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    JOHN W. ANDERSON, as Assignee, &c., Respondent, v. CLEMENT REED, et al., Appellants.

      Decided March 2, 1885.

      Vendor and vendee.—Order of vendee holding a sold note, in fa/oor of a named party, on and accepted by, vendor—insolvency of vendee after acceptance.-—■ Word “sold,” definition of.—Equity.

    Where a vendee holding a sold note makes a delivery order on the vendor in favor of a party named therein, which is accepted by the vendor, the holder of the order and sold note, bona fide for value paid to the vendee, is entitled to recover of the vendor,—if the conditions of the contract of sale have been complied with,—the value of the property designated in the accepted order at the time fixed for its delivery by the contract, with interest.
    Therefore, if by the contract of sale the vendee was to give notes for the purchase money, and they were given and accepted as payment, the insolvency of the vendee after the acceptance of the order by the vendor, and non-payment of the notes, will aSord no defense.
    The above ruling applied to a contract for the sale and delivery of goods to be manufactured.
    The word “ sold,” does not necessarily, when used in a contract, comprehend the assertion that title has passed; but may mean that it will pass upon the occurrence of certain subsequent events. Thus, under the facts of the case at bar as stated above, the promise of the vendor to the holder of an order by the vendee for delivery to him, to deliver to him, will operate under equitable principles upon the thing to be delivered and pass the title to it. • •
    The principles of equity are applied to law actions in this state.
    Before Sedgwick, Ch. J., and Tritax, J.
    Appeal by defendants, from judgment entered upon a verdict of jury, in favor of plaintiff.
    The plaintiff brought, as assignee of Perry M. De Leon, this action to enforce De Leon’s rights under an order for the delivery of goods which has been, accepted by the defendants. . The action was for damages for non-delivery, in the amount of the value of the goods. The jury gave a verdict for this amount.
    The facts are given in the opinion.

      Sullivan & Cromwell, attorneys, and Algernon S. Sullivan and W. J. Curtis, of counsel for appellants,
    argued.—I. The contract entered into between Raisin & Co. and the defendants, on December 7, 1881, was an ex-ecutory contract of sale. It was a contract for the future delivery of goods not in existence. The goods were not identified ; the contract merely refers to their quality, not to a specific quantity, but to a certain quantity in general. The contract was executory and no title to the goods passed (2 Kent 641 [10th ed] ; Story on Sales, § 233 ; § 310 Benj. on Sales, note 4 [Corbin’s ed.] ; 1 Chitty Contr. [11 Am. Ed.] 524-5 ; Blackburn Sales, 120; 1 Benj. Sales [Corbin’s ed.] § 462 ; Kimberly v. Patchin, 19 N. Y. 332 ; Foote v. Marsh, 51 Ib. 288 ; Higgins v. D., L. & W. R. R. Co., 60 Ib. 558 ; Cook v. Millard, 65 Ib. 356 ; Merchants’ Nat. Bk. v. Bangs, 102 Mass. 295 ; See also McConiche v. N. Y. & Erie R. R. Co., 20 N. Y. 497 ; Andrews v. Durant, 11 Ib. 35). . If the contract be executory, and such it evidently is, the same interpretation must be given to the word sold that was given to it in the case of Boyd v. Siffkin (2 Campb. 326). It means contracted to sell (See also Kelley v. Upton, 5 Duer, 336). In Decker v. Furniss (3 Duer, 292), the instrument, which related to the sale of a steamboat, began with the words, “ W. H. Brown sells to M. P. Furniss the one-half of the steamboat Rhode Island,” yet in reversing the judgment of this court the court of appeals held, that the contract had not the effect of vesting an immediate title in Furniss, but was an agreement to sell and not a sale, and that, although the words used denoted a present transfer, a future only was intended.
    Where the right of an unpaid vendor to retain the goods is involved, courts have laid hold of slight circumstances to retain in him the property until the purchase money be paid (Hanson v. Meyer, 6 East, 614; Wallace v. Breeds, 13 Ib. 522; Shepley v. Davis, 5 Taunt. 616 ; Bust v. Davis, 2 M. & S. 397; Swanwick v. Southern, 9 A. & E. 895 ; Godts v. Rose, 17 C. B. 229). Another class of cases are those in which the contract is to supply goods of a particular description, which would be fulfilled by furnishing any goods of the quality and kind agreed to bo furnished (Austin v. Craven, 4 Taunt. 644; Wait v. Baker, 2 Exch. 1). “The question whether the property had passed under a contract of sale has generally arisen where the right of an unpaid vendor is in the issue. Payment of the price is so essential an ingredient of a sale that neither in law nor in morals is the buyer entitled to have the goods until he pays for them .... hence the inclination of the courts to hold on slight circumstances that the contract is so incomplete that a transfer of title was not intended where the delivery is constructive only and the insolvency of the buyer has intervened with the contract price unpaid ” (See also Foot v. Marsh, 51 N. Y. 288 ; Ormsby v. Machlin, 20 Ohio St. 295 ; May v. Hooglan, 9 Bush [Ky.] 171).
    II. For a refusal on the part of Bead & Co. to deliver under this executory contract, Baisin & Co.’s only remedy would be an action at law to recover damages for breach of contract; but in such an action Baisin & Co. cannot recover without actual payment, they having become insolvent before time of delivery (§ 1305 Benj. on Sales [Corbin’s ed.]; § 897, note 23; Story on Sales, § 452). “It will be a good defense to an action for non-delivery that the vendee is unable to pay for the goods and has compounded with his creditors ” (Story on Sales, § 452).
    HI. Even if it were established that the plaintiff was the assignee of Baisin’s contract, he must have taken the same, subject to all equities that might be invoked against Raisin & Co. (Willard’s Eq. 462 ; Bush v. Lathrop, 22 N. Y, 535 ; Chitty on Contr. 1366, 11 Am. ed.).

      IV. There was no direct privity of contract between defendants and De Leon. By the acceptance merely of the order in question the defendant entered into no contract with De Leon, as he was no party to the contract, and if the defendants made any binding contract by accepting the order it was with Raisin & Co. (Rogers v. Union Stone Co., 130 Mass. 583; Sherman v. Brown, 68 N. Y. 355). It is claimed by the plaintiff that the contract between Reed & Go. and Raisin & Co., was made for the benefit of De Leon, and that De Leon has a cause of action against the defendants under the broad doctrine laid down in Lawrence v. Fox (20 N. Y. 268). It is respectfully submitted that the case at bar does not fall under the ruling in Lawrence v. Fox and the later decisions that follow the ruling in that case. The application of the doctrine of Lawrence v. Fox has been confined in New York, almost exclusively to cases where the purchaser of land subject to a mortgage, agrees with his vendor to assume the .payment of the mortgage; and in those cases it is held that the mortgagee has a right of action against the purchaser on his covenant. And it is justly so held, because there is always a sufficient consideration for this covenant on the part of the purchaser ; the amount of the mortgage assumed is deducted from the price that would otherwise have to be paid. Yet even in that class of cases the rule of Lawrence v. Fox has not been extended but, on the contrary, very rigorously limited by Garnsey v. Rogers (47 N. Y. 233). The doctrine of that case will not be extended (Real Estate Trust Co. v. Balch, 45 Super. Ct. 532; Pardee v. Treat, 82 N. Y. 392; Ætna National Bank v. Fourth National Bank, 46 Ib. 82 ; Turk v. Ridge, 41 Ib. 201; Hutchings v. Minor, 46 Ib. 456 ; Merrill v. Green, 55 Ib. 270 ; Simson v. Brown, 68 Ib. 356).
    V. Even if the sale were an executed one, Reed & Co., as unpaid vendors, would have a hen upon the goods for the price (Story on Sales, § 281). Reed & Co. did not lose their hen by taking Raisin’s notes ; for upon Raisin’s insolvency, the hen revived (Griffiths v. Perry, 1 E. & E.
      680; Milliken v. Warren, 57 Me. 46; Opinion of Chancellor, 5 Den. 630). “ Unless actual possession of goods sold has been delivered to the purchaser, the vendor is not deprived of his right of lien as against the assignee of the purchaser in the event of his insolvency ” (Grice v. Richardson, L. R. 3 App. Cas. 319 ; Dixon v. Yates, 5 Barn. & Cress. 313 ; Arnold v. Delano, 4 Cush. 33).
    VI. By the delivery of the “order” and “memorandum ” mentioned in the complaint, the property in the goods did not pass to De Leon ; and Reed & Co.’s lien, as unpaid vendors, was not divested thereby. These papers are not indicia or documents of title ; they are not quasi-negotiable. (1) A “ delivery order” is not a document of title. “The giving of a shipping note or of a delivery order does not make a change in the property ” (Ackerman v. Humphrey, 7 Mann. & Granger, 678; McEwan v. Smith, 2 H. L. C. 309 ; Farmeloe v. Bain, 1 C. P. Div. 445 ; Farina v. Home, 16 M. & W. 119 ; Story on Sales, § 289 ; Imperial Bank v. London & St. Kitts Dock Co., 5 Chanc. Div. 200; Blackburn on Sales, 297; Benj. on Sales [Corbin’s ed.] § 1213, 1225 ; 2 Daniels Neg. Instr. § 1713). (2) A delivery order is not quasi-negotiable (Lickbarrow v. Mason, 2 Term Rep. ; Story on Sales, % 344 ; Rogers v. Union Stone Co., 130 Mass. 583 ; Gushee v. Eddy, 11 Gray, 502 ; Sears v. Lawrence, 15 Ib. 267; McEwan v. Smith, 2 H. L. Cases, 309 ; Farmeloe v. Bain, 1 C. P. Div. 445; Benjamin on Sales [Corbin’s ed.] §§ 1212, 1214).
    VII. The doctrine of estoppel cannot be invoked against the defendants. The elements of estoppel are wanting in this case. In order to create an estoppel, there must be a representation of some existing fact; Bigelow on Estoppel [2d ed. ] 438 ; White v. Ashton, 51 N. Y. 280 ; Musgrave v. Sherwood, 54 How. Pr. 339 ; 6 Wait's Actions and Defenses, 584 ; Bigelow on Estoppel, 437, 467).
    The authorities are positive in holding that, without an attornment, express and unequivocal, to the subvendee, unpaid vendors will not be estopped from asserting and maintaining their Hen for the unpaid purchase money (Farmeloe v. Bain, 1 C. P. Div. 445 ; McEwan v. Smith, 2 House of Lords Cas. 309 ; Rogers v. Union Stone Co., 130 Mass. 581;. Gunn v. Bolckow, &c., 10 Chanc. 491).
    The vendor’s remedy will not be impaired by his giving a delivery order for the goods if countermanded before his bailee attorns to the buyer (Benj. Sales [ Corbin’s eat.], §§ 1153, 1212).
    The cases reHed on by the plaintiff are very easily distinguished. In Woodley v. Coventry, (2 H. & C. 164), the goods were identified and were appropriated. A delivery order on the defendants (warehousemen) was given to the plaintiffs, the sub-vendees, by the original vendees. This defivery order was presented to the defendants (the original vendors) by the plaintiffs and left with them ; and there was a direct representation of fact made by the defendants to the plaintiffs. In Knights v. Wiffen (L. R. 5 Q. B. 660), the goods were in esse and were stored in the warehouse of the defendant (a warehouseman), who was also the original vendor. The plaintiffs presented the delivery order to the defendant and the latter immediately attorned tó the plaintiffs, the sub-vendees. There being a representation of fact made by defendant direct to the plaintiffs, it was correctly held that the elements of estoppel were present in the case. Both the above cases were cited in Farmeloe v. Bain (supra), and distinguished. In Pearson v. Dawson (El. B. & E. 447), the defendant, who was the original vendor, was a warehouseman. The plaintiffs, the sub-vendees, presented to him a delivery order drawn' by the first vendees, and the same was acknowledged by the defendant, who entered upon his books the change of ownership in the specified barrels of sugar. There was a complete attornment by the defendant to the plaintiff. This fact was clearly recognized by the counsel for the plaintiffs in that case, who, in his argument (p. 453), was very careful to distinguish his case from McEwan v. Smith, and to show that “the first vendor had, before the insolvency of the first vendee, done every act by which he could sanction the sale by such first vendee to a third party.” In all the above cases it will be found on examination that there was an express attornment by the first vendor to the sub-vendee. In the case at bar there was no such attornment by Reed & Co. to De Leon. In Briggs v. Sizer (30 N. Y. 650) the gist of the decision is in the last paragraph and is in defendant’s favor. Judgment was given for the defendant. The language of the rest of the decision is mere obiter dictum— not one authority or precedent is cited—and that decision has not since been cited as authority. The one question in that case was, whether the defendant attorned to the plaintiff, and the court decided, upon the evidence, that he had not.

