author: Gray, J.

text:
    Adams and another against Davidson and others.
    A debtor made an assignment in trust for creditors, of a stock of merchandise. The assignee, after a mere symbolical delivery, permitted the assignor and his clerk to continue in possession of the goods, selling them as before the assignment, and apparently for the benefit of the assignor: neld, that these facts, unexplained, were evidence that the assignment was made in fraud of creditors.
    The declarations of the assignor, as to the object of making the assignment, made by him after its execution and while he continued in possession of the property, are evidence against the assignor and creditors claiming under the assignment.
    Appeal from the supreme court. In October, 1S44, Adams, sheriff of Albany county, and Joel Rathbone filed their bill in chancery before the vice-chancellor of the third circuit, alleging that Rathbone had recovered a judgment against the defendant Isaac Brown, upon which an execution was issued to Adams, and his deputy Conklin, in virtue thereof, levied upon a quantity of goods in the possession of the defendant Brown; that after such levy, the defendant Davidson, claiming title under an alleged assignment executed to him by Brown, removed a large quantity of the goods from the store in which they were then situated to the upper stories of Brown’s dwelling-house, and there placed them beyond the sheriff’s reach, and also sold a large quantity to the defendants Corning & Horner. It was alleged that Corning & Horner had purchased with notice of all the facts, and that Davidson, the assignee, acted in the whole transaction under their direction and in their behalf. The bill alleged that the assignment to Davidson was fraudulent and void, as against the complainants, and prayed that it be so declared, and that the defendants Davidson, Corning & Horner deliver up the goods removed and account for the value of such as had been sold. The facts and evidence are sufficiently stated in the following opinion. A decree was made declaring the assignment void as against the complainants, and ordering a reference to ascertain the value of the goods removed by the assignee. The referee reported the value of the goods at $2140.47, for which sum the com plainants had judgment final in the supreme court, to which the cause had been removed on appeal. The defendants Davidson, Corning & Horner, having taken exceptions to the referee’s report, appealed to this court from the final decree and the interlocutory decree under which the reference was had.

      W. D. White for the appellant.

      H. Harris for the respondent.
   Gray, J.

The defendants claim title to the property in question under an assignment made by Brown to the defendant Davidson, on the 20th of July, 1843. In order to establish their title under this assignment as against the subsequent levy made by the plaintiff Adams, by virtue of the execution issued upon the decree in favor of the plaintiff Bathbone against Brown, it is indispensable that it appear that the assignment was accompanied by an immediate delivery to Davidson, and followed by an actual and continued change of possession by him of the property assigned, or that it be made to appear that the assignment was made in good faith, and without any intent to defraud the creditors of Brown. (2 R. S., 2d ed., 70, § 5.) The only evidence to be found in the case that the assignment was followed by an immediate delivery and actual change of possession of the assigned property, is the evidence of Geough, a clerk with Davidson, in the store of the defendants Corning & Horner. About eight o’clock in the evening on which the assignment was made, this witness was requested by Davidson to go with him to the store of Brown. On the way to the store, Davidson told him “ to pay attention and recollect what he heard.” After he got to the store, where he found Brown and his clerk Griffin alone, Brown told Griffin that he had made an assignment to Davidson. Davidson waited until Brown had shut up the store, when he took the key of the store and told Griffin lie would give him orders next morning, and then returned with the witness to the store of the defendants Corning & Horner. Nothing further is heard of Davidson until after the levy made by the execution in favor <of Rathbone, on the twenty-sixth of July. In the interim the store is continued open for business, and Brown and his clerk Griffin are found in it selling the assigned goods and transacting business, in all respects, as they had been accustomed to do before the assignment. No mention is made either by Davidson, Brown or his clerk Griffin, that an assignment had been made, except that Brown, while in possession of the goods, told his brother-in-law, who resided in New Jersey (and who was at the time on a friendly visit at Brown’s house) that an assignment had been made to Davidson, but that the object of it was to show Townsend & Wendell the true position of his affairs, and thus induce them to become his bail to enable him to appeal the suit, in which the plaintiff Rathbone had obtained a decree, to the court of errors, and if the assignment had the expected effect it was to be given up and become void. When the under-sheriff appeared at the store on the twenty-sixth, with the execution of Rathbone in his hands, for the purpose of making a levy upon the goods in the store, he apprised Griffin of his object. Griffin did not, as he doubtless would have done had he been in the employ of Davidson and acting under the assignment, say to the sheriff that the goods he proposed to levy upon had been assigned to Davidson, and that Brown had no property in them ; on the contrary his conduct evinced his fidelity to Brown alone, and was such as to give the sheriff to understand that the title to the goods remained in Brown, and he was anxious, on account of the temporary absence of Brown, that the store should not be closed until the sheriff had seen him ; and for the purpose of inducing him not to close the store, promised that the avails of whatever goods went from the store should come into the hands of the sheriff. The ceremony of taking the key on the evening of the twentieth, considered in connection with the subsequent control over the goods by Brown, renders it apparent that the performance of that evening was a fiction. Davidson’s taking his fellow-clerk with him, and requesting him to “pay attention and recollect what he heard,” was wholly unnecessary, if he intended to comply with the exactions of good faith in taking and holding possession of the assigned property. If all had been done that ordinary prudence and caution required in reducing the property to possession and excluding others from interfering with it,• except in subordination to his title, the transaction itself would have afforded all the evidence the nature of the case demanded. Facts could then have been proved, and not merely what was heard by a fellow-clerk, taken on purpose to witness a symbolical delivery, and cautioned to pay attention and recollect what he heal'd. The evidence fails to satisfy me that there was a delivery of any kind in good faith ; it clearly establishes that there .was not an actual, and much less a continued, change of possession of the assigned property. Brown and his clerk Griffin were in the open actual possession of the property, the latter acting under the direction of the former, and each selling goods as before the assignment was made, and apparently for the benefit of Brown alone. There was no evidence that either was acting in subordination to Davidson, or for his benefit. If they were, or were acting against his will or without his consent, Griffin knew it; and if he knew it the fact was peculiarly within the knowledge of Davidson, and susceptible of being proved by placing Griffin on the stand. If the facts were not such as were plainly indicated by the conduct of Brown and Griffin, it was the duty of Davidson to call Griffin, and by his evidence repel the inference; and his omission to do so strengthens it. (Cowen & Hill's Notes, 310, and cases there cited ; 1 Starkie’s Ev., 34; Id., 487.) The case, therefore, stands burdened, not only with the legal fraud resulting from the omission to take and continue the assigned property in the actual possession of the assignee, but with positive fraud in permitting Brown to sell for his own use and benefit as before. The conclusion is, therefore, irresistible that the assignment was not made for the exclusive purpose of benefiting his creditors in the order staled in the assignment, but that one object in making it was, as stated by Brown to his brother-in-law, to coerce Townsend & Wendell to become his security to appeal from the decree upon which the execution to Adams was issued, in which event it was to become void. This declaration of Brown, although objected to, was competent evidence, he having remained in possession of the goods up to and after the time the declaration was made. (Willies v. Farly, 3 Carr. & Payne, 395.) No inventory was attempted to be made by Davidson, until the day after the levy, and no evidence whatever is offered to establish the faith of this transaction except that Corning & Horner were creditors in good faith to the amount specified in the assignment. This is not enough to outweigh the effect of the fraudulent conduct of the parties to the assignment.

The bill alleges that Davidson acted under the direction of the defendants Corning & Horner in removing the goods, and that they were removed with full knowledge as well by Corning & Horner as by Davidson, that they had been levied upon by Bathbone’s execution; this allegation is not denied by Corning & Horner, except that they deny that they received any property upon their debt against Brown, with notice of a legal levy. The legality of the levy is, therefore, all that is put in issue by the pleadings, and this brings us to the question as to the sufficiency and extent of the levy. The officer making the levy entered the store of Brown, where the goods on sale were within his view and subject to his immediate disposition and control, and made a general levy; nothing more was done by him. This was doubtless a sufficient levy as against the defendants, and all others who subsequently intermeddled with the goods with knowledge that a levy had been made. (Van Wyck v. Pine, 2 Hill, 668.) There were other goods belonging to Brown, not in the store, but in the garret of Brown’s house over the store, not accessible by any interior passage from the store, but by a passage on the outside; these goods were not levied upon, as is apparent from the conduct of the sheriff’s officer at the time the levy was made, and of the officer and the sheriff himself when the goods were removed by him to the auction room for sale, and from the grounds put forth by the sheriff in the bill of complaint upon which his claim is founded. The sheriff never saw these goods, and probably did not, until the return day of his execution, know that Brown had any other goo.ds than those in the store from which he was selling daily. If he had known of those goods and intended to levy upon them, they would have been taken with the other goods to the auction room for sale. Besides, the only claim the plaintiffs make in their bill to the goods stored in the garret is that after the levy they were secretly removed by Brown, or some one under his direction, to the upper part of the building, where the sheriff had no access, and there secreted until April, when they were removed by Davidson. This allegation, so far as it relates to removing and secreting the goods, is not sustained but negatived by the proofs. There was obviously no levy upon any other goods of Brown than those in the store-room entered by the sheriff.

