text:
    Edward Weston et al. plaintiffs, vs. James Wright (who was impleaded with Amos Howes et al.) defendant.
    1. The same principle adopted in regard to the liability of a mortgagee, for . repairs under similar circumstances, as in the preceding case of Delmo v. . Wright et ál. for supplies.
    2, In. an .action against him tp .recover for such repairs, evidence of the agreement upon which the bill of sale to his grantor was made, and that the ship’s husbands had notice that it was a mere collateral security, is not admissible. Xor is an affidavit, made by one of them in such former suit, denying that .. such mortgagee consented to the voyage, or was liable for. expenses; nor evidence as to what disposal they had made of the proceeds of the voyage.
    (Before Bosworth, Ch. J. and White and Monell, JJ.)
    Heard November 2,1863;
    decided November 28, 1863.
    Exceptions directed by the court at the trial to be heard in ' the. first-instance at .general term.
    This- action -.was brought by Edward Weston,- Henry T. Dortic, George- S. -Weston, and Frederic De Billier, against Amos Howes, Mulford Howes, James A. Suydam, and James Wright, to recover for repairs to, the ship Neptune’s Gar.

    None of the defendants but Wright interposed any defense.
    On the 6th February, 1858, one PMUips conveyed to the defendant Wright, .by a bill .of sale, absolute upon its face, the one fourth part of the ship “Neptune’s Oar.” The bill of sale was properly acknowledged and recorded in the office of the collector of customs of the port of New York. The remaining three fourths of the ship were owned by the other defendants.
    The action was for goods sold, materials furnished and work performed, to and for the ship, between the 29th of October and 27th of December, 1859.
    Howes & Co. who were owners of one half the ship, were also agents for the owners. Upon the return of the ship from a preceding voyage, in October, 1859, thé agents sent her to the ship yard of the plaintiff’s assignors for necessary repairs. The repairs were commenced on the 29th of October and completed Dec. 27, 1859.
    The defendant Wright denied in his answer that he was owner of any part of the ship, and denied all liability for the repairs furnished. He proved on the trial that the bill of sale from Phillips to him, although absolute on its face, was given as collateral security for advances made by him to Phillips, and was therefore a mortgage.
    The cause was tried on the 20th of November, 1862, before Chief Justice Boswokth, and a jury.
    The documentary evidence received and that which was offered and excluded was the same as in the case of Delano against "the same defendants, reported ante, 298.
    Among other evidence offered by the defendant was proof of the agreement upon which Phillips, the vendor of the bill of sale held by the defendant, became assignee of the interest thereby granted ; also, that at the time of the chartering of the ship on her outward voyage, and on November 19th, 1859, the homeward charter had not been agreed upon, and was not in contemplation by the ship’s husbands ; also that Howes & Co. had assigned away the moneys due on the charter party for the return voyage.
    The defendant’s counsel requested the court to charge the jury that the defendant Wright was not liable for any of the repairs. The court refused so to charge, and the defendant excepted.
    He further requested the court to charge that the defendant was not liable for any repairs done prior to November 19th, 1859. The court refused so to charge, and the defendant excepted.
    There were also several exceptions taken by the defendant, during the trial, which are noticed in the opinion below.
    The judge directed the jury to find for the plaintiff the amount claimed, with interest, to which direction the defendant excepted. ¿

    The judge suspended the judgment and directed the exceptions to be heard in the first instance, at the general term.

      J. T. Williams, for the plaintiffs.
    I. It is not to be assumed upon the case as it now stands, that the bill of sale from Phillips to Wright was intended to be a mortgage to secure an indebtedness from Phillips to Wright.
    1. That pretense is found not to be a fact by the verdict of the jury. If the defendant wished to avail himself of such fact as an element of a defense, he should have asked to go to the jury on it and had it found in his favor. He should also have gone to the jury upon the question of possession, and had a finding of fact in his favor upon that point, if indeed he was able to obtain such,a finding. Not having done so, the verdict is conclusive against him upon both these facts, the presumption being that all the facts which the evidence would legally, permit the jury to find, they in fact did find in order to sustain their verdict.
    2. Nor is this rule in anywise softened or changed by the fact that the verdict was directed by the court. On the contrary, it is greatly (strengthened by the fact—for the omission to ask to go to the jury upon any question of fact is an admission upon the trial that there is no fact advantageous to the legal rights of the party which the jury could have found in Ms favor—and therefore he suffers them all to he in legal effect found against him.
    3. It is clear, from the undisputed facts of the case, that no such relation as that of mortgagee not in possession could have possibly existed between Phillips and Wright.
    It is, however, enough that the plaintiff would have contended to the jury that no such relation as that of mortgagee out of possession existed, and upon this point he would have had a right to go to the jury, had it not been conceded in his favor by the verdict.
    II. But if Wright had. originally been only a mortgagee out of possession, the note of the 19th of November, and his consent to the terms thereof, as proven by his affidavit and subsequent acts, were equivalent to taMng possession of the ship.
    III. Had the defendant upon the trial desired to submit the question, as to his intentions, to the jury, he was bound to claim that privilege at the trial. Not having done so, the fact must be deemed to have been found against him—it must be deemed to have been conceded that then he did intend to assent to the proposal contained in the letter. (Winchell v. Hicks, 18 N. Y. Rep. 558. Dows v. Rush, 28 Barb. 157.)
    IV. The objection that Wright was not liable for the repairs done before the 19th of November is not well taken.