      E. Louis Lowe, attorney and of counsel for respondent,
    argued :—I. Before the passage of the factor’s act, in 1811, in England, it had been settled by the decisions of the courts that the indorsement of dock warrants, warehouse receipts and certificates, and delivery orders given to vendees by vendors upon their warehousemen, was not such a delivery of possession as divests the vendor’s hen, even when transferred to a bona fide holder for value ; but that, when such delivery order was accepted by the warehouseman, he thereby attorned to the holder, whether the original vendee or a sub-vendee ; and thenceforth he was to be regarded as the bailee of such holder (Benj. Sales [4th Am. ed., Bennett], § 814, et seq. § 823; and cases cited). This conclusion had not been reached without a number of contrary decisions. Parliament based its enactments upon the assumption that such documents are “ instruments used in the ordinary course of business as proof of the possession or control of goods and as “authorizing the possessor of such document to transfer goods thereby represented.” In a word, the legislature dealt with those documents as symbols of the goods (Ib. % 811). Whereupon the learned author remarks, in the same section, that “it is no matter of surprise, when the
      ratio'decidendi of the courts, on the one hand, and the ratio legis ferendoe of the legislature, on the other, are so much at variance in regard to the meaning of those instruments, that the law should be in an anomalous and unsatisfactory state. It is perhaps to be regretted that the courts did not give to those papers originally the same meaning as the lawgiver attached to them ; a meaning which might have been given without doing violence to their language.
    It is manifest from this well-considered opinion of one of the greatest lights of the English bar, as he had previously been of the American bar and senate, that American courts should be in no haste to bind themselves by these decisions of the English courts.
    To unfetter great commercial interests from the embarrassments caused by those decisions, parliament was obliged to pass the Factor’s Act of 1877. For, in Lucas v. Dorrien (7 Taunt. 278), Dallas, 0. J., had said, in relation to a West India Dock warrant, “ I have been several times stopped by a special jury, they being satisfied that the goods pass from hand to hand by the indorsement of these instruments. All special juries cry out, with one voice, that the practice is, that the produce lodged in the docks is transferred by indorsing over the certificates and dock warrants. ’ ’ It was such clamor of English merchants in the jury box that made necessary the passage of the Factor’s Act. Millions of pounds in England were then, as millions of dollars here are now, paid out as purchase-money or advances, upon the faith and credit of just such documents as those which the English courts had held not to be “ documents of title.” But such injurious results had not been arrived at without the dissent of some of the ablest judges. Park, J., in Zwinger v. Samuda (7 Taunt. 265), and Dallas, C. J., in Keyser v. Suze (Gow. 58), had both held, at nisi prius, that precisely such construction of those mercantile “ documents of title ” as the juries had given was the correct one. So, likewise, it had been decided in other cases. The experience of more recent times and the broader views of the judges of younger commercial states have indorsed the wisdom of those decisions of the dissenting English judges. And it is now held in this country that a delivery of a warehouse receipt, or of an order on the warehouseman, has the same effect in transferring title to property as the delivery of the property. Such is precisely the effect of the transfer of a bill of lading (Howe v. Baker, 8 Cal. 613 ; National Bank v. Wallbridge, 19 Ohio, 419 ; Allen, Bethune & Co. v. Maury & Co., 66 Ala. 18 ; Chirardelli v. McDermott, 22 Cal. 539 ; Davis v. Russell, 52 Ib. 611; Merchants’ Bank v. Hibbard, 48 Mich. 118). If the doctrine so clearly announced by the American courts in the foregoing cases be sound, then the very foundation of the English decisions is destroyed. In the same spirit, and even of a wider scope, is the decision of the court of appeals, in Briggs v. Sizer (30 N. Y. 647), to which more particular attention will be directed later. See also Wilkes v. Ferris (5 Johns. 335).
    It is therefore submitted that the delivery by vendor to vendee of an order on a warehouseman for goods, even before acceptance by the warehouseman, should be held to operate as a constructive or symbolical delivery of the property.
    It may well be that, before actual delivery, the vendor’s hen would revive, as against his vendee, upon the insolvency of the latter or his failure to pay the price, as agreed ; but it is respectfully insisted that such Hen would be lost as against a bona fide purchaser for value to whom the vendee had sold the goods before the revival of his vendor’s Hen.
    “But if the goods have been resold and the second purchaser has received from his immediate vendor, the first purchaser, a dehvery order addressed to the original vendor, which has been accepted by him, the original vendor cannot, after he has thus attorned to such second purchaser, refuse to deliver the goods to such second purchaser, pursuant to his acceptance, although the first purchaser to whom he sold becomes bankrupt before dehvery and before payment of the price, and the goods were not weighed or measured over prior to the bankruptcy of the first purchaser (2 Addison on Contr., 8th ed.5 486—b. p.). Briggs v. Sizer (30 N. Y. 647), was an order by the vendee upon the vendor in favor of the sub-vendee. As a matter of fact, the order had not been accepted by the vendor, and it was upon that ground alone that the plaintiff failed to maintain his action. The court held that, as in the case of a bill of exchange, the consideration moving between the drawer of the order and the drawee sustained the obligation which the drawee or acceptor incurred to the holder of the order by virtue of the acceptance. In other words, that the same privity existed between the vendor and the sub-vendee upon such an accepted order, as exists between the payee and acceptor in a bill of exchange.
    Speaking of the assent or acceptance of the warehouseman which is necessary to constitute him the bailee of the holder of the order given by the vendor, Mr. Benjamin (page 934, § 817), asks, “What is there in the law to prevent this assent from being given in advance”?