The first exception to the report of the referee was therefore well taken, and was erroneously overruled.

The defendants’ counsel, on the argument, insisted that Corning & Horner were not chargeable with the goods, or their value, sold to them before this suit was brought. If this suit had been the first proceeding towards appropriating the goods or their value to the payment of Bathbone’s debt, the position of the defendants’ counsel would have been just, and borne out by authority. But in this case an actual lien had been acquired by a seizure of the goods, as against which neither of the defendants had a right to intermeddle with them without being able to establish the validity of the assignment.

The objection to Conklin was premature. It had not appeared that he was under-sheriff when he was objected to, and after it did appear the objection was not renewed—if it had been he was indemnified and competent.

It was also objected that the plaintiffs had no common interest in the recovery that entitled them to file their bill. Each had an interest in preventing a multiplicity of suits, and having this whole matter closed by a single controversy. It could not have been done otherwise than by the course adopted; their interests were in harmony with each other, in no respect conflicting and were such as entitled them to unite in this suit.

So much of the decree of the supreme court as affirms the decree of the vice-chancellor declaring the assignment fraudulent and void, and making the injunction upon the suit brought by Davidson perpetual, should be affirmed, and the residue of the decree overruling the exceptions to the referee’s report should be reversed without costs to either party.

All the other judges concurring,

Ordered accordingly.


source: Caselaw Access Project

author: Johnson, J.

license: Public Domain

text:
    Van Giesen against Van Giesen.
    Under the Code of 18á8 a complete issue was made by an averment in the complaint of non-payment, and the allegation of payment in the answer; such allegation is not of new matter, and no reply is necessary to prevent it standing as admitted.
    The complaint in this cause was upon a promissory note made by the defendants, and alleged “ that they have not paid the same but are justly indebted to the plaintiff therefor.” The defendants’ answer alleged “ that on or about the 10th day of August, 1849, they paid to the plaintiff the promissory note mentioned in the said complaint.” No reply was made to this answer. The cause was tried before a referee, who decided that the fact of payment did not stand admitted upon these pleadings. Judgment was therefore rendered for the plaintiff, and was afterwards affirmed at a general term of the supreme court in the seventh district (12 Barb., 520). From this judgment the defendants appealed to this court.

      Nicholas Hill for the appellants.

      Chauncey Tucker for the respondent.
   Johnson, J.

The summons and complaint are dated in August, 1848, and the answer in September of the same year. The question therefore depends upon the provisions of the Code of 1848. By the G2d section of the Code of 1848, the distinction between actions at law and suits in equity and the forms of all such actions and suits are abolished, and a single form of action is established in lieu thereof. By § 118 all existing forms of pleading are abolished, and thereafter the forms of pleading in civil actions and the rules by which the sufficiency of the pleadings is to be determined, are declared to be those prescribed in that act. By 120, subdivision 2, the complaint is to contain a statement of the facts constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended. By § 128 the answer of the defendant shall contain, 1. In respect to each allegation of the complaint controverted by the defendant, a specific denial thereof, or of any knowledge thereof sufficient to form a belief. 2. A statement of any new matter constituting a defence, in the manner prescribed for statements in the complaint.

By § 131, when the answer shall contain new matter the plaintiff may reply to it, denying particularly each allegation controverted by him, and he may allege any new matter not inconsistent with the complaint, in avoidance of the answer.

By § 144 every material allegation of the complaint not specifically controverted by the answer, and every material allegation of new matter in the answer not specifically controverted by the reply, shall, for the purposes of the action, be taken as true.

The material allegations of the complaint in this case are, the making by the defendants of the promissory note, the transfer of it to the plaintiff, and the non-payment of it by the defendants. Each of them is material, for without the concurrence of all of them, the complaint would not show a cause of action by the plaintiff against the defendants. If, upon trial, either of them was found to be untrue, the plaintiff could not have a verdict.

Now, under % 128, the defendant is at liberty in his answer to deny each allegation of the complaint which he controverts; and by section 144 each material allegation, not so controverted, is to be taken as true, for the purposes of the action. Unless, therefore, the allegation of payment in the answer is to be taken to be a denial of the non-payment, which is one of the material allegations of the complaint, it remains undenied, and by force of the section last referred to is admitted for all the purposes of the suit.

The 128th section contemplates but two sorts of allegations by way of defence: the first, denials of allegations of the complaint. Every such denial of a material allegation forms a separate defence, and should, under § 129, be separately stated. The second, allegations other than denials or new matter, as the section in question terms such allegations. As to the first class of allegations—denials of the material allegations of the complaint—the issue between the parties is complete as to the matters thus denied upon the complaint and answer ; and accordingly § 131, which provides for a reply, provides only for denials by the plaintiff of new matter alleged in the answer, and for allegations of new matter not inconsistent with the complaint in avoidance of the answer. The second class of allegations which the answer may contain, are such as do not deny any allegation of the complaint, but admitting its allegations to be true, show that notwithstanding the truth of the allegations of the complaint the plaintiff ought not to recover.

Under the Code of 1848, by § 118, the rules by which the sufficiency of pleadings is to be determined are those prescribed by the Code itself; and we have seen that in in accordance with these rules, the fact of payment was put in issue by the averment in the answer, and that no further allegation on that subject by the plaintiff was necessary or permissible.

All the judges concurring,

Judgment affirmed.


author: Welles, J.

text:
    Johnson against Taber.
    Representations by the vendor of a tract of land, in regard to the quantity, where the sale is for a gross sum, in the absence of fraud, do not bind the vendor to make compensation for any deficiency in the quantity.
    Where the boundaries of lands are pointed out by llie vendor to the purchaser, but in the written contract of sale, and in the deed executed in pursuance of it, the description is made, by mistake, to include land not within such boundaries, the deed will be corrected, on the application of the vendor, so as to correspond with the boundaries thus pointed out.
    It is no answer to such application that the description in the contract and deed was made in accordance with the instructions of the vendor, where it appears that both he and the vendee believed the description to correspond with such boundaries.
    These facts constitute an equitable defence to an action by the vendee against the vendor on a covenant of seisin contained in the deed, seeking damages on account of the want of title to the lands beyond the boundaries in reference to which the purchase was made.
    Costs in equity refused to both parties where both were in fault.
    This was a bill filed in the court of chancery in January, 1847, to correct a deed given by the complainant to the defendant, by making the description in the deed, which embraced more land than the complainant claimed to have sold, conform to the boundaries pointed out to the defendant at the time of the contract of sale; and to enjoin the defendant from prosecuting an action at law, which he had commenced against the plaintiff, upon the covenant of seisin in the deed, to recover damages for the deficiency of about sixteen acres in the quantity of land of which he was actually put in possession; the vendor having represented it and the deed described it as “ containing two hundred and eleven acres, three roods and six perches of land, more or less.” The evidence in the case is given in sufficient detail in the opinion of the court.
    The cause having, by force of the constitution of 1846, been transferred to the supreme court, in 1848, and a decree made before Mr. Justice Morehouse, of that court, that the deed be reformed according to the prayer of the bill, but ordering that the complainant compensate the defendant “for the deficiency in quantity, if any, at the average rate or price which the consideration mentioned in the contract between them for the sale and purchase, and in said deed, bears to the said quantity of two hundred and eleven acres, three roods and six perches.” It also enjoined the defendant, upon payment of the damages for the deficiency, from further proceedings at law. A reference was ordered to ascertain the deficiency, and the question of costs was reserved until the coming in of the report. On appeal by the complainant, the general term in the sixth district reversed that part óf the decree which directed Johnson to pay for the deficiency; holding that the mere representations of Johnson as to the quantity within the boundaries, without fraud, did not bind him to make good the quantity, when Taber got all the land that was pointed out to him, and he bought the farm for a gross sum. On this point Mason, J., who gave the opinion of the court, cited the following authorities: 1 Caines, 493; 2 John., 37; 15 Id., 471; 2 Mass., 380; 5 Id., 355 ; 6 Cow., 706 ; 8 Id., 19 ; 19 Wend., 175 ; 1 Conn., 332; 2 N. Ham])., 303 ; 3 Fair/., 320 ; 6 Serg. Sf Rawle, 4S8; 6 Binney, 102; 8 Paige, 312 ; 9 Id., 168; 1 Story's Eq. Jur., § 195. The residue of the decree made at the special term was affirmed, and costs were decreed against the defendant.
    The defendant appealed to this court.

      John A. Collier for the appellant.

      D. S. Dickinson for the respondent.
   Welles, J.

The articles of agreement, and the deed given in pursuance thereof, which are sought to be reformed, are for three distinct parcels of land. The articles which bear date September 8,1836, provided for the sale of a quantity of hay and one hundred bushels of oats, together with the three parcels of land; for all of which, the land, the hay, and the oats, the defendant agreed to pay the plaintiff the gross sum of $7500. The deed was executed on the first day of May following, and conveyed the land by the same description as contained in the articles, expressing the same consideration in gross for the same three parcels of land. There is nothing in the case to show what was the particular price or estimate put by the parties upon either of the parcels of land sold, either by the acre or otherwise.

