned. The complaint was dismissed.

      Reid, that the cause of action was not made out.
    That there had been no forcible entry, because the defendants had gone upon the premises at Schmidberger’s request to assist him in constructing a house.
    That no forcible detainer was shown.

      That there was nothing to prove that the defendants, by force, had prevented Schmidberger from recovering possession.
    That, at most, the proof only showed an assault, and that the defendants had, for the time being, driven Schmidberger from the land.
    Appeal by the plaintiff Jacob Schmidberger from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 9th day of September, 1892, in favor of the defendants for costs after a trial at the New York Circuit before the court and a jury.

      Leopold Leo, for the appellant.

      JL. G. Henderson, for the respondents.
   O’Brien, J.:

This action was brought to recover damages from the defendants for alleged forcible entry and detainer. Upon the trial it appeared that the plaintiff had hired from one of the defendants, and entered into possession of, a plot of land iii Westchester, which he utilized in raising “ garden truck.” It further appeared that on July 29,. 1890, the defendants, who were upon the land by permission of the-plaintiff constructing for him a house, engaged with him in a quarrel concerning money paid for some potatoes which had been raised upon the premises and sold to a grocery. The money which it is claimed the defendants so received, the plaintiff demanded of them, which they refused to give; to quote the plaintiff’s language, he' then said: “ The place belongs to me, and to-morrow morning-nobody can come into my gate again, neither groceryman nor you can come into my gate to-morrow morning, not if I have to stand, there with a pitchfork to guard my potatoes.”

Plaintiff further testified that thereupon “they came downs from this house; they ran after me and picked up stones and 1 knocked back two stones with a.pitchfork, and I saw they were: coming too close with me, with great big stones in their hands, and', threw stones at me, and I went out of the gate and they acted likes wild men; they said, ‘Kill that dog’; they said, ‘He is no good,, anyhow; ’ I went inside of my house; I went into the house that I had rented; it was about two hundred yards away from the place-where I had rented rooms, and I went into those rooms; I have never returned to this farm.”

Besides the plaintiff, two other witnesses were examined; one his. wife, who, in addition to stating that her husband had correctly given what had occurred between himself and the defendants, testified that the defendants said: “ If he comes in again in the place-there will be murder, and he shall never go in again;” “and then I told my husband never to come in again.” The other witness, was the father of Mrs. Schmidberger, the last witness, who testified to a conversation which he had with John Bloner, one of the defendants, and his wife in their house. He stated that they told him that the plaintiff and his wife should not go back to that place, otherwise there would be murder; and this the witness was directed, to state to the plaintiff. It does not appear, however, that he communicated this to the plaintiff, and the conversation itself appears, to have occurred after the plaintiff had abandoned the place as the* result of the quarrel which had been detailed.

"We think that the statement we have given of the principal facts'testified, upon which the plaintiff relied to support the action, will demonstrate that it was insufficient, and that the disposition made-by the trial judge in dismissing the complaint was correct. Because,, in the first place, there was no forcible entry by the defendants, they having gone there, at the invitation and by the permission of" the plaintiff, to assist him • in constructing a house, and all the testimony as to what occurred shows that there was a quarrel, resulting in bad blood and the threatened killing of the plaintiff with stones, which, in the heat of the quarrel, the defendants had taken up from ■the ground, and with which they had driven the plaintiff off the premises. After this the plaintiff did not return to the premises, and, so far as the testimony would show, neither did the defendants. With the exception of one little piece of testimony on the part of" the wife, who states that she saw the wagons of the defendants go-upon the land at sometime after the quarrel, the case is entirely barren of any evidence to show that the defendants thereafter ever went upon the premises; and on the occasions referred to by her, it may have been for the purpose of completing the house which was then in course of erection, or for some other lawful purpose,, and in tlie absence of testimony showing that the plaintiff had denied the right to the defendants of entering upon the land, this cannot be construed into a forcible detainer.

It will thus be seen that the elements of trespass and holding possession by force, which are essential attributes of an action for forcible entry and detainer, are wanting. As already stated, neither of these were shown upon the trial. The original entry was lawful, and in the absence of testimony showing that the defendants, by force, prevented the plaintiff from regaining possessiomof the land, a recovery for forcible entry and detainer could not be sustained. The most that was shown was an altercation, followed by an assault by the defendants upon the plaintiff, which resulted in driving him, for the time being, from the land. But this testimony was not sufficient to go to the jury, nor would it have sustained a recovery upon the ground assigned in the cause of action.

¥e are of opinion, therefore, that the judgment appealed from should be affirmed, with costs.

Yan Brunt, P. J., and Barrett, J., concurred.

Judgment affirmed with costs.

Cas.es DETERMINED IN THE FIFTH DEPARTMENT AT GENERAL TERM, pmumj, 1893.