text:
    LLOYD CANADAY, Plaintiff and Appellant, v. JOHN S. STIGER, Defendant and Respondent.
    I. Real Estate.—Contract for Sale of Lots and Houses, one of the Houses being unfinished.—Covenants.
    1. When and under what contract the vendee cannot, after ddivet'y of deed,, recover from the vender the expense of finishing the house.

    1. Where the words of the contract are “ to convey seven houses and lots on the south side of Eightieth Street, commencing at the fifth house west of Lexington Avenue, and including the said fifth, sixth, seventh, eighth, ninth, and eleventh houses adjoining, and also the second or third house east of the Fourth Avenue, which said houses and lots are subject to a mortgage or mortgages amounting to $105,000,” no such recovery can be had.
    1. Such words contain no express stipulation, and none can be implied from them, that if any of the houses are in an unfinished condition, they should be completed by *he vendor.
    2. Nor do they imply any warrant or guaranty that the lots, at the time of the conveyance, should have on them “ finished houses.”

      a. The word “ homes," in the contract, does not authorize a finding of fact, that it was the intent of the parties, that one of the houses being unfinished at the time, should be finished without expense to the vendor.
    2. Wa/rranty implied.—Upon a contract of sale of real estate, there is no implied warranty except so far as relates to title.

      3. Merger.—All agreements relating to the purchase and sale of land are merged in the deed UNLESS the contract clearly manifests a different intention.

      a. This includes the implied covenant of title.

    II. Maxim.—Caveat Emptob.
    1. This maxim has an equal application to such parts of real contracts as relate to the condition of premises sold, the buildings, improvements, and general appurtenances, as it has to chattels.

    Before Morell, Freedman, and Curtis, JJ.

      Decided April 5, 1873.
    Appeal from a judgment.
    The action was to recover a deficiency arising upon an over-estimate of certain encumbrances upon real estate, contracted to be sold by the plaintiff to the defendant, amounting to about $2,000.
    The defendant alleged that the following was a part of the contract:
    “And the said party of the second part hereby agrees to purchase said premises, and to pay for the same as. follows: by conveying to said party of the first part, seven houses and lots situate on the southerly side of Eightieth Street, in the city of New York, commencing at the fifth house west of Lexington Avenue, and including the said fifth, sixth, seventh, eighth, ninth, and eleventh houses, adjoining, and also the second or thud house east of the Fourth Avenue, which said houses and lots are subject to a mortgage or mortgages amounting to one hundred and five thousand dollars, which the said party of the first part hereby agrees to assume and pay,—five thousand dollars in' cash on the delivery of the deeds of said property; four thousand dollars by delivery to said party of the first part his note, payable six months from date, with interest.”
    And then averred that one of the houses was in an unfinished condition, and would cost the sum of $1,600 to finish it; and he claimed, that to that extent there had "been a failure of consideration on the part of the plaintiff.
    The action was tried "by a referee, who found as facts (amongst others not necessary to "be stated), that the conveyances for the lots and houses had "been interchanged "between the parties to the contract, the defendant having received and accepted the deed for the seven houses and lots of lands.
    The referee then further found:
    That at the time of conveying the seven houses to the defendant, there was only the sum of $101,000 of mortgages thereon, the plaintiff having previously paid down the encumbrances on one of said houses, $1,943, ■ to which sum of $1,943 the defendant then and there became justly indebted to the plaintiff with interest thereon, from October 19th, 1871, amounting at this date to the sum of $2,072.72.
    That at the time of the conveyance of the seven houses one of them was in an unfinished condition, and the defendant finished the said house about the 1st of January, 1872, at an expense of $1,400, which sum with interest thereon, from January 1st, 1872, at this date amounts to $1,474.04.
    That after deducting from the two amounts due the plaintiff, as aforesaid, the said taxes and the $1,400 expended in finishing said house as aforesaid, it leaves a balance due the plaintiff of $331.78 at this date.
    Upon the settlement of the case, the referee, it seems, found the additional facts :
    That at the time of making the agreement, in the complaint mentioned, seven houses were finished and one of them was in an unfinished condition.
    That the plaintiff bargained with the defendant upon the supposition and with the intent that the said unfinished house was to be finished without expense to the defendant, and that he was to have a completed house.
    And as conclusion of law, the referee found and detided that by the written, contract the plaintiff sold said seven houses as finished houses, and was legally chargeable with the expenses of finishing- said houses.
    And that upon the facts found there was a balance due the plaintiff, from the defendant, of $331.78 only, for which sum he directed judgment.
    Judgment was entered, in conformity with the report, and the plaintiff appealed.

      Sheldon & Brown, attorneys, and De Witt C. Brown, of counsel for appellant,
    urged :
    I. Without fraud, mutual mistake, or warranty, it is respectfully submitted that there was no ground for charging the plaintiff with the expense of completing the said house.
    The legal presumption is, that contracts of this kind are made upon and in view of the premises (French v. Carhart, 1 Coms. 107; Hansha v. Reid, 6 Hand, 418).
    II. The rights of the parties became fixed by the contract, and the conveyance by the plaintiff on the 23d of October followed the terms, and was in pursuance of the contract of the 14th, and any conversations had between the parties intermediate the contract and deed, were of no consequence.; and, even if plaintiff had expressly promised during this time to finish the said house, it would not have bound him.
    If the defendant supposed himself entitled to any such agreement, he should have inserted a covenant to that effect in the deed, which the defendant prepared for the plaintiff’s execution. The deed was returned from Albany to the defendant, and by him forwarded to Aymar, who drew it for record, and by him it was recorded.
    Some ten days after the execution of the contract, and after all the conversations by the plaintiff in reference to the completion of the house, the defendant accepted and placed upon record the deed of the seven houses.

      It is well settled that no matter how far the deed in its covenants, or want or covenants, departs from the contract, the latter is superseded by the deed.
    If there had been in the contract an express stipulation to finish the house, and the defendant had subsequently accepted voluntarily a deed, without such covenant, the obligation of the plaintiff to finish the house would have been at an end, unless there had been something to evince clearly a different intention (4 Hill, 346; 2 Kent's Com. 473; 5 Paige, 299; 5 John Ch. 79; 9 Paige, 443; 3 Sandford, 437; 3 Bosw. 29; 26 Wend. 169).
    III. Since the Revised Statutes (1 B. 8. 738, § 140), no covenant can be implied, either in the contract of October 14, which was under seal, or in .the deed of the Eightieth Street houses (Sandford v. Truax, 40 N. Y. 140).
    Therefore, as the contract and deed contained no express covenant to finish the house, the plaintiff was under no legal obligation to finish it.
    IV. The referee was correct in saying, that where there is an ambiguity in a contract, it is permissible to put ourselves, so far as we can, in the situation of the parties, and endeavor to ascertain their intentions by the light of the surrounding circumstances.
    The rule thus stated by the learned referee is correct; but it has no application to this case. There was no ambiguity.
    The plaintiff, by the contract of October 14, 1871, agreed to pay for the Jersey property, “ by conveying to said party of the first part, seven houses and lots, situated, etc.,” describing the seven houses; and subsequently, and about the 23d of the same month, executed and delivered to the defendant the deed mentioned, of the seven houses, which the defendant accepted and recorded, without claim that it did not agree with the contract; and subsequently, and before this suit, sold most of the seven houses.
    ■ “When, from the language of the contract, there is no uncertainty as to the true meaning of its terms, it is not competent to give evidence to show, that a different meaning was intended ” (Curtis v. Howell, 39 N. Y. 211).
    “ And the subsequent admissions and conduct of the defendant, are not admissible in evidence, with the view to the construction of such a contract” (Horton v. Woodruff, 2 Coms. 153).

    In Wescott v. Thompson, 18 N. Y. 367, the court' say: “I lay out of view the finding of the referee, as a fact, that the parties understood it as above interpreted. The understanding of parties to a contract is to be learned from the terms of the contract, if plain and unambiguous; and the question of what was their understanding, is always a question of law.”
    Parol evidence is never allowed to create an ambiguity where none existed before (Auburn City Bank v. Leonard, 40 Barb. 119).

      L. M. Northrop, attorney, and Henry E. Knox, of counsel, for respondent,
    urged :
    I. The first conclusion of the referee, 1 ‘ That by said written contract the plaintiff sold said seven houses as finished houses, and was “legally chargeable with the expense of finishing said “house,” is correct. The phrase “seven houses and lots ’ ’ means necessarily seven completed houses. Until the buildings are completed they are not houses.
    H. The finding of fact ‘1 That the plaintiff bargained “ with the defendant upon the supposition and with the “intent that the said unfinished house was to be finished without expense to the defendant, and that the “defendant was to have a complete house,” is abundantly sustained by the evidence.
    III. This finding of fact of the referee, being abundantly sustained by the evidence, the court will not disturb it on appeal (Foote v. Roberts, 7 Robertson, 17).

      IY. If there was any doubt as to what the parties meant by using the phrase “ seven houses and lots,” with reference to the houses being finished or unfinished, the court may properly resort to extrinsic evidence for the purpose of setting at rest the doubt (Blossom v. Griffin, 13 N. Y. 569).
   By the Court.—Monell, J.

The contract for the sale and conveyance of the seven houses and lots of land, is silent in respect to the condition of the buildings to be conveyed as part of the premises. There is no stipulation expressed, and none can be implied, that if they or any of them were in an unfinished state, they should be completed by the vendor.

The referee has found no fact from which could be deduced any obligation on the part of the plaintiff to allow to the defendant the expenditure required to complete the buildings; but from the mere fact that one of them was in an unfinished condition, he concludes as matter of law, that the plaintiff sold the houses as finished houses, and was legally chargeable with the-cost of completing them.