The controversy is in relation to the west boundary of the first parcel mentioned, being the east half of lot number two, in the first township of the Chenango Triangle, which lot number two lay between the Otselic and Tioughnioga rivers, and bounded on the east and west by those rivers.

At an early day, and long prior to November 12th, 1814, this lot was held and owned by the plaintiff and his father, John Johnson, as tenants in common. On the day last mentioned, a division of the lot was made, and the plaintiff, by indenture of that date, released and quit-claimed to his father and five others, being his brothers, the west half of the lot, “ to be divided by a survey thereof made by Salmon Rose. A hemlock is the bounds or corner on the south line, and a stake and stones in the north line of said lot number two, containing two hundred and eleven acres, more or less.” The grantees in the last mentioned indenture, at the same time released and quit-claimed to the plaintiff the east half of the lot, with a similar reference, to Salmon Rose’s survey, and to the hemlock tree and stake and stones, for the north and south corners, and as containing the same quantity of land as the east half.1- Upon this division being made the parties to it'built a. division fence through so much of the lot as was cleared, commencing at the hemlock tree standing in or near the south line and running northerly through the cleared land to the woods, and marked a line in continuation of the fence through the woods to the north line ; and thenceforth occupied and held up to that fence and line on each side without dispute, and so continued to occupy, and to cultivate the land on the cleared part of the'lot until the sale by the plaintiff to the defendant, of the east half of the lot.

Such was the condition of things early in September, 1836, when the parties to this suit commenced their negotiation for the purchase by the defendant from the plaintiff, of the east half of the lot. Immediately previous to the purchase, the parties, in company with several other persons, went upon the premises and spent two or three hours in examining them, and with a view to the purchase. The evidence, I think, establishes that on that occasion the plaintiff pointed out to the defendant the boundaries of the land proposed to be sold. That he was shown the hemlock tree as the southern terminus of the division line, and the fence running from thence north to the woods, and he then understood that such fence and a line continued north through the woods to the north line of the lot was the west boundary of that parcel of the land, for the purchase of which he was then in treaty with the plaintiff After agreeing upon the terms of the purchase, the parties went directly from the land in question to the plaintiff’s residence, in the town of Greene, where the articles of agreement were drawn and executed. On that occasion a map of the lot number two was presented by the plaintiff with a division line drawn through it from north to south, with the courses and distances marked on all the lines of both the divisions excepting the east line of the east half, and the west line of the west half, which were the two rivers mentioned; and from this map the attorney who drew the articles drew the description in them of the east half. This map purported to have been made from a survey of the whole lot made by one Burlingame, in 1805.

The defendant afterwards went into possession of the east half of the lot number two under his purchase, occupying up to the division fence mentioned, treating the fence as the true division line between him and the adjoining owners on the west for some two or three years, when he ascertained that his deed from the plaintiff actually embraced some sixteen acres of the land lying west of the division fence and the line in continuation north, and leaving out some eight acres which was included in it. The defendant after-wards brought an action in the common pleas of the county of Broome for a breach of the covenant of seisin contained in the plaintiff’s deed, in relation to that portion of said lot number two, embraced in the deed, lying west of the line of practical location between the east and west parts thereof. The present suit was commenced in the court of chancery to correct the mistake in the deed and to reform the same, and for a perpetual injunction against proceeding in the action of covenant. The supreme court at special term decreed that the east half of said lot number two was sold by the plaintiff and purchased by the defendant upon a view and practical location thereof by the parties, and that the same is bounded on the east by the Otselic river, on the north and south by the north and south lines of the said lot number two, and on the west by the division line of said lot as established by the said plaintiff and the owners of the west half as aforesaid; and that the west line of the said east half, as described in the said deed from the plaintiff to the defendant, was inserted by mistake. The decree directs a survey to ascertain the quantity of land in the east half agreeably to the practical location thereof, and upon ascertaining the deficiency or the quantity of land less than two hundred and eleven acres, three roods and six perches (the quantity which the plaintiff represented to the defendant the east half contained), that compensation be made for such deficiency by the plaintiff to the defendant at the average price which the consideration mentioned in the contract and deed bears to the said quantity of two hundred and eleven acres, three roods and six perches. The general term, on a rehearing, affirmed the first part of the decree at special term, and reversed all that part of it relating to compensation, and decreed costs to the plaintiff of the suit and the rehearing.

I concur with the justice at special term that the premises were sold by the plaintiff and purchased by the defendant, upon a view and practical location thereof. It is quite manifest that the plaintiff did not intend to sell any part of lot number two, west of the practical division line referred to. This is evident from the fact that the line is shown to have been established and recognized by him and the opposite owners as a division line between them for more than twenty years, and he therefore could not convey title to anything west of it; also from the fact that this line was pointed out by him to the defendant as the true west line when they were in treaty for the purchase. The plaintiff’s brothers were in actual possession on the other side, oceu¡oyihg up to the line, and the plaintiff does not appear to have ever made any claim beyond it.

I think it about as clear that the defendant never supposed he was purchasing or contracting for any part of the lot west of this line. Cyrus Johnson swears that the plaintiff told the defendant, when the parties were viewing the premises, and before the purchase, that the line ran from the hemlock tree along the fence and straight through the woods to the north line, and then the north line of the lot run to the Otselic. This the witness repeats on his cross-examination. The witness, Salma Johnson, who owned and was in possession of the land on the south part of the lot, west of and adjoining this line, testifies that, upon the same occasion, he told the defendant that he owned the lot adjoining him: that he seemed readily to know the corner: that his (the witness’s) lot on the division line, and in the southeast corner, was broken up ready for seeding at this time. Another significant fact, tending to the same conclusion, is that, very soon after the purchase, the defendant went into possession of the east part, and occupied up to the line, and performed acts which recognized it as the true line, without objection. Before the purchase, this division fence was divided between the plaintiff and his brother Salma for the purpose of keeping it in repair, and after the defendant came on, the same arrangement was made between him and Salma, the latter keeping up the same half that he did before. A similar arrangement was made by defendant with Franklin Johnson, who occupied another portion of the west part, and adjoining this division fence. It also appears, from the testimony of the defendant’s witness Brown, who was with the parties when they were examining the farm, that they went over the farm in different directions, and examined the boundaries, and saw this division fence, which was understood to be the west line of the farm the defendant was about to purchase. There is other testimony tending to the same conclusion, and nothing that I can discover to rebut it, excepting the description in the articles and the deed. There is no proof in the case to show that the division line marked upon the Burlingame map, from which the description in the articles was drawn, was ever actually surveyed. The practical division was made in 1814, and the map was made from a survey made in 1805. It is probable that the survey was of the entire lot, long before any division thereof, and that the line was drawn across it afterwards upon a mere estimate, and without a further actual survey or measurement. The division deeds of 1814 do not refer to this map or to Burlingame’s survey, but the division was to be according to Rose’s survey. This survey of Rose’s is not in evidence, but the presumption is that the practical division was according to it. It is true the plaintiff furnished the map from which the description was drawn, but there is no reason for supposing the defendant knew anything about where the division line marked upon it would run practically. He undoubtedly supposed, with the plaintiff, that it was agreeable to the practical location and division as it had just before been pointed out and explained to him.

The conveyance should therefore be corrected by the defendant releasing all claim under the covenants in the deed, in reference to any land that it embraces west of the actual practical division line, and by the plaintiff conveying, with covenants similar to those in the deed already given, any part of the said lot number two, lying east of said line, not embraced in the latter deed.

On the subject of compensation, it seems to me there is no ground for claiming it. The sale was what is cabed a sale per aversionm; that is, for a gross sum to be paid for the three parcels of land, without reference to the quantity or number of acres, with the hay and oats. With respect to the east part of lot number two, it was for what was contained within the north and south lines of the lot and the Otselic river on the east, and the division line as shown, and which the previous owners had recognized, on the west, be the quantity more or less. That was what the plaintiff intended to sell, and what the defendant supposed he was buying, and for which, and the other two pieces and the hay and oats, he paid the gross sum of $7,500. That was all he was in justice and equity entitled to, and I can perceive no propriety in compensating him for not getting more.

No fraud on the part of plaintiff is pretended. The misdescription in the articles and deed were purely a mistake, and no one was misled by it. It is said that the plaintiff represented before the sale that the land contained two hundred and eleven acres and rising, and that upon actual measurement it falls short. It was upon this ground that the justice at special term decreed compensation. It seems to me that too much importance is attached to this circumstance. There is no proof in the case, that the plaintiff undertook that the land should contain any particular quantity or number of acres. The defendant had examined and explored it. The several boundary lines had been pointed out to him ; a loose conversation arose as to the quantity of land; and the witness Brown does say that the defendant proposed to have the farm surveyed and that the plaintiff replied there was no use in having it surveyed, as it would overrun the number of acres marked on the map, as he, the plaintiff, had had it surveyed.

