author: Sedgwick, J. (at special term).

text:
    SPECIAL TERM,
    FEBRUARY, 1873.
    JOHN O’DONNELL, Plaintiff, v.WILLIAM LINDSAY, and JOHN O’DONNELL, Defendants.

    I. EXECUTION—SALE OF REAL ESTATE UNDER.
    1. Sheriff’s duty as to selling in parcels, &c.
    1. It is his duty to learn the situation of the property before he-sells, and to sell in obedience to the direction of § 38, art. 2,. title 5, chap. 6, part 3, R. S.
    1. Quasi-judicial. In some cases the facts will be such that the exercise of the sheriff’s disaretion will be judicial in its nature.

      a. Vinal.—In such cases an honest exercise of the dis- * cretion is as final as the action in like case of any judicial tribunal.
    2. Non-performance of this duty, effect of.
    1. Void and voidable. It does not render the action of the sheriff void, but only voidable, at the instance of the aggrieved party.
    2. Purchaser. If the non-performance had given cause for setting aside the sale, such will be its effect as against a purchaser who had notice of the non-performance, and much more against a purchaser who had requested and led the sheriff to make the sale in the forbidden manner.
    3. Sale in one parcel, effect of.
    1. If the facts were such that the sheriff might have so exercised his discretion as that but a part of the lot would have been sold, and he did not exercise his discretion at all, but relied on the purchaser for information ; semble, the sale should be-treated as invalid.

    1. What facts call fob the exercise of discretion.

      a. Semble. An execution for one hundred and seventy dollars, and a lot thirty-seven by one hundred, would.

      b. Query, whether the sheriff could exercise any discretion if the lot was in the city of New York, and was twenty-five by one hundred. .

      c. Query, when there is erected on one lot in the city of New York, twenty-five by one hundred, two buildings separated by a space of twenty feet, both occupied as tenement houses, each independent of the other, and each having a rental as large as many houses occupying full lots, and the entrance to the rear house being through an alleyway on the side of the lot passing for a part of the way under the beams of the floor of the second story of the front building, and it being the most advantageous mode of selling, so as to make the property produce the most, to sell the houses separately, it is doubtful whether the statute gives the sheriff power to malee a sub-division.

    4. Setting aside sale.
    1. Inadequacy of price.

      1. This, of itself, although it is so great as to be at least on the verge of a presumption that there was in the conduct of the sale some undiscovered violation of plaintiff’s rights, is not enough.
    1. There must be some other circumstance in addition,

      a. But great inadequacy has refined the ingenuity of learned judges, in extracting from the facts sufficient to justify annulling the sale (numerous cases cited).
    1. What circumstances sufficient.

    a. The fact that the attorney for the judgment plaintiff furnished the description by which the property was sold, and himself became the purchaser, is sufficient.

    2. Purchaser when trustee eor the owner.
    1. When the purchaser is the attorney for the. execution plaintiff, and he has managed or controlled a part of the preliminaries to the sale,—e. g., furnishing a description of the property by which it was sold,—he will be deemed to hold the property as trustee for the owner.
    3. Defective description.

    When the description hounds the property, with one exception, by lots on a map, not stating where a map was, the excepted boundary being a lot stated to be now or late the property of Van Siller, and gives no alleged quantity of land offered for sale, it has not the quality of common certainty for the purposes of the notice of sale required by the statute.

      4. Laches, <6c., on the part of the owner does not relieve his trustee from the fulfilment of the trust.

    II. REMEDY OE OWNER.
    He may either
    1. Move in the action in which the execution was issued

      or

    ■3. Bring an original action in equity.
    Before Sedgwick, J. (at special term).
    In January, 1870, the defendant O’Donnell obtained in the marine court a judgment against the plaintiff, in the sum of one hundred and sixty-four dollars and forty-four cents. The plaintiff appealed from this judgment, and gave, in order to stay proceedings, the usual undertaking to pay the judgment in case of affirmance, with sureties.
    On the appeal there was an affirmance on May 27, 1870, and another judgment was entered against the plaintiff for twelve dollars and ninety-four cents, the costs of the appeal.
    In those proceedings Mr. John Lindsay appeared as attorney for the plaintiff there, who is the defendant O’Donnell. Mr. John Lindsay and the defendant Mr. William L., were partners in a law firm. O’Donnell, for whom Mr. John L. appeared, wa,s a client of that firm. After the judgments were had, Mr. William Lindsay received from his client some information that the plaintiff in this action owned a house in Forsyth street, in this city.
    The judgments not being paid, the defendant Mr. William Lindsay procured from a deed in the register’s office a description, for the purpose of giving to the sheriff the necessary data for an advertisement of a sale under execution of the right, title, and interest of the plaintiff to the premises in controversy. The plaintiff held the fee of a house Ho. 148 Forsyth street, in this city. The property was in size twenty-five feet on the front and rear, and ninety-nine feet eleven and a half inches on each side.
    The description furnished by Mr. William L„, and which the sheriff used in his notice of sale, is contained in the following, which was the sheriff’s notice r
    “ Sheriff’s sale : By virtue of several writs of execution, to me directed and delivered, I will expose for sale at public vendue on 23d, day of July, 1870, at the vestibule of the City Hall, Hew York city, at 12 o’clock, noon, all the right, title, and interest of John O’Donnell, which he had on the 20th day of January,, 1870, or at any time afterwards, of, in, and to all that certain lot, piece, or parcel of ground, situate, lying, and being in the tenth ward of the city of Hew York, the east side of Forsyth (late 2d) street, between Delancey and Bivington streets, and distinguished on a certain map or chart of the estate late of the property of James Delancey, Esq., made by Evert Bancker, by lot Ho. 617, bounded westerly by Forsyth street, aforesaid, northerly by lot distinguished on said map by number 618, easterly by lot distinguished on said map by number 636, now or formerly belonging to Van Siller, and southerly by lot distinguished on said map by number 616, together with all and singular the appurtenances thereunto belonging, or in any wise appertaining.
    “ Dated Hew York, June 4, 1870.
    “ James O’Brien,
    Sheriff.’
    In pursuance of this notice the sale was held at the vestibule of the City Hall on July 23, 1870, at noon. The defendant, Mr. William Lindsay, was the only bidder for the property at the sale. He bought it for two hundred and sixty dollars, and gave the sheriff a check for about one hundred dollars. There had been given to the sheriff a receipt for the amount of the execution in advance. The plaintiff in this action did not have actual knowledge that judgment had been rendered in his appeal, or that the sale was to take place. After the sale and before the time to redeem had gone by, Mr. William Lindsay wrote through the post office to the plaintiff that the sale had taken place. These letters did not reach the plaintiff. About March 17, 1872, Mr. William Lindsay went to Brooklyn and saw the plaintiff, and demanded from him possession of the property. He left with him written notice that he demanded such possession.
    At the time of the sale the property was worth from twenty-seven thousand five hundred dollars, to thirty thousand five hundred dollars.
    The plaintiff was married, and there were mortgages upon the whole of the land for seven thousand six hundred dollars. The plaintiff’s interest in it was worth from thirteen thousand dollars to fourteen thousand dollars. The buildings on the lot had a rental of more than three thousand two hundred dollars. The net rental for a year was at least five times as great as the sum paid for the property at sheriff’s sale.
    On the front of the lot was a four-story building, occupied as á tenement-house. The rental of this was about two thousand four hundred dollars.
    On one side of this house was an alley or passageway, three feet wide, which led from the street in front to a yard on the lot. This yard separated the house on the front of the lot from another house of four stories on the rear of the lot. The rear house rented for about nine húndred dollars. The yard was about twenty feet deep across the breadth of the lot.
    The sheriff in due time executed and delivered to Mr. William Lindsay a deed of the property; The plaintiff, before this action began, tendered to Mr. Lindsay the amount of his bid and interest, and demanded a conveyance to himself of the premises. This was refused, and the tender was rejected.
    The complaint demanded judgment, that the sheriff’s sale be adjudged illegal; that the sheriff’s deed be declared invalid; that the plaintiff be decreed to be seized and possessed of the estate he had at the time of the sheriff’s sale, and that the defendant Lindsay be decreed, upon receiving the amount of his bid, and the proper interest thereon, to reconvey to the plaintiff the property described in the sheriff’s deed.