      Joseph H. Choate, for the defendant,
    Argued substantially 'the same points made by him in the preceding case of Delano against the same defendant, citing in addition to the cases there cited against holding a mortgagee, not in possession liable for supplies, &c. the case of Mackenzie v. Pooley, (11 Exch. 638.)
   By the Court, Monell, J.

The defendant, as mortgagee of the ship, out of possession, would not be liable for repairs or supplies, except upon an express contract. It was competent for him to show by parol proof, that the bill of sale from Phillips to him, wMch by its terms conveyed to Mm the absolute ownership to one fourth of the ship, was given, and received as collateral security for advances made. The evidence of this was positive and uncontradicted, and established that the instrument conveying that portion of the ship was a mortgage, and not an absolute conveyance.

The defendant, then, can only be made liable as a mortgagee in possession; and the question arises whether there was sufficient uncontradicted evidence of such a possession by the mortgagee, as authorized the direction to the jury,, that :the plaintiffs were entitled - to a verdict. There was no dispute^ that the repairs were necessary ; nor that they were supplied to the ship upon the order of the ship’s husbands. ■

The owners of ships, unlike any other personal property, are tenants in common, and the possession of one is the possession of all. (Pars. Mar. Law, vol. 1, p. 82.) The possession of a mortgagee may be constructive, and need not be manual. Any act which can be deemed in some degree equivalent to public notice that he is owner, added to his legal title.as owner, confers upon him the responsibilities and liabilities of an owner. (Ibid. 112. Miln v. Spinola, 4 Hill, 177.) The case shows that Howes & Go.f the ship’s husbands, on the 19th of November, 1859, wrote to'the defendant as follows : i .

“We write to say that the ship Neptune’s Oar is chartered . for a voyage from the port of New York" to San Francisco, California, and will, in due time, be fitted out and sent on the same ; and that you will be. held liable for the expenses,,-bills and outfits attending such voyage. In case you desire to have the voyage performed .at our expense, and for our profit, and to receive a bond fór safe return, please to say so, and we will give it' with pleasure ; otherwise we shall consider that you acquiesce in the voyage, and intend to be responsible for your share in the expenses and losses.”

To this letter Howes & Co. received no response whatever. Here was an express notice to the defendant that the ship was being fitted out for a voyage, and that he would be held liable for the expenses. He could have relieved himself from responsibility by consenting that the voyage should be perforfned at the expense of Howes & Co., and receiving their hond for safe return; and he was apprised that if he did not consent to that, they should consider that he acquiesced in the voyage and intended to be responsible for his share in the expenses.

The neglect of the defendant to respond to this letter, could properly be regarded, and I think the law so regards it, as an assent by the defendant to become liable for the expenses attending the outfit of the ship. Howes & Co. recognized the right of the defendant to participate in the profits of the voyage, and intended he should.be liable for his share of the expenses* unless he agreed that the vdyage should be made for their profit alone.

The effect to be given to this letter and the defendant's silence, after its receipt by him, was to imply a promise by the defendant, to pay the expenses of the outfit and of the voyage ; the consideration for such promise being the anticipated profit in the adventure.

Had the evidence stopped here, it would, I think, have been sufficient to have charged the defendant. He was mortgagee, and had the right to take possession ; and his acquiescence in the voyage and consent to share the profits and losses, was the exercise of a control over the ship, which, within Miln v. Spinola, (supra,) amounted to a constructive, if not actual, possession of the vessel.

The plaintiffs, however, on the trial, introduced in evidence an amended complaint, sworn to by him, in an action brought by the defendant against the other owners of the ship, for an account of the profits of the ship on her voyage to California and back, and for payment to him of his share of such profits. In this complaint he asserts his rights as mortgagee ; avers the receipt by him of the letter of the 19th of Hovember, and alleges that he “ did not elect to have such voyage performed at the expense or for the profit of said Howes & Co., but that he acquiesced in such voyage, as for his account and risk as to the one fourth interest.” He claimed that he and the other owners were entitled to have the earnings of the ship on that voyage, applied to the discharge of the liabilities of himself and the other owners, “ created through and under the management of the ship’s husbands, in the course of, or in connection with such voyage.” That Howes & Co. had not applied the earnings of the ship to the payment of the expenses attending such voyage, and the outfit therefor. And that he would he exposed to loss and liability from the non-payment of the outstanding claims and demands against the vessel.