It is impossible to sustain the conclusion of the referee, either upon any fact found by him, or upon any evidence in the case of any contract expressed or implied, showing any obligation on plaintiff’s part to complete the houses.

But, even if it was a part of the contract that the plaintiff should finish the buildings, there would still be a serious difficulty in sustaining the judgment.

The premises had been conveyed, and in the absence of any mistake or fraud, it is to be presumed that all the covenants in the contract were merged in the deed.

But the defendant put his claim, not upon the ground that it was agreed that the houses were to be completed, but that the contract being for the sale and conveyance of seven houses, there was an implied warranty or guarantee that they should "be, at the time of the conveyance, “finished houses.” And the referee has adopted this theory of the defence, which led to his finding of the additional fact, that it was the intent of the parties that the one unfinished house should "be finished without expense to the defendant.

This additional finding is not supported by any evidence that it was a part of the written contract that the house should be complete. Indeed, as I understand the defence, and the views adopted by the referee, it is conceded that the contract does not impose any such obligation. If it did, then the principle of merger, already alluded to, would apply. So much, therefore, of the additional finding as states or implies that the parties bargained upon the supposition and with the •intent that the unfinished house should be finished without expense to the defendant, can be supported only upon the claim of implied warranty in the contract.

The questions involved, therefore, are : first, Is there any such implied warranty ? and second, If it existed, was it merged in the conveyance of the lots %

Upon the sale of chattels, there is an implied warranty of title and quality. The latter (quality), unless in view of the purchaser, extends to a warranty that the bulk is equal to the description given or sample shown. And the rule has been applied to choses in action, and the designation of the chose held to imply that it.was as designated, and to be a warranty (Furniss v. Ferguson, 15 N. Y. R. 437; Delaware Bank v. Jarvis, 20 Id. 226).

This doctrine of implied warranty has also been applied in this State to contracts for the sale of lands, so far, at least, as relates to the title (Burwell v. Jackson, 9 N. Y. R. 535). But I am not aware that it has ever been carried to the extent that a warranty may be implied in any other respect. The theory of the law concerning the transmission of the title to real property is opposed to the implication of covenants. Contracts of sale must "be in writing (2 R. 8. 135, § 3), and are supposed to contain the whole agreement of the parties. So no covenant whatever can "be implied in a conveyance of real property (1 R. B. 738, § 140). But upon the principle that a vendee ought not to "be obliged to take a defective title, courts have deemed it proper to protect him by implying that the vendor had agreed to give a good title.

Mr. Justice Seeder, in Burwell v. Jackson {supra), says the rule rests upon a solid foundation of reason and justice. “It is fair to presume that a vendor knows the nature and extent of his own rights, but that the vendee has not the same means of knowledge.”

The reason does not, however, exist in respect to other parts of the contract, and there cannot be any further obligation implied. If the vendor is capable of giving a good title, and otherwise complies with the terms of Ms contract, the title cannot be refused on the ground that some duty which can only be implied from the contract, has not been discharged.

From the time of entering into a contract for the sale of land, the purchaser is deemed the owner, and has a descendible estate, and his heirs may insist on the completion of the purchase (Cogswell v. Cogswell, 2 Edw. 231), and from. such time the premises are at his risk; and though the buildings should be destroyed by fire, the loss would be upon him, and it would furnish no reason for his refusing to perform (Mott v. Coddington 1 Robt. 267).

There is a further reason why covenants, other than such as relate to the title, cannot be implied. In respect to buildings, improvements, and generally appurtenances, the rule of caveat emptor must be deemed to apply. That rule is not exclusive in its application to chattels, "but has an equal application to such parts of real contracts as relate to the condition of the premises sold ; and such application is distinctly recognized in’ Burwell v. Jackson, supra, although made inapplicable to the matter of title. Parties to a sale and purchase of land are presumed to be upon the land when the contract is made (Harshaw v. Ried, 45 N. Y. R. 415), and to contract with reference to the condition the premises are in at that time. And if the vendor makes no false representation, the vendee must examine for himself, or else provide in express terms in his contract for his protection.

But a more serious objection to the defence arises from the execution and delivery of the deed.

Whatever may have been the agreements, express or implied, of the parties, they all entered into and were merged in the conveyance of the title. And this includes the implied covenant of title.

It is held in a large number of cases, that unless the contract clearly manifests a different intention, the acceptance of a deed is evidence of the execution of the whole contract; and the rights and remedies under it are determined by the deed. The contract thenceforth becomes null and void (Davis v. Barker, 3 John R. 506; Grangiac v. Arden, 10 Id. 293; Tallman v. Green, 3 Sandf. 437).

And even collateral covenants intended to be saved from merger must be such as do not relate to the title (Bull v. Willard, 9 Barb. 641; Carr v. Roach, 2 Duer, 20). If they relate to the title, and whether they are expressed or can be implied, the principle of merger applies to them; and the reason is furnished in Barwell v. Jackson, uii sup., where it is said, “ the reason why the implied warrantee on the part of the vendor ceases upon the consummation of the contract of sale by the execution of a deed, is not that the vendor, is presumed to have, investigated the title, and discovered the defects, if any there be, but that it is reasonable to require the vendee in taking a deed, which is a more solemn and deliberate act than entering into a preliminary agreement for the purchase, to protect himself by an express warranty.” Or, as might have been added, by refusing to take the deed until the title had been made good.

If, therefore there was such an implied warranty as is claimed by the defendant in this case, he should have rejected the deed, until the plaintiff had fully performed ; or protected himself by a new and independent contract.

For both the reasons therefore, first, that there was no implied warranty; and second, that the agreement was merged in the deed, it was erroneous in my opinion to allow to the defendant the sum expended by Mm in completing the unfinished house.

In accordance with these views, the plaintiff was entitled to recover the amount found to be due to him, without a deduction therefrom of the amount found to have been paid by the defendant for finishing the buildings, which with interest is stated at $1,474.04.

As all the facts are before us, and the amount which the plaintiff should recover, can readily be ascertained by computation, there is no necessity for a new trial.

The plaintiff should have judgment for the additional sum of $1,400, with interest thereon from Jan. 1, 1872, and the judgment should be amended accordingly, together with the costs of the appeal.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    THE GORHAM MANUFACTURING COMPANY, Plaintiff, v. WILLIAM G. FARGO, President of the American Merchants Union Express Company, Defendant.
    I. Common Gabbier of Merchandise. —When not excused for Loss.
    1. Ffon-information by the shipper of the contents and value of a valuable package (he not being interrogated on the subject) will not relieve the carrier from liability for its loss.

      2. Fraud, imposition, unfair concealment, or disguise of the package will relieve the carrier. .
    But
    the delivery of a box seven or eight inches long, by five or six high and wide, made of § or •£ inch boards, wrapped in heavy brown paper, tied with heavy twine, and sealed with sealing-wax at every crossing of the twine and on the knot where ib was tied, addressed to a well-known silver-manufacturing company, and weighing about twenty pounds, without any statement made as to its value or contents, no questions being asked on those subjects, the box in fact containing silver coin, does not constitute fraud, imposition, unfair concealment, or disguise.

      Non

    will the facts that such a box was transmitted to the carrier through an expressman, who knew that the carrier had in his place of business two counters, one for ordinary merchandise, and the other for money packages ; that he delivered the box at the counter for ordinary merchandise; that he did not know the contents or value of the box; that he made no statement on the subject, and no questions were asked; and that the sum he charged for the box was less than he ordinarily charged for valuable packages, constitute fraud, imposition, unfaw concealment, or disguise.

    Before Monell and Freedman, JJ.

      Decided April 5, 1873.
    Exceptions ordered to be heard at General Term.
    The action was brought for the loss of a package of silver coin, received by the American Merchants Union Express Company, for carriage.
    The evidence on the trial established the following facts:

      In June, 1869, plaintiff’s agent purchased for account of the plaintiff, from one Elliot in Newbury port, Mass., a lot of Haytien silver coin, worth $339.90 in U. S. currency, which price the company paid him therefor. -Elliot was directed to forward the coin by express to plaintiff at Providence, R I.
    He packed the coin in a wooden box about seven to eight inches long and about five or six inches high and wide. The box was made of f or § inch boards. The coin weighed nearly 19 lbs., and with the box about 20 lbs. The box was rolled up in heavy brown paper, tied with heavy twine and sealed with green sealing-wax at every crossing of the twine, and on the knot where it was tied, and stamped with a $10 gold piece; it was directed to plaintiff, Providence, Rhode Island, and delivered by Elliot to Grillett & Co., proprietors of the Neivburyport and Boston Express.
    Nothing was said as to the charges on the box. Grillett fixed the charge at what he thought proper and collected it from the defendant. He charged twenty-five cents, which was the ordinary charge for merchandise,, and less than the ordinary charge for coin. Elliot testified that he told Grillett that the box was a valuable one, and that it contained silver ; but Grillett denied it, and also denied any knowledge as to its contents. Gillett & Co.’s driver delivered the package at Boston to the receiving clerk -of the defendant, who paid the driver Grillett & Co.’s charge, and the driver delivered it to the defendant in the same manner in which he was accustomed to deliver ordinary merchandise. The driver had not been informed by Grillett, and did not know what the package contained, or that it was valuable, and did not state what it contained, nor was he asked any questions.
    Defendant’s office in Boston contains two counters or departments about thirty feet apart, one intended for money or valuable packages, the other for ordinary merchandise. The merchandise department is nearest the door, and the clerk at that counter is accustomed to ask the value of packages brought to him, and to send persons bringing money packages to the other counter. He did not ask the value of this package, because the person who brought it was an expressman. He inferred that it was merchandise from the sum which the previous carrier had charged.
    The package left defendant’s Boston office about a quarter to three on that day, and was never heard of after that time. Search was made, but it was never traced, and defendant was never able to find it. Defendant also proved the custom of Ms company to take special care of money packages, and to charge a greater compensation therefor than for ordinary merchandise, that by the act of the previous carrier in delivering it at the wrong counter his company was led to believe, and did believe, that the package was not a valuable one, and was thereby led and induced to treat and care for the said package as ordinary merchandise, and not as a package of money, coin, or valuables.
    At the close of the testimony on both sides, the court held that there was no question for the jury to pass upon, and directed the jury to find a verdict for the plaintiff for to which ruling and direction
    defendant’s counsel excepted.
    The jury rendered a verdict as directed, and the court ordered the entry of judgment to be suspended and the exceptions to be heard in the first instance at General Term.