      Bushnell & Albright, attorneys, and S. Jones, of counsel for plaintiff.

      J. F. Harrison, attorney, and Theron R. Strong, of counsel for defendant Lindsay.

       The judgment entered in conformity with above opinion was. not appealed from. Also see Bruce v. Kelly (ante, p. 27).

   Sedgwick, J. (at special term).

The plaintiff claims that the sale made by the sheriff, was i in violation of the thirty-eighth section of 2 R. S. p. 269. That section is

“ When real estate offered for sale by -virtue of any execution,.shall.consist of several known lots, tracts, or parcels, such- lots,- tracts, or parcels -shall be separately exposed for sale, and if any person claiming to be the owner of any portion of such estate, or of such -lots, tracts, or parcels, or either of them, or'claiming to be entitled by law to redeem any such portion, shall require such portion to be exposed for sale separately, it shall be the duty of the sheriff to expose the same for. sale accordingly.”
“No more of any real estate shall be exposed for sale, than shall appear necessary to satisfy the execution.”

This seems (see reviser’s notes) to have been meant to be declaratory of the law, as it then stood, excepting that part allowing grantees to require a severance, which was proposed in order to facilitate a redemption by them. Nor, has there been, either before or after the Revised Statutes, any diversity in the cases as to this part of the sheriff’s duty under an execution.

There is no doubt that the statute imposes a duty upon the sheriff. It pre-supposes that that officer must learn the situation of property before he sells, and shall sell in obedience to its direction. In some cases the facts will be such, that he is obliged to exercise a discretion which is judicial in its nature, in acting upon one set of circumstances, opposed by another set. Then an honest exercise of that discretion is as final as the action in like case of any judicial tribunal (Litchfield v. Regular, 9 Wall. 577; The Secretary v. McGanahan, Id., 311; Gaines v. Thompson, 7 Id., 349).

In any case, the action of the sheriff, no matter how great the irregularity of the sale, is not void (Cunningham v. Cassidy, 17 N. Y. 276; Wood v. Monell, 1 Johns. Ch. 503).

It is but voidable on the application of the aggrieved party, who, not having waived his rights, takes, in due time, a proper proceeding for the purpose of setting aside the sale. Such a party has a right to insist that the sheriff should have performed his duty under the statute. If the non-performance of that duty has given cause to set aside the sale, such should be the result against a purchaser at the sale, who had notice of the non-performance of duty, and much more against a purchaser who had requested and led the sheriff to make the sale in the forbidden manner (May v. May, 11 Paige, 203; King v. Morris, 2 Abb. Pr. R., 295; Requa v. Rea, 2 Paige, 340).

The purchaser in this case, as attorney for the judgment creditor, was the cause of the sheriff* s using the description of the property he did use for the sale and of the sale being made according to that description. If this led to or was a violation of the plaintiff’s legal rights, the sale should be set aside against the purchaser here.

The plaintiff maintains that the property should not have been sold in one parcel. If the facts were such, that if the sheriff had not relied upon the purchaser for information, but might have so exercised his discretion, that but a part of the lot would have been set up for sale, then it might be right to consider if the sale should not.be treated as invalid to pass the title to the purchaser, on the ground that the plaintiff had a legal right to whatever possible benefit might have followed the sheriff’s exercise of discretion (Russell v. Conn, 20 N. Y. 83; Lanergan v. People, 39 N. Y. 44).

It would then be necessary further to decide whether in the facts of the case there was anything to call for the judgment of the sheriff, as to whether anything less than the whole lot should be sold. If from the state of the property it would be impossible to subdivide it, then the sheriff could not have used discretion which might have benefited the plaintiff.

The real estate in question did not consist of several known lots in the meaning of the Revised Statutes. It was know as but one lot. There was nothing to indicate that there had been a previous purpose on the part of the owner to present it to others as in fact subdivided. The statute contemplates that there should be some indication of this to constitute what it' meant by several known lots. The section implies a contrast between land in fact subdivided and land capable of subdivision. Nor did the plaintiff require that the sheriff should sell less than the whole at one time.

Distinct from this injunction of the Revised Statutes is the further prescribed duty of the sheriff to sell no more than appeared necessary to satisfy the execution. Before the Revised Statutes it was deemed an abuse of power for the sheriff to sell more (Woods v. Monell, 1 John. Ch. 502; Tiernan v. Wilson, 6 Id. 411). The case last cited, says, “ It is not to be disputed that a sheriff ought not to sell at a time more of the defendant’s property than a sound judgment would dictate to be sufficient to satisfy the demand, provided the part selected can be conveniently and reasonably detached from the residue of the property, and sold separately.” It would be full of risk to say that a sheriff would be justified in selling the whole of one parcel of vacant land in this city, thirty-seven feet by one hundred feet, to satisfy an execution of one hundred and seventy dollars. On the .other hand, when custom and use, the best tests, have found that for general purposes the most convenient and valuable size for a city lot is that in this case, viz., twenty-five feet by one hundred feet, I think it would be doubtful if the sheriff is justified in making an experiment as to the effect of a subdivision upon the gross value. That is in the case of a vacant lot.

We have here a peculiar case. Although but one lot, there was upon it two buildings separated by a space of twenty feet; they were occupied as tenement houses, and one was altogether independent of the other in respect of their use. Each had a. rental as large as many houses occupying full lots. No doubt each would have brought, on even such a sale as this was, just as much as was paid for the whole, whether there had been given to the rear a right of way through the front part of the lot or not. That is but one element under the statute. The other is that pointed out in Tiernan v. Wilson, viz.: What is the effect of selling part upon the value of that left unsold ? The preponderance of .testimony in this case is that an owner could get the most out of the property, by selling the houses separately. In such case the owner has the power to carve up the estate so as to suit circumstances. The sheriff has no such power. He sells things in the state in which he finds them. If he had sold either part separately, the law perhaps might have attached as a consequence, that there should be a right of way through the front lot. That has been held to be the consequence of selling off under an execution part of a debtor’s land, which shuts the remainder from a highway. In these cases, the operation of the execution is similar to that of an extent at common law, and where property is appraised and set off to the judgment creditor (Taylor v. Townsend, 8 Mun. 411; Parnam v. Wend, 2 Mun. 203; Allen v. Kincaid, 2 Fairfield, 11 Maine, 155). I have doubts that such a rule is applicable to a city of this kind or to our mode of selling under execution. Moreover, in this case the right of way for the back building passes under the beams of the floor of the second story of the front building. I hesitate to decide that in making the subdivision the sheriff would not be making an experiment or speculating upon contingencies, and so use a discretion the statute did not mean to give him. I go to other aspects of the case.