This is the strongest proof on the subject. Brown does not say when this conversation took place, whether at the time the articles were drawn or while they were examining the premises, or at some other time. Cyrus Johnson testifies that a conversation took place between the parties on that subject, the next evening, at his, the witness’s, house. This must have been after the articles were executed; as Brown testifies that the parties went directly from the examination of the farm to Greene, about ten miles, and had the articles drawn and executed there. The conversation which Cyrus speaks of was that something was said by the defendant about having the farm surveyed: that he wanted it surveyed : that plaintiff said he would survey it to him at $25 per acre, or he might take it as it was; that defendant said he wanted to know how much land he had, and wanted it surveyed; that plaintiff said it would hold out more than he told him.

In all this, it is perfectly easy to see that, whatever was said by the plaintiff as to the quantity of the land, nothing more was intended by him than a confident expression of opinion, given in good faith, founded, perhaps, upon the map produced, or upon the Rose survey. If the writings had conformed to this practical division line, most clearly the defendant would have had no claim, legal or equitable, for any deficiency, and if it had contained more than the ' quantity stated, the defendant would have been entitled to it.

I think, therefore, the modification of the decree at the general term was substantially correct, excepting upon the question of costs. It seems to me that neither party should be allowed to recover costs as against the other; the mistake complained of having been produced by the plaintiff, in the first place, and the defendant, having commenced his action at law, to recover what, in equity and conscience, he was not entitled to, the decree at general term should be modified accordingly, and the release of the defendant and conveyance by the plaintiff, before indicated, should be directed.

The whole court concurred,

Judgment accordingly.


author: Gridley J.

text:
    Adams against Saratoga and Washington Railroad Company.
    A party alleged to have been divested of his land, under the order or decree of a county judge authorized to take proceedings to appraise his damages from the appropriation of the land by a railroad company, may prove the falsity of all or any of the recitals, in the order, of facts necessary to give the judge jurisdiction.
    One of the recitals being of the publication of a notice necessary to give jurisdiction of the party’s person, it is no answer, to an offer to disprove all the recitals, that the others were of facts the existence of which was in issue before the judge, and which he was bound to adjudicate before making the order.
    The offer to disprove all the recitals being objected to on the ground that the order was conclusive evidence in respect to them, and the evidence being excluded' without any other reason being assigned, the exception is not answered by the objection that the offer embraced facts other than those going to the jurisdiction, and in respect to which the Order was, in point of law, conclusive evidence.
    Appeal from the supreme court. Ejectment for two parcels of land occupied by the defendant with its railroad track, the one being in a street in the village of Whitehall, the other a strip of land running through the plaintiff’s farm.

      The trial was at the Washington circuit before Mr. Justice Willard, and the plaintiff was nonsuited. The case was heard on exceptions at general term, and judgment being rendered for the defendant, the plaintiff appealed to this court. The facts are fully stated in the report of the case in the supreme court. (11 Barb., 414.) So far as they are material to the only question determined in this court, they are sufficiently stated in the following opinion. The cause was submitted on printed arguments.

      James Gibson for the appellant.

      William L. F. Warren for the respondent.
   Gridley J.

delivered the opinion of the court.

This case was submitted on printed briefs instead of being argued orally, as the nature and importance of the questions involved in it would have rendered desirable. It was an action of ejectment commenced before the Code, and was brought to recover possession of two distinct parcels of land situated in the village of Whitehall, in the county of Washington. The one is that part of Church-street which is occupied by the rails of the company to form the track of their road. The other is a part of the plaintiff’s home farm, &c., and is a parcel of land containing ninety-nine one-hundredths of an acre, to which the railroad company insist they have acquired title by the assessment and payment of damages pursuant to the 9th section of their charter.

This was an attempt to divest the plaintiff of his title to the premises in question without his consent, and it is quite clear, that, to effect that object, the provisions of the act under which the proceedings to change the title of the property were had must be strictly pursued. In Sharp v. Spier (4 Hill., 76) it is said by Bronson, J., that “it has become so common of late to take private property in any form without the consent of the owner, that corporations are not always careful to look at their charters, or, if they are examined, the powers conferred are construed very liberally. But the right to take private property in any form, without the consent of the owner, is a high prerogative of sovereignty, which no individual or corporation can exercise without an express grant. The power may be delegated, but the delegation must plainly appear.” “Every statute authority, in derogation of the common law, to divest the title of one, and transfer it to another, must be strictly pursued or the title will not pass. • This is a mere naked power, and its due execution is not to be made out by intendment—it must be proved. It is not a case for supposing that public officers have done their duty, but what they have in fact done-must be shown. The recitals in the conveyance are not evidence against the owners of the property, but the facts recited must be established by proof aliunde. As the statute has not made the conveyance prima facie evidence of the regularity •of the proceedings, the fact that they are regular must be proved, and the onus rests on the purchaser.” These principles are abundantly established by the authority cited by the learned justice, and were directly confirmed by the court for the correction of errors, in the case of Stryker v. Kelly (2 Denio, 323).

On the trial of the cause, after the plaintiff had given evidence of his title to the premises in question, the defendants offered in evidence the proceedings and decree had before Martin Lee, county judge of Washington county, under the 9th section of their charter. The plaintiffs objected to this paper or record on the grounds that it was incompetent and immaterial: that the recitals contained in it were not evidence: that the defendant must first show by proof aliunde that the first judge of the common pleas and the county judge had jurisdiction of the matters in which the decree was made, and that the preliminary proceedings for that purpose were taken: that the decree is void on its face: that the plaintiff was not a party to the proceedings: that the money required to be deposited by the charter to satisfy the plaintiff’s damages is not proved to have been deposited: and it is not shown that when the proceedings were commenced there was any location of the road on the defendants’ land. The court overruled the objections and received the evidence. The defendants’ counsel then offered in evidence a certificate of deposit of $350, the amount of the plaintiff’s damages as assessed to his credit, in the Bank of Whitehall, in which by the order it was directed to be deposited. This was objected to, on the ground of its being hearsay evidence, &c., but the certificate was received. The plaintiff then offered to prove that the recitals contained in the record were untrue, and that the record itself was untrue in every particular, specifying the particular grounds of objection. The evidence was objected to on the ground that the record was conclusive evidence of all the facts contained in it, and the evidence was excluded. To all these rulings exceptions were duly taken.

By the 9th section of the defendant’s charter, passed May 2d, 1834, the defendant was authorized to purchase, receive and hold such real estate as might be necessary for the purposes of their road. But in case of disagreement as to the price of the land, then specific directions were given for presenting a petition to the first judge of the county, who should thereupon direct the sheriff to cause a notice to be published for the drawing of a jury to appraise the lands, on a day full thirty days after the publication of the notice, with very special instructions as to the further proceedings by which the lands should be appraised; and then the act proceeds as follows: “Upon proof to the said judge, to be made within thirty days after such assessment, of payment to the owner, or of depositing to the credit of the owner in such incorporated moneyed institution as the said judge shall direct, of the amount of said award, and the payment of all expenses, the said judge shall make an order or decree particularly describing tbe land, and reciting the assessment of damages and the mode of making it, and all other facts necessary to a compliance with this section of the act; and when the said order or decree shall be recorded in the office of the clerk of the county in which said land is situated, whose duty it shall be to record the same, for the same fees now allowed for recording deeds, the said corporation shall be possessed of all such lands and real estate, and may enter on and take possession and use the same for the purposes of said road.”