      C. N. Bangs, attorney, and Thomas M. North, of counsel for plaintiff,
    urged: 1. It is admitted that any “false statement, or unfair concealment, or malicious suppression of facts, whereby the carrier is misled, will exempt Mm from the responsibility of a common carrier” (Angel on Carriers, sec. 258; Story on Bailments, sec. 565; 2 Kent's Com.. 603, 604; Redfield on Railways, 299, and cases there cited).
    The proposition is sound, but not applicable to the facts in this case.
    The owner of property does not lose his rights against a carrier by a merely unskilful mode of packing his goods, or by mere silence. There must be fraudulent deception by some misstatement or artifice, with intent to defraud the carrier of a compensation proportionate to the risk he assumes, and the amount of care required of him.
    There is not the slightest evidence of any fraudulent intent on anybody’s part in this case.
    2. The rule does not require a consignor to volunteer any information to the carrier, or make any statement whatever, unless he is asked by the carrier.
    “The carrier is bound to make the inquiry as to the value of the box, or the articles delivered to him, and the owner must answer at his peril; and if such inquiries are not made, and it is received for such price for transportation as is asked with reference to its bulk, weight, or external appearance, the carrier is responsible for the loss, whatever may be its value ’ ’ (Orange Co. Bank v. Brown, 9 Wend. 115; Walker v. Jackson, 10 M. & W. 168; Angell on Carriers, § 264; Story on Bailments, § 567; 2 Kent's Com. 603, 604; Sewall v. Allen, 6 Wend. 335 at page 349; Hollister v. Nowlen, 19 Id. 234 at page 245; Cole v. Goodwin, 3 9 Id. 251 at page 265; 8 Pick. 182; Brooke v. Pickwick, 4 Bing. 218; Sleat v. Fogg, 5 B. & A. 342; Batson v. Donovan, 4 Id. 21).

      Beardsley & Cole, attorneys, and of counsel for defendant,
    urged : 1. The question of the liability of the defendants in this case must rest upon che principles of the common law. There was no special contract in the case, and no notice was shown. It is submitted that under the common law the plaintiff cannot recover.

      2. The common law imposes extraordinary obligations upon the common carrier, and in proportion to the rigor of the liability it gives the carrier the right to demand compensation proportionate to the risk, and gives him a summary mode of enforcing payment. It is a fundamental proposition that the common carrier is liable in respect to his reward, and that the compensation should be in proportion to the risk.
    3. There was an unfair concealment and material suppression of facts when the package in question was delivered to the defendants, and they were misled thereby. They made a less charge for the carriage of the package than they would have made, and have been entitled to, had they known its value, and they also took less care of the same; the package was placed on the floor with ordinary merchandise, when, had its contents or value been known to the defendants, it would have been placed in a safe for transportation.
    Unless, then, fraud or negligence on the part of the defendants be shown, the plaintiff cannot recover (Angell ón Carriers, §§ 258-262; 2 Kent's Com. 603, 604; Story on Bailments, § 565; Edwards v. Sherratt, 1 East. 604; Batson v. Donovan, 4 B. & Ald. 21; Orange Co. Bk. v. Brown, 9 Wend. 116; Purcell v. Drew, 25 Wend. 85; Warner v. West. Trans. Co., 5 Robt. 390, and cases there cited).
    4. Even though it be held that it is the carrier’s duty to inquire as to the value of packages delivered to him, in this case it would have been unavailing, because the person delivering it could have given no information concerning it.
    Besides, it is submitted that the fact that the package in question was delivered by an expressman who was known to be acquainted with and to observe the requirements of the defendant in respect to the delivery of packages, excused the defendants from making inquiries as to the value of the package. The delivery of the package in the manner stated was a clear representation that it was but an ordinary package. A statement in words to that effect could not have been plainer. The defendant was then justified in treating it as an ordinary package, and it was subject to the risks and casualties incident to that class of merchandise.
   By the Court.—Freedman, J.

The American Merchants Union Express Company was, in respect to the package in question, a common carrier. The package was addressed to well-known manufacturers of silver. There was no fraud, imposition, unfair concealment, or disguise of the package, so as to entitle the defendant to claim the benefit of the rule laid down in Warner v. Western Transportation Company, 5 Robt. 490. The external appearance of the package was in harmony with its contents, and in connection with the size and weight of the package, indicated clearly that the latter was not one containing ordinary merchandise. Mo proof was adduced that coin is not commonly packed as this was, and there is no claim that any verbal misstatement was made by any one, or to any one, in the matter. In such case the rule is that a consignor is not bound to volunteer any information to the carrier, or to make any statement whatever, unless he is asked by the carrier.

The carrier is bound to make the inquiry as to the value of the box, or the articles delivered to him, and the owner must answer at his peril; and if such inquiries are not made, and it is received for such price for transportation as is asked with reference to its bulk, weight, or external appearance, the carrier is responsible for the loss, whatever may be its value.

Defendant’s receiving clerk testified that it was the general rule to ask the question, “What is the value of this package?” and if information was refused, not to decline carrying, as the company lawfully might, "but to receive the package and to place on the receipt, “value asked, not given.” But in this case, he asked no questions and undertook to use his own judgment. And finally, it should "be pointed out that the defendant did not show under what circumstances the package was lost, or show that its loss resulted from the difference in care which the company was accustomed to exercise towards merchandise and valuable packages.

From this it follows, that, being a common carrier and having received the package without a special contract in limitation of the common law liability, and the same having been lost while in the carrier’s possession, but not through the act of G-od or of the public enemy, the company is liable for its value within the general rule as to the responsibility of common carriers; and as no request was made for the submission of the case, or of any particular question of fact involved therein, to the jury, a veidict was properly directed in favor of the plaintiff (Schroff v. Bauer, 42 How. 348).

Defendant’s exception should be overruled and judgment absolute ordered for plaintiff on the verdict with costs.

Monell, J., concurred.


author: By the Court.—Curtis, J.

text:
    FRANK JOHNSON, et al., Plaintiffs and Respondents, v. CHARLES J. OPPENHEIM, et al., Defendants and Appellants.
    I. Lease.—Summaby Proceedings to dispossess.—Warrant issued. 1. Effect of, on cause of action already accrued for breach of covenants, a. It does not affect such cause of action at all.

      6. Accordingly, when a lessee covenanted to pay all tames which should be lawfully laid, and assessed upon the demised premises, and every part thereof, as the same shall become due and payable during the term, and certain taxes laid and assessed on the premises during the term, were paid by the lessor; the lessee having neglected to pay the same, and thereafter the lessee was dispossessed under a warrant issued in summary proceedings.
    1. Held that lessor was, notwithstanding the dispossession, entitled to recover from the lessee the amount of the tax.
    XL Sustaining a Paety’s Case.&emdash;Evidence.&emdash;Trial.&emdash;Explaining Evidence.
    1. Where the evidence of a party to an action is contradicted by an instrument in writing executed by himself, the existence of and statements in which instrument are corroborated by the statements of the same party, sworn to by him in an affidavit, it is improper and error to receive in rebuttal or explanation of such evidence so contradicting the party, the evidence of that party’s attorney as to how the instrument came to be made, as to the negotiations and conversations leading to its execution, as to what his (the attorney’s) motives were in entering into an agreement on behalf of his client (the party) leading to the instrument, as to his expressing such views to the other party to the instrument, and as to whether his client had any actual knowledge of what was done.
    1. Held that all such evidence was properly excluded.
    Before Barbour, Ch. J., Curtis and Sedgwick, JJ.
    Decided April 5, 1873.
    Appeal from judgment entered upon the verdict of a jury, and from order denying defendants’ motion for a new trial upon the judge’s minutes.
    This action is brought to recover a quarter’s rent, ■and is substantially the same as the action between the same parties for the preceding quarter’s rent, where judgment was rendered for the plaintiff and affirmed by the General Term of this court, and reported in 34 N. Y. Supr. Ct. R., p. 416; with an additional cause of action for the recovery of a tax imposed and laid on the demised premises during the term, which tax was paid by plaintiffs on the 14th day of December, 1869, the defendant having neglected to pay the same.
    It appeared in the evidence that the lessees (the defendants) were dispossessed from the demised premises on the 24th day of February, a. d. 1870, under a warrant issued in proceedings known as summary proceedings (art. 2, title 10, chap. 8, part 3, R. S.), instituted by plaintiffs.
    The court directed a verdict for plaintiffs, for the amount of the rent and taxes, with interest. From the judgment entered upon the verdict given pursuant to this direction, defendants appealed.