The price given in this case by the purchaser, was very far below the value of the property. The inadequacy was so strong and manifest that it must be impossible to state it to a man of common sense, without producing an exclamation at the inequality of it (Gwynne v. Heaton, 1 Bro. 8).

There has justly been such sensitiveness on the part of the courts of this state, against invalidating sales for mere inadequacy of price (Livingston v. Bryne, 11 John. 555; Tripp v. Cook, 27 W. 143; Marsh v. Ludlum, 3 Sand. Ch. 55), that I can not rest the case on that alone; although here the inadequacy of price is so great, as to be at least on the verge of a presumption that there was in the conduct of the sale, some undiscovered violation of the plaintiff’s rights (American Ins. Co. v. Oakley, 9 Paige, 259, note 4 to § 244, Story Eg.), for instance, gome keeping away of bidders.

The general rule must be observed, that to set aside-a sale, there must in addition to inadequacy of considation be some other circumstance, e.g., surprise, ignorance, mistake, inadvertence. It will be seen, however, in the cases, that a great inadequacy has refined the-ingenuity of the learned judges in extracting from the the facts of the cases sufficient to justify annulling the sale (Griffith v. Hawley, 10 Bosw. 588; King v. Platt, 37 N. Y. 155; Dwight’s case, 15 Abb. 259; King v. Morris 2 Id.; Francis v. Church, Clarke Ch. R. 475; Gardner v. Schermerhorn, Id. 105; Hoppock v. Conklin, 4 Sandf. Ch. 582; May v. May, 11 Paige, 203: Brown v. Frost, 10 Id. 245; Requa v. Rea, 3 Id. 340; Williamson v. Dale, 3 John. Ch. 292; Lansing v. McPherson, 3 Id. 426; Billington v. Forbes, 10 Paige, 487; Mulks v. Allen, 12 W. 253; The President, &c., oi’ Ontario Bank v. Lansing, 2 Id. 261).

In Gwynne v. Heaton, already cited, the chancellor said that inadequacy of price combined with considerations of public policy would set aside a bargain. “The-heir of a family dealing for an expectancy in that family, shall be distinguished from ordinary cases, and an unconscionable bargain made with him shall not only be looked upon as oppressive in the particular instance, and, therefore, avoided, but as pernicious in. principle, and, therefore, repressed (1 Bro. 10).

In Howell v. Baker (4 J. C. R. 120), Chancellor Kent, was of the opinion, although he did not decide the case on that position, that if an attorney for a judgment creditor had the management of a sale under execution and bought in property at it, he was a trustee for the owner of the property. He cited for this, Lord Thurlow in Hall v. Hallet, 1 Cox, 134. Chancellor Walworth, in Hawley v. Cramer (4 Cow. 717), said in reference to Howell v. Baker that he did not agree that an attorney under such circumstances was trustee for the debtor. He said he was a trustee for the creditor, his client, but that he owed no duty to the debtor. Cramer v. Hawley did not involve the question whether an attorney controlling a sale owed such a duty to the owner that he could not become a purchaser. So that, as to that general proposition, there seems to be no authority in our courts.

If it were granted that the attorney did owe to the owner a duty, by reason of the former having control of some part of the sale that was likely to affect the price to be given for the property on the sale, there could be no doubt, as I think, that public policy would forbid that his interest as a bidder should be hostile to his duty to manage the sale so that the best sum be procured.

The sheriff having received information as to property that should be sold, is bound to do all those things, as to form and time of notice, and time and place of sale, which the law has prescribed, as calculated to do justice to both sides, in securing the best price on the sale. The sheriff has some discretion as to each of these particulars. For that reason he must be disinterested in the performance of his duty, and can not become a purchaser at his own sale. This is the subject of a statute. Yet such would have been the case without a statute (Carpenter v. Stilwell, 11 N. Y. 61). This duty he owes in part, of course, to the owner. How, if ah attorney in the performance of his professional obligation to his client, is allowed by the sheriff to control and manage the sale, and in this way to do those things which have led to the sheriff’s being forbidden to become bidder, he stands in the sheriff’s shoes, and is subject to the same disabilities. When he buys he may be a trustee for his client at the latter’s option. If the law permits him to become a purchaser as against the debtor, he will be led to devise means (at least there

may be that temptation) to avoid fulfilling this trust to his client.

I think the reasons for an attorney being a trustee for the owner, escaped attention in Cramer v. Hawley. ‘There is no magic in the terms, trust and trustee.” “ He is a trustee in a technical style who is vested with property in trust for others, but every man has a trust to whom a business is committed by another, or the charge and care of any concern is confided or del egated ,by commission” (1 Lead. Cases in Eq. 209, quoting the language of counsel in The York Building Company v. Mackenzie, 8 Tomlin’s Brown P. C. 42; 64). The principle applies to all persons, judicial or private, ministerial or counseling, who in any respect have a concern in the sale of the property of others (1 Lead. Cases in Eq., 209, Carpenter v. Danforth; Davone v. Fanning, 2 J. Ch. 252; Michaud v. Girod, 4 How. [U. S.] 554; Dickenson v. Codwise, 1 Sandf. Ch. 214; Van Epps v. Van Epps, 9 Paige, 241; Tomey v. Bank of Orleans, Id. 650; Dobson v. Racey, 3 Sandf. Ch. 60; Case v. Carroll, 35 N. Y. 389).

The principle in respect of the attorney purchasing at sales, which is referred to in Howell v. Baker, exists in Great Britain, and the case of Hall v. Hallet is approved there. In Atkins v. Delnege (12 Jr. Eq. 1) it is said that no solicitor having the conduct of a sale under a decree can purchase at it, (Harrison v. Guest, 6 DeG. Met. & G. 435; Price v. Maxon. cited in the argument of counsel in Watson v. Beach, 1 Ves. Jr.). In Ex parte Hughes (6 Ves. 624), Hughes, who was a creditor of a bankrupt, had given advice as to the up-set price at which the bankrupt’s property should be set up at the bankruptcy sale. In that case, it was considered that, therefore, he was incapacitated from bidding and purchasing.

If the principle is applicable to this case, it can make no difference that the purchaser had managed or controlled but a part of the preliminaries of the sale. If he could become a bidder, there would be the temptation to arrange that part to suit his own interests. Nor do I see that because the creditor himself may become a purchaser that, therefore, his attorney may. The former does not and the latter generally does interfere with and shape the details of the proceeding. But if the creditor in an execution should undertake such a thing himself, I think he would undertake a duty to the debtor, which as a matter of-policy, should permit the debtor to consider him a trustee. Justice would of course be done the creditor in the terms of opening the sale.