Now it is not necessary to decide whether this order or decree is evidence of the facts recited in it, within the meaning of Sharp v. Spier (4 Hill, 76); Jackson v. Esty (7 Wend., 148); Varick v. Talman (2 Barb., 119), and Stryker v. Kelly (2 JJenio, 323 ),■ so as to supersede the necessity of proving the existence of the facts on which alone the jurisdiction of the county judge was made by the act to depend, for instituting the proceedings for assessment, and also for making the “ order or decree,” which it is argued changes the title to the premises in question and vests it in the corporation. I say it is not necessary to decide that question because I understand the plaintiff offered distinctly to disprove all the facts on which the jurisdiction of the judge rested for entertaining the proceedings, and also for making the decree or order which was given in evidence. This was a proceeding before an officer clothed with a subordinate power, given him by the statute, to take certain proceedings whenever a particular contingency arose, by which the title of a party to real estate should be divested; and the offer was to show that the contingency mentioned in the statute never arose. If the facts offered to be proved were admitted to be true, it would follow that the assessment of damages and the order or decree relied upon were coram, non judice, and utterly void. It is a settled doctrine in this state that a party may show a want of jurisdiction in the court or officers over either the subject matter or the person. Justice Marcy, in Starbuck v. Murray (5 Wend., 156, 157), after saying “ that the jurisdiction of the court rendering a judgment may be inquired into,” declares “that this doctrine does not depend merely on adjudged cases. It has a better foundation; it rests on a principle of natural justice. No man is to be condemned without the opportunity of making a defence, or to have his property taken from him by a judicial sentence, without the priviledge of showing, if he can, the claim against him to be unfounded.” So too in the case of Bloom v. Burdick (1 Hill, 139), the court, after laying down the same doctrine, proceeds to say: “This is the rule in relation to all courts, with only this difference, that the jurisdiction of a superior court will be presumed until the contrary appear; whereas an inferior court, and those claiming under its authority, must show that it had jurisdiction.” Such is the doctrine of the courts in this state, and of the United States (Williamson v. Berry, 8 How., 494), although it may be different in some of the other states (2 Am. Leading Cases, 786-793), and perhaps also in England. (2 Cow. & Hill’s notes, 1016, 1017.) The defendant insists that the order is conclusive evidence of any fact stated in it, on the ground that the matter on which the jurisdiction depends is the very matter which was in issue before the court or officer. (12 Pick., 572, 573; 2 Cow. & Hill’s notes, 1016-1023.) Now if this case should be admitted to belong to that class of cases, which is at least questionable, it must still be remembered that the defendant is at liberty to show that jurisdiction was never obtained over the person of the defendant. The idea is not to be tolerated that the attorney could make up a record or decree, reciting that due notice was given to the defendant of the proceeding, when he never heard of it, and no notice was published, and the decree held conclusive, against an offer to show this vital allegation false. Or, suppose a record is fictitious throughout, cannot the defendant prove the want of jurisdictional facts? It is true that, in a case properly falling within this principie, the party should bring his certiorari. But we are supposing a case in which he was not notified, and never heard of the decree till it was brought to be enforced against him, and therefore had no opportunity to bring a certiorari.

When, therefore, the plaintiff offered to show by evidence that the “record” was untrue in every particular, and that the recitals contained therein were false, the learned justice who tried the cause should have received the evidence. For if the plaintiff had shown, as he offered to do, that there had never been any offer of a price for the land in question, nor any attempt to agree with him in relation to the price, and no disagreement in relation thereto, and no publication of notice as prescribed by the statute, then the contingency could not be said to have arisen which alone gave the county judge any jurisdiction to entertain the proceedings; and if he had proved that there had never been any payment of the damages assessed, or any deposit of the same in a bank, nor any proof of that fact having been made to the judge, then he had no power or authority to make the aforesaid decree or order. The certificate of deposit also was objected to as inadmissible, but admitted, notwithstanding the objection. We think it was clearly a document made by a third person, and to all intents and purposes was, as between these parties, “res inter alios acta.”

The learned judge who delivered the opinion of the supreme court regards the offer to prove the record to be untrue in every particular, and that the recitals contained therein were false, as too general, embracing other than jurisdictional facts, which it is conceded the defendant had a right to disprove under- the authority of Benn v. Borst (5 Wend., 292). But we do not think the decisions at the circuit can be put on that ground. When the offer was made “the defendants’ counsel objected on the ground that the record was conclusive evidence of the facts stated therein;” and the court sustained the objection and excluded the evidence. We think that we are not- at liberty to regard the objections as sustained on a different ground from that taken by the counsel. Had the judge informed the plaintiff’s counsel that the offer was too broad, and that jurisdictional facts only were admissible, he would probably have limited his offer in that respect. But the natural and obvious meaning to be inferred from the exclusion of the evidence was, that it was rejected on the ground on which its inadmissibility was placed by the counsel. There were several other points taken and argued on this branch of the case, but we have not examined them, and express no opinion upon them. We grant a new trial upon the ground that the learned justice who presided at the trial rejected evidence that should have been admitted.

There is a question concerning another distinct piece of land about which we do not design to express any opinion. It is a question of great importance and is constantly becoming more so, and we think it deserves to be argued orally. As there must be a new trial, on the ground we have specified, it cannot be necessary that the other questions should be determined.

Judgment reversed and new trial granted.


author: Gardiner, J.

text:
    Cobb against Dows and others.
    The plaintiff was the owner of wheat stored with W. & Co., warehousemen, in store No. 12, who also had in store, in the adjoining store No. 11, wheat consigned by the defendants C. & B. to the defendants D. & G., for which the latter, who were commission merchants, held the warehousemen’s receipt, specifying the building in which it was stored. D. & G. having sold the plaintiff’s wheat, gave the purchaser an order therefor upon the warehouse-men, directing its delivery from store No. 12. The warehousemen delivered the wheat of the plaintiff from No. 11, as in compliance with this order, and D. & G. received payment from the purchaser, and accounted therefor to C. & B., before notice of the error: Held, that all the defendants were liable to the plaintiff for the price of his wheat, as for money had and received to his use.

      The defendants having availed themselves of the aets of the warehousemen to obtain the money from the vendees of the wheat, cannot repudiate, as not performed under their authority, the warehousemen’s delivery of wheat not specified in their order, or remit the plaintiff to an action against the vendee or warehousemen as for a tortious taking of the property.
    Appeal from the Supreme Court. The complaint averred that the plaintiff, being the owner of three thousand five hundred bushels of wheat stored in the Atlantic Dock storehouses at Brooklyn, the defendants, Dows & Guiteau, without his consent, took therefrom two thousand and three bushels as the property of Church & Ball, the other defendants, for whom they were agents and commission merchants, and sold it for $2,924, which they paid to Church & Ball. The demand of judgment was general against all the defendants. The cause was tried before a referee, who found these facts: In January, 1848, the plaintiff, Cobb, had the title to four thousand seven hundred and nineteen bushels of Genesee wheat, stored with John Wight & Co., storehousemen, in loft 1 of building No. 11, of the Atlantic Dock Buildings, and held the receipt of John Wight & Co., stating these facts. Dows & Guiteau were partners, commission merchants doing business in New York city. They received on consignment, from Church & Ball, in November, 1S47, five thousand and fifty-one bushels of Genesee wheat, which they stored with John Wight & Co. (under the instructions of Church & Ball), and were furnished with the receipt of John Wight & Co., stating it to be in store No. 12, loft 2, Atlantic Dock Buildings. A part of this wheat was in fact stored in store No. 11, loft 1, but none of the defendants had any knowledge or suspicion of the fact until after the transactions on which the plaintiff founded his claim. Dows & Guiteau having sold and delivered, previous to the 8th May, 1848,"all the wheat of Church & Ball consigned to them, except three thousand and thirty-seven bushels, on the day last mentioned contracted to sell the residue to Howes, Godfrey & Co., and gave them an order on John Wight & Co., to deliver them that precise quantity “ from No. 12 Atlantic Dock.”
    On presenting this order, the measurer delivered to Howes, Godfrey & Co. one thousand and thirty-four bushels of the wheat of Church & Ball, from loft 2 of store No. 12. He was then told by those engaged in measuring with him that there was no more wheat in store No. 12, and then, by order of John Wight, he measured from loft No. 1, of store No. 11, two thousand and three bushels of wheat to fill the order, and which was the wheat belonging to the plaintiff, Cobb. Neither of the defendants was present when the wheat was delivered to Howes, Godfrey & Co. The portion of Church & Ball’s wheat that had been put in No. 11, had been, prior to May 8, 1848, taken away without the knowledge or authority of either of the defendants, and Church & Ball had then no wheat in store in the Atlantic Dock Buildings, except the one thousand and thirty-four bushels delivered from the second loft of store No. 12. Howes, Godfrey & Co. paid Dows & Guiteau for the wheat, and the latter accounted and paid over the money to Church & Ball before any of them had notice that any of the wheat taken belonged to Cobb.
    The referee reported in favor of the plaintiff who had judgment, which being on appeal reversed at general term in the second district, the plaintiff appealed to this court.
    The opinion of the supreme court was delivered by
    Brown, J. It is established by the proof, that some five thousand bushels of the wheat of the defendants was in store with John Wight & Co., in the building No. 12 Atlantic Dock, and that at the time the defendants, Dows and Guiteau, made the sale to Howes, Godfrey & Co., and drew the order upon John Wight & Co. for the three thousand and thirty-seven and thirty-eight-sixtieths bushels, they were entitled to that quantity from building No 12. The sale, therefore, was a sale of the wheat of the defendants, and