      Levy Cohen, attorney, and John Graham, of counsel
    for appellants,
    urged among other things:
    I. The plaintiffs were not entitled to recover, under any circumstances, the tax of $2,043, paid December 14, 1869.
    In their complaint they allege the dispossession of the defendants on February 24, 1870, by summary proceedings under the statute. The effect of this, we say, was to cancel and annul the lease ab initio (3 R. S. 5th ed., p. 838, § 43).
    We deny that the plaintiffs could recover the rent, or tax, in an action upon the lease, after that. At all events, if the lease was unaffected as to the rent accrued before the dispossession, it fell as to its other covenants. Hinsdale v. White, 6 Hill, 507; Whitney v. Meyer, 1 Duer, 266, do not favor our view. Still this point has never been passed upon by the Court of Appeals.
    II. The plaintiff’s counsel went into the matter of the Fischer lease fully', before the court and jury. He first introduced the affidavit of A. D. Oppenheim, sworn to January 11, 1870, as the basis of summary proceedings to dispossess Mr. Fischer. He then introduced the lease from the Oppenheims to Fischer, showing, as claimed, a cancellation of that lease on December 29, 1869.
    The intent was to show that the Oppenheims had possession, through Fischer, through almost the entire February quarter.

      The defendants’ counsel, on the examination of Mr. Levy Cohen, desired to go into this whole matter, and show that the defendants were consistent and truthful in their statement as to the surrender of the premises on or about October 1, 1869. They sought to explain the plaintiffs’ own proof. This was denied by the court.
    They desired, particularly, to explain how the cancellation of December 29, 1869, came about, and was endorsed upon the Fischer lease.
    : Their counsel made a general offer, to relieve, by proof, the Oppenheims from any apparent inconsistency or liability, arising out of what the plaintiffs themselves had first begun. All this was overruled. The proof would have shown that any possession by Fischer, after October 1, 1869, was simply without a claim of right—that he held under no title, and claimed ho title— that he was Wee any other squatter or trespasser, liable to be forcibly expelled by the proper party, whoever he was, and whenever he appeared. The plaintiffs had peremptorily refused to recognize the surrender, or to' accept the key, without denying the perfectness of the surrender. That was admitted. If it was not, the defendants should have been permitted to show that any steps taken by them after October 1, 1869, to expel Fischer, were mere appearances, mere inanities, as against the plaintiffs, and that no possession in reality by them, Fischer, or any one else, existed after October 1, 1869.
    The plaintiff’s proof on this part of the case was strenuously-objected to by the defendant’s counsel, and received under exception. Being admitted against their will, was a stronger reason why they should have been permitted to overcome it.

      Evarts, Southmayd & Qhoate, attorneys, and Joseph U. Qhoate, of" counsel, for respondents.
   By the Court.—Curtis, J.

It is not proposed to-consider any of the questions arising in this case, that were passed upon by the General Term in the determination of the first action.

The appellants, however, submit as res nova, that the plaintiffs are not entitled to recover the tax of $2,043, paid' December 14, 1869.

This tax was laid upon the demised premises during the term of the lease. It was then due and payable, and the defendants, by a covenant in the lease, obligated themselves to pay it when it should become due and payable.

The action is to recover the quarter’s rent falling due February 1st, 1870, and also the amount of this tax which the plaintiffs paid December 14th, 1869.

The defendants maintain that their being dispossessed by the plaintiffs, under the statutory summary proceedings February 24, 1870, cancelled and annulled the lease ab initio. This dispossession cannot affect the rights of the plaintiffs accruing during the quarter expiring February 1, 1870.

This has been long settled, and it would be unjust to hold that rights of action already vested and perfect, could be at a subsequent day divested because the lease ceased to be longer operative.

This principle applies as much to a covenant to pay taxes on the demised premises, as it does to a covenant to pay rent or other charges. The law does not attempt to draw any distinctions between the various obligations and covenants in a lease under such circumstances, but leaves all upon which a right of action has accrued to be enforced, up to the time the lease ceases to be operative by reason of the dispossession under the summary proceedings. (Giles v. Comstock, 4 Cow., 270; Whitney v. Meyer, 1 Duer, 276; McKeon v. Whitney, 3 Denio, 456; Crane v. Hardman, 4 E. D. Smith, 339; Cushingham v. Phillips, 1 E. D. Smith, 419; Davison v. Donadi, 2 E. D. Smith, 122.)

On the trial the defendants sought to establish a surrender of the premises to the plaintiffs on the 30th of September, previous to the quarter expiring February 1st The plaintiffs claimed that the defendants had possession through Fischer, a tenant of theirs, of some part of the premises, through almost the entire February quarter. A. D. Oppenheim, one of the defendants, testified that Fischer did not remain as their tenant one day after the 30th of September, and that he knew of no steps being taken to get him out, and that he did not make any arrangements with him in January or in the end of December to put an end to the lease, and then give him a new permission to remain in.

The plaintiffs then put in evidence a cancellation of the lease from the defendants to Fischer, dated December 29, 1869, executed by the parties to it, and also an affidavit by the witness, A. D. Oppenheim, sworn to January 11th, 1870, as the basis of summary proceedings to dispossess Fischer as defendants’ tenant, and among other things stating the cancellation December 29, 1870, of the lease to him, and thereafter the letting of the premises to Fischer, as defendants’ tenant, for a term of five days.

The defendants called ■ their attorney, Levy Cohen, Esq., and offered, in order to repel the idea of any contradiction or insensibility to truth in the testimony of the defendant, Albert D. Oppenheim, to show how this cancellation of the lease came to be made, the negotiations and conversations leading to it, the circumstances under which it was endorsed on the lease to Fischer, what witness’s motives were in entering into the agreement on behalf of the Oppenheims, and whether he expresses them to Fischer, and that defendants had no actual knowledge of what was done.

The court overruled these offers, and the defendants excepted, and now urge upon the argument that they should have been allowed to present this kind of testimony.

The court did not err in overruling these offers. It is manifest that where parties to an action testify, the rules of evidence should be adhered to with stringency. When the evidence of a party is contradicted by an instrument in writing executed by himself, and also corroborated by his statements sworn to in an affidavit, it is clear that the testimony of his attorney, such as was offered here, should not be received.

It would be in contravention of what is usually considered law and good morals, and tend to weaken if not destroy all reliance upon the solemnity and efficacy of instruments in writing, as well as upon statements deliberately reduced to writing, subscribed and sworn to in a judicial proceeding. I am not aware of any departure from the rule early recognized in this State, that all anterior verbal negotiations and promises are excluded as being resolved into the writing. Bayard vs. Malcolm, 1 John R. 467.)

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


author: By the Court.—Curtis, J. Sedgwick, J. (dissenting).

text:
    GEBHARD REUSCHER, Plaintiff and Appellant, v. FREDERICK KLEIN, Defendant and Respondent.
    I. Mortgage Chattel. —Manufacturers’ Lien.
    1. Bight of mortgagee of chattel made for the mortgagor and completed, but in possession of the manufacturers, who have a lien, on it for a balance remaining unpaid of the pnñce of its manufacture.

    1. He takes the interest of the mortgagor subject to the lien.
    3. Where the makers, after the execution of the mortgage, sold and delivered, with the mortgagor’s consent, the chattel to a third person, on the terms that they shall receive the balance of the price of manufacture remaining unpaid, and that the mortgagor shall also receive the amount paid by him on the price of the manufacture, which terms are complied with by the third person,

      Held, 1. The makers’ lien became extinguished.
    2. The interest of the mortgagee to the extent of the amount paid by the mortgagor on the price of the manufacture of the chattel became the first lien.
    3. The mortgage being due, the mortgagee had a right to take possession and foreclose under it.
    II. Referee, finding of, on questions of fact, toen not disturbed.
    Before Barbour, Ch. J., Curtis and Sedgwick, JJ.

      Decided April 5th, 1873.
    Appeal from judgment in favor of defendant, entered upon the report of a referee.
    The action is to recover the value of a wagon taken by the defendant from the plaintiff’s possession. The wagon was with other chattels mortgaged by the firm of B. Geils & Steinecke, June 5th, 1868, to the defendant. It was then at the wagon-makers’, completed, having been made for Geils & Steinecke, and a partial payment having been made of the price for making and lettering it by B. Geils, one of the firm. The defendant justifies the taking of the wagon under this chattel mortgage. The plaintiff purchased the wagon of the wagon-makers, with the consent of B. Geils & Steinecke, on the 24tli of September, 1868, paying them in •cash and installments what was due them upon it, and also paying B. Geils the $100, which he had paid the wagon-makers on account for the price of making it. The defendant foreclosed his chattel mortgage on the 18th of August, 1868, by talcing possession of and selling the mortgaged chattels other than the wagon, which was in possession of the makers, and which was for that reason, or from being overlooked, not included in the sale. He received $476 from that sale, and there remained due to him about $1200 from the mortgagors, D. Gfeils & Steinecke.
    The plaintiff claims that no title or interest in the wagon had vested in the mortgagors at the time of the execution of the mortgage, and that if there had, all the interest that the defendant took under the mortgage in this-wagon, if any, was, after the foreclosure in respect to the other chattels, extinguished by the following instrument which the plaintiff put in evidence:
    “New Yoke, August 18th, 1868.
    “Received from J. F. Badenhop the sum of four-“hundred and seventy-six dollars on account of money “realized out of the sale on the mortgage executecL “ by Dederich Gfeils and Franz Steinecke to Frederick “ Klein, dated the 5th day of June, 1868 ; for the balance “ remaining Oeils & Steinecke give their note to me. v “Frederick Klein.”
    The defendant testified that the last clause being the words “for the balance remaining Oeils & Steinecke' give their note 'to me,” were not in the instrument when he signed it, but had been “forged in” since he executed it. This was contradicted, but the referee came to-the conclusion that the evidence of the defendant must prevail, and so found.
    The referee reported in favor of a dismissal of the complaint with costs. From the judgment entered upon this report, plaintiff appeals.