In an affidavit of the defendant sworn to some days after the verification of the complaint, to obtain an injunction,, the defendant states, that he assumed that as he was, under the notice from Howes & Go., entitled to one fourth of the earnings, he was “ bound for a corresponding share of the outfits and expensesthat the outfits and supplies “procured before starting,” were in part for the return voyage, and if he had not supposed he was to participate in the earnings of the return voyage, “he would not have acquiesced in such proposal.” He further says, that assuming the notice of November 19 and his acquiescence therein, to have placed him in the legal position of mortgagee in possession, no subsequent event occurred, changing his relation to that of mortgagee out of possession.

These several statements made by .the defendant under oath, were not only competent, but strong evidence of the construction put by him upon his legal position to the ship, and should, I think, be deemed conclusive upon him.

It is claimed by the defendant that.he can not be held liable for any work or labor bestowed, or supplies furnished to the ship prior to the 19th of November. The order was an entire order to put upon the ship certain repairs, deemed necessary on her return from a previous voyage, and before her departure on her contemplated voyage to San Francisco. The bill of items shows that prior to that date the repairs amounted to #2,095.99.

The liability of the defendant for the repairs furnished prior to the 19th of November, depends upon the position he occupied on that day with respect to the ship. If there was nothing in his then attitude which reached back to the time the order was given, he was not liable. We are to assume that the repairs were necessary. They were put upon the ship prior to her embarking upon a voyage which was to be undertaken for the joint profit of all the owners. These repairs were necessarily a part of the expenses of the ship, and were made to enable the vessel to perform, her voyage; and it was but just, that those who were to participate in the gains which would come to them from the adventure, should contribute towards helping the ship perform her voyage. Without repairs the ship in her condition could not go to sea, and all concerned received the benefit of the work put upon her. As those repairs contributed to the defendant’s gain, it would be unjust towards those who made them, on the credit of those who were liable, to release him from payment.

But apart from this, even if there is no express or implied promise by the defendant to pay, his subsequent recognition of the claim is sufficient to hold him. The evidence shows that he consented to become liable for the expenses of the voyage, including the outfit. This is an express admission which relates back and confirms the order given by the ship’s husbands on the 29 th of October, and from which the law implies a promise to pay. I think the evidence is too strong to admit of a doubt that the defendant recognised the authority of Howes & Co., to order the repairs ; and his subsequent ratification was as effectual as if he had conferred the original power. And. this brings the case within the numerous cases cited by the defendant’s counsel on the argument.

The evidence offered, to show the agreement upon which Phillips took the bill of sale, "and that Howes & Co. were informed that he took the bill of sale as collateral security, was properly excluded. These were transactions prior to the conveyance to Wright and could have no effect upon the interest acquired by him, or on the sale from Phillips.

The affidavit of Suydam used in the injunction suit was not competent evidence in this action. He was a competent witness and could have been examined on behalf of his co-defendant Wright, hut his written statements were not evidence, except to impeach himself.

The evidence offered, that at the time of the charter for the outward voyage, and on the 19th of November the homeward charter had not been agreed upon, was properly excluded. So also was the evidence offered, to show the disposition made by Howes & Co. of the charter money. This evidence did not tend in any" degree to relieve the defendant from the effect to be given to his acquiescence in the voyage, and his consent to become liable for the expenses and outfit.

Another reason for excluding all this evidence offered by the defendant was, that it could not affect the plaintiff’s right to recover, and was therefore immaterial.

The only negative evidence was that of the witness Suydam, who. testified that to his knowledge, prior to the 19th of November, the defendant had nothing to do with the ship. If the view which I have taken is correct, this evidence is wholly unimportant. The acts of the defendant on and subsequent to the 19th of November were sufficient to charge him.

There was no question of fact for the jury, and hence there was no error in the refusal to charge as requested, nor in the direction to the jury to find for the plaintiffs.

The exceptions- should be overruled and judgment ordered on the verdict.