Therefore I consider that in this case the purchaser bolds his title to the property as the trustee of the plaintiff, on the broad principle that has been examined. His client’s demand has been satisfied by payment, he having according to the testimony renounced any interest in the purchase. Beyond this, however, this must be taken together with the great inadequacy of price given. The something that the law requires to be combined with the inadequacy, is found in the relation of the purchaser in this action to those circumstances of notice, &e., which it is the theory of the law should lead to the value of the property being obtained at a public auction. The law can not expect that in general a debtor can put his finger on a defect in such proceedings.

The plaintiff’s rights do not, however, rest alone on what has been considered. The kind of notice virtually given by the purchaser calls for particular attention. The statute requires that in every such notice the real estate to be sold “shall be described with common certainty, by setting forth the name of the township or tract and the number of the lot, if there be any, and if there be none, by some other appropriate description” (§ 35). This notice is given that the public whom the law invites to such auctions, may be able to know where and what, is the property they are about to purchase (Jackson v. Delancey, 13 Johns. 539), and that all may bid and become purchasers on equal terms (Mason v. White, 11 Barb. 185). The description of the property in this case, was, we have said, framed by the purchaser and furnished to the sheriff.

If it was defective, he is not a tona fide purchaser under § 40. It may be that this notice was not indefinite or uncertain under Jackson v. Rosevelt (13 John. 98). But no one from the description itself could have found the property. Its bounds with one exception were by lots on a map. It was not stated where that map was. The exception referred to is one lot serving as a boundary, and was said to be now or late of the property of Van Siller. That gave no information. The only ways that the people to whom that notice was addressed could find the property were, first, to find the maps, and then get information on which to go further in the examination, or else to proceed to the block in Forsyth street, and ask perhaps from door to door for facts, from which it might be spelled out where the land was. The description did not have the quality of common certainty for the purposes of that notice. It is easy to give the street number. In this .case, not even an alleged quantity of land offered for sale was stated to attract bidders. This serves to partly explain why there was no chance bidder ready to run the chance of paying more than -two hundred and sixty dollars for a property, whose net rental was more than thirteen hundred dollars.

The other facts that attended the sale, furnish thought as to other ground for treating the purchaser as-a trustee for the plaintiff; but I do not think that the whok facts together would justify my taking that ground.

There were two sureties on the undertaking on appeal. The property was sold at noonday in the month of July, and although the only bidder was the attorney for the creditor, there was no adjournment. I am so convinced from the testimony of the integrity and honesty of the purchaser, that I do not look to these facts to see if they show that there was a purpose that the property should be sacrificed". I only now detail them to show the adverse circumstances under which a debtor’s property may be exposed to sale, in cases where there are no evil intentions. This should lead to a scrupulous observance of whatever is meant to protect his interests. It also gives strength to the argument that on grounds of policy no one that has taken part in conducting the sale should be allowed to purchase at it.

The inadequacy of the price paid, with the fact that the notice was of the kind specified (for which the purchaser was responsible), requires that the defendant,. Lindsay, should be deemed to hold the property as if as to him there had been no valid sale. This is, I think, the necessary result apart from any considerations of general policy that have been looked at. He must, therefore, be adjudged to execute and deliver to the plaintiff a conveyance of the property.

Having reached this conclusion, it is hardly necessary to say that any laches, or neglect, or want of vigilance on the part of the plaintiff that may have existed, do not give a reason that the purchaser as his trustee should not fulfill his duty to him.

I have considered the objection taken by the learned counsel for the defendants, that the relief, if any, that the plaintiff was entitled to, should be asked on a motion in the action in which there was judgment and not in an original action (McCotter v. Jay, 30 N. Y. 80; Brown v. Frost, 10 Paige, 245; Nicholl v. Nicholl, 8 Id. 349; Groff v. Jones, 6 W. 523, and other cases). I think the rule applies to those cases where the decree or judgment specifically provides for the sale of the property. Then all proceedings connected with the. sale are in the action and to be passed upon in the action and under the common rule as to res adjudícala, are deemed final unless appealed from. Most of the cases cited are of sales in foreclosure suits. It Groff v. Jones, which related to a sale under execution in a-common-law action, Judge Sutherland said it was not necessary to send the parties applying for re-sale-to a court of equity. He did not say that it was improper to ask relief there. But in Lansing v. Quakenbush (5 Cow. 38), the supreme court held that a court of equity was the more proper forum in which to-obtain relief from a sale upon execution, at which the moving party was induced to buy by alleged false representation of the debtor. Tiernan v. Wilson (6 John. 411), was a case of a bill in chancery, asking to set aside a sale made under execution. Howell v. Baker (4 John. 119), sustained a bill to redeem on the ground that the defendant who was a purchaser at a sale under-execution was a trustee for the complainant. I therefore think that the relief sought by this plaintiff is the proper subject of an action.

The conveyance should be adjudged upon terms-In settling the form of the judgment, I would like to hear the parties as to the terms that should be imposed upon the plaintiff.

Judgment for plaintiff.


source: Caselaw Access Project

author: Freedman, J.,

license: Public Domain

text:
    JAMES A. McMICKEN, et al., Plaintiffs and Respondents, v. CHARLES L. LAWRENCE, Defendant and Appellant.
    .APPEAL—PRACTICE ON.
    1. An exception to the denial of a motion for a new trial on tha minutes is unavailing upon an appeal from the judgment (Gregg v. Howe, 37 N. Y. Sup'r. Ct. R. 430).
    .3. Where no motion is made either for a dismissal of the complaint, or the direction of a verdict, and the case is submitted to the jury-under a charge to which no exception is taken, the review on appeal must be confined to a consideration of the questions arising on the appellant’s exceptions to the admission or the exclusion of -.evidence.
    Before Monell, Ch. J., and Freedman, J.

      Heard February Term, 1875;

      Decided March 1, 1875.

      Thomas Bracken, attorney and of counsel for appellant.
    F. F. Marbury, Jr., attorney, and F. F. Marbury of counsel for respondent.
    It appearing that although on the trial the defendant made a motion for a new trial and to the denial thereof excepted, but made no motion for a dismissal of the complaint or the direction of a verdict, and allowed the case to be submitted to the jury under a «charge to which no exception was taken, held on appeal from the judgment that the exceptions taken to the admission and exclusion of evidence being untenable, the judgment should be affirmed.
   Freedman, J.,

wrote for affirmance, laying down the propositions contained in the head-note.

Monell, Ch. J., concurred.


text:
    DANIEL W. RICHARDS, et al., Plaintiffs and Respondents, v. JOSEPH C. WOODRUFF, et al., Defendants and Appellants.
    AGENCY.—MOTION TO NON-SUIT.
    Before Monell, Ch. J., and Freedman J.

      Heard, February, 1875;

      Decided March 1, 1875.

      Marshall P. Stafford, attorney and of counsel for appellant.

      Payson Merrill, attorney and of counsel for respondent.
    In this case the only error assigned was the refusal to grant a motion for a non-suit made at the close of the plaintiffs’ evidence, on the ground that the person who made the purchase of the goods in question had not been shown to have been the defendants’ agent for that purpose.
   Freedman, J.,

wrote for affirmance, holding that a prima facie case of such agency had been made out.