    Many of the English cases are to the eff ect that, where the vendor has not formally accepted in writing his vendee’s order for delivery to a sub-vendee, acceptance has been shown by some acts done by the vendor, such as entering the name of the sub-vendee in his books opposite the goods sold, or allowing the goods to be marked, or other similar recognition by the vendor of the fact of the sale by the vendee to the sub-vendee (Pearson v. Dawson, 27 L. J. Q. B. 248 ; Knights v. Wiffen, L. R. 5 Q. B. 660 ; Cited in Voorhis v. Olmstead, 66 N. Y. 113 ; Woodley v. Coventry, Law Journal, 1863, cases at Common Law, R S. vol. xxxii., part 2, page 185 ; S. C., 2 Hurls. & Colt. 164 ; Hunn v. Bowne, 2 Caines Rep. 38).
    II. Where the seller undertakes to sell and deliver goods, he cannot defend by showing, outside of his contract, that the goods were not actually segregated or set aside, and the title passes to the vendee without such segregation (Kimberly v. Patchen, 19 N. Y. 330 ; Russell v. Carrington, 42 Ib. 118 ; Merchants’ Bank v. Hibbard, 48 Mich. 118 ; Woodley v. Coventry, 2 Hurls. & Colt. 164 ; Knights v. Wiffen, L. R. 5 Q. B. 660 ; Whitehouse v. Frost, 12 East, 613).
    HI. The judge charged that the agreement between Raisin & Co. and Reed & Co. was executed. Nothing remained to be done but to deliver goods of the quality warranted, at the time named in the contract. Notes had been received for the price at 4 months, to be renewed at maturity, to run until December, 1882. The goods were to be delivered in December, 1881. The analysis to be made was not a condition precedent to the delivery of the goods ; “not essential to the contract of delivery.” In such case title passes at once (Bank of Rochester v. Jones, 4 N. Y. 503 ; Alexander v. Comber, 1 H. B. 9 ; 2 Starkie Ev., part 2, 1221 ; Dox v. Dey, 3 Wend. 357; Edwards on Bailm., 2d ed., 298).
    IV. Whether the Raisin and Reed contract was or was not executed cannot affect De Leon’s rights, because the defendants by their conduct led him to believe that they had actually sold 1000 tons to Raisin & Co., which by their acceptance of the delivery order and the memorandum they engaged to deliver to him. Being in the same trade, they knew very well that he would act upon that order and pay Raisin & Co. the price of the goods (Victor v. International Nav. Co., 45 Super. Ct.; Blair v. Wait, 69 N. Y. 116 ; Mer. & Traders’ Bank v. Hazzard, 30 Ib. 226 ; Knights v. Wiffen [supra] ; also Woodley v. Coventry [supra]; Cont. Nat. Bank v. Nat. Bank of Comm., 50 N. Y. 515 ; Voorhis v. Olmstead, 66 Ib. 116). The foregoing decisions of the superior court (Victor v. Int. Nav. Co.) is a complete reply to defendant’s argument based upon his principal English authority, cited by him at the trial below, viz : Farmloe v. Bain (1 L. R. C. P. Div. 445).
    V. Upon the facts and the law as hereinbefore stated, we submit that it is wholly immaterial as between the defendants and De Leon, whether or not the defendants actually intended to waive their vendor’s lien when they accepted Eaisin & Co.’s delivery order. We claim that the defendants are estopped by the fact of the acceptance, coupled with the knowledge of the intention of Eaisin to make it the foundation of a money transaction with De Leon, and that De Leon acted upon the faith of it, whereby his condition has been altered greatly to his prejudice.
   By the Court.

Sedgwick, Ch. J.

The learned counsel for defendants, argues, that the contract between the vendor and vendee was executory, and that the title to the phosphates, agreed to be delivered, had not passed to the vendee. The ground of this argument is, that the preponderance of the testimony showed that the phosphates had never been manufactured. The further argument is, that the sub-vendee can have, as assignee of a part of an executory contract, only the action that the vendeewould have, and that the vendee could not recover the-value of the goods if the action were for a breach of the-obligation to deliver, without paying the price or tendering it. In this case, the contract provided, that the price-was to be paid in the notes of the vendee, who became-insolvent, before the time for delivery had come. The-case may be examined on the assumptions of this argument.

These are the material facts : The defendants signed an agreement which was: “We have to-day sold to. Messrs. Eaisin 1000 tons of super-phosphates at $21 a ton on a cash basis, goods to be delivered free on board buyers vessels and in bulk. Settlements are to be made on delivery to buyers of bills of lading by their notes.” This was also signed by the vendees. Before this contract was made, the vendees, the Messrs. Eaisin, had contracted to sell and deliver to De Leon 2000 tons of phosphates, of their own manufacture. At the time for delivery, De Leon was demanding that it should be made, but they had no phosphates of that kind that they could deliver. At a date which the defendants maintain was earlier than. December 9, Messrs. Eaisin proposed to De Leon, that in the place of the 1000 tons of the kind to be delivered under their contract, he should accept the 1000 tons which were to be delivered under the defendants’ contract. This offer was accepted. Before this, as defendants’ maintain, the Messrs. Eaisin, the vendees, had had an interview with their vendors, the defendants. They substantially told the defendants that they had over-sold to De Leon, that is, they had sold to De Leon phosphates that they had not on hand to deliver, and they would have to take the goods under the defendants’ contract, and deliver them to De Leon, under his contract. The defendants assented to this. Afterwards the following was presented to them, for acceptance:

“ December 7, 1881.
“Messrs. Eeed & Co. Gentlemen, please deliver to P. M. De Leon 1000 tons of ammoniated super-phosphates sold to us. E. W. L. Eaisin & Co.” Upon this order the defendants wrote, on December 10, “Accepted Eeed & Co.” The defendants wrote a note to Messrs. Eaisin, “We will deliver to Mr. P. M. DeLeon, on your order, dated December 7, accepted by us to day, one cargo say 500 tons to vessel, to begin loading about the 19th of December, and the remainder of the 1000 tons to a vessel to load the latter part of December, or early in January, 1882 ; vessels to be furnished by De Leon.” The Messrs. Eaisin took the accepted order and the note, delivered them to De Leon, who thereupon on December 10, paid the price agreed to be paid by him, under his contract with the Messrs. Eaisin. On the same day, the Messrs. Eaisin delivered to the defendants their notes, the agreed price of the goods, under their contract, and the defendants accepted them in payment. On December 16, the Messrs. Eaisin & Co. became insolvent. The defendants gave notice to all parties that the order and acceptance were void bn several grounds. The only ground that under the verdict of the jury it is necessary to notice here was, that Messrs. Eaisin & Co. were insolvent.

If the acceptance of the order did not operate upon any title to goods, because no goods existed, or for any other reason, then what was the nature of the arrangement ? It cannot be successfully maintained that it was but a contract between Messrs. Raisin and the defendants. It is not necessary to determine what equitably are the rights of a party holding an unaccepted order by a promisee upon the promisor for the payment of the money, or the delivery of the thing agreed for by the latter. Upon such an order being accepted, its holder and the acceptor enter into an arrangement to which they are parties, and the holder has an action according to the nature of the arrangement as it exists. In the present case, it is manifest, both from the face of the order and from the extrinsic facts, that the intention of both vendor and vendee was that it should be delivered to De Leon. Upon its delivery to De Leon, he became possessed of a promise, that the vendors would deliver to him, instead of to the vendees, the property that was to be delivered to the latter. Upon equitable principles, which in this state are applied in law actions, this promise to deliver operates upon the thing to be delivered, and passes the title to it, in proper cases. But if there be any condition expressed or implied, to be performed before the obligation to deliver is complete, the title cannot equitably pass before the conditions are performed. How, I think that there is a great deal of force in the proposition that the word “ sold ” did not comprehend an assertion that title had passed to the vendees, and that there remained only the matter of delivery. That might be the meaning of the word upon a technical construction. The case substantially shows that all parties knew that the super-phosphates were the subject of a contract, definitely designated, while all its terms were not known to De Leon. They all meant the word ‘ ‘ sold ” to signify what such a word would signify, when applied to a delivery under a contract such as the contract was, according to the facts. But these considerations do not result in the conclusion that the defendants entered into no obligation. Equitably, De Leon became possessed of the right to enforce the contract with the defendants according to the terms of the contract. Those terms were that Eaisin & Company should pay the purchase price before the vendees were bound to deliver possession. In other words, the defendants were bound to deliver, upon Eaisin, or any one entitled to act for them, paying what the contract contemplated should be paid. But, in fact, Eaisin & Co. did pay, and the defendants accepted in payment, their notes, made and given by them in the maimer the contract described. If this payment had been money, or the makers had not become insolvent, no question could have been raised as to De Leon’s right to demand delivery under the accepted order.

The makers, however, did become insolvent. This insolvency did not annul the contract or its obligation. Under certain circumstances, it gives the vendor a lien. There can be no lien, without there also being something in existence on which it may rest. It extends only to a right to keep possession of goods, withholding delivery. It may be that it should be the law, that the vendor, upon the vendee’s insolvency, may retain the notes and annul the effect upon the rest of the contract, of the fact of the giving of the notes. Mo such thing was done in this case nor would it have benefited the vendors under these circumstances. De Leon had obtained rights in the meantime which the defendants could not annul.

While De Leon was holder of the accepted order, the condition upon which the defendants were to deliver, namely, payment in the manner provided by the contract, had been performed, so far as contract obligations were concerned. All that was left to the vendors was what may be called a contingent right to keep possession. The vendor may waive this right, or the facts may show that the special contract excludes it. In this case, they have no right to assert it against De Leon.

It has been already said that, through the effect of the; order and acceptance, the defendants had promised to de-' liver, that is, transfer the possession of the goods to De Leon, upon the performance, by Eaisin & Co., of the condition of the original contract. If it be necessary to sustain this by proof of a consideration, it would be found in the defendants being relieved from the obligation to deliver to Eaisin & Co., or what is more in point, after it had been made in anticipation of its delivery to De Leon, and De Leon accepting it, De Leon had released Eaisin & Co. from the obligation to deliver their phosphate, and had paid them the price under his contract, taking as the consideration for that, the accepted order in question. This consideration to the defendants in other words, was a conditional one, or one to be executed in the future. There was a promise to De Leon, that if he would pay to Eaisin & Co. they would deliver possession to De Leon. This was the legal substance of the arrangement. The acceptance was something more than a promise to Eaisin & Co., who drew it, for the benefit of Eaisin & Co. It was made for the benefit also of De Leon. It was intended to become operative when delivered to him. Its form, coupled with the other facts, establishes between the defendants and De Leon an immediate relation.