      J. Frederick Badenhop, attorney, and C. C. Egan, of counsel for appellant,
    urged :
    I. The chattel mortgage, under and by virtue of' which the defendant claimed a right, never legally covered the property in question. Gfeils & Steinecke,. at the time of its execution, had neither the ownership ■of the property, nor the possession, nor the right of possession, and therefore could neither mortgage nor sell (Burt v. Dutcher, 34 N. Y. 493; Hyde v. Lathrop, 3 Keyes, 597; Pierson v. Hoag, 47 Barb. 243; Morgan v. Gregg, 46 Barb. 183).
    II. Geils & Steinecke having failed to pay the manufacturer for the wagon, never, at any time, acquired title to it, and of course could convey none ; but whatever right or interest the defendant acquired from Geils ■& Steinecke, he waved verbally, and in writing, and by his subsequent acts.
    III. If the mortgage had any validity whatever, it had been foreclosed, the effect of which was to extinguish its existence. By such foreclosure and by his .subsequent acts, the defendant was estopped from reasserting any claim under the mortgage (Garlinghouse v. Whitwell. 51 Barb. 208; Hutchins v. Hubbard, 34 N. Y. 24).
    IV. The referee was clearly in error in finding, from the evidence, that the receipt was a forgery. The weight of disinterested evidence, and the acts of the defendant consistent with its genuineness at the time of, and prior, as well as subsequent to its execution, established its genuineness beyond any doubt. The rule is well settled, that when the finding of a fact upon which the recovery rests, is against the weight of evidence, the judgment will be reversed and a new trial ordered (7 How. Pr. R. 64, 66; 1 Caines, 162; 6 Hill, 444, 451; 20 How. Pr. R. 384; 6 Bosw. 191; Townsend Man. Co. v. Foster, 51 Barb. 346).
    Besides, the defendant (upon whose testimony alone the genuineness of the last clause in the receipt, Ex. B, is impeached) was contradicted by two disinterested witnesses (Wisser and Florence) upon two material points (see Wright v. Paige, 3 Keyes, 581, affirming 36 Barb. 438; Burnett n. Harris, 50 Barb. 379, 29 Barb. 617; Hannah v. McKellip, 49 Barb. 342; Brett
      v. Gatlin, 47 Barb. 404; Bemis v. Kyle, 5 Abb. Pr. R., N. S. 232).

      V. The plaintiff (appellant) derived his title from "both Geils and Steinecke, and the manufacturer (Wisser) as-well; and in addition had the consent of the defendant to, and his acquiescence in, plaintiff’s purchase of the property from the manufacturer (see Fielden v. Lahens, 6 Abb. Pr. R., N. S., 341; Treadwell v. Sackett, 50 Barb. 440; Davis v. Grove, 2 Robt. 134; Id. 635.
    YI. The judgment should be reversed, with costs, and a new trial ordered.

      F. Sherman Smith, attorney, and James M. Smith, of counsel for respondent.
   By the Court.—Curtis, J.

The referee having, after hearing the testimony and examining the instrument of August 18th, 1868, the appearance of which he considered as sustaining the defendant’s testimony, and taking in view the improbability that the defendant would agree to take the note of an insolvent firm for the balance of his debt, came to the conclusion that the evidence of the defendant must prevail; we see no reason for a departure from the usual rule in such cases, that the findings of fact by the referee should remain undisturbed.

Considering, therefore, that the clause in question was fraudulently added to the instrument after its signature by the defendant, the point arises as to whether the defendant took any interest or title in the wagon under the mortgage to him. It had been made for the mortgagors, and partially paid for by them, but was in the makers’ possession and subject to their lien upon it for the balance, at the time of the execution of the mortgage to the defendant. The defendant took the interest of the mortgagor, subject to the lien of the makers. The makers took no steps to enforce their lien upon it, and upon being paid the amount due them, and with the consent or by the direction of the mortgagors, delivered the wagon into the possession of the plaintiff. By the payment of the sum due the makers, and the payment to D. Greils, the plaintiff became the purchaser and owner of the wagon, and of all claim or interest therein of the mortgagors, free of the lien of the makers. But this interest in the wagon for which he paid the mortgagors $100, and which both he and they recognized as a subsisting interest, had been mortgaged to the defendant, and upon the extinguishment of the preceding lien of the makers, became the first lien upon the wagon. The defendant’s mortgage remaining in full force, as soon as. the wagon was freed from the makers’ lien, the defendant had a right, as it was then due, to proceed to take possession, and foreclose under it.

The foreclosure of the mortgage by the defendant in August, 1868, by taking possession of and selling such, chattels as he then could, cannot operate to prevent him from enforcing his lien upon the wagon at such time as he should become entitled to the possession of it under the mortgage, when he appears to have acted in good faith and not inequitably.

There is nothing in the exceptions taken by the plaintiff to the rulings of the referee upon the admission of evidence, that calls for a review of the findings of the referee.

The judgment entered upon the report of the referee should be affirmed, with costs.

Sedgwick, J. (dissenting).

Weisser, the wagon-maker, who made the wagon for Diedrich Greils, of the firm of Greils & Steinecke, had never delivered it to the latter, nor had the latter ever become entitled to-a delivery of it, he having paid of the price, $503, only $100. Therefore the title to the wagon was in Weisser, and not in Diedrich Greils. The latter could not mortgage what he did not own, and never be came possessed of. Weisser having the title, could and did transfer it by sale to Reuscher (34 N. Y. R. p. 493, Burt v. Dutcher). I do not think that the plaintiffs knoAvledge that the wagon, before its sale to him, had been mortgaged to the defendant, affects the plaintiff’s title. All that the mortgagee got under the mortgage, being Biedrich Geils’ right under an executory contract of sale, it was no encumbrance upon the title, to which the plaintiff was bound to yield.

If we suppose that the plaintiffs purchase was the ■consequence of an understanding between him and the mortgagor, that such a sale would prevent the mortgagor’s obtaining the title from the wagon-maker, by tendering the sum due, and if such understanding was •unlawful against the mortgagee, and although that, as a matter of supposition, might give an action for damages, for trespass on the case, still such unlawful conduct does not prevent the title passing according to the rales ■of law. On any other supposition the wagon-maker would not have the legal right to do what was not unlawful with his own property.

I therefore am obliged to differ Avith my learned associates who have taken a different view of the case.


text:
    ALVAH BEEBE and EUGENE BEEBE, Plaintiffs and Appellants, v. SOLOMON RANGER, Defendant and Respondent.
    ¡L Broker.—Real Estate.—Meeting of Minds.
    1. A/Vhere an owner of real estate puts it in the hands of a broker for sale, stating his term to he $75,000, about $ cash, without further detail, and the broker procures a purchaser who agrees to those terms, the minds of the parties have sufficiently met to entitle the broker to his commission.

      a. Forfeiture clame.—This, although the sale falls through by reason of the seller inserting in the contract a clause of forfeiture which the purchaser declines to accede to.

      b. Interest and Insurance clame—Time mortgage is to run.

    The fact that these had not been definitely arranged before the day on which the contract was presented for signature, uM not deprive the broker of his commission, no objection being raised by the purchaser to the terms of the proposed contract in these respects, and the sale falling through entirely by reason of the insertion of the forfeiture clause.
    2. Waiver.—Broker waives no Rights by accompanying the seller to place where the contract was to be closed, and being present at the presentation for signature of a contract containing a forfeiture clause, he having previously objected to the insertion of such a clause.
    Before Barbour, Ch. J., Curtis and Sedgwick, JJ.

      Decided April 5, 1873.
    The plaintiffs "bring this action to recover their compensation as real-estate "brokers, in effecting the sale of four lots of land on the northwest corner of Fifty-ninth Street and Madison Avenue, in the city of New York.
    The answer puts in issue all the allegations of the complaint.
    The evidence on the trial showed that the defendant, in February, 1871, promised to pay the plaintiffs a commission, if they would sell the four lots in question. The defendant stated that his price was $75,000, and that he would make the terms easy, about one-third cash. The plaintiffs were about two months endeavoring to sell the lots. They offered them to some fifty persons. They brought the defendant an offer of $70,000, which he refused. At last the plaintiffs found a Mr. Mullins, who through his counsel, Gr. M. Miller, Esq., agreed to take the lots on the terms that had been specified by the defendant, and to pay about one-third down.
    The defendant, upon being informed by one of the plaintiffs of the offer, assented to it, and agreed to meet the plaintiff at the office of counsel, to make out the contract, and said that he would require five per cent, on the contract in cash, and that he would require five per cent, on signing the contract, and a third, or a little less than a third, in thirty days.
    Subsequently, when the plaintiffs and the defendant met at the office of counsel, and the contract was being drawn, up, the defendant suggested that a clause be put in, that Mr. Mullins should forfeit the $3,750, five per cent., in case he did not fulfil at the end of thirty days. This clause was inserted in the contract, and the plaintiffs and defendant and his counsel then went to the office of Mr. Miller, the counsel of the proposed purchaser, where Mr. Mullins was waiting to execute the contract on Ms part. It appears that before going there, the plaintiffs objected to the defendants putting the forfeiture clause in the contract, saying that it was unusual, and that they could not get any such contract signed.
    The forfeiture clause was objected to on the part of the purchaser, and the sale fell tMough for that reason. All the other provisions of the contracts were unobjectionable, and but for this clause the purchaser would apparently have executed the contract.
    Mr. Mullins testified that he was ready and prepared to carry out the proposition he had made. Nothing had been said in respect to incorporating in the contract a clause forfeiting $3,750, in case the sale should fall through, until after the purchaser’s proposition had been assented to by the defendant, and was for the first time suggested by the defendant while the contract of sale was being drawn up. It was in evidence that the plaintiffs were, at the time, copartners, carrying on the business of buying and selling real estate on commission, that the customary brokerage on the sale of real estate was one per cent., and that their brokerage on the sale in question would have been $750.
    The complaint was dismissed on the trial, and the plaintiffs excepted.