Monell, Ch. J., concurred.


author: Sedgwick, J.,

text:
    JAMES B. HORNER, et al., Plaintiffs and Respondents, v. CHARLES B. ABORN, Defendant and Appellant.
    CREDIBILITY OF WITNESSES.
    Before Sedgwick and Speir, JJ.

      Heard March, 1875;

      Decided May 3, 1875.

      Patterson & Major, for appellants.

      G. A. C. Barnett, for respondents.
    This appeal involved nothing but the credibility of plaintiffs’ witnesses. Judgment below was for plaintiffs.
   Sedgwick, J.,

wrote for affirmance.

Speir, J., concurred.


author: Monell, Ch. J.,

text:
    THE PRESIDENT AND DIRECTORS OF THE INSURANCE COMPANY OF NORTH AMERICA, Plaintiff and Appellant, v. MOSES GARDNER, Defendant and Respondent.
    VERDICT, SETTING ASIDE AS AGAINST THE EVIDENCE.
    Before Monell, Ch. J., Curtis and Speir, JJ.

      Heard April, 1875;

      Decided May 3, 1875.

      Nathaniel A. Prentice, for appellant.

      R. S. Newcomb, attorney, and Albert Curdozo, of counsel for respondent.
    The action was to recover a premium of insurance.
    The questions involved at the trial were (1) whether the person who. acted on behalf of the defendant was authorized to enter into the contract which he made; (2) if not, then whether the defendant had ratified his acts.
    There was evidence given on behalf of plaintiff and defendant on both of these questions ; and the cause was submitted to the jury, who found for the defendant.
    A motion for a new trial on the Judge’s minutes, was made and denied, and an order denying the same entered. Judgment was entered on the verdict. Plaintiff appealed from the order and judgment..
    The question involved on the appeal was whether the the evidence was such as to call for setting aside verdict.

      Held, that it was not.
    Held also—(1) It is not proper to .interfere with a verdict rendered, unless it would have been proper for the court to have directed a verdict the other way. (2) It is only proper to direct a verdict when there is either no such a conflict in the evidence as requires the jury to determine the dispute, or such a clear preponderance of proof on the one side as would leave a verdict on the other unsupported. (8) In the case at bar there was no such clear preponderance in favor of the plaintiff, but on the contrary such a conflict of evidence as to require the jury to determine the dispute.
   Monell, Ch. J.,

wrote for affirmance.

Curtis and Speir, JJ., concurred.


text:
    WILLIAM H. PARSONS, et als., Plaintiffs and Respondents, v. JAMES SUTTON, et al., Defendants and Appellants.
    I. PROOF BY PLAINTIFF—WHAT HE MAY RELY ON.
    1. On the acts- and conduct of the defendant before the trial and at the trial, down to the time of the case going to the jury.

      a. Thus where the issue is whether articles delivered were of sufficient weight, and the defendants proved that they weighed the articles, but failed to give any proof of a legal kind that they were less in weight than as charged for, such failure leads to the affirmation and not doubtful conclusion that the bill charged for the right weight.
    H. REJECTION OF EVIDENCE.
    1. Of evidence offered to disprove a fact sought to be proved by plaintiff to maintain his case, when not cause for reversal.

      a. When the/ac# itself is unimportant by reason of the plaintiff's case being otherwise sufficiently maintained upon the undisputed evidence.
    2. Of evidence offered to prove damages—when not cause for reversal, a. When it appears that no right to damages exists.

    Before Monell, Ch. J., and Sedgwick, J.

      Heard March, 1875;

      Decided May 3, 1875.

      Thomas Darlington, for the appellant.

      John E. Parsons, for the respondent.
    The action was brought to recover for goods sold and delivered, to wit, divers lots of paper.
    The answer among other things set up as a counterclaim, that plaintiffs and defendants entered into an agreement, whereby plaintiffs agreed to make and furnish to defendants by a certain time a certain quantity of paper, for which defendants agreed to pay a reasonble or the market price thereof; that plaintiffs had failed to perform the agreement, and that defendants had sustained damage to the amount of three thousand dollars ; but the answer did not aver any demand for performance made by defendants, or any performance, or any offer or readiness to perform on the part of the defendant.
    On the trial the complaint was sustained by proof of the deliveries of paper generally, of the sending to defendants of a bill of goods, with the charges and prices particularly stated, and of a promise by defendant to pay.
    The defendant’s testimony denied that they had made any promise to pay the bill as rendered, but in the course of their testimony it was shown that the bill had been received by them, and that with the exception of an item of paper alleged to have been delivered in October, there was no denial that the lots of paper as specified in the bill had been delivered ; the only complaint was that the various lots did not contain the number of pounds stated in the. bill.
    Although the defendants proved that they had weighed the different lots, yet they gave no proof as to the extent of the deficiency. The proof as to this was not definite enough to allow the defendants to ask a reduction of any specific amount. Indeed they made no such claim before the jury. None of the lots of goods were returned or attempted to be returned.
    After one of defendants had on his direct examination given evidence as to the alleged promise to pay, he was cross-examined on that subject and the cross-examination was of such a character as justified on the redirect an inquiry as to all that the witness remembered on that subject, yet such inquiry on the re-direct was under plaintiff’s objection excluded, and defendants excepted.
    Held, under the first proposition, and the first subdivision of the second proposition of the head-notes, that the error in this ruling did not call for a reversal.
    On the trial defendant put numerous questions with a view of proving the damages alleged in the counteraction, all of which were objected to, and the objections sustained, to which defendants excepted.
    There was no proof that defendants ever demanded the paper referred to in the counter-claim or that they ever offered to pay cash therefor, or that they were ever ready or able to pay therefor.
    Held, that the defendants had not shown sufficient performance, or tender of performance on his part to entitled him to damages ; and, therefore,
    Held, that under the second subdivision of the second proposition of the head-notes, the exclusion of ■the evidence constituted real cause for reversal.
   Sedgwick, J.,

wrote for affirmance of the judgment which had been rendered for plaintiffs.

Monell, Ch. J., concurred.


author: By the Court.—Sedgwick, J.

text:
    WILLIAM JOHNSON, Plaintiff and Appellant, v. ROBERT A. WILLIAMS, Executor, Defendant and Respondent.
    testimony undisputed.
    1. When not to be regarded as undisputed although not
    SPECIFICALLY CONTROVERTED.
    1. When there is enough in the ease to allow of its construction in connection with the other facts, and to justify the result that although the witness was in general credible yet was incorrect as to the particular testimony in question. e.g. Where a witness swears that the work set forth in a certain bill was extra, token it is quite plain from, the faca of tke list that it contains many items which could not have been extra work.
    Before Sedgwick and Speir, JJ.

      Heard March, 1875;

      Decided May 3, 1875.
    Appeal from judgment for plaintiff on report of referee.