The result is, that the condition of the original contract having been changed, there was no longer an implication that the vendors could withhold possession from Eaisin & Co., or from De Leon. In the former case, because delivery was not to be made to Eaisin & Co.; in the latter, because for a sufficient consideration, they had promised to deliver to De Leon, upon the condition of the original contract being performed. They had been performed. The basis of the right of vendor’s hen is not a condition of performance of the contract. It is dehors the contract and acts simply upon the facts of possession and unpaid price. It is not an equity, subject to which the assignee takes a contract. If it were an equity, it arose after the assignment was made. The controlling consideration in my mind, is that when for sufficient consideration, the vendor promised to deliver possession to the sub-vendee, if De Leon may be deemed one, the vendor abandoned the right to withhold delivery, that would rest, upon the vendee becoming insolvent.

If these views are correct, it would appear upon the uncontradicted facts of the case, and upon such facts as were established by a preponderance of evidence, that the plaintiffs were entitled to recover the amount of the verdict. No proceeding upon the trial would affect this conclusion.

Judgment and order affirmed, with costs.

Truax, J., concurred.


source: Caselaw Access Project

author: Sedgwick, Ch. J.

license: Public Domain

text:
    THE PITTSBURGH BESSEMER STEEL CO., LIMITED, Respondent, v. THOMAS T. BUCKLEY, et al., Appellants.

      Pleading—fraud, insufficient averments—cónsPi'ueüon, negative or affirmative—several defenses, effect on each other.—Trial—effect of claiming right to open.— Consideration—matters insufficient to constitute, yet forming no defense—matters sufficient to form consideration for note and indorsement —return insufficiently pleaded.

    That “ certain representations were'made;” reliance thereon; deception thereby; and their untruth,—are insufficient to let in evidence for avoidance of a contract on the ground of fraud.
    When the answer alleges that the contract in the complaint mentioned, was in consideration of an agreement made, etc., and then proceeds, with averments specifying what the agreement was, all these averments must be taken together, and so taken mean that there was no consideration other than the agreement set forth: and if the agreement did not make a legal consideration, the averments "would be tantamount to a plea of no consideration, and "would let in evidence by an indorser to the effect that he was an accommodation indorser ; that the maker had received no credit on faith of the indorsement, or that the contract on which credit might have been given was without consideration ; and that the plaintiff was not a bona fide holder for value.
    In this case, there being several defenses, the defects and positive averments in one, held not to affect the force of another.
    On the trial of an action on a promissory note, the issue being want of consideration, defendant by insisting on and obtaining the right to open, does not thereby necessarily admit that a consideration was actually received, but, in this case, only that there is a presumption it was, from the admission of the answer, which he is entitled to rebut.,

      Decided March 2, 1885.
    An oral arrangement amounting to an agreement that one shall not be held to the performance of his written contract, while it will not constitute a consideration for the contract,forms no defense to an action for its nonperformance:
    An agreement by the plaintiff, that he would, on the receipt of the notes in suit, deliver up other notes of equal amount to those sued on (less interest included in the notes received), held by or under his control, furnishes a consideration for the notes, and for an indorsement thereof, on the faith of which the plaintiff entered into the agreement.
    An answer setting forth such agreement, and averring “ that the plaintiffs have not performed their said agreement ” (the objection that this is a statement of a legal conclusión and not of a fact, being deemed waived by the proceedings at the trial and on the argument), and not showing that the notes that were to bo delivered up had been satisfied by the transaction, sufficiently pleads such failure of consideration.
    Catlin ®. Hansen (1 Duer, 309), distinguished.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal by defendants from judgment entered upon verdict for plaintiff as directed by the court.
    On the trial, the defendants claimed the right to open and to close. The court directed that they should have the right. Before the defendants proceeded, the plaintiff’s counsel moved for judgment upon the pleadings, on the ground that the answer did not aver any defense. This motion was granted, the court directing a verdict for plaintiffs.
    Further facts appear in the opinion.

      W. P. Prentice, attorney and of counsel for appellants,
    argued :—I. It was error to take this case from the jury, and neither allow any evidence to be given, nor the jury to pass upon the facts of the several defenses set out in the answers of the defendants (Bookstaver v. Jayne, 60 N. Y. 146 ; Anthony v. Harrison, 14 Hun, 198 ; affirmed, 74 N.

      Y. 613 ; Stone v. Flower, 47 N. Y. 566 ; Murphy v. Keys, 39 Super. Ct. 26).
    II. Between the immediate parties, the failure of consideration is a good defense (Bytes on Bills, 130; Chalmer’s Bills of Exch. Art. 56 Expl’n; Saxton v. Dodge, 57 Barb. 111; 60 N. Y. 146 ; 39 Super. Ct. 26, supra ; Leggett v. Cochrane, 10 Daly, 270). The court at first ruled that this defense was sufficiently pleaded, and that the defendants had the affirmative, but changed this decision upon the new motion of plaintiff’s counsel, and ordered judgment upon the pleadings without evidence, construing the third defense of the Ford answer, which is pleaded separately in paragraph four, and the fourth defense in the Buckley answer set out in the fifth paragraph, in connection with the allegations in the other parts of the answers, as a hmitation and an admission inconsistent with the defense of failure of consideration. This also was error, for as will be later shown, under the Code of Procedure (§ 507, as amended in 1879), inconsistent defenses may be pleaded. It is, however, insisted that in this rule there was error of fact as well as law, for it must be remembered that the defendants are only indorsers, and their transactions were with the payee of the notes, and the renewal notes are simply extensions of the time of payment (Jagger Iron Co. v. Walker, 76 N. Y. 521); they were not the defendants’ notes, were not asked for by the maker of the notes, and the defendants denied any indebtedness or consideration upon them.
    III. The rule prohibiting the reception of parol evidence to vary or modify a written agreement, or promissory note, does not apply to a collateral undertaking, which is open to inquiry, and may be proved by parol; such collateral undertaking may be a condition precedent to the taking effect of the written agreement which is neither varied nor modified (Chapin v. Dobson, 78 N. Y. 74 ; Benjamin Chalmers Notes, Bills, &c., Art. 55, p. 65 note; Johnson v. Oppenheim, 55 N. Y. 280; Murphy v. Keyes, 39 Super. Ct. 26). Even in the case of Martin v. Cole (104 U. S.), principally relied upon by the plaintiff in the court below, it is said at page 39, that “there are many distinctions which upon the circumstances of cases determine the applicability of the rule and classes of cases which form apparent exceptions to it, the hmitations of the rule are perfectly consistent with itso also, in the case of Wilson v. Deen (74 N. Y. 531), the rule is stated as only applicable “in the absence of fraud or mistake.” In the further case of Jaffray v. Brown (74 N. Y. 393), evidence was necessary on the part of the plaintiff, to show the indorser lmew the contract was as alleged by the payee. The case in 46 Super. Ot. 541, is not applicable, for the facts are different, and that case depends upon Cottrell v. Conklin (4 Duer, 50), wherein evidence was held to be necessary, and a verdict directed by the court was set aside ; and Albron v. Smith (27 Barb. 489), in which evidence of the plaintiff was ruled out, because the question was of the import of an indorsement in blank.
    IV. The indorsements of the defendants were rendered invalid by the fraud and deception practiced upon them by the plaintiff, which the defendant Buckley alleges, and Ford. Upon this point the defendants had a right to introduce testimony, for fraudulent representations will vitiate any contract (Wilson v. Deen, 74 N. Y. 531). This case is considered in Chapin v. Dobson (78 N. Y. 80), and is there held not to be inconsistent with that decision, which allows evidence of a collateral undertaking.
    V. A valid defense was set forth in the fourth paragraph of Ford’s answer, and the fifth paragraph of Buckley’s (Beaufort v. Patterson, 10 Daly, 333 ; Bookstaver v. Jayne, 60 N. Y. 146 ; Erskine v. Adeane, L. R. 8 Ct. App. 756 ; Sweeney v. Rogers, 10 Daly, 469 ; Miller v. Ritz, 3 E. D. S. 253).
    VI. A defendant may interpose as many defenses as he may have, and no objection of inconsistency against them wih lie. At one time a defendant might have been compelled under certain circumstances to elect between defenses which were held to be inconsistent. That is not now the rule (Code Civ. Pro. § 507 ; Old Code, § 150 ; Bruce v. Burr, 67 N. Y. 237).
    It follows, therefore, that the court could not take this separate defense' of the non-delivery of the notes out of its place, and weave it in with the defense of the failure of any consideration, and rule upon it as an admission of the defendants. The defendants’ exceptions are, therefore, good. The defendants were not required to request the court to submit the questions of fact to the jury.