Judgment ordered accordingly.


source: Caselaw Access Project

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

license: Public Domain

text:
    Samuel White, plaintiff and appellant, vs. Asahel Jones et al. defendants and respondents.
    1. A retiring partner who releases and assigns all his interest in the good will of the business of the firm to his co-partner, does not thereby abandon the right to establish and carry on a business similar to that of the late firm, provided he does not commit any act to mislead customers into the belief either that he is carrying on business as the successor of the old firm, or that when dealing with him they are dealing with such successor.
    2. No one who was formerly in the employment of the displaced firm, but upon, its dissolution unites with such retiring partner in establishing such new business, becomes thereby subject to an action, by the purchaser of the good will, for an injunction or damages.
    3. Where the conditions of dissolution were such that the retiring partner l\ad the right to open, and for his own benefit attend to business mentioned in, letters thereafter addressed to the dissolved firm upon certain business subjects, the mere opening and answering by him for, apparently, his own benefit but in his own name, two fictitious or “ decoy ” letters, addressed to the late firm, at the instance of the plaintiff, the successor to the good will, and purporting to be upon business, to which the former had no right under the terms of the dissolution to attend to, did not warrant an interference by the court by injunc- . tion or give such successor a right to any damages.
    (Before Bosworth, Ch. J. and White and Monell, JJ.)
    Heard November 2d and 4th, 1863;
    decided November 28, 1863.
    This was an appeal Tby the plaintiff from a judgment in favor of the defendants.
    The action was brought to restrain the defendants (Asahel Jones and Gilbert 0. Platt,) from a certain supposed interference with the business of the plaintiff, and for damages therefor.
    The cause was tried before Justice Robertson without a jury on the 15th of May, 1862. For about four years prior to, and until the year 1860, the plaintiff, one of the defendants (Jones) and one McCurdy, had carried on in New York, Philadelphia and elsewhere, the business of manufacturing and selling artificial teeth, and also instruments and articles used in dentistry, as partners, under the firm-name, at first, of “ Jones, White & Co.” and afterwards of “Jones, White & McCurdy.” But in the year 1860 McCurdy quitted such firm. Shortly after-wards on the 18th' day. of December, 1860, the plaintiff and the defendant J ones entered into new articles of copartnership, under which they subsequently carried on a similar business, using in such business the firm-name of “'Jones .& White,” until such new firm was dissolved as hereinafter stated.
    " These articles provided, among other things, that the firm business should include the manufacture and sale of gold foil and plate, except in the city of Hew York, where that department of business was to be carried on as before, by J ones, for his own benefit exclusively.
    For many years before the formation of the firm of “Jones & White,” and during its whole existence, Jones resided in Hew York, exclusively superintended its business in- Hew York, at Ho. 658 Broadway, carrying on such branch of business in gold foil and plate at the same place, exclusively for his own individual benefit; while White resided in Philadelphia^ and had charge of the business in that city, at which most of the manufactures of the firm were made.
    About the 26th of June, 1861, the firm of “Jones '& White ” was dissolved ley mutual consent, By an instrument in writing, the plaintiff White purchased all the interest of .the defendant J ones, including “ the good will of the entire business.” In payment of part of the consideration of this transfer, Jones agreed to take a large amount of the debts due the firm contracted and due at Hew York. The defendant Platt, who had been in the employment of the Hew York branch', and was well acquainted with its business and customers, was a subscribing witness to this agreement.
    From the time of the dissolution of the firm of Jones & White, the plaintiff continued the business of such firm at Ho. 658 Broadway, as their successor. And shortly after the dissolution the defendant Jones established in his own name, at Ho. 710 Broadway, several blocks, and upwards of an eighth of a mile- distant, a new business, which was substantially similar in kind to the business previously conducted by Jones & White, at Ho. 658 Broadway, and continued such new business in his own name. The complaint alleged that the defendant Platt was interested in this business with 3ones. On the trial it appeared that he was not, being only employed at a salary. Such new business differed from the business carried on by the .old firm, previous to its dissolution, in selling teeth manufactured by other persons, but not manufacturing them. Whereas the sales of teeth by the former firm were principally of those manufactured by it. Letters addressed to “ Jones, White & McCurdy,” and containing orders and money for the plaintiff as their successor, having been received and opened by the defendant J ones, the plaintiffs employed a detective officer connected with the United States postal service, who sent through the post office two letters addressed to the firm of “ Jones & White,” which purported to be business letters. One contained a sum of money to pay for goods for which it contained an order. These letters came to the hands of the defendant Jones. He answered them by mail, over his individual signature. The envelopes in which his .answers were sent, contained his individual business card or address. To one of these letters the officer replied in his fictitious name, saying. * * * “ Your terms are all satisfactory, but you do not state whose make of teeth they are ; are they the same as formerly, or a new make ? I sent my letter to Jones & White, but I suppose they have dissolved since I had any business with them, which is some time since, and I suppose you cany on the business.” * '* *
    In answer to this the defendant Jones wrote, * * * * “ I will send you, if ordered, my own teeth, and if not satisfactory, will take them back. * * * Any thing in the dental line I can give, and I believe that twenty years’ experience in the dental business will be a sufficient guaranty of my character in this line. I shall be happy to receive your favors.”
    In answer to the other of the decoy letters, the defendant Jones sent a package of the goods, which it purported to require, by mail to the address, specified therein, and inclosed therewith several envelopes with his individual address printed thereon, and also a bill of the goods as bought of him. That package and its inclosure came afterwards unopened to the hands of the person by whom the decoy letter had been prepared, and mailed, who was one of the employees of the post office, and the goods contained therein were upon the application of the defendant J ones restored to him, and he, thereupon, returned to such employee the sum of money which he had previously received for the same.
    The judge found, as a fact, that “ except as hereinbefore stated, neither of the defendants since the execution of said instrument of dissolution, have received, opened, or sent letters or envelopes containing orders for goods from customers of the late firm of Jones & White, or from others who had not previously dealt with it, which were directed either to Jones & White, or to Jones, White & Co., or to Jones, White & 'McCurdy, or any letters intended for Jones & White, or for the plaintiff or their successor, or filled such orders, or sent goods as in such orders requested, or received moneys in payment therefor, or treated such orders as intended for them, or for said J ones.
    And he found, as conclusions of law,
    1. The “ good will ” of the business of the late firm of Jones & White, and of'the previous firms of which it was the successor, became and was, by virtue of the articles of dissolution, the sole and exclusive property of the plaintiff, as successor of said firm.
    2. The defendant Jones has not, since the execution of said agreement, violated the covenants and provisions therein contained on his part to be done and performed, or interfered with, or infringed upon the said good will of the former firm, now belonging to the plaintiff as aforesaid.
    3. The said defendant J ones had the right to open any letter addressed to the firm of Jones & White, respecting the debts due to the said partnership of Jones and White in Hew York, at the time of its dissolution, and the business of manufacturing and selling gold foil and plate, since the dissolution of the said partnership, and had the right to receive and open and answer any letters addressed to the said firm, which he did not have any reason to believe did not relate to such matters, if he did not open the same for the purpose of fulfilling orders therein contained, not relating to such matters.
    4. The defendant Platt is not in any manner a party to the articles of dissolution in the complaint set forth, and has not, since the plaintiff became entitled to the good will of the business of the late firm of Jones & White, infringed upon, or in any manner interfered with such good will.
    And he accordingly adjudged that the plaintiff was not entitled to the injunction prayed for in the complaint, restraining the defendants, or either óf them, as therein specified, or in any manner. And that the plaintiff had sustained no damages which he was entitled to recover against the defendants, or either of them. . And that the complaint should be dismissed with costs to the defendants to be adjusted, and the injunction heretofore granted therein against the defendants dissolved.
    Judgment against White for costs was entered, from which the present appeal was taken.