      Judgment was thereupon entered, from which plaintiffs appealed.

      Van Vorst & Beardsley, attorneys, and R. G. Beardsley, of counsel for respondent.

      Rodman & Adams, attorneys, and Charles D. Adams, of counsel for appellants.
   By the Court.—Curtis, J.

The defendant is undoubtedly correct in his view that, although a broker’s commission on the sale of real estate may not depend upon his getting a contract signed, yet it is very clear that" no commissions are due, until through the broker’s agency a purchaser has been found, and the minds of the purchaser and seller fully agree upon the terms of sale.

But it appears that in the present case the minds of the seller and purchaser had fully agreed upon the terms of sale. The seller had told his broker upon what terms he would sell the property. The purchaser had agreed to buy the property upon these terms, when communicated to him by the seller’s broker. The broker then informed the seller of this result, and the seder assented to it, and agreed to meet with the broker at the office of counsel to make out the contract.

Subsequently, when the contract was being prepared, the seller insists upon incorporating in it a new clause, a forfeiture clause, and which had never been previously proposed to the purchaser, or even suggested until after the termination of the negotiations for the purchase, and after the terms had been verbally agreed upon.

The courts in the later decisions seem to hold that where a broker has negotiated a sale upon terms proposed by his principal, and the latter fails to carry it -out, the broker is entitled to be paid his reasonable compensation. He occupies a position in the matter of special trust and confidence, his services are meritorious ; his most persevering labors may be without reward,' and when he does effect a sale, he should be protected in his legal rights.

In the case of Barnard v. Monnot, 3 Keyes R. 203, the Court of Appeals held, overruling the Special and General Terms of the Supreme Court of the First District, that where the broker produced a purchaser willing and ready to accept the terms of the seller, and able to perform the obligation on his part, he had earned his commissions and was entitled to recover them.

In that case, the defendant objected to carrying out the contract, on the alleged ground that his wife was unwilling to complete it.

In the case of Koch v. Emmerling, 22 How. U. S. R. 69, where the principal refused to fulfil an agreement made by an agent to sell a plantation in Louisiana, alleging he was going to Europe with his family and had no time to execute the title papers, it was held that a right to demand compensation accrued to the agent, which is to be settled by established usage.

It is also held in Doty v. Miller, 43 Barbour, 529, that an agent employed to sell, who finds a purchaser willing to pay the price, can recover his commission though the sale was not completed in consequence of a defect in the title. The same views are affirmed in Hart v. Hoffman, 44 How. P. R. 168, and in Moses v. Bierling, 31 N. Y. R. 462, and in this court in Smith v. Smith, 1 Sweeny, 552.

This being the settled law, if the defendant had wished to protect himself from liability for the services rendered by the plaintiffs, he should have stated as part of his terms of sale, when asked what they were, that he would require this forfeiture clause to be inserted in the contract of sale.

From the willingness of the purchaser to complete the-contract, in case the forfeiture clause was not insisted on, and his finding the contract satisfactory in all other respects, there is not much force in the seller’s objection, that their minds had not met on the interest and insurance clauses, or the kind of mortgage to be given.

These minor details the purchaser appeared to have left to the seller, to arrange as he might consider satisfactory, in accordance, with the provision of the original verbal agreement that the seller would make the terms easy.

Their minds met in allowing the seller, in all these details, to draw the contract to suit himself.

There does not appear to have been any waiver on the part of the plaintiffs of their right to commission, by any act of theirs, as is urged by the defendant in his points. They objected to the insertion of the forfeiture clause as soon as it was suggested, said it was unusual, and that such a contract would not be signed.

It appears that the plaintiff, Eugene Beebe, accompanied the defendant and his counsel to the office of the purchaser’s counsel, where the purchaser objected to it, and refused to sign the contract.

There was nothing that transpired there, by which the plaintiffs waived any rights to the compensation they had earned before the defendant suggested the placing the forfeiture clause in the contract. He went there as the defendant’s broker, and saw what occurred, but by no act of his did he release any right to the commission that had accrued to the plaintiffs.

I am led to the conclusion, that this is a case where the complaint should not have been dismissed, and that the judgment should be reversed, and a new trial ordered, with costs to abide the event.


author: By the Court.—Barbour, C. J.

text:
    ANTHONY S. HOPE, Plaintiff and Appellant, v. ALBERT J. SMITH and PETER BALEN, Jr., impleaded with STEPHEN L. BARDOSH and JAMES H. PROVOST (said SMITH, BALEN, BARDOSH, and PROVOST composing the Firm of SMITH, BARDOSH & Co.), Defendants, SMITH and BALEN, Respondents.
    I. Written Instruments. —Parol Evidence.
    1. When the general rule which excludes conversations, negotiations, and parol agreements, prior to the execution of a written agreement relating to and springing out of such conversations, negotiations, etc., does not apply.

    1. When the original contract, although verbal, yet was entire, and only a part of it was reduced to writing, here the part not so reduced can be proved by parol.
    2. When the consideration does not appear in the writing, here the consideration may be proved by parol.
    3. When there is a consideration further than that expressed in the writing, here the further consideration may be proved by parol.
    2. Application of these principles.

    1. When there is an endorsement on a lease signed by the lessees only as follows:

      "March 30,1869.
    “It is hereby agreed between the subscribers that the period of the lease (within mentioned) which is unexpired on the first day of May, 1869, is hereby cancelled.”
    Held that oral proof that the said written instrument of cancellation was executed under a parol agreement that the lessees would surrender the premises, and the lessor relet them, and the lessees should be excused from the quarter’s rent ending- May 1st, 1869, was admissible.
    Before Barbour, Ch. J., Curtis and Sedgwick, JJ.

      Decided April 5, 1873.
    Appeal from an order denying a motion for a new trial.
    In tkis case tke jury rendered a verdict for tke defendants. Thereupon plaintiff moved at Trial Term before the judge, before whom the trial was had, to set aside the verdict and for a new trial on his minutes upon exceptions. The motion was denied. From the order entered denying the motion plaintiff appeals.
    The facts sufficiently appear in the opinion.

      A. Ford, for appellant.

      T. C. Campbell, for respondents.
   By the Court.—Barbour, C. J.

This action was brought upon a written agreement or lease, made by plaintiff to Albert J. Smith, Stephen L. Bardosh, Peter Balen, Jr., and Charles H. Provost (composing the firm of Smith, Bardosh & Co.), to recover rent claimed by the plaintiff to be payable, according to the terms of the lease, on the first of May, 1869, for the preceding quarter. Upon the trial the following endorsement upon the lease was read in evidence :

“ Hew Yobk, March 30ih, 1869.

“ It is hereby agreed between the subscribers that the “period of the lease (within mentioned), which is unex“pired on the first day of May, 1869, is hereby can-celled.

“Smith, Bardosh & Co.”

One of the defendants was permitted by the court, against the plaintiff’s objection, to testify that a day or two before the above endorsement was signed, it was orally agreeed between him and the plaintiff that the defendants would surrender the premises and the plaintiff relet them, and that the defendants should be excused from that quarter’s rent. The plaintiff’s counsel excepted to the ruling, which admitted that evidence of an oral agreement prior to the execution of the endorsement, and claims that whatever oral agreement there may have been before such endorsement in regard to the subject-matter thereof, must be considered as merged in the written instrument; and the point of law thus raised, as well as in different forms upon the trial, is the only one in the case which requires much consideration here.

The general rule, which excludes conversations, negotiations, and parol agreements, prior to the execution of a written agreement covering the subject-matter of such negotiations, etc., does not apply in cases where-the original contract was verbal and entire, and only a part of it was reduced to writing (1 Greenl. Ev. § 284 a), nor does it exclude proof of consideration where that does not appear in the writing, nor evidence of further consideration than is expressed in the instrument (Ib. 304). The endorsement in this case was signed by the lessees alone, and expresses no consideration whatever, but was probably intended to be, as in effect it was, merely a surrender of the term, and was put in writing because the agreement between the parties required a valid surrender to be made, and the statute required that to be done in writing (2 R. S. 134, § 6). The writing, therefore, did not constitute the whole agreement, nor, indeed, of itself, any part of it, but it was merely a performance on the part of the lessees of one of the terms of the real agreement. The evidence, therefore, was properly admitted. The order appealed from should be affirmed, with costs.


author: By the Court.—Monell, J.

text:
    EDWARD MULLER, Administrator, etc., Plaintiff and Appellant, v. WILLIAM P. EARLE, impleaded with RICHARD B. CONNOLLY, Comptroller, etc., Defendant and Respondent.
    I. Lease giving Privilege to Lessee to remove Buildings on certain Conditions.—Land and Buildings taken for Public Use, the Amount oe .Damages awarded for the Land and Buildings in a Gross Sum, without Separation, being assessed and paid to the Lessor; but the Amount which was awarded for the
    TAKING OF THE BUILDINGS WAS PROVED.
    1. Sight of lessee to recoves' from, the lessor the amount awarded for the buildings.