      Victor Morawitz, attorney and of counsel, and Charles M. Da Costa, of counsel for respondent,
    argued :—I. No fraudulent representations are alleged. No rule of law is better settled than the rule that a misrepreprentation is not a ground of avoiding a contract, unless it be fraudulent as well as false. The intent to deceive must be alleged and proven (Morehouse v. Yeager, 41 Super. Ct. 146; Marsh v. Falker and Chester v. Comstock, 40 N. Y. 562, 575). Neither one of the defendants has shown any misrepresentation of facts. Indeed, throughout both of the answers every misrepresentation which is charged is likewise alleged as a promise or agreement on the part of the plaintiff.
    It is well settled that a broken promise is not a fraudulent representation (Treacy v. Hecker, 51 How. Pr. 69 ; Lexow v. Julian, 21 Hun, 577; affirmed, 86 N. Y. 638 ; Fisher v. New York Common Pleas, 18 Wend. 608 ; Gray v. Palmer, 2 Rob. 500 ; affd. 41 N. Y. 620 ; See Commonwealth v. Brenneman, 1 Rawle, 315 ; Stitt v. Little, 63 N. Y. 431; Farrington v. Bullard, 40 Barb. 516 ; Farrar v. Bridges, 3 Humph. 566).
    II. The promises alleged in the answers are not a defense. ' All the promises which are alleged in the answers as a defense to the action, consist of oral representations or statements made at the time of the execution of the indorsements. This was conceded by counsel for the defendants ‘at the argument at trial term, and is expressly so stated in the answers. It is well settled that when a contract is reduced to writing, all prior or contemporaneous oral promises and agreements are superseded; and such oral promises and agreements cannot be set up as a defense to the contract (Martin v. Cole, 104 U. S. 30 ; National Bank v. Place, 86 Ib. 444; Grocers’ Bank v. Keyes, 9 Daly, 510; And see other cases cited below). There are numerous cases precisely analogous to the case at bar, in which similar promises have been held not to constitute a defense (Grocers’ Bank v. Keyes, 9 Daly, 510 ; First Nat. Bank v. Tisdale, 18 Hun, 151; affd. 84 N. Y. 655 ; Lewis v. Jones, 7 Bosw. 366 ; Higgins v. Barrowcliffe, 46 Super. Ct. 540 ; Wright v. Remington, 41 N. J. L. 48 ; Wilson v. Deen, 74 N. Y. 531; Bank of United States v. Dunn, 6 Pet. 51; Brown v. Spofford, 95 U. S. 481 ; Brown v. Leroy, 20 How. 442. These cases were re-affirmed in the late case of Martin v. Cole, 104 U. S. 30).
    A promise to renew notes at maturity is not a defense (National Bank v. Place, 86 N. Y. 444; Hoare v. Graham, 3 Campb. N. P. 57; Willse v. Whitaker, 22 Hun, 242 ; Bull’s Head Bank v. Koehler, 1 City Ct. 264; Kust v. Hart, 73, Pa. St. 286 ; 1 Daniel Neg. Ins. 159). The alleged oral agreement or statement that the original notes of the railway company (which were renewed by the notes in suit) would be surrendered to the railway company, is not a defense (Nat. Bank v. Place, 86 N. Y. 444).
    A further reason why this alleged agreement to surrender the old notes cannot be set up as a defense, is that the agreement was with the railway company and not with the defendants. If the plaintiff made a contract with the railway company, and broke the contract, the railway company alone has a right to complain. It has often been decided that a surety or indorser of a note cannot set up as a defense, when sued by the creditor, that the debtor has a right of recoupment or counterclaim (Gillespie v. Torrance, 25 N. Y. 206 ; Lasher v. Williams, 55 N. Y. 619 ; Bellows v. Folsom, 2 Rob. 138 ; La Forge v. Halsey, 1 Bosw. 171; Emery v. Baltz, 22 Hun, 434). It is well settled that if a new note is accepted “in renewal of ” an old note, it is wholly immaterial, in legal effect, whether the paper on which the old notes are written is preserved, or destroyed, or surrendered. In either event the acceptance of the notes operates at law as a suspension of the right to enforce payment of the old notes until the new notes fall due. If the new notes have not been negotiated, and are not paid at maturity, the holder has his option either to sue upon the old notes or the new ; and this is true whether the old notes have been surrendered or not. The surrender of the old note would not even raise a presumption of payment (2 Daniels Neg. Instr. § 1266a ; Spencer v. Ballou, 18 N. Y. 327 ; Winisted Bank v. Webb, 39 Ib. 325 ; First Nat. Bank v. Morgan, 6 Run, 346 ; Olcott v. Rathbone, 5 Wend. 490 ; Bates v. Rosecrans, 37 N. Y. 409).
    III. There was ample consideration for the indorsements. It has often been decided that the renewal of a note is ample consideration for the delivery of a new note with indorsements, and that the indorsers are bound under these circumstances, although they have indorsed merely for the accommodation of the maker (First Nat. Bank v. Tisdale, 18 Run, 152 ; affirmed 84 N. Y. 655 ; Spencer v. Ballou, 18 N. Y. 327). The accommodation maker or indorser of a note is liable, even though the note be given by the principal debtor merely as security for a pre-existing debt (Grocers’ Bank v. Penfield, 69 N. Y. 503 ; Shepp v. Carpenter, 51 N. Y. 602).
    IV. We know of no authority which is in conflict with the views expressed in the preceding pages. At the argument at trial term counsel for the appellant relied on two cases, Chapman v. Dobson (78 N. Y. 74), and Murphy v. Keyes (39 Super. Ct. 18). In Chapman v. Dobson the plaintiff sued for the price of a certain machine sold to the defendant. The latter set up the breach of an oral warranty collateral to the sale, “to reduce or defeat the plaintiff’s claim.” The court held that the defendant was entitled to show this warranty, although the terms of the sale had been reduced to writing, saying : “It seems plain, both upon principle and authority, that the plaintiff’s undertaking was collateral to the contract by which they undertook to furnish the machines.” In Murphy v. Keyes (39 Super. Ct. 18), the defendant introduced evidence showing that he had indorsed the note in suit for the accommodation of the plaintiff, and in order to enable the plaintiff to raise money on the notes. The evidence offered by the defendant showed that the indorsement was not made to obtain credit for the maker, as in the present case, but after the maker had obtained credit from the plaintiff. The case was commented upon and distinguished by both the judges who delivered opinions in Grocers’ Bank v. Murphy (9 Daly). Besides, if the decision of Murphy v. Keyes be construed, as the defendant’s counsel claims it should be, then it suffices to say that both the earlier and later cases in this court, namely Lewis v. Jones (7 Bosw. 366) and Higgins v. Barrowcliffe (46 Super. Ct. 540), hold a contrary doctrine, and are in accord with all the other cases which have been cited on behalf of the plaintiff.
    V. That the proper practice, where the answer does not set up a sufficient defense, is to disregard irrelevant statements, and move for judgment on the pleadings, see Fox v. Hunt (How. 12), per Barculo, J., quoted with approval by the general term, in Richmeyer v. Haskins (9 How. 481), and Hyatt v. Saratoga Ins. Co. (9 How. 488); See also, Grocers’ Bank v. Murphy (supra).

   By the Court.

Sedgwick, Ch. J.

The action is upon two promissory notes made by the Cleveland, Youngstown & Pittsburgh Bailway Company, and against the defendant .Buckley, the first indorser, and the defendant Ford, the second and last indorser. The question here is whether the answers of the defendants set out a defense. The answer of the defendant Ford will be first examined. This answer contains no defense, unless it be that of want of consideration for the indorsements or of a failure of consideration. The allegations “that the indorsements of said notes were obtained by certain representations and statements on the part of the plaintiffs to him and upon which he relied, which have proved not to be true, and through which he was deceived and mistaken,” are not such sufficient allegations of fraud in obtaining the indorsements, as would allow the defendant in a proper case, to avoid the indorsement. The answer proceeds to aver that the indorsements “were in consideration of an agreement then and there made, etc.” This averment implies that there was a consideration for the indorsements, yet if the specification of what the agreement was, shows that it did not make a legal consideration, then all the averments taken together will mean that there was no other considerations which would be tantamount to there being no consideration. This would cover the possibility of the indorsements having been made for the accommodation of the onakers and to give them credit with the plaintiffs. For, if the defendants were accommodation indorsers, they have the right to set up an absence of consideration between the plaintiffs and makers, and an averment of want of consideration would imply that the makers did not receive credit, or that the contract upon which credit might have been given was without consideration (Sawyer v. Chambers, 44 Barb. 42).

The answer avers that the consideration was “an agreement then and there made on the part of the plaintiffs with the indorser, that the defendants should not be held liable for the payment of the said notes or any part thereof, but if there were any loss upon the .said notes, the plaintiffs should bear it, and they would not trouble the defendants about the matter, and would never call upon them for payment ; that the said notes should be paid out of the bonds then offered for sale by the Cleveland, Y. & P. Railway Company, the makers; that the said notes should be renewed from time to time. ” Stopping here, it is manifest that these averments constitute no defense to the action. . It is assumed that this agreement was not in writing. This assumption is not based upon any averment of the complaint. Undoubtedly it accords with what the parties know to be the facts. These oral agreements cannot in any way affect the written obligation of the defendants to pay the notes. But on the other hand, they do not make any consideration for a contract. I speak with hesitation as to the agreement, “that the notes should be paid out of bonds then offered for sale, etc. (Chester v. Bank of Kingston, 16 N. Y. 336) ; yet prefer to say that what amounts to an oral agreement, that a man shall not be held to the performance of his written contract, is not a consideration for the contract.

The averments as to the agreement proceed, “that if the said notes were delivered to the plaintiffs, prior notes of the said Cleveland, Y. & P. R. Company, to the amount of the said notes, less the interest which was added in to the notes mentioned and described in the complaint, should be delivered up to the said railway company or to the defendants.” This agreement furnished a consideration for the indorsements, and the defendant is liable, unless it is alleged and proved that the consideration failed. The answer avers “ that the plaintiffs have not performed the said agreements. Strictly, this is a statement of a legal conclusion and not of a fact. Yet, at the trial and on the argument, no allusion was made to it. If there had been, an amendment of the pleading might have been allowed. And the point will not be considered, as was not considered that the answer did not show that the agreement was oral.