      Elbridge T. Gerry, and William Curtis Noyes, for the plaintiff, appellant.
    I. By the terms of the articles of dissolution an absolute vested right to the entire property of the concern, both real and personal, was conveyed to the appellant for a valuable consideration. To prevent any misunderstanding as to the extent of property thus conveyed, “ the good will of the entire business ” was specifically mentioned in the contract.
    1. That “ good will ” was partnership property, a legal subject of conveyance and vendible to any one by all the partners ; or by one to the other, as in this case. (Marten v. Van Schaick, 4 Paige, 479. Dougherty v. Van Nostrand, Hoff. Ch. 68. Smith v. Everett, 27 Beav. 446, S. C. 29 Law Jour. ch. 236. Wedderburn v. Wedderburn, 2 Jurist, N. S. 674. S. C. 22 Beav. 84. S. C. 25 Law Jour. ch. 710. Wade v. Jenkins, 7 Jurist, N. S. 39. S. C. 2 Giff. Ch. 509. S. C. 30 Law Jour. ch. 633. S. C. 3 Law Times R. N. S. 464.)

      2. It was in the present case a definite interest, consisting in an advantage arising from the fact of sole ownership to .the exclusion of other persons. It was embodied in the firm name, which .was essential to its use and could neither perish nor he separated from it. (Story on Part. § 99. 16 Am. Jurist, 87, Article by Prof. Greenleaf. Kennedy v. Lee, 3 Meriv. 452. Collyer on Partn. § 161. Williams v. Wilson, 4 Sandf. Ch. 379. Smith v. Gibbs, 25 Law Rep. 421. Fenn v. Bolles, 7 Abb. Pr. 202. 2 Lindley on Partn. 709, 710.)
    II. There was an implied covenant by Jones in the transfer to White of all this property, that no act should be done by him to deprive White of the benefits accruing to him from such transfer.
    1. By the articles of dissolution, the right was secured to J ones to carry on his manufacture and sale of -gold foil, besides a reservation to him of certain debts due the old firm. They nowhere authorized any interference by, or right of J ones to any other portion of the business ; and these reservations to him, on well settled legal principles, were an exclusion of' all the rest. (Bennett v. Van Syckel, 4 Duer, 462. 1 Platt on Cov. 55, 57. Seddon v. Senate, 13 East, 63. Aulton v. Atkins, 18 Com. Bench, 249. S. C. 2 Jurist, N. S. 812. S. C. 25 Law Jour. ch. 229. Ward v. Audland, 16 Mess. & Weis. 862, 876, and authorities cited in Am. ed. Cooper v. Watlington, 2 Chitty, 321. S. C. sub nom. Cooper v. Watson, 3 Doug. 413, in point.)