      not of the plaintiffs, and the order was to deliver wheat from No. 12, and not from No. 11. In the sale and the giving of the order, there was no attempt to dispose of, or exercise any control over the wheat of the plaintiffs. A portion of the wheat to fill the order was taken from building No. 11, by direction of John Wight, and not by the direction or authority of the defendants; and there is no evidence that either of the defendants, knew that the wheat delivered to Howes, Godfrey & Co. had not been taken from No. 12, until the money was paid by them to Dows & Guiteau, and by them paid over to their principals, Church & Ball.
    The complaint charges that the defendants, Dows & Guiteau, without the authority or consent of the plaintiffs, took the wheat of the plaintiffs from the public stores, as the property of Church & Ball, and sold the same, and paid over the proceeds of the sales to Church & Ball, without the authority, knowledge1 or assent of the plaintiffs. It is a rule of the common law,, that a man cannot be divested' of his property without his consent. There are some exceptions, but the present case is- not one of them. Possession does not carry with it the evidence of property, so as to protect a person acquiring it by purchase in good faith, and in the usual course of trade; except when the property is cash, bank bills and bills payable to beawer. The plaintiff has not parted with his property in the wheat stored in building No. 11, and his right to repossess himself of it whereyer he may find it, or to recover its value from those who took it, or into whose hands it may have come, is clear and unquestionable. The question here is, whether he can recover from the defendants. To maintain the charge contained in the complaint, he must do something more than establish his right of property. He must show that it was taken by the defendants, or that they have done some other act which in law will amount to a conversion. The proof need not show a tortious taking, or that the defendants acted in bad faith. If it should appear that they obtained the goods fairly, from a person whom they had reason to think was the true owner, or if they, had acted under a mistake as to the plaintiff’s title, or under an honest but mistaken belief that the property was their own, they would still be liable to the plaintiff if their acts in regard to it amount to a conversion. If they have taken it into their own hands, or disposed of it to others, or exercised any dominion over it whatever, they are guilty of the conversion and their liability to the plaintiff is established. In the cases cited by the plaintiff upon the argument, the defendants were charged with the conversion upon this principle. In Perkins v. Smith (1 Wilson, 328), the defendant was the servant of the plaintiff, and disposed of the goods. In Everett v. Coffin and Cartwright (6 Wend., 603), the defendant received the goods from the master of the vessel with whom they were shipped.by his direction, who sold them in ignorance of the rights of the true owner. In Williams and Chaffin v. Merle (11 Wend., 80), the defendant was á produce broker, and purchased and took the goods into his possession in good faith, for a valuable consideration, from a clerk who had no authority to sell. In Sallus v. Everett (20 Wend., 267), decided in the court of errors, Saltus, the defendant below, purchased the lead in question from Coffin and Cartwright, the defendants in the case reported in 6 Wendell, 603. In Hoffman v. Carrow (22 Wend., 285), the defendant, an auctioneer, sold the goods which were stolen, and paid over the proceeds without notice of the felony. And in Covell v. Hill and- Sanford (4 Denio, 323), the lumber in dispute was delivered into the hands of the defendants. The authorities all proceed upon the ground that the goods have been actually or constructively in the possession of the defendant in the action, or that he has interfered with them himself, or that others have done so by his direction. In the present case, there is the entire absence of evidence to establish anything of the kind. The order given by the defendants was explicit in its directions to deliver from building No. 12. It indicates all the defendants had done, and all they meant to do. It could not be misunderstood by those to whom it was given, or those to whom it was directed; and to construe it into an authority to deliver wheat from No. 11, or any other place, would be 'to abuse and pervert the uses of written language. John Wight & Co. were not the agents of the defendants, in the service for which the plaintiff contends. Their power was limited to the delivery of wheat from building No. 12; and if the delivery from building No. 11, in violation of the injunctions of the order, could charge the defendants with the conversion, then the defendants would be equally chargeable if the wheat had been taken from any other store, or from any other place, no matter where. No rational system of jurisprudence could entertain such a rule. The acts of the defendants in regard to the delivery of the property, do ¡not, therefore, make out the conversion.
    Did the defendants, by receiving into their own hands ■payment for the wheat delivered, approve and confirm the .delivery from building No. 11, so as to make this act of John Wight their own. It will be remembered that they were entitled to have delivered to their order from the building No. 12, the quantity of wheat sold to Howes, Godfrey & Co., and therein mentioned, and that the order was in part filled from No. 12. The conduct of the defendants must he such ,as to signify, unequivocally, that they recognized and approved of the taking from building No. 11. A portion of ¡the .wheat was, in fact, delivered from building No. 12, in conformity with the directions of the order; and for this quantity the defendants were entitled to receive payment from Howes, Godfrey & Co. In the absence of knowledge that their orders had been disobeyed, some intimation of the wrong .that had been committed, or some notice that the money was not all the proceeds'of their own property, the mere act of receiving the money cannot be regarded as a confirmation of what had been done at building No. 11. Had .the wheat of the.plaintiffs, upon that delivery, come to the possession of the defendants, then, however innocent they might have been of any design to commit a wrong, or to signify their approbation of a wrong committed by others, and however ignorant they might have been of the taking from No. 11, still they would be liable to the plaintiffs upon the authority of the cases cited. But the property never came to their hands; it has not been taken by their directions : and when the money was paid over, they had no notice that a portion of the wheat had been taken from building No. 11, or that the money was in paymept of any other property than that in store at building No. 12. The defendants could not ratify and adopt as their own that of which they had no knowledge. When the agent exceeds' his authority, no act of the principal will be construed into a ratification, unless it be done with a full knowledge of the facts and circumstances. (Story on Agency, § 253, and cases cited in the notes; 4 Bing., 722; 22 Wend., 324.)
    The plaintiff intimates in his third point, that the defendants are liable to him for money had and received to his use. To entitle the plaintiff to recover upon this ground, he must show that the money which he claims is his money. The action for money had and received, applies to almost every case where a person has received money, which in equity and good conscience he should refund to the true owner. It lies where one has had and received money belonging to another, without any valuable consideration given on the receiver’s part; for the law construes this to be money hnd and received for the use of the owner only, and implies that the person so receiving promised and undertook to account for it to the true proprietor. (3 Bl. Com., 163.)
    The rule, however, is subject to some limitations, and it is not in every case where one man has money which another ought to have, that the action for money had and received will lie. (3 Bos. & Pul., 169.) Where the defendant tortiously takes the plaintiff’s goods and sells them; this action lies. (Chitty on Cont., 3 ed., 607, note G.) And when the goods were taken by others, and the defendant subsequently received and sold them and received the avails, the action was also held to lie. (2 Hall, 53.) But in these cases, the taking or the receiving of the property so as to constitute a conversion, were as essential to the plaintiff’s recovery, as the sale and receipt of the money. And I apprehend that, unless the facts were such as to enable the plaintiff to maintain his action of trover for the goods, he could not recover. There is, however, this other obstacle in the way of the plaintiff’s claim.for money had and received, in this action. The complaint is framed to recover the value of the property upon the ground of unlawful conversion. It does not charge that the defendants have received money to or for the use of the plaintiff. The claim for the unlawful conversion is founded upon tort; that for money had and received upon contract. They are distinct causes of action, and could not be joined in the same suit. (Code of Procedure, § 167.) Indeed the plaintiff has not attempted to unite them; for the complaint, although it sets out a part of the evidence in the cause, proceeds exclusively upon the unlawful conversion.
    I am of opinion that the report of the referee should be set aside, and judgment should be entered for the defendants, with costs.

      Daniel Lord for the appellant.

      Edward Sandford, for the respondents,
    made these points in addition to those noticed in the preceding opinion :
    I. If the plaintiff has a claim against any persons other than J. Wight & Co., it is against Howes, Godfrey & Co. They took his wheat, carried it away, and converted it to their own use. Their acts bring them within the principle of the cases relied upon by the plaintiff—that where personal property is wrongfully converted, even by mistake, and without knowledge of the wrong, the persons who so convert it are liable in trespass or trover to the owner. If the conversion consist in. making a sale of the property, the owner had an election to waive the tort and to sue the tort feasor for-the-proceeds. (Hoffman v. Carrow, 22 Wend., 306, 307.)
    II. Upon the facts stated, the plaintiff has never parted with the title to his wheat, and has a perfect right of action against Wight & Co., who took it, and Howes, Godfrey & Co., who received it and converted it. The money which the defendants received was paid upon a valid contract on their part to deliver to Howes, Godfrey & Co. a specific quantity of wheat. It turns out that they did not deliver it; that Wight & Co. committed a willful and unauthorized trespass upon the plaintiff, by taking, his wheat, without color of authority from the- defendants, and by .means of that fraud, induced Howes, Godfrey & Co. to suppose that the defendants had executed their contract. They paid their money under the mistake thus induced, and any right of action founded upon the receipt of this money, was and is vested in Howes, Godfrey & Co., and not in the plaintiff. (Cary v. Curtis, 3 How. S. C. R., 236, 251.)
    III. It "being conceded that no new facts could be found, and it being clear, as a matter of law, upon the case, that the plaintiff could not recover in this action, the supreme court properly ordered judgment for the defendants. (Wilson v. Martin, 1 Denio, 602, 605.)
    IV. The case presented to this court presents the mere evidence before the referee, and not the conclusions of fact drawn from that evidence by the court of original jurisdiction, and this court will not pass upon it. (Esterly v. Cole, 3 Comst., 502, 505.)
    V. The judgment of the supreme court should be affirmed, with costs.
   Gardiner, J.