It is argued, that the non-delivery of the prior notes was not a failure of consideration (Catlin v. Hansen, 1 Duer, 309). This case went upon the facts affirmatively alleged in the answer. Judge Campbell said (p. 321), The allegation is, “that Beecher was the holder of the first note and received the note in suit, agreeing to give up the other. The effect of his receipt and agreement was to destroy in his hands the first note.” Judge Bosworth said (p. 326), “Whether the evidence given was competent under the pleadings, and whether the facts set up in the answer constituted a defense, even .if true, are as truly different questions that the answer stated that the note in action was delivered to Beecher to take up the other note ; that he agreed to deliver up the other note ; that he refused to deliver up the other note, but kept both ; that if these were the facts, the note in suit was a satisfaction in Beecher’s hands of the first note ; that there was no allegation that Beecher did not in fact hold the first note at the time the second was accepted. The substance was, that from the answer, it appeared that the note became due before it left Beecher’s hand, and therefore neither he nor a subsequent transferee could recover upon it. The present answer states no facts which would call for such an inference. The answer does not show who held the prior notes that were to be delivered up, or when any of them was to fall due. The allegations closest to this are, “that on or about the time mentioned in the complaint, one of the notes was falling due and the plaintiff desired to have it renewedthat a third person, a representative of the plaintiff “ further said that he controlled all the notes outstanding, then in question, including those held by the plaintiff.” The agreement was not confined to the delivery of notes held by the plaintiff. It would have been satisfied if notes held by any one had been delivered. There are some allegations that cause hesitation. On the whole, it should be held, that it does not appear from any allegations of the answer, that the notes that were to be delivered up had been satisfied by the transaction. And the case of Miller v. Ritz (3 E. D. S. 253), is to be followed. It says, “ suppose, after the payment of the judgment recovered below, the defendant should be sued by some third person, who is proved to be the holder of the first note, and to have been such holder at the time of the giving of the second note, how, in such case, could the defendant protect himself against the- payment of both notes ?” The consideration, which has failed did not move to the makers only; it was that for which the indorsers made their contract of indorsements.

The answer further alleges, that the true history and account of the making and indorsement of the notes, etc., is as follows, and a number of facts are averred to have existed. It will not be necessary to say more than that, whether or not they contain in themselves a defense, they do not neutralize the effect of those parts of the answer that have been already considered on the question of consideration and failure of consideration.

It is doubtful that the further defense stated in the answer is valid. Each defense should be complete in itself, either by explicit averments, or by a reference to the other parts of the pleading. This defense does not aver that the defendant is an accommodation indorser and therefore entitled to take advantage of the nature of the contract between the makers and the plaintiffs, nor indeed is it stated with whom the agreement to surrender was made. On the other hand, the defects of this defense do not destroy the force of the defense earlier pleaded, and its positive averments do not show that the earlier averments as to the consideration or want of consideration, were untrue in fact, even if it were supposed that one defense could be disproved by inconsistent allegations of another defense. It is not meant to be said that the inconsistent allegations may not be used as evidence on the trial. That would permit the defendant to show which was the fact.

The pleading is not very clear or definite, yet it might sustain a defense which would show that the plaintiffs should not recover.

An examination of the answer of defendant Buckley, shows substantially the same kind of defense; that is, a failure of the only consideration upon which the indorsement could rest. The averments are of a rather confused and colloquial kind, but a dissection shows that the answer admits that the notes were renewal notes, afterwards averring that the notes to be renewed were not in fact renewed or offered for renewal.

On the trial, the defendants claimed the right to open the case to the jury and the judge properly gave them such right (3 Chitty Pl. 875 ; De Graff v. Carmichael, 13 Hun, 129 ; Hoxie v. Green, 37 How. Pr. 97). The defendants thereby did not take the position as admitting that the defendants actually received consideration, but that the presumption from the note and indorsements, as admitted by the answer, was that there was consideration. They were entitled to rebut this presumption by evidence, if they could. The same is true as to the defense of failure of consideration.

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

O’Gorman, J., concurred.


author: Sedcwicick, Ch. J.

text:
    HENRIETTE C. SMITH, Respondent, v. JOHN T. CORNELL, as Executor, &c., Appellant.

      uietion to compel defendant to disclia/rge out of the personalty taxes and assessments leroied in testator's life on his lands, now held by plaintiff, as heir-at-law and purchaser.

    Plaintiff, being the only heir-at-law and next of kin of a testator, purchased on a sale under a judgment rendered in an action, brought by the widow of the testator, against the executor and trustee under his will, for the recovery of her dower, certain real estate, whereof the testator died seized and possessed. The judgment directed the sale to be made subject to unpaid taxes and assessments. The plaintiff received a deed subject to such taxes and assessments. In a subsequent action it was adjudged that the trusts in the will were illegal and void, and that on the death of the testator his real estate descended to the plaintiff as his heir-at-law. There were unpreferred debts of the testator. Plaintiff brings this action to compel the executor to discharge said taxes and assessments out of the personalty.

      Held, that under any aspect of the case she was not entitled to the equitable relief prayed for. 1. As sole heir-at-law and next of kin, she had no
    _ pecuniary interest in the subject of the action, because it could make no pecuniary difference to her, whether the personal estate or the value of the land, was diminished by the payment of the taxes. 2. As purchaser in the dower action, if the judgment therein was efficacious, she by the deed to her made the land the primary fund for such payment and consented that the executor need not apply the personalty thereto. 3. If the dower judgment was not efficacious, then the transaction amounted to a private arrangement, whereby the plaintiff purchased the dower interest, and as that interest was not subject to be applied to the payment of any part of the taxes, the result would bo to leave the plaintiff’s interest as heir, subject to the payment of the taxes.

      Decided March 2, 1885.
    Before Sedgwick, Ch. J., and Truax, J.
    Appeal by defendant irom judgment, in favor of plaintiff, entered upon a decision of a judge at special term.
    The facts appear in the opinion.

      A. J. McCullough, attorney, and Horace Secor, Jr., of counsel for appellant,
    argued :—I. The statute provides for the order of the payment of the debts of a decedent, giving priority to : 1. “ Debts entitled to a preference, ■under the laws of the United States ; 2. Taxes assessed upon the estate of the deceased previous to his death,” &c. (Redf. Burr. Pr. 539). This provision is made for the benefit of the government, and because “the personal property is liable to be sold for taxes,” by the authorities (Seabury v. Bowen, 3 Bradf. 207). This statute is certainly not meant for the benefit of a decedent’s heirs, to enable them to procure payment of taxes prior to the payment of creditors. The settlement of a decedent’s estate is to secure to creditors the payment of their claims, and then to distribute the balance to the next of kin.

      Benjamin M. Stilwell, attorney and of counsel for respondent,
    argued :—I. The sale of the land under the judgment for dower, and the purchase of the same by the plaintiff, subject to all taxes, &c., did not extinguish or affect her right to have the taxes paid out of the personal estate. The plaintiff was the owner of the land, subject to the dower, and was entitled to the surplus arising from the sale. If any one else had bought the property at the sale, subject to taxes, the taxes would, in effect, have been paid out of the land, the price of which would have been proportionably reduced by the amount of the taxes, and the plaintiff would then have a right of action against the executor for the amount of taxes paid out of her land (Harrison v. Peck, 56 Barb. 265). But the plaintiff, the owner of the fee, having bought it herself, subject to the taxes, they are not paid, but still remain a hen upon the land ; for a person purchasing land subject to an encumbrance is not bound to pay it, unless he assumes or agrees to pay it (Belmont v. Coman, 22 N. Y. 43).
   By the Court.

Sedcwicick, Ch. J.

The plaintiff is-said to be the only daughter and heir-at-law of defendant’s testator, which intimates that she was the only child. The testator left a widow. His estate was both personal and real. There were, at the time of death/ taxes and assessments which were hens upon the real property. These taxes and assessments were, by the statute, to be paid before unpreferred claims. There were unpreferred debts, as the findings say that the personal estate of the testator was apphcable to the payment of the debts of the testator. It does not appear that the defendant, as executor of the will, has paid any debts, or distributed any of the personal property. He has not paid any of the taxes and assessments referred to. The widow brought an action against the present defendant, as executor and trustee under the will, for a recovery of her dower in the real estate. What interest in the real estate, the executor as trustee had, is not disclosed. The plaintiff, the heir-at-law, was not made a defendant. Judgment was rendered September 30, 1883, that the real estate be sold—it is to be understood, for the purpose of having the value of the dower paid to the widow out of the proceeds of the sale. In pursuance of the directions of the judgment the real estate was sold, subject to the unpaid taxes and assessments that have been referred to, and under the sale, the plaintiff bought, and received a conveyance, subject to them. The findings state that on November 3, 1883, in an action between the plaintiff and the defendant here, a judgment was rendered that the trusts of the will were not legal, “ and that no estate vested in the defendant as trustee thereunder, but that upon the death of the said testator the land descended to the plaintiff or her heirs-at-law. ” It does not appear that there was any other heir than the plaintiff. ' It is not, however, disputed, that the plaintiff claims title under the purchase made by her and the deed to her afterwards given. She. brings this action to compel the defendant to pay out of the personal estate in his hands, as executor, the taxes and assessments subject to which she took title.