      A. S. Diossy, attorney, and M. Hand, of counsel for appellant.

      S. G. Courtney, attorney and of counsel for respondent.
   By the Court.—Sedgwick, J.

On the argument but one reason was stated, why there should be a reversal. It was said that the plaintiff testified that he did certain pieces of work beyond the original contract, at request of the defendant’s testatrix, and which the plaintiff swore were correctly stated as to the kind and value in a list put in evidence and that appears in the record here; that there was no evidence that this testimony of plaintiff was incorrect, and, therefore, the referee should have acted upon it as undisputed evidence. The answer is two-fold. First. There was enough in the case to allow and perhaps call upon the referee not to take the words of the witness, but to construe his testimony in connection with the other facts, and to justify the result that although in general the plaintiff was a credible witness, still the so-called extra work had been within the verbal original contract. Second. The learned counsel is mistaken in thinking that this evidence was not contradicted. The defendant gave evidence which, if believed, palled upon the referee to disregard the contents of the list, except in certain respects. Moreover it is quite plain from the face of the list, that it contains many items which could not have been extra work.

Judgment should be affirmed, with costs.

Speir, J., concurred.


text:
    CHARLES OAKLEY, Plaintiff and Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF NEW YORK, Defendant and Respondent.
    I; DUTY, WHEN NOT IMPLIED.
    1. Not from a here power to do a thing.
    1. Exercise of power. That it has been exercised can not be inferred or implied from the fact that a power, not coupled with a duty, has been conferred.
    H. BOARD OF SUPERVISORS OF NEW YORK.
    1. “ Resolved that all losses which may be sustained by the default of any of the collectors of the several wards of the city be charged to the said wards, respectively, and added to the taxes of said-ward this year.”
    1. Authority for the reduction.
    Act of 1837, chap. 80, pp. 59, 60.

      a. ^Effect of the act. If merely confers a power to retax for losses not coupled with a duty.
    1. No implication can therefore arise from the passage of the resolution that any particular defalcation has been charged against or included in the tax levy of any particular ward.
    6. Application of the act.

    1. It applies onl/j to cases where the collector and his sureties are insolvent.
    8. Levying and collecting taxes under such resolution—
    EFFECT OF ON SURETIES OF A COLLECTOR.
    1. It does not release or discharge them.

    Semble, if the tax payers are made the ultimate losers, they might insist on being reimbursed by any securities held by the corporation, and such securities might be valid in their hands, and would be valid if they could, become the transferrees thereof.
    Before Monell, Ch. J., Curtis and Speir, JJ.

      Heard April, 1875;

      Decided May 3, 1875.

      O. P. Buel, attorney and of counsel for appellant.

      E. Delafleld Smith, counsel to the corporation, and A. J. Vanderpoel, of counsel for respondent.
    The complaint, among other things, averred that plaintiff was one of the sureties on the bond of one Montgomery, a collector of taxes for the year 1836 in the 8th ward; that the collector defaulted in a considerable amount; that the plaintiff’s liability for such defalcation was arranged by his giving his promissory notes for one-half the defalcation then discovered, and his bond and mortgage for the further sum of five thousand dollars, as collateral to any further defalcation that might be discovered; that the Board of Supervisors on October 3, 1837, passed the resolution set forth in the head-notes, and that he was ignorant of ■such resolution at the time he entered into such agreement as aforesaid, and prayed that an account “ may be taken of the amount which has been paid to said defendant by said plaintiff from time to time by reason of his alleged liability on said bond, as well as of the rents received by or chargeable to them on said mort.gaged premises, as well as of the money received by them from the sale or assignment thereof, and that he have judgment against them for the amount thereof when it shall be ascertained, and for interest on paid sums of money from the times when they shall appear to have been respectively received by said defendants, or when they became chargeable therewith, and for costs.”
    The plaintiff relied wholly on the said resolution and the effect thereof; introducing no evidence as to the amount of Montgomery’s defalcation having been added to the taxes of his ward, or having been collected ■or paid over to the defendant. There was no evidence that the plaintiff and his co-surety, or either of them, were insolvent in the years 1837 and 1838.

      The cause was tried at special term, before a single judge, when judgment was rendered for the defendant on the merits, with costs.
   Monell, Ch. J.,

wrote for affirmance upon the propositions stated in the head-note.

Curtis and Speir, JJ., concurred.


author: Speir, J.,

text:
    JOHN HOGAN, Plaintiff and Appellant, v. WILLIAM E. LAIMBEER, Defendant and Respondent.
    Before Monell, Ch. J., Curtis and Speir, JJ.
    The only point involved in the appeal was whether the verdict was correct on the evidence.
    The court held it was, and affirmed the judgment.

      Heard April, 1875;

      Decided May 3, 1875.
   Speir, J.,

wrote for affirmance.

Monell, Ch. J., and Curtis, J., concurred.


text:
    GEORGE W. WESTON, et al., v. FREDERICK O. KETCHUM, et al.

    MOTION FOB EE-ARGUMENT OF APPEAL ON GROUND THAT THE COURT OVERLOOKED IMPORTANT TESTIMONY.
    1. Necessary to show what.
    1. The moving party must show that the court had not in fact considered all the evidence.
    2. What does hot show this.
    1. It does not follow, from the court’s referring in the opinion to parts of the testimony only, that it did not consider the whole.

      a. This although it speaks of the evidence thus referred to as being undisputed, and disposes of the case upon such view of the testimony.
    8. In the case at bar, however, the evidence referred to as having been overlooked does not disturb the harmony of the evidence upon which the former general term proceeded in its decision.
    Before Monell, Ch. J., Curtis and Speir, JJ.

      Heard April, 1875;

      Decided May 3, 1875.

      A. J. Perry, for the plaintiff.

      F. W. Angel, for the defendant.
    The testimony which it was claimed that the court overlooked was that of Mrs. Perry. The present general term were of opinion that her agreement with Weston had respect to the secret of compounding the oil, and to its manufacture, rather than to the use merely of the trademark; and that the fact that she made it with Weston, and in the presence of Ketchum, and apparently with his assent, did not destroy, but rather strengthened the equity upon which the previous general term placed its opinion.

      For the decision on the appeal from the judgment, see ante, p. 54.

   Monell, Ch. J.,

wrote for denying the motion, with costs, for the reasons above stated.

Curtis and Speir, JJ., concurred.


text:
    WILLIAM H. KNOEPFEL, Plaintiff and Respondent, v. THE KINGS COUNTY FIRE INSURANCE COMPANY, impleaded with ALANSON TRASK, Defendant and Appellant.
    landlord and tenant.
    1. Signs, agreement as to—construction oe.
    M., by his agent- J., leased certain premises to an Insurance Company. The lease contained the following clause :
    “ The one-third, at least,-of the front water-table ... is reserved for signs for the tenants of the rear offices, and such amicable arrangement for signs on the side entrance as may be agreed for.”
    M., by the same agent, afterwards leased the offices in the rear to K., and at the time of delivery to K. of his lease, also handed him a slip of paper on which was printed the above clause in the lease to the Insurance Company, so that K. might understand what rights he had, and what the conditions of the lease to the Insurance Company were.
    On both leases was endorsed the following rule : “No sign, advertisement, or notice shall be inscribed, painted, or affixed on any part of said outside or inside of said building, except of such color and size in such places upon or in said building as shall be first designated by said lessor and endorsed hereon.”