      2. So that, although there was no express covenant in these articles by Jones1 not to set up any rival business, still one was implied, the good-will having been sold by him to White. He had no right to give any notice, or do any thing indicating that his was the old business, or which might interfere with White’s enjoyment of it. (Cruttwell v. Lye, 17 Vesey, Jr. 344. Howe v. Searing, 6 Bosw. 370, per Moncrief, J.)

    III. The facts in the case, proven by the evidence and found by the court, show conclusively a fraudulent infringement by the respondents of rights acquired by White in the purchase of the property, and for the protection of which this action was brought.
    1. Long before the sale, but while it was in contemplation, Jones and Platt secretly combined to secure for themselves a lucrative business out of the transaction. They first took lists of the customers of the firm, sought to induce the old clerks to leave White and go with them, prepared advertisements of their intended new business, procured a store close by that of the old firm, and before White got possession, Platt made arrangements in Philadelphia to furnish Jones and himself with materials like those used by the old firm.
    2. All this was done secretly, White being ignorant of the matter, and supposing that the transaction between him and Jones was fair and honest. He did not even suspect the purloining of his orders by Jones until the detectives suggested it.
    3. This fraudulent scheme of the respondents, which commenced before, was carried out by them subsequent to the sale. The business of White greatly decreased, which was attributable to no other cause. Jones opened and read letters addressed to the old firm, under the pretense that his ownership of the debts of the old firm secured to him on its dissolution, warranted such a course.
    4. These facts bring the case completely within the rule of Harrison V. Gardner, and show a deliberate fraudulent purpose when the contract of sale was made, to violate the understanding by which the property was transferred to White. (Harrison v. Gardner, 2 Madd. Ch. 197, Am. ed. p. 444, 220, per Sir W. Plumer. Gale v. Gale, 19 Barb. 249.)
    IV. Equity intervenes to restrain vendors from fraudulently depriving vendees of the benefits which would naturally result from a sale, and compels them to refund profits which they have usurped, besides holding them responsible for damages resulting from the fraud. (2 Hovenden on Frauds, 68, 240, 241. Nickley v. Thomas, 22 Barb. 652. Green v. Folgham, 1 Sim. & Stu. 406.)
    V. The respondent Platt was a particeps criminis, combining with Jones to carry out his fraudulent intentions and reaping bis advantage from a per centage on profits fraudulently acquired. He is therefore jointly liable with Jones in damages, having joined in the commission of a tort, with full knowledge of the facts. ■ (Hill. on Torts, 310, 311, and cases cited in notes. Longman v. Pole, M. & Malk. 223.)
    VI.. The court below erred, in not finding the facts set forth in the appellant’s exceptions which were fully sustained by the evidence;. in excluding certain portions of evidence which were relevant and admissible to sustain the complaint; and finally in dismissing the complaint upon the facts proven, and dissolving the injunction previously granted.