If the interests of the widow and of the creditors be left out of view, it does not appear that the plaintiff has, in fact, any pecuniary interest in the alleged cause of action. She, as the only child and heir, is entitled to the whole of the estate. It could make no pecuniary difference to her whether the personal estate or the value of the land was lessened by the payment of the taxes ; whichever paid it, she would in the end have the same amount of value. In form, and as a fact, when she bought subject to the taxes, it was the equivalent of an obligation to the defendant, that the land should be the primary fund for payment of taxes, and not the personal property of the estate. She thus consented that the executor need not apply the personal estate, and there is nothing shown that entitles her to reimpose upon Mm, in her favor, the duty of maMng such application.

In what way is the case changed by the existence of the widow’s interest in the land ? It would seem from the fmdings that the action of dower, in which the present defendant as executor was the sole defendant, was inefficacious against the present plaintiff, as heir, especially as the executor had no title or interest to or in the land. However, as she bought under the judgment in the action, she took by the deed to her what the parties to the action might properly have conveyed or released. No attention was given to this subject by counsel in argumg this appeal. The transaction was the same substantially as if the widow by private arrangement with the plaintiff conveyed or released to the latter the dower, after it had been assigned to her. The thing assigned would have been a life interest in one-third of the lands. The plaintiff took the conveyance- of it, subject to the payment of the taxes upon it or the whole of the land. The dower interest was in law not subject to be applied to payment of any part of the taxes (Harrison v. Peck, 56 Barb. 265). The facts contained in the findings do not show whether the judgment in the action of dower, had valued the dower as if it were to bear no portion of the taxes. If we presume that it did, as it should be presumed that the judgment proceeded upon correct rules of law, then it cannot be inferred that the plaintiff reserved any part of the value of the dower right, for out of the purchase money she paid on the sale under the judgment, the whole value of the dower estate was paid to the widow. These considerations would leave the plaintiff’s interest as heir, subject to the payment of taxes, so far as the form of the deed she received would affect the matter.

I have considered the plaintiff’s purchase of the land, as if it were a private transaction between the parties. It will be found that such is the view most favorable to the plaintiff. It is necessary then, to ascertain the implications as to the rights of the parties from the actual facts and the relations of the parties. The defendant, there and here, having been an actual party to the transaction, it is to be asked if any part of the transaction affected him as executor or trustee ? The fact, that the plaintiff took the land, subject to the taxes, creates a presumption, if the other facts will allow the presumption, that it was taken because the executor or trustee had representatively some interest which would be served, and the plaintiff was under obligation to protect that interest, through the implied agreement that the land should be the primary fund for the payment of taxes. We observe passingly, that this action involves the rules that control the marshalling of assets, and the issue is, should the personal property or the land be first applied, under the circumstances of the case ? The defendant as executor was a trustee of the estate, for the benefit of those interested in it, in the order of preference established by statute. So far as the estate was concerned, he represented in their order, first, the city to which the taxes were to be paid, next, the unpreferred creditors, next the widow and the plaintiff as distributees of the balance if any. The claims of creditors against the estate were first to be paid out of the personalty. But it is to be specifically noticed that if the personal property were not sufficient to pay the creditors, the land of the plaintiff as heir-at-law, could be sold by the surrogate, on application of the executor. On such a sale, its proceeds would be applied, first to unpaid indebtedness, and the surplus to the plaintiff as heir-at-law. Nothing would prevent the plaintiff, in view of the possibilities that the land would have to be sold for debts, to arrange it so that the taxes should be paid out of her land, and the personalty be applied to unpreferred debts, so that her land should not be sold for any part of the latter. And the sale and its circumstances amount to this; namely, she consented, through the forms adopted at the sale and the giving of the deed, to hold a sufficient part of the land, to be primarily applied to taxes. Equitably, it was a declaration by her that she held that part of the land for that purpose. If it be necessary to find a consideration, it is found in her being permitted to use her land, freed from the inconvenience and liability to loss from a sale under proceedings by the executor to sell for unpaid debts ; that is, that the executor will not undertake to appropriate her land, if by her appropriating it herself she pay the taxes, raises the rank of the unpreferred debts in the course of the administration, and in that way prevents her land being sold for the debts, or any part of them. The result would be, if she is held to the implications from the language of the deed, that if the executor were obliged to pay the taxes out of the personalty, he could in favor of other creditors, whom he represents as well as representing the testator, take hold of the primary fund alluded to, and apply it to the indemnification of the creditors, without applying to the surrogate.

There is no proof of the amount of indebtedness, or whether the personalty is sufficient to pay all of the indebtedness, or of the manner in which the widow’s right as a distributee would be affected, by an enforcement of the judgment made below. If the plaintiff is to be released from the obligation she apparently assumed, it should be only after she has affirmatively shown that it will be injurious to no one interested in the estate.

In fact, she has once consented, that the executor should primarily apply the land and not the personalty. She does not show in this action any reason why she should be permitted to withdraw that consent, when it appears that the probable result would be unfavorable to creditors, in some way or to some extent.

If, however, the defendant here, when he was defendant in the action of dower, had the legal title to the land, and the plaintiff here is bound by the provisions of the judgment to consider that he had title, then there is still less reason for avoiding the consequences of her buying subject to the taxes.

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

Truax, J., concurred.


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    CARRIE UHLMAN, Respondent, v. SIMON UHLMAN, Appellant.

      Decided March 2, 1885.

      Divorce—counsel fees—general principles as to discretion concerning—two counsel—restitution on modification of order—Appeal—what constitutes acceptance of benefit of order.

    When it does not clearly appear in an action for divorce that the wife has no case, or no defense, the court in the exercise of its discretion in granting an allowance should consider that in the end the party directed to pay may be shown to be right, and should provide as far as possible for such a contingency, and in so providing should find what has been and what will be the quantum and kind of litigation sufficient for the proper investigation of the issues.
    An allowance should not be made for two counsel, unless it is affirmatively shown that two are necessary.
    Where the order has been complied with by payment, the court, in modifjnng the order on appeal by reducing the amount ordered to be paid, will not direct the restitution or repayment of the excess. The modification does not give a right to such restitution, nor will the court direct that the excess be applied to compensation for subsequent services.
    The compliance with an absolute order to pay by making the payment does not fall within the rule applicable to the taking of a benefit under an order appealed from.
    Before Sedgwick, Ch. J., and O’G-okman, J.
    Appeal by defendant from order granting plaintiff an allowance for counsel fees and expenses ; and motion to dismiss the appeal.
    The action was for divorce, in which the defendant claimed affirmative relief.
    The facts appear in the opinion.

      Wetmore & Jenner, attorneys and of counsel for appellant,
    argued :—I. It is the fixed policy of the courts of this state, to allow the most moderate amounts for counsel fees, especially pendente lite, in actions of this kind, and to reduce them to the actual.necessities of the case to enable the wife to prosecute, or defend, otherwise an incentive would be given to a kind of litigation which is always, as far as possible, discouraged (Williams v. Williams, 29 Wis. 517 ; Morrell, 2 Barb. 483 ; De Meli, 67 How. Pr. 53 ; Leslie v. Leslie, 11 Abb. Pr. N. S. 311).
    II. The court has authority, in an action for a divorce, to grant a counsel fee to the successful party upon the termination of the trial (Bently v. Bently, 3 Law Bull. 76, Truax, J.; De Meli v. De Meli, 67 How. Pr. 35). The Code, section 1769, authorizes the court, in its discretion, during the pendency of such an action, from time to time, to make and modify orders requiring the husband to pay money necessary to enable the wife to carry on and defend the action. This has been construed to authorize an allowance, not only before trial, but at and after trial. The action is pending necessarily until final decree (Winton v. Winton, 12 Abb. N. C. 150; Donnelly v. Donnelly, 63 How. 481 ; Green v. Green, 3 Daly, 358 ; Schloemer v. Schloemer, 49 N. Y. 82; McQueen v. McQueen, 61 How. 280). After the trial of this action is finished, and the case decided, the merits will have been determined, and the court then can award counsel fees which will be just, accordingly as the prosecution or the defense has been ascertained to have been in good faith.
    III. In opposition to the motion to dismiss the appeal, it is urged that the payment of the sum was no bar to the appeal. The order appealed from simply directs the payment, by defendant to the plaintiff, of a sum of money which he claims is altogether in excess of what it should be. He receives no benefit under the order ; it is wholly adverse to him ; no conditions are imposed in his favor which he has accepted, and the reversal of the order would present nothing but the ordinary case of the reversal of a purely money judgment (Schermerhorn v. Wheeler, 5 Daly, 472 ; Champion v. Plymouth Cong. Soc., 42 Barb. 411; Wells v. Danforth, 1 Code R. N. S. 415 ; Wallace v. Castle, 68 N. Y. 375).