According to the facts found by the referee, all the defendants were interested in the wheat stored with Wight & Co. Church & Ball, as general owners, and Dows & Guiteau, as commission merchants, with a lien for their advances and commissions. The more important question in the cause will be, whether Wight & Co., the warehouse-men, in the delivery of the property which has given rise to this controversy, acted as the agents of the defendants, or of Howes, Godfrey & Co., their vendees.

The facts are, that Dows & Guiteau, on the 2d of May, 1848, contracted to sell to Howes, Godfrey & Co. three thousand and thirty-seven thirty-eight-sixtieths bushels of Genesee wheat at $1.46 per bushel. On the eighth of that month they gave to the vendees the following order:

“Messrs. J. Wight & Co.,
“ Please deliver Messrs. Howes, Godfrey & Co. three thousand and thirty-seven thirty-eight-sixtieths bushels of Genesee wheat, from No. 12 Atlantic Dock.”

At the time of delivery of this order, Dows & Guiteau supposed that the precise quantity of Church & Ball’s wheat named in the order, was then on storage in store No. 12, above mentioned. Under this order, as the referee reports, there was delivered to the agent of the vendees, about one thousand bushels of the wheat of Church & Ball, from loft 2, of store 12, which was all that remained in the possession of the warehousemen, and the measurer was then directed by Wight to measure from loft 1, of store No. 11, at the same buildings, sufficient to fill the order. This wheat was the property of the plaintiff. Messrs. Godfrey & Co. paid Dows & Guiteau for the quantity of wheat received by them under the order, and the latter accounted with Church & Ball, their principals, before notice that the plaintiff’s wheat had been taken.

The question of agency above suggested, it seems to me, is determined by a simple statement of the facts. Dows & Guiteau had contracted to sell, and of course to deliver, a quantity of wheat. This obligation they assumed to discharge by the order in question, upon their warehousemen. Wight '& Co. received the order, assumed to act under it, and consummated the contract of their principals, by the delivery of the quantity prescribed, which was accepted by the vendees in satisfaction and discharge of the engagement of the vendors. Nor is this all. The vendors subsequently recognized the acts of the warehousemen, as performed for their benefit, by receiving the stipulated price for the wheat delivered, as for property sold by them, to Howes, Grodfrey & Co., and by retaining the money after notice that the wheat taken was in fact the property of the plaintiff. It is true that the defendants supposed that all their wheat was stored in No. 12, and that the quantity there remaining was sufficient to satisfy their contract. They were mistaken, however, in both particulars. The order which they gave under a misapprehension as to the facts, was a direction to a depositary employed by them, for his government, and not for the government of the vendees. The whole duty of the latter was discharged when they delivered the writing to the warehousemen, at their place of business, and he received from them the kind and quantity of property therein specified. They were under no obligation to the defendants to ascertain whether their wheat was in one bin or another. It was the business of the vendors to deliver, and consequently to designate the property. This duty they undertook to perform by an agent. They have availed themselves of his acts to obtain the money of the vendees, and a discharge from their contract, and now seek to repudiate so much of the agency as will enable them to keep the money and defeat this action. This they cannot do. It is established law, that an innocent principal cannot take an advantage resulting from the fraud of one ostensibly acting as his agent, without rendering himself liable, civilly, to the injured party. (Olmstead v. Houghtaling, 1 Hill, 318; Irving v. Motley, 7 Bing., 543.) The case from Bingham cannot, in principle, be distinguished from the present. There one Dunn had been the purchasing agent of Wellington & Co. He was also employed by the defendants to obtain security by a pledge of wool, the property of Wellington & Co. He exceeded his authority, and made a fraudulent purchase in the name of that firm, of which his principals (the defendants) were ignorant. Tin-cad, Ch. J., remarked, “ that the jury acquitted the defendants of fraud, yet they involved them in the legal consequences, as it was a fraud committed by their agent with a view to benefit them.” So here, Wight & Co. were the agents of the defendants, to make delivery of the wheat sold to Howes, Godfrey & Co. The taking of the wheat from No. 11, instead of 12, was an act done under color of their agency, with a view to benefit their principals, by enabling them to fulfill their contract. The defendants received the price of the wheat, as the pledgees did the goods in the case cited, without knowledge of the fraud, and the one retained the goods, and the others proposed to retain the money obtained by the misfeasance of their agents.

It is said, however, that the defendants are not jointly liable for money had and received since Dows & Guiteau had accounted with Church & Ball for the price of the wheat before notice of the misconduct of the warehousemen. The answe.r to this objection has already been intimated. All the defendants were interested in the sale made to Howes, Godfrey & Co., although the contract was in the names of Dows & Guiteau. The money was received on the account of all, and subsequently distributed according to their respective interests: Dows & Guiteau retaining so much as would reimburse their advances, charges and commissions; Church & Ball receiving the residue. It is enough that the defendants received the money for their joint account. The proportions to which they were, as between themselves, respectively entitled, cannot affect the rights of the plaintiff in this action.

Judgment reversed and new trial ordered.


author: Watson, J.

text:
    Hancox against Jaques.
    Lease of the water-right in front of a bulkhead between piers extending into the Hudson river, in the city of New-York, including all the lessor’s interest in the two piers and bulkhead. The lessee covenanted to make, at his own expense, all repairs which might be necessary upon the bulkhead and piers and upon all extensions which might be made to the piers during the term. He also covenanted to extend one of the piers (provided the consent of the corporate authorities could be obtained) at his own expense. The other pier was extended during the term, by the order of the corporate authorities at the expense of the lessor: Held, that the lessee was entitled to the enjoyment of the pier thus extended.
    The lease contemplating a possible extension of both piers during the term, and requiring the lessee to keep such extension in repair, is to be construed as intending that he should have the benefit thereof, and the lessor having failed to require him to pay the expenses of extending one of them, while there is such a provision as to the other, cannot claim anything from such omission.
    Appeal from the superior court of the city of New-York. Action for an account and injunction restraining the defendant from further collecting certain wharfages claimed by the plaintiff. Upon the trial, before Mr. Justice Sandford, in February, 1849, these facts appeared :
    On the 17th of February, 1845, Isaac Jones, in his individual right, and Isaac Jones and George Jones as trustees of the estate of Margaret Pendleton, deceased, gave a lease to the plaintiff for the term of eight years, “ of the water-right in front of the bulkhead extending from the pier at the foot of Vesey-street to the short pier between Vesey and Barclay streets, in the city of New-York, including all their interest in the said two piers and bulkhead, consisting of the entire northerly half or side of the pier at the foot of Vesey-street, and the southerly half of the pier next north of Vesey-street,” at the yearly rent of $1200. The plaintiff covenanted to make at his own expense all the repairs which might be necessary upon said bulkhead and piers, and upon all extensions which might be made to the piers during the term: also (in case the consent of the common council could be obtained) to extend the short pier between Vesey and Barclay streets, one hundred feet, and to build the same in a substantial and workmanlike manner, at his own expense: also to pay all taxes and assessments upon the demised premises during the term.
    In September, 1846, it was determined by the common council to extend the pier at the foot of Vesey-street three hundred feet into the river, and thirty feet in width; and the street commissioner was directed to give the notice required by law to the joint owner or owners of said pier to unite with the corporation in extending the same, and contribute his or their proportions of the expenses thereof.
    A notice, dated September 28th, 1846, signed by the street commissioner, was duly published, informing all the proprietors and persons interested in the pier at the foot of Veseystreet that such extension had been determined on, to be commenced by the fifteenth of November, and completed on or before the first of March next ensuing ; and that they the said proprietors and persons interested were required, on or before the expiration of six weeks from the' date of the notice, to signify in writing to the street commissioner their intention to join in building and extending the said pier, and to contribute their respective proportions of the expenses thereof, or not to join in building the same, and not to contribute their respective proportions of the expense thereof, as they might deem expedient': also, that if any person owner of, or otherwise interested in, the said pier should refuse or neglect to comply with said notice, and should not bear their proportional parts of the expense of building such extension, they would thereby forfeit all right or interest in the pier so extended, and the wharfage arising therefrom, according to the act of the legislature of the state in such case made and provided.

      The resolution for the extension of the pier was amended in November, 1846, by making the width of the extension thirty-five instead of thirty feet.
    The building of the extension was completed about August, 1847. Isaac Jones and George Jones, the lessors of the plaintiff, paid two-thirds of the expense thereof, amounting to $12,847.96, and no part of it was paid by the plaintiff; he, however, paid all the taxes for the year 184S, upon the whole of the piers as extended, amounting to $134.75.
    The defendant was a wharfinger employed by Messrs. Jones, the lessors of the plaintiff, and as such wharfinger he collected the wharfage from vessels lying at the northerly side and northerly half of the end of the said extension, since its completion in August, 1847, and accounted for and paid over the same to Messrs. Jones, less his commission for collecting. The defendant had no interest whatever in the premises or wharfage, except as such wharfinger.
    The net amount, deducting the defendant’s commission (fixed by agreement with Messrs. Jones at twenty-five per cent) so collected and paid over by him from the northerly side and northerly half of the said extension, was $2678.19 for which sum the jury, under the direction of the court, rendered a verdict for the plaintiff. The judgment thereupon entered having been affirmed at general term, the defendant appealed to this court.