      Joseph H. Choate, for the defendants, respondents.
    I. The case, made by the complaint is the only case before the court. .That is simply for a violation of the articles of. dissolution. The transfer by one partner of. the good-will of the firm- business does not, without an express agreement to ■ that effect, bar him from establishing and carrying on a similar business, in his own name, and from employing, as a stranger might do, in fair competition, all the legitimate modes of advertising and advancing the new business. (Davis v. Hodgson, 25 Beav. 177. Cooke v. Collingridge, Jac. R. 623. Cruttwell v. Lye, 17 Ves. 346, 385. Churton v. Douglass, 1 H. V. Johnson, 176. Snowden v. Noah, Hopk. Ch. 347. Bell v. Locke, 8 Paige, 75. Dayton v. Wilkes, 17 How. Pr. 510. Howard v. Henriques, 3 Sandf. S. C. R. 725. Howe v. Searing, 6 Bosw. 365. Hitchcock v. Coker, 6 Ad. & El. 438, 446. Elves v. Crofts, 10 Com. B. 241. Harrison v. Gardiner, 2 Madd. Rep. 197, Am. ed. p. 444. Shackle v. Baker, 14 Ves. 468.) In Williams v. Wilson, (4 Sandf. Ch. 379,) the injunction was probably made mutual by consent.
    II. The defendant, Jones, never covenanted or agreed to refrain from' carrying-on the ■ same business elsewhere, and the plaintiff has wholly failed to show any violation, on-his part, of the articles of dissolution. ,
    III. As to the letters.
    1. The partnership articles and the agreement of dissolution show that about half' of all the business done at its Hew York branch by “Jones & White” consisted of Jones’ private business in the manufacture and sale of gold foil and plate, which, at the dissolution, reverted to Jones. Also, that at the dissolution, all the debts due to the firm at its New York branch became the sole property of J ones, and the settlement of them was left to' him. He had, therefore, undoubtedly the exclusive legal right, after the dissolution, as found by the court, to receive, open and keep all letters addressed to the firm relating to either of those subjects, and a right in common with the plaintiff to open and read all letters addressed to the firm, coming into his hands, for the purpose of ascertaining whether they were his or not.
    2. For the purpose of entrapping the defendant into a seeming violation of his rights, the plaintiff, some four months after the dissolution, entered into a conspiracy with clerks of the post office, to get into the defendant’s hands counterfeit letters and orders to the firm, in the hope that, by inadvertence or otherwise, he might fill the orders, and so furnish the plaintiff with some ground which he had not yet found, on which to seek the interposition of a court of equity. The results of this dishonest manoeuvre constitute the sole basis of the plaintiff's alleged grievances.
    3. The acts of the defendant, in all these instances, even had they not been the result of inadvertence, which upon the evidence they clearly were, and had the transactions been genuine, are clearly shown in the opinion of Judge Robertson, to form no ground work for the plaintiff’s action.
    4. In view of the plaintiff’s connection with all those transactions, it is obvious that all those letters were written and sent by the plaintiff to the defendant, with the intent that they should be opened and read and the orders filled by him. As the only means of effecting this, so that J ones might inadvertently fall into the trap, they were placed in a box where none but his own letters were ever placed, so as to get them into the hands of his messenger among a parcel of bis letters, so that they might escape notice.
    5. It is obvious that by these transactions the plaintiff sustained no damage. Nobody was deceived. The Chilicothe customer and the Concord customer were none but the plaintiff ; the money received by Jones in the one instance was refunded as soon as the mistake was discovered, and in the case of the Cuba letter, the order and the profits of it belong by the agreement to Jones.
    IY. But in addition to the utter failure of merits, there are general rules of equity which imperatively required that the plaintiff's action should be dismissed-as it was.
    1. It has been attempted to be brought within the jurisdiction of equity and of the court by a trick, but for which the plaintiff could not have stated in his complaint a prima facie case. No court of equity will sanction an attempt by fraud or misrepresentation to bring a party or a cause within its jurisdiction. No plaintiff can successfully invoke the aid of equity unless his own hands are clean, and his own conscience pure in the business that brings him here.
    2. He who seeks equity must show that he is ready to do equity. The plaintiff's whole course in the business has been inequitable and fraudulent. Instead of seconding the efforts of the plaintiff to have his letters kept separate, he purposely contrived a plan to confuse the firm's letters with those of the defendant, in the hope that the latter in an unwary moment might open and answer some that did not belong to him.
    3. Equity will not relieve a man against grievances which he has brought upon himself; nor help him to relief to which he can perfectly well help himself. Had the plaintiff taken half as much pains to keep his letters out of the defendant's hands as he did to get them into them, he would have had no pretense for bringing his action.
    4. The plaintiff's evidence shows that the grievance complained of, no longer existed ; before the trial the plaintiff had wholly ceased receiving letters directed to the firm.
    Y. As to the defendant Platt no evidence was offered. He had a plain right to choose his own master. He has no interest in the defendant Jones’ business, and had no hand in any of the acts complained of.
   By the Court, Bosworth, Ch. J.

The sale by Jones to White on the dissolution of their partnership, of his interest in it, and “ the good will of the entire business,” did not deprive Jones of the legal or equitable right to engage in and prosecute a similar business, in the vicinity of the place of business of the dissolved firm. This seems to be so well settled, that nothing more is necessary than to refer to some of the prominent cases, affirming this doctrine. (Cruttwell v. Lye, 17 Vesey, Jr. 344. Davis v. Hodgson, 25 Beav. 177. Churton et al. v. Douglas, 1 H. V. R. Johnson, 176. Howe v. Searing, 6 Bosw. 354. Dayton v. Wilkes, 17 How. Pr. 510.)

The complaint does not allege that the defendant, in prosecuting his business at 710 Broadway, represents it to be the same business which the dissolved firm carried on at 658 Broadway, or that he is conducting business at 710 Broadway as successor to the late firm of “ Jones & White.” On the contrary, it avers that “ J ones has established a' similar business, in all respects, to that of the old firm, in his own name, * * and still continues to carry on such business in his own name, * * such business being, in all respects, similar to that conducted by the said firm of Jones & White.”

That Jones has opened letters, &c. directed to “Jones & White,” “Jones, White & Co.,” and to “Jones, White & Mc-Curdy,” intended for the plaintiff; that such letters were from customers of the late firm of J ones & White, and contained orders for goods ; and that Jones has filled said orders, and received payment for the goods ordered.