      a. The lease in question contained a clause that the lessee “ shall and “ will pay the regular annual charge which is or may be assessed “or imposed according to law, upon any part of the said prem- “ ises for the Croton water, and shall and will, at his own proper “ costs and charges herein, pay and discharge all such taxes, duties, “and assessments whatsoever, as shall or may, during said “ term hereby granted be charged, assessed, or imposed upon said “described premises,” and a further clause that the lessee “may “remove all buildings and movable improvements that he may “ have erected upon said premises, provided nevertheless that the “ right of said party of the second part (the lessee) to remove build- “ ings and movable improvements as aforesaid, is only on the con- “ dition that the said party of the second part shall have kept and “performed all the covenants, agreements, and conditions of this “ lease, and also that all such removals as the said party of the sec- “ ond part shall have the right to make pursuant to this lease shall ‘1 be made during the month next preceding the termination thereof.” At the time of the taking of the land and buildings certain taxes and assessments remained unpaid.
    HELD—
    1. The right of removal was as to time restricted only by the termination of the lease and term by effluxion of time, without its being exercised ; and as to performance of covenants, only to
    ■ their performance at some time before the right to remove had expired by effluxion of time.
    2. The taking of the lands terminated the estates of the lessor and lessee at the same time, and the title to the land and buildings became vested in the corporation of the city of New York, and the awards for damages became the property of the parties respectively entitled to the lands and buildings.
    3. The award for the buildings was substituted in their place, and the lessee was possessed of the same rights in respect to it that he had theretofore possessed in respect to the buildings.
    4. As the lease had not terminated by effluxion of time at the time the' land and buildings were taken, and as by the act of taking the estates of both lessor and lessee were terminated, and the award for the buildings substituted in their stead, out of which award the corporation could deduct taxes and assessments due, the award for the buildings belonged to and was the property of the lessee.
    5. Even if the non-payment of taxes and assessments was in the nature of a forfeiture, still the court could relieve from it; and it would be the duty of the court to adjust the equities between the parties.
    HELD FINALLY—■

      That the lessee might recover from, the lessor the amount awarded fm' the buildings, less unpaid toases and assessments in am, action for money had amd received.

    Before Monell, Freedman, and Curtis, JJ.

      Decided April 5th, 1873.
    Appeal from judgment.
    The plaintiff’s intestate, it was alleged, was the owner of certain buildings erected upon premises which had been leased to him by defendant’s grantor.
    The lease bore date April 14, 1859, was made by Whitney, the defendant’s grantor, to one Alois Muller, by whom it was assigned to the plaintiff’s- intestate ; was for a term of ten years, and contained the following covenant :
    “And the said party of the second part, for himself, his heirs, executors and administrators, doth covenant and agree to and with the said party of the first part, his heirs and assigns, by these presents, that the said party of the second part, his executors, administrators or assigns, shall and will yearly and every year during the said term hereby granted, well and truly pay, or cause to be paid, unto the said party of the first part, his heirs or assigns, the said yearly rent above reserved, on the days and in the manner limited and prescribed as aforesaid, for the payment thereof, without any deduction, fraud or delay, according to the true intent and meaning of these presents. And also shall and will pay the regular annual charge which is or may be assessed or imposed according to law upon any part of the said premises for the Croton water, and that the said party of the second part, his executors, administrators or assigns, shall and will at their own proper costs and charges, bear, pay and discharge all such taxes, duties and assessments, whatsoever, as shall or may during the said term hereby granted, be charged, assessed or imposed upon the said described premises.”
    Also the following provision:
    “And it is further understood and agreed by and between the parties to these presents, that, at the expiration of the term hereby granted, the said party of the second part may remove all buildings and movable improvements that he may have erected upon said premises, but that he shall not remove any trees, plants or shrubbery, the foundations to any buildings, nor any fences or permanent improvements that he may have made or erected in or upon said premises, except the buildings themselves, but the same shall remain and be deemed and considered parcel of the realty.”
    “Provided, nevertheless, and it is hereby understood, that the right of the said party of the second part to remove buildings and movable improvements, as aforesaid, is only upon the condition that the said party of the second part shall have kept and performed all the covenants, agreements and conditions of this lease. “And also, that all such “removals, as said party of the second part shall have the right to make pursuant to this lease, shall be made during the month next preceding the termination thereof.”

      The premises covered by the lease were taken by the corporation of New York for public purposes, and the damages assessed to Earle, the owner, included the sum of nine thousand five hundred dollars for the value of the buildings, which sum in addition to the award for the land was paid to Earle.
    The action was tried by the court with a jury, and the following facts found:

      First. That said action was discontinued as to the defendant, the mayor, aldermen, and commonalty of the city of New York, and continued against the other defendants. That the defendant, Richard B. Connolly, comptroller of the city of New York, did not appear in the action, or answer the complaint therein. That the defendant, William P. Earle, appeared in and defended said action separately, and that the action was tried on the issues raised by the separate answer of the defendant Earle.

      Second. That at and prior to the time of making the award to William P. Earle, and the taking of the land mentioned in tire complaint herein, with the improvements thereon, the defendant, William P. Earle, was the owner in fee of the lands taken upon which the buildings claimed by the plaintiff had been erected, and that the plaintiff at the time of taking said land held and occupied said lots, Nos. 36 and 37, with others, on the commissioners’ map, mentioned in said complaint, as lessee, under said defendant Earle, as his landlord, by virtue of the lease mentioned in the complaint, and that said lease was terminated on the confirmation of the commissioners’ report mentioned in said complaint.

      Third. That the said plaintiff was bound by his covenants in said lease, among other things to pay and discharge such water rents, taxes, and assessments, as should be imposed or assessed upon the demised premises during the term granted, and at the termination of said lease, upon condition that he performed the covenants in said lease, he was to have the right to remove .all buildings and movable improvements by him erected on said premises ; all such removals to be made during the month next preceding the termination of said lease. That at the time of the making of said award, and taking the said lands, with the buildings and improvements thereon erected, water rents, and taxes, and assessments to a considerable amount had been imposed and -assessed thereon, and were still in arrears and unpaid, the plaintiff, as such lessee, having omitted and neglected to pay and discharge the same, and that the said buildings were removed from said lands by authority of the mayor, aldermen, and commonalty of the city of New York, and applied to their use.

      Fourth. That the award made to the defendant, Earle, by the commissioners, and confirmed by the court, for improvements, comprehended and' included the buildings which had been erected by the plaintiff, and were then standing on lots 36 and 37.
    With the following conclusions of law:

      Second: That the said plaintiff has no cause of action .against the defendant, William P. Earle, for or by reason of any matter or thing stated or alleged in his complaint, or proved on the trial.

      Third. That the said defendant, William P. Earle, is entitled to a judgment in his favor against the plaintiff, .Louis Muller, with costs, and I do hereby order judgment accordingly.
    The only proof of unpaid taxes or assessments was the production of certain bills and their payment by Mr. Earle previous to receiving the award tor damages. This evidence was objected to, and the objection overruled. The plaintiff excepted.
    Judgment was entered in favor of the defendant for costs, from which the plaintiff appealed.

      Solomon B. Noble, attorney, Solomon B. Noble and A. R. Lawrence, of counsel for appellant,
    urged:

      First Point. One of the main grounds on which the court "below dismissed the complaint, as to the defendant Connolly, and ordered a judgment in favor of the defendant Earle, was, that as there were certain unpaid taxes and assessments upon lots 36 and 37 at .the time the commissioners made their report, the plaintiff (appellant) was, "by the terms of the lease under which he held, precluded from setting up any title to, or interest in, the buildings.'
    It is respectfully submitted that the judgment cannot be sustained on such ground, (a). It must be borne in mind that the termination of the lease which Louis Muller held was not a termination by efflux of time, nor by the expiration of the term.
    It was a forcible termination, so to speak, caused by the exercise of the power of eminent domain, on the part of the mayor, aldermen, and commonalty of the city of Hew York, which evidently was not such a termination of the lease as was within the contemplation of the parties thereto at the time of its execution. (5). 1STow, no one can deny that if Louis Muller had waited until the first day of March, 1869, and had then paid all the taxes and assessments on lots thirty-six and thirty-seven, he would, if there had been no proceedings taken for the acquisition of those lots by the city, have been entitled to remove the buildings in question during the month of April, 1869.
    There is nothing in the lease itself which prohibited Louis Muller from waiting until the last moment, and then paying the taxes and assessments, and thereby preserving his right to the buildings, (c). The commissioners therefore, we submit, were not right in assuming that Muller would make default in the payment of the taxes and assessments, or that he had in any way forfeited, at the time their report was made up, his right to remove the buildings, nor to an award for their value, (cl). Clearly the commissioners had no right to assume that there had been a forfeiture of Louis Muller’s right to remove the buildings, and that the title to said buildings, and to an award for their value, had become vested in the defendant Earle.

      Second Point. There had been no forfeiture of Louis Muller’s right to remove the buildings on lots thirty-six and thirty-seven at the time the report of the commissioners was made, nor at the time it was confirmed. (a). The lease from Whitney to Alois Muller contained the usual clause, that if the lessee failed to keep or made default in any of the covenants therein contained on his part, the lessor might then re-enter.

    The breach of this condition did not work an absolute forfeiture of the lease.
    It could be considered a forfeiture only at the election-of the lessor, and the case clearly shows that Earle never elected to consider the lease as forfeited (Clark v. Jones, 1 Denio, 516; Stuyvesant Davis, 9 Paige,, 427; Arnsby v. Woodward, 6 Barn. & Cress, p. 519).
    Earle, as landlord, had done nothing indicating his intention to insist that there had been a forfeiture of the lease by the lessee, nor had he re-entered or taken any steps showing that he elected to consider the lease as void (Ib. 519).
    The taxes and assessments upon the lots had been standing for several years, and it was too late for Earle to elect to consider the lease as forfeited, even if he wished to do so.