      Held,

    That K. took subject to the above clause in the lease to the Insurance Company ; and as to signs on the side entrance was bound to endeavor to effect an amicable arrangement with the Insurance Company.

    3. ACTION IN EQUITY BY K. RESPECTING SIGNS.
    I. As to signs on side entrance.

    1. Hot maintainable, unless K. has used all reasonable endeavors and exhausted all the means in his power to bring about an amicable arrangement with the Insurance Company.

      a. What relieves him not from this duty.

    He having been insulted by one of the officers of the company about a month before he attempted to put up his signs (even if such were the fact), will not.
    8. As to signs on water-table.

    1. Hot maintainable when the Insurance Company at all times-conceded to the plaintiff in respect thereof all that the court finds him entitled to.
    Before Monell, Ch. J., Freedman and Sedgwick, JJ,

      Heard May, 1875;

      Decided June 7, 1875.
    J. , the agent of M., who was the owner of certain premises consisting among other apartments of a basement, leased to the defendant, The Kings County Fire-Insurance Company, the front part of the basement to be separated from the rear part by a partition running across the basement, mid-way between the third and fourth windows in Liberty place, with a door about mid-way of said partition, to be used by the tenants-who might occupy the rear part of the basement, and who were to have the free use of the passage to and from their offices to Liberty street in the front.
    The lease contained this clause: “The one-third at least of the front water-table on Liberty street is reserved for signs for the tenants of the rear offices, and. such amicable arrangement for signs on the side entrance as may be agreed on.”
    This lease was dated February 10, 1874, and the demised term commenced April 1, 1874.
    On February 12, 1874, the owner, through J., his agent, executed a lease to plaintiff for a term to commence May 1, 1874, of the rear half of said basement.
    There was printed on the back of each lease the rule which is set forth in the head-notes.
    Plaintiff claiming to be entitled to take the third of the water-table reserved for the tenants in the rear out of the middle thereof, and also to have an absolute right to place a sign on the east side of the entrance-door on Liberty street; and claiming that the defendants had interfered, and threatened further to interfere with him in the exercise of his rights, commenced an action against them to obtain a perpetual injunction against them, restraining them from such interference. In his complaint he alleged that the sign which he intended to place on the door-frame and water-table had been approved of by J., who designated a place on the eastern side of the front door where he should affix the sign, in which place he was about to affix said sign, when interfered with as above stated.
    The court below found that the plaintiff was entitled, as a matter of right, to the one-third of the-water-table, opposite the interior entrance-door, and to-a sign on the eastern side of the said door-way, of the superficial dimensions of the sign exhibited by plaintiff" at the trial, but so affixed and attached as not to interfere with, or to obstruct the use and occupany of such entrance, for purposes of ingress or egress ; and was entitled to a perpetual injunction, restraining the defendants from interfering with, or molesting, or hindering plaintiff’s signs, or his rights in such signs, as he aforesaid is entitled to, besides his costs, disbursements, and allowances.
    From the judgment entered in conformity with this decision, the Insurance Company appealed.

      Sullivan, Kobbie & Fowler, for the appellant.

      Davis & Lyon, for the respondent.
   Freedman, J.,

wrote for affirmance, holding that the clear weight of the whole evidence at the trial was, that whatever rights plaintiff acquired with respect to signs, he derived from a memorandum contained on a slip of paper handed to him by J., at the time of the delivery of the lease to the plaintiff, which memorandum consisted of that clause in the lease to the Insurance Company which is set forth in the head-note ; and in reference to which J., in a deposition taken before trial, which was read by the consent of both parties, testified that he handed it to the plaintiff so that he might understand what rights he had, and what the conditions of the lease to the Insurance Company ; that as to the signs on the water-table, it appeared that the Insurance Company had at all times conceded to the plaintiff all that the court below had found him entitled to ; that as to the signs on the side entrance, it also appeared that plaintiff would not make, and never made, the slightest attempt at a negotiation with the Insurance Company in respect thereto, because, as he said, he had been insulted by one of the officers of the company as far back as March, 1875; that, therefore, under the propositions stated in the head notes, the compilant should have been dismissed by the court helow ; and that consequently the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Monell, Ch. J., and Sedgwick, J., .concurred.


author: By the Court. Oakley, Ch. J.

text:
    Joyce and Murphy v. Adams and Hawthorn.
    On a sale of cotton by a written contract, deliverable in thirty days, the buyers were to pay storage, insurance, and interest after ten days, and were to deposit with the sellers five dollars per bale. Before the thirty days expired, and before any delivery, or further act to pass the title to the buyers, the cotton was destroyed by fire. When it was burnt, and at the end of the thirty days, the value of cotton in the market, was much below the contract price. In a suit by the buyers to recover back the deposit; held, that the true construction and meaning of the contract, was that the deposit was to secure the seller against loss by means of a fail in the price of the cotton, as well as to constitute a part payment on the contract, and that although the title did not pass, the purchaser was entitled to retain the deposit, to make up the deficiency in the contract price, left after the application of the insurance money, which covered the value of the cotton at the time of its destruction.
    July 14;
    July 27, 1848.
    This was an action of assumpsit, brought to recover back money paid to the defendants, under the following circumstances :—
    On the 27th day of January, 1847, T. J. Stewart, a cotton broker, negotiated a sale of cotton by the defendants to the plaintiffs, upon which bought and sold notes were signed by or in behalf of the parties respectively. The following was the sold note delivered to the plaintiffs:—

      “New York, January 27th, 1847.

      Messrs. Joyce Sp Murphy,

    Bought of Messrs. Adams &p Hawthorn, South Street.
    259 bales of Cotton, viz., at 13 J c.
    A. P. L. 100 □ bales Charleston, at 13|- c.

    S. Hunt, 64 « “ “• “
    B. B. 95 “ “ Mobile, “
    And buyers to pay seven cents per bale storage.
    “ “ insurance.
    “ “ interest after ten days.
    “ “ deposit five dollars per bale.
    Deliverable thirty days from date. Cash on delivery..
    Thomas J. Stewart, Cotton Broker A