      R. Emmett for the appellant.

      N. B. Blunt for the respondent.
   Watson, J.

The plaintiff’s right to recover in this case, depends wholly upon the construction to be given by the court to the terms of his lease. The lease conveys to him “ the water-right in front of the bulkhead, extending from the pier at the foot of Vesey-street to the short pier between Vesey and Barclay streets, including all the interest of the lessors in the said two piers and bulkheads, which consist of one-half the pier at the foot of Vesey-street, being the entire northerly side of the same, and the southerly half of the pier next north of Vesey-street.” The wharfage collected by the defendant, and for which this judgment was recovered, was not collected upon any of the piers leased to the plaintiff, if the strict letter of the lease is to govern. But the plaintiff contends, and I think his lease will bear such a construction, that the parties to it contemplated an extension of the piers so leased to him during the continuance of the lease; and if they were so extended, he insists that he is entitled to the benefit of it. As evidence of this, the plaintiff, after covenanting to keep the piers in good repair during the continuance of the lease, also obligated himself to do the same with all extensions which might be made to the said piers during the said term. In another clause he further covenanted to extend the short pier between Vesey and Barclay streets one hundred feet beyond its present length, aud to build the same in a substantial and workmanlike manner, at his own expense, provided that the consent of the common council could be obtained for that purpose. These two clauses clearly show that the parties to the lease contemplated an extension of the piers, and which extension would embrace longer piers, or a greater extent of wharves than those originally described in the lease. The question arises, how far did the parties have in contemplation the extension of these piers, and for whose benefit were they to be ? To determine this we must not only look at the wording of the lease, but to the situation of the contracting parties, and the subject matter of the contract. There is no limit fixed to their extension by the words of the lease, and the corporation of the city had a right at any time to order an extension of the piers. The pier extending the entire northerly side of Veseystreet they ordered to be extended three hundred feet long and thirty-five feet wide into the Hudson river. This was the same pier leased to the plaintiff, and instead of being six hundred feet long, as it was when it was leased to him, in its extended form was nine hundred feet. The whole interest in it (except what passed by the lease) belonged to the lessors in consequence of their being the owners of the lots opposite to it, and had they not leased it for a term of years they would have been entitled to collect wharfage from all vessels stopping at it. If then they leased to the plaintiff all their interest in the said pier for eight years, and if it could, at any time during that period, be extended by the common council of the city, by which that interest became more valuable, I see nothing in the terms of the lease to prevent that interest passing to the lessee for the term of the lease. In no other way could all their interest in that pier be conveyed to the plaintiff. To hold a contrary doctrine, would be to hold that they retained a portion of their interest in that pier, instead of conveying it all to the plaintiff by the lease. But when we look at the lease, and find there that the parties contemplated an extension of the piers, and that it might happen during the continuance of the lease, and that with regard to one of them it was provided that the plaintiff should make it at his own expense, and with regard to all that he should keep them in repair, to what other conclusion can we come, except that the parties intended that the plaintiff should derive the benefit from these extensions, provided they were made. If not, why mention them at all in the lease ? The plaintiff, by that instrument, was not treating for the fee of the land, or expecting to acquire it. He was contracting for the rents and profits of it for eight years; and where a party is thus situated, all covenants by which he obligates himself to expend money or labor on the premises contracted for, are supposed to be done for the benefit he will derive from such expense and labor during the continuance of the lease. To give to the lease any other construction, would be to say that the plaintiff contracted to bear all these burdens, without the expectation of reaping any benefit therefrom — a most absurd and unjust conelusion, and one to which I hope this court will never arrive. If the wording of the lease is closely scrutinized, it will be easy to see how much expense the plaintiff was willing to incur during its continuance, and that was the extending the short pier between Vesey and Barclay streets one hundred feet. If the lessors wished to bind him to make any others at his own expense, it was easy to have inserted another clause to that effect. And yet they were not ignorant that others might be made, and they bound him in the lease to keep all extensions which might be made, during its continuance, in good repair. Another thing, they suffered him to go on and pay taxes and assessments upon this extension, the same as upon the other piers upon which he collects wharfage, and yet they insist that he is bound by the lease to do this without reaping any benefit from it. Not only do I consider such a construction unjust to the plaintiff, but at war with the intention of the parties at the time of the execution of the lease, so far as that intention can be gathered from the terms of the lease, the situation of the contracting parties, and the subject matter of the contract. It may be, and no doubt is the fact, that neither party at the time the lease was executed anticipated that so great an extension of the piers would be made during the continuance of the lease, but this does not alter their legal rights. It was within the contingencies contemplated by their contract, and could be made, and if so, the lessors should have taken care (if such was the understanding) to have bound the plaintiff to make all extensions, or provided that he should reap nolmnefit from any not made at his expense. Not having done so, the plaintiff is entitled to the use, enjoyment and benefit arising from all extensions made during the term of his lease; and it was proper and just that the lease should provide, as it does, that while it lasted, he should keep all extensions which might be made in repair at his own expense.

The judgment of the superior court ought to be affirmed.

Ruggles, Gardiner, Johnson and Welles, Js., concurred. Edmonds, J., dissented. Jewett, J., did not hear the argument.

Judgment affirmed.


text:
    McAllister and others, Commissioners of Highways of the town of Gaines, against The Albion Plank Road Company.
    An appeal does not lie to the court of appeals, from the judgment of the supreme court on appeal from the decision of a county court, in regard to the change of location of a plank road toll gate.
    Motion to dismiss appeal. The facts are stated in the opinion of the court, which was delivered by Welles, J.

      W. J. McAllister for the respondents.

      B. L. Bessac for the appellants.
   Welles, J.

In January, 1851, the respondents made an application to the county court of Orleans county to change the location of a toll gate in the appellants’ road, in pursuance of § 37 of the act to provide for the incorporation of plank road companies, passed May 7th, 1847. (Laws of 1847, ch. 210, p. 226.)

At a stated term of the said county court, held on the 8th day of February, 1851, an order was made changing the location of the toll gate.

On the 19th day of February, 1851, the appellants appealed to the supreme court in the eighth district, where, on the 26th day of June, 1852, the order of the county court was affirmed at the general term. The appellants have appealed to this court from the order of the supreme court, affirming the order of the county court; and a motion is now made to dismiss the appeal, on the ground that the order of the supreme court is not appealable.

It is provided by the section of the plank road act referred to (§ 37), that the commissioners of highways may, on at least fifteen days’ written notice to the president or secretary of a plank road company, apply to the county court for an order to alter or change the location of a toll gate. The court, on hearing the parties, and on viewing the premises, if deemed necessary, shall make such order as shall be deemed just and proper; and either party may, within fifteen days, appeal from such order to the supreme court, on giving such security as the county court shall require. The same section declares, that the decision of the supreme court on such appeal “ shall he final in the matter.”

The amendment of 1851 (Laws of that year, ch. 487), directs the supreme court, in case of such appeal, on motion of either party, on due notice, to appoint three referees, to hear, try and determine the appeal. The referees are to view the premises and the location of the gate affected by the order appealed from, and are to proceed to a hearing of the respective parties in the same manner as is provided by law and the rules and practice of the supreme court on references in civil actions, and are to report their decision to the supreme court as referees are required to report, with the evidence taken by them, and the grounds of their decision. The report may be reviewed by the court, and judgment given thereon as justice and equity shall require in view of the law and the facts so presented, “ and such judgment shall he final and conclusive.”

In this case, the appeal to the supreme court was tried by referees duly appointed in pursuance of the act of 1851, whose report was confirmed by the court, and judgment given thereon.

We are of the opinion that it was the intention of the legislature, that the decision of the supreme court upon appeal from the county court, under the plank road acts, should be an end of the controversy, and that no appeal will lie to this court therefrom. The act of 1847 declares that such decision shall be final in the matter, and the act of 1851 that it shall be'final and conclusive.

It is not perceived how any effect can be given to these expressions, unless it be to take away and prevent any further appeal or review. They certainly add nothing to the force or validity of the decision, which would be just as binding and operative in all respects, without, as with them; and it will hardly do, after they have been inserted in the original act, and repeated in the amendment, to treat them as redundant and meaning nothing.

There are reasons why we think it was intended by the legislature that these controversies should be terminated by the supreme court. In both the county and supreme courts provision is made for a view of the premises. The decision may be properly based upon facts appearing upon such view, of which the referees can judge with far more accuracy and propriety -than it would be possible for this court upon appeal.

It was probably one object, that the proceedings should be attended with as little delay and expense as would be consistent with the rights of the parties, and at the same time secure to them a full opportunity for investigation upon the merits. Two reviews are in effect given: one by the referees, and one by the supreme court; and the legislature may well have supposed that the interests of the community required that litigation as to the location of a toll gate should there end. We think they have so determined, and that the provision is a salutary one. The motion should be granted. „

All the other judges concurring,

Appeal dismissed.