      Third Point. Again, even if a tenant has forfeited his lease, by a neglect to pay a certain sum of money, a court of equity will in general relieve him from the forfeiture, where the interest can be calculated with certainty (Baxter v. Lansing, 7 Paige, 350; Jackson v. Brownson, 7 John. 235; Taylor on Landlord and Tenant, sec. 495).
    And in this case it would be competent for the court, acting on this principle, to make such a decree as would. do justice between the parties, to wit, by adjudging that the plaintiff pay off the taxes and assessments, with the accrued interest, and that the balance of the value of his buildings be paid to him.

      And such is the prayer for judgment.

      Fourth Point. But if there ever was a forfeiture on the part of Louis Muller, that forfeiture had been waived by the defendant Earle by the receipt of rent from Muller, subsequent to the alleged breach of the covenant. (a). The evidence shows that the defendant Earle continued to receive rent from Louis Muller up to the 18th day of March, 1868, or eighteen days after the confirmation of the report of the commissioners, and, of course, after the alleged forfeiture.
    Such a receipt operated as a waiver of the forfeiture, if any forfeiture had occurred (Jackson v. Sheldon, 5 Cowan, 448; Hunter v. Osterhoudt, 11 Barb. 33; Bleecker v. Smith, 13 Wend. 530).

      Fifth. The suggestion contained in the opinion of the Chief Justice, that there had been an award to the plaintiff for $200 by the commissioners, is no answer to the claim of the plaintiff, (a). In his opinion the Chief Justice admits that the award “ was very small, and “that it is quite possible that nothing was included “ therein, for the value of the buildings or materials, “ when removed.”
    It is, with great deference, contended by the appellant that, by the record in this case, it must be considered as having been determined that no allowance was made in the award to Muller for the value of the buildings.

    The Chief Justice has found, as matter of fact, that the award to Earle comprehended and included the buildings which have been erected by the plaintiff.

    Such being the case, the inequity of allowing Earle to receive the value of the buildings, it seems to us, must strike any candid mind. (b). The injustice perpetrated upon Muller by the commissioners can best be seen by the award made hy them to Masterson. Masterson was the assignee of that part of the Whitney lease which related to lot No. 33.
    Masterson, for his Building, on one lot, was allowed By the commissioners $5,600, and for his lease $2,000.
    The plaintiff’s Buildings were worth much more than Masterson’s, as would have Been shown if the report of the appraisers had not Been excluded By the court.
    There was no reason why Louis Muller should not have Been allowed, upon doing equity, to wit: upon paying up the taxes and assessments, to receive equity By an award for his leasehold interest and the value of his buildings.

    Muller’s lease had fourteen months to run, the same as Masterson’s; and it is mockery to say that the value of such an interest and of the Buildings amounted to no more than $200.
    Besides, the case shows that the greater part of unpaid assessments and taxes were imposed on lot 33 (Masterson’s).

      Sixth. The plaintiff was not precluded, Because he appeared Before the commissioners and claimed an. award to the Buildings, from maintaining this action. (a). The decision of the commissioners, as to the question who is the owner of the property taken for a proposed improvement, is not Binding upon the rival claimants, if there are such, and an error in making a decision on the part of the commissioners will always Be corrected By the courts By decreeing the award made By the commissioners to the actual owner (Matter of Central Park Extension, 16 Abbott, 64).
    In that case Judge Ingraham says :
    “If the commissioners should err in awarding to the “wrong persons the damages, no injury can accrue. lt The true owner can recover the money if paid, or “may, By injunction, stay the payment and have his “claim investigated,” etc. (Ib. p. 64).

      It is quite immaterial, therefore, what the commissioners decided as to the respective claims of Earle and Muller, under the lease, to the buildings.
    Those claims could only finally be settled by a court (Laws, 1813, sec. 178, p. 408; William and Anthony Streets, 19 Wend. 678; John and Cherry Streets, 19 Wend. 657; Palliet v. Youngs, 4 Sandf. 50).

      Martin & King, attorneys, and J. M. Martin, of counsel for respondent,
    urged:—I. The buildings erected on the land became the property of the owner of the fee, subject to the tenant’s license to remove such as he had erected, on payment of all taxes and assessments, and removing them one month before the termination of the lease on the 28th day of February, 1868 (Elmers v. Mann, 3 East, 38; Austin v. Stevens, 24 Me. 520, 528; Mathinet v. Geddings, 10 Ohio, 364).
    II. By failing to pay such taxes and remove the buildings as required by the lease, the tenant lost all claim thereto, and any award for the value of them properly belonged to Earle (Worthington v. Young, 8 Ham., Ohio, 401, and cases cited under last point).
    III. The only testimony material to the plaintiff’s case was such as tended to sho w that he, or his assignor, erected the buildings, paid the taxes, and removed the buildings pursuant to the precedent condition of the lease.
    All other testimony was wholly irrelevant and immaterial.
   By the Court.—Monell, J.

The construction which I have given to the provision in the lease, in respect to the right of the lessee to remove the buildings, renders it unnecessary to examine the exception relating to the alleged insufficiency of the evidence of the non-payment of taxes or assessments.

The covenant to pay taxes and assessments, although a covenant running with the land so as' to "bind the estate in the hands of an assignee (Demarest v. Willard, 8 Cow. 206), is a personal covenant for the breach of which an action will lie without any payment by the lessor (Rector, &c., Trinity Church v. Higgins, 48 N. Y. R. 532). At any time during the term, and whenever and as often as default was made by the lessee, payment could have been enforced by action by the lessor. It was not necessary to wait until the expiration of the term or to look solely to the proviso in the lease ; but the right of action was complete, on any default of payment by the lessee.

The right reserved to the lessee ,to remove the buildings upon the demised premises at the expiration of the term, is limited by the condition that the lessee shall have kept and performed all the covenants and agreements of the lease ; and the construction of this condition by the court at Special Term was, that the default of the tenant happening before and continuing to the time the lands were condemned, operated as a forfeiture of his right to remove the buildings, and therefore of his right to any award for damages.

The right to remove the buildings extended by the terms of the lease to the end of the term, and could be exercised at any time during the term, or on the day it terminated; and such right was qualified only by the ■condition that the lessee had paid all taxes or assessments laid upon the premises.

If, at the time this right of removal terminated by its limitation, taxes or assessments were unpaid, the condition would operate; the buildings and improvements would become the property of the lessor, and the lessee’ s right of removal would cease.

But this effect of the condition is, I think, confined to a termination of the lease and term by the effluxion of time, and to a state of things within the supposed contemplation of the parties, and not to a determination of the estate and of the relations of the parties hy operation of law.

No right of re-entry for breach of covenant or condition is given by the lease, and the right to remove the-buildings was, therefore, restricted as a security for, or indemnity against, taxes and assessments. For it Avasdoubtless the intention of the lessor to secure their payment by providing a quasi forfeiture if there should be default. But it is very clear that although the covenant to pay could be enforced at any time, the condition could not operate except on the expiration of the term.

In this case, the estates of the lessor and of the lessee-terminated at the same time and in the same manner. The act which authorizes the condemnation of lands for public purposes provides (Laws, 1813, § 178) that, upon confirmation of the commissioners’ report, the city shall be seized in fee of the lands; and further (§ 181), that thereupon all leases, or other contracts respecting-the lands so taken, shall cease and determine.

It is found as a fact that the'commissioners of estimates appraised the value of the buildings upon the-demised premises at nine thousand five hundred dollars, and that their report was confirmed by the court on the-28th of February, 1888. Upon such confirmation, the title to the land and to the buildings and improvements-thereon became vested in the corporation of the city of New York, and the awards for damages became the property of the parties entitled to them.

Until, therefore, this legal transfer to the corporation, the condition in. the lease was unaffected, and inoperative to deprive the lessee of his buildings." By this, transfer, the award was substituted in the place of the buildings, and the lessee was possessed of the same right in respect to it that he had theretofore possessed in respect to the buildings. He could not have his buildings, and it is doubtful if, during the pending proceedings to condemn the land, he could lawfully have-removed them. He. was not bound to remove them. That right, at least as between him and Ms landlord, had not and could not be terminated until the expiration of the term of the demise, and until it was so terminated the landlord had no claim whatever upon the buildings.

But, upon the confirmation of the commissioners’ report, the rights of the lessee were transferred to the award, and as between him and the lessor, were probably subject to the condition contained in the lease, so-far at least as to require the payment by the lessee of all taxes and assessments for which he was liable under his covenant.

The breach of the condition did not at any time work a forfeiture of the estate of the lessee. There was no-right of entry or words of forfeiture, and it could operate only after the estate had ended.

But if it was in the nature of a forfeiture, it c.ould be relieved ; and it would, I think, be the duty of the court to adjust the equities between the parties in furtherance of justice (Baxter v. Lansing, 7 Paige, 350).

In The Rector, &c., of Trinity Church v. Higgins (supra), the action was upon the covenant to pay assessments, and a recovery was had for the amount of the unpaid assessments, although no part had been paid by the covenantee. The court, in speaking of a recovery under such circumstances, recognizes the equitable power of the court to grant to the covenantor adequate and proper relief.

As it was found as a fact that the buildings belonged to the plaintiff, it follows, I think, that the damages for their being taken should have been awarded to him. That it has been also found that their value was included in the award to the defendant Earle, and after-wards paid to Mm, does not divest, and cannot deprive, the plaintiff of his right to claim them ; and his action is therefore properly brought to recover money received by the defendant to the plaintiff’s use.

But as the defendant, "before receiving the award, was required to, and did pay certain taxes and assessments, which were claimed to be liens on the demised premises, and which, if liens, the plaintiff had covenanted to pay, the defendant should be allowed to deduct the amount with interest, upon establishing that they were liens upon the premises.

The judgment, I am of opinion, should be reversed, and a new trial ordered, with costs to the appellant to abide the event.