    The defendants gave a receipt for the deposit, in these words: 11 Rec’d from Messrs. Joyce & Murphy, twelve hundred and ninety-five dollars, being deposit of f 5 per bale on 259 bales cotton.”
    The purchase note delivered to the defendants, differed from the preceding in one particular only; the cotton was to be delivered within thirty days.
    The two lots of 100 bales and 64 bales, were destroyed by fire on the 23rd of February, 1847, before the expiration of the thirty days, and the suit was brought to recover the five dollars per bale paid as a deposit on those lots. The residue of the cotton was delivered and accepted, without prejudice to the claims of the parties in respect of the 164 bales ; and the questions in dispute were limited to the latter.
    The 164 bales remained in store, subject to the order of the defendant, until it was destroyed. The plaintiffs had procured it to be re-sampled, shortly before the fire, with a view to offer it for sale, and the same broker offered it for sale in their behalf.
    The defendants insured the cotton in their own names after the sale, but the insurance on the lot delivered was paid to them by the purchasers, in accordance with the contract of salé: as was also the storage.
    There was a change in the market, between January 27th and February 23rd, and the price of cotton generally declined about two cents a pound. The value of the cotton as appraised, for adjusting the loss after the fire, was for the 100 bales, 12-s-cents per pound, and for the 64 bales, 13 cents per pound. Evidence of the quantity was given by the weighers who weighed it before the sale to the plaintiffs. The insurance covering only the value, the defendants were left uncovered for the fall in price, except by the deposit in question. They received the insurance money, after this suit was commenced, and offered to return to the plaintiffs the surplus after making themselves whole, according to the terms of the sale. The plaintiffs objected to the testimony offered to show the weight of the cotton which was destroyed. The price of cotton at the end of the thirty days, was no more favorable to the plaintiffs, than it was on the 23rd of February.
    It appeared that the 164 bales were stored in such a manner, that any one going to examine them might see nearly all the bales, and the 164 bales sold constituted all of those respective marks which the defendants had in store. The defendants had not procured these two lots to be weighed for the plaintiffs prior to the fire.
    Mr. Stewart testified for the plaintiffs, that the course and practice of the trade in effecting a delivery of cotton, is as follows : When the contract matures, the buyer gives an order upon the seller to turn it out. The seller then employs a sworn weigher, of his own selection, and at his own expense, to weigh the cotton, and sends a bill for the price to the buyer, with the weigher’s certificate attached—naming parcels, weights and price. The seller is always to weigh the cotton on delivery, and to deliver it in good order. If the bales want ropes, or need mending, he supplies the ropes and has them mended, and he has the ragged parcels of cotton picked off. These are done before weighing.
    None of these things had been done in respect of the 164 bales before the fire. On the 2d March, the plaintiffs drew an order on the defendants for the 95 bales, and another for the 164 bales, offering to pay the price on receipt of the bill of the same.
    A verdict was taken for the plaintiffs, subject to the opinion of the court on a case, with leave to either party to turn it into a bill of exceptions or special verdict.

      A. P. Man, for the plaintiffs.
    I. The contract of the 27th January, was entirely executory. It was a mere agreement to sell, and the title did not pass. (Russell v. Nicoll, 3 Wen. 112; Boyd v. Siffkin, 2 Camp. 328; Tempest v. Fitzgerald, 3 B. & Ald. 680.)
    II. Where any thing remains to be done, by or on behalf of the vendor, to ascertain the quantity or price, or to put the property in a deliverable state, the sale is not complete, and the property does not pass. (Rapelye v. Mackie, 6 Cow. 250; Ward v. Shaw, 7 Wend. 406; Rugg v. Minett, 11 East, 210; Hanson v. Meyer, 6 East, 614; 7 Cow. 87; 2 Kent’s Com. 495; Blackburn on Sales, 150 to 152.)
    III. There is nothing in the contract to take the case from the general rule of law which throws the risk of loss upon the person in whom the property was vested at the time. (2 Kent’s Com. 492; Smith’s Merc. Law, 478, note, Ed. of 1847; Failing v. Baxter, 6 Barn. & C. 360.)
    The object of the deposit was to cover any failure to perform the contract by the purchaser. The only failure here is on the part of the sellers. They could not deliver the cotton.
    IV. The defendants bound themselves to deliver the cotton at all hazards, and having failed to do so, the plaintiffs had a right to rescind and recover the deposit. (Chitty on Contracts, 273, and cases there cited; Hadley v. Clarke, 8 T. R. 259, 265 to 267; Addison on Contracts, 683 and 712, and cases there cited; Story on Sales, § 424, 448.)

      D. Lord, for the defendants.
    I. The deposit of money was for the purpose of protecting the sellers against a fall of price. The risk of fire they were protected in by the insurance paid by the purchasers. The risk of a refusal to accept, they were protected in by the vendor’s lien. But both these protections would not cover a fall of price ; and for this the deposit was made.
    The sale was not exactly an executory contract of sale. What is the meaning of the contract ? What purpose was the deposit to answer ? The 259 bales were all specified by their marks.
    So there was a specific subject, and a valid contract in writing for its sale; and the deposit was not made by way of earnest. The buyers were to pay storage, because all the interest passed, though the property did not. They were to pay insurance, because the real interest passed to them, though technically the property was in the seller. And this shows, also, that the buyers meant to undertake all the risk. They were to pay interest after ten days, making it equivalent to a cash sale ; and the property was deliverable in thirty days, the" cash to be paid on delivery. The deposit must answer the gap which is left. The sellers were to be put in entire security. What was the gap? Not the insolvency of the buyers, because the sellers retained the property; but it was a depreciation in price. If there were a fire, the insurers would pay only the value of the property; and it was only by the deposit that the sellers could have entire security. This was just the amount requisite to cover the depreciation.
    II. The fall of price having taken place, and the policy against fire, being to the extent of such fall, unavailing, the deposit is properly resorted to by the defendants.
    III. The rights of the parties do not depend on the question whether the property passed before the fire. That was fully pi'ovided against, by the lien and insurance; the deposit was intended as an additional security against a fall of price; which was needed in both parts of the alternative, the safety or loss of the cotton.
    The testimony objected to, was properly introduced. The sellers were trustees of the buyers in respect of the insurance. ‘ We furnished the best evidence which the nature of the case admitted, as to the quantity and the value of the cotton which was burnt.

      Man, in reply.
    The deposit was made to secure against the inability of the purchasers to complete for any cause; as by their insolvency, their refusal to take the cotton, and the like. If the money were paid on the contract price, the defendants, cannot retain it; as they were incapable of performing their contract of sale.
   By the Court. Oakley, Ch. J.

In this- case there was a sale of cotton by a written contract, deliverable in thirty days, the purchaser depositing at the time, five dollars per bale. The property was to remain in the possession of the seller, at the expense of the purchaser, who was to pay storage and insurance ; and he was also to pay interest on the price after ten days. The property' was destroyed by fire within the thirty days, so that there could be no delivery by the seller. The purchaser now sues, on the ground that the contract has failed, and he is entitled to recover back the deposit.

The general principle undoubtedly is, that on a contract of sale, where the title to the goods does not pass, if there be a failure to perform on the part of the seller, the buyer may recover back whatever he has paid on the purchase. But the defendants contend, that although the title to the property did not pass, the actual interest did vest in the plaintiffs, and that the deposit was made, to indemnify the defendants against a depreciation in the price.

In this case, the obligation to deliver the cotton was complete by the contract. The purchaser was to pay insurance and storage, and the equitable interest was in him. The property was left with the seller as a security for the payment of the purchase money. The true construction and meaning of the parties, evidently was, that the deposit was to be a part payment of the price and to secure the seller against loss, the prop! erty remaining as security also, to the extent of its value.

The insurance money has covered its value, but the price fell in the market, and the sole question is, on whom is to fall the loss in the price.

We can see no other possible motive for the deposit, than to secure against this very contingency, where the seller retained the goods, their whole value was covered by insurance, and all was evidently at the risk of the purchaser. We have no doubt that this is the true construction of the contract between the parties; and the defendants are entitled to retain the deposit to make up the contract price of the cotton.

Judgment for the defendants.