      Richard S. Newcomb, attorney, and of counsel, and Chauncey S. Truax, of counsel for respondent,
    argued :— I. It appears, and was conceded, that the appellant is a man of large property, and in affluent circumstances ; that his property equals in value $200,000, and that his annual income is at least $17,000. The rule of law, that the wife should be placed upon an equality with the husband (2 Bishop Marriage & Div. § 387) is particularly applicable to this branch of these cases, because there have not in the entire history of this state arisen actions where greater efforts have been exerted, or more questionable fneans resorted to upon the part of the husband and his associates to accomplish the ruin of his wife. In view of these facts, the sum allowed to the wife to enable her to resist the charges, vigorously pressed, because of the great wealth at the husband’s command, is neither unreasonable nor immoderate (Forrest v. Forrest, 5 Bosw. 677 ; Griffin v. Griffin, 47 N Y. 134).
    II. This court, on appeal, will not modify the order of the special term, unless the amounts awarded are so excessive as to be beyond the scope of a legal discretion (Griffin v. Griffin, 47 N Y. 134 ; De Llamosas v. Same, 62 Ib. 618). The character of this litigation, and extent of the services rendered, make it proper and right that the plaintiff should receive the whole amount awarded her.
    III. In support of the motion to dismiss the appeal, it is urged that unless the defendant complied with this order, his proceeding could have been stayed and he could have been punished for contempt of court. The defendant complied with the terms of the order. A party cannot accept and act upon the terms of an order and also appeal therefrom (33 Super. Ct. 157; 4 Abb. Pr. 468; 1 Robt. 639 ; 4 E. D. S. 139). The order appealed from was in its effect a conditional order, the defendant cannot accept its terms and appeal from it at the same time (9 Q. B. 802 ; 16 L. J. Q. B. 49 ; 1 L. R. C. P. 238 ; 14 W. B. 614 ; 14 H. 7 N. S. 287 ; 5 Sand. 1). An appeal is waived by taking any benefit of the order appealed from, even if done under protest (6 Hun, 29 ; 18 N. Y. 481; 45 Ib. 201). We admit, that if the order had not in its effect been conditional, that then this motion would not be proper under the decision of 58 N. Y. 204, which held that a party who merely took steps to obtain a benefit, but who did not obtain his benefit, did not waive his right to appeal; that is not this case. The defendant had either to obey the order or take the consequences of disobeying the order, and he complied with the order. Furthermore, the order appealed from is not appealable (Green v. Green, 40 How. Pr. 465).
   By the Court.

Sedgwick, Ch. J.

Happily, families to the extent of a great majority of them, are not afflicted with the disorders that have made the subject of this action. Yet as a crime may be so frequent that a particular instance of it may properly be said to present no new feature, the conditions of this case are not new. They have been often investigated in courts of record, more often in police and district courts. There are no questions of law that need elaborate argument. The devices of cross-examination, peculiar to them, are familiarly known. They present no uncommon kind of action of human nature. There is the ordinary exaggeration of statements as to fact by the parties, and their partisan witnesses. If not specifically called upon by counsel to make proper deductions from this exaggeration, the tribunal would spontaneously make them. The proper forensic treatment of issues of this kind is so well known that, in a sense, it is mechanical. It is common experience that cases of this ldnd, in their beginning, have the appearance of presenting a great mass of matter for investigation, when a guarded and judicious treatment of them in the beginning, will show that the appearance is due to over-statement or mis-statement, and coloring, and that the issue turns upon a few points.

The plaintiff should claim enough to enable her to compensate counsel in ascertaining the material facts of the case. What cannot be successfully denied should not be the subject of protracted .litigation. There are many incidents in the case that call for the assertion that no provision should be made for legal services, excepting for those necessary to investigate the merits of the issues, and for none that may be used to protract litigation or to litigate for the gratification of animosity. When it clearly appears that a party has no case or no defense, a court may, in its discretion, refuse to make an allowance. When this does not clearly appear, the discretion of the court should consider that in the end the party directed to pay money may be shown to be in the right, and should provide, as far as possible, for such a contingency. In so providing, it should find what has been and what will be the quantum, and kind of litigation sufficient for the proper investigation of the issues. All cases should have regard to public policy. Each case makes a certain sort of precedent, and such precedent should be used in the light of the policy. It is further to be considered, that the plaintiff was bound to show affirmatively, why the employment of two counsel was necessary. One of them was the plaintiff’s attorney. As attorney, he would not be entitled, except under special conditions, to such an amount as one-half of the allowance would be. As counsel, there was not shown to be any necessity for another. The same is true of the associate counsel. Either of those gentlemen was fully able to conduct the litigation singly.

I am, therefore, of the opinion, that no greater allowance should have been made for services rendered up to July, 1884, than $1,500. If the defendant had done nothing under the order, it would be proper to proceed without further remark to modify it, in respect of the amount given by it. The defendant, however, has paid over under the order. It is suggested that this court has power to absolutely direct that the plaintiff repay the excess. My opinion is that the mere modification of the order does not give the defendant a right to such direction. To give the defendant a right to restitution, by order or by action, if indeed there is a right of restitution, depends upon facts outside of this record that will have to be considered with it, should any demand for restitution be made. The same may be said of a suggestion, that the order should be so modified as to apply the excess to compensation for services after July, 1884. Without any other modification than the reduction of the amount, certain results will follow, as to the effect of the order upon any subsequent proceeding on the part of plaintiff or of defendant. What that effect shall be, or whether there should be any effect, must be determined in any proceeding that may be hereafter taken.. The mere fact of payment under the order does not necessarily result in the defendant having no substantial interest in a modification by the reduction of the amount.

The payment by defendant was made the ground of a motion to dismiss the appeal, on the proposition that he thereby gained leave to compel plaintiff to proceed in the action, and for himself to proceed, and without payment he would not have had leave. The direction for payment was unconditional. If there had been no further proceedings, payment could have been enforced. The allowance regarded past proceedings. The right to proceed and to compel plaintiff were the consequences of the payment and formed no condition of the order to pay.

The motion to dismiss appeal is denied, without costs. The order appealed from is to be modified by reducing the amount of the allowance for expenses to $1,500, and as so modified, affirmed, without costs.

O’Gorman, J., concurred.


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    ROBERT LANGDON, et al., Appellants, v. DAVID H. BROWN, Respondent.

      Decided March 2, 1885.

      Dill of particulars in a case where it cannotbe demanded as of course—Discretion in ordering—proper exercise of-—order for bill obtained by the other party.

    In an action brought on a guarantee by defendant to pay for goods sold to a third party, the defendant pleaded a recoupment on account of the bad condition of some of the goods, and the plaintiff procured an order for the particulars of such claim by defendant.

      Held, that the giving by the plaintiff a bill of particulars of the goods sold to the third person, was a facility for the defendants making their bill of particulars that the plaintiff should give, and the order requiring plaintiff so to do was upheld as a proper exercise of discretion.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal by plaintiffs from order directing them to furnish a bill of particulars of the claim made in the complaint.
    The action was on a guarantee by defendant to pay for such goods as plaintiff might sell to Lowry & Brown not exceeding a certain sum. The complaint alleged a sale to Lowry & Brown to an amount covered by the guarantee.
    Further facts appear in the opinion.

      Francis Forbes, attorney and of counsel for appellants,
    argued :—The fact that plaintiffs obtained an order directing defendant to serve a bill of particulars of his defense does not entitle him to a bill of particulars from the plaintiffs to aid in the preparation of his own bill. It is not the office of a bill of particulars to furnish evidence (Drake v. Thayer, 5 Robt. 694 ; Fullerton v. Gaylord, 7 Ib. 551). But defendant would not have any greater knowledge of what damaged goods were in the hands of tailors after service of a bill of particulars than before. He states that there were such goods, and therefore must have better knowledge of them than the plaintiff. If so, he is not entitled to a bill.

      William H. Sage, attorney and of counsel for defendant,
    argued :—A bill of particulars of the plaintiffs’ account is made necessary by the order which they obtained that the defendant serve a bill of the particulars of his defense. The affidavits submitted made a case for the exercise of the discretion of the court below, irrespective of the defendant’s right to demand the items of said account, and such discretion was correctly exercised (Dwight v. Germania Insurance Co., 84 N. Y. 507 ; Witkowski v. Paramore, 93 Ib. 470 ; Morss v. Hasbrook, 13 Week. Dig. 393; Bryon v. Durrie, 6 Abb. N. C. 139). An itemized account of plaintiffs’ claim is necessary to enable defendant on the trial to prove that the damaged goods were part of those sued for in this action. Defendant has only part of plaintiff’s invoices, and he is entitled to copies of all,of them, so as to identify the goods.
   By the Court.

Sedgwick, Ch. J.

The action was not upon an account, and' the complaint did not allege any account (Code Civ. Pro. § 531). The plaintiffs were not bound, therefore, by the section, to give particulars upon the mere demand of defendant’s attorney. They did, however, yield to a demand made that they serve a copy of the account or claim for goods sold and delivered, set forth in the complaint herein,” and served upon defendant’s attorney something that has the appearance of a bill given by a merchant to a customer, but containing only charges of money, as due at specified dates. There is nothing to show whether or not this is a copy of anything. On receiving it, the defendant’s attorney took an order to show cause why plaintiff should not give a further bill of particulars, specifying thereon, the number of each piece of goods sold to the firm of Lowry & Brown.” The court ordered that such a bill be given, and from this order this appeal is taken.

If the validity of the order depended upon whether, if the first bill served was one that could not properly be demanded, there could be a further bill ordered on the ground of defendant’s absolute right to it, there might be ground for doubt. Substantially, however, after the plaintiffs had voluntarily furnished what 'they did furnish, it was a question for the discretion of the court, whether further particulars should be given ; for under the last sentence of the section specified, the court may in any case direct a bill of the particulars of the claim of either party to be delivered to the adverse party. The matter that shows that the court exercised discretion properly, is, that it appearing that the plaintiff had procured an order for the particulars of the defendant’s claim for a recoupment on account of the bad condition of some of the goods averred by the complaint to have been sold, the present order was a facility for the defendant’s making his bill of particulars that the plaintiffs should give.

Order affirmed, with $10 costs, and disbursements to. be taxed.

O’Gorman, J., concurred.