Judgment is prayed that Jones be enjoined from receiving or opening any letters or orders directed as aforesaid, or from filling the orders, or from in any way interfering with the business of the former firm, or the good will thereof, and for damages.

The defendant has a right to establish and carry on in his own name a-business similar to that of the late firm, so long as he does no act to mislead,customers into the belief that he is carrying on business as the successor of the old firm, or that when dealing with him they are dealing with White, or with the person succeeding to the business of the late firm of White & Jones.

To such loss of anticipated business or profits, as the plaintiff may be subjected by the prosecution by Jones of a similar business in his own name, conducted as the law will permit him to conduct it, the plaintiff must submit. If the good will of the business of the dissolved firm shall prove less valuable by such means, than the plaintiff estimated, it is his misfortune, and the law will not undertake to indemnify him, by enjoining Jones from prosecuting a similar business.

The evidence offered to be given by the witness Walker, was properly rejected. The conversation offered to be proved, is not stated in the offer, to have been made in the hearing of the plaintiff.

The complaint does not allege that Jones, to induce White to enter into the contract -of dissolution, represented that he did not intend to engage in a similar business, in competition with, or in opposition to the plaintiff.

It does not intimate the existence of any contract not evidenced by or embodied in the written contract of the 26th of June, 1861.

It does" not attempt to raise any question of fraud by White in obtaining the execution of that written contract. The case made, and the right to the relief sought, are founded on the rights growing out of the agreement which that expression imports, and its supposed violation.

The complaint does not allege that Jones has issued circulars, or published advertisements, "the continuance of which should be enjoined.

The only relief prayed for, not disposed of by the views already stated, is an injunction restraining the defendants from receiving and opening letters addressed as stated in the prayer for relief, and from filling the orders.

The evidence relating to this branch of the case warrants the findings of fact as found at special term.

The only misconduct charged in the complaint against Platt, besides the opening of letters and orders intended for the plaintiff, and filling such orders, is his forming a partnership with Jones in the business conducted at No. 710 Broadway, and continuing such partner and interested in said business, having been the book keeper of Jones & White; well acquainted with its business, and then accustomed to deal with it, and knowing of the dissolution of that firm; the articles of dissolution and their contents, and having signed the same as a subscribing witness.

Except the allegation of opening letters and orders, and filling the orders, no misconduct is imputed to him, in the complaint.

The facts found in respect to the matter last named, do not authorize the court to interfere by action and injunction.

The judgment should be affirmed.

Judgment affirmed.


author: By the Court, White, J.

text:
    Christian T. Meyer, plaintiff and respondent, vs. John H. Mohr and Margarita his wife, (who were impleaded with Harman L. Emmons and wife,) defendants, appellants.
    1. In a creditor’s action the previous issuing and return of an execution when requisite, is sufficiently proved by producing the execution with the sheriff’s „ return and the date of filing indorsed thereon, and the testimony of a witness that he had seen it on file in the clerk’s office.
    2. Proof of the existence of personal property which might have been seized, does not affect the plaintiff’s right to maintain the action, unless it be also shown that he knew of its existence and intentionally omitted to levy.
    3-, The wife of a debtor who acquires a title to his real estate by joining with Mm in the execution of a conveyance of it to a tMrd person, and receiving a reconveyance of it to herself in fee, for her own use, is not entitled to dower in such lands, if such conveyances be set aside as fraudulent against a creditor of her husband.
    (Before Bosworth, Ch. J., White and Monell, JJ.)
    Heard November 4,1863;
    decided November 28, 1863.
    This was an appeal from a judgment in favor of the plaintiff, entered on the report of a referee.

      The action was in the nature of a creditor’s bill, and was brought by the plaintiff, (Meyer,) to set aside a conveyance of real estate, made by the defendant John H. Mohr, to the defendant Margarita, his wife, (through the medium of the defendant Emmons,) and which the plaintiff, who was at the time of the conveyance a creditor of John H. Mohr, and who subsequently and before the commencement of this action,' obtained a judgment against Mohr upon his demand against him, alleged to have been made with intent to defraud the creditors of Mohr-, and especially the plaintiff. The complaint also demanded that the real estate be sold to satisfy the plaintiff’s judgment, &c. The defendant, John H. Mohr, denied the fraudulent intent charged, and also denied that he was indebted to Meyer.
    The cause was referred to Murray Hoffman, Esq. as referee.
    Upon the trial the plaintiff, in order to prove the issue and return of execution upon his judgment, produced the execution indorsed on one side with the usual direction to levy, and on the other, at the upper part, “ Received June 26, 1861. No personal or real property. John Kelly, sheriffand at the bottom, “Filed August 23, 1861.’’
    The counsel for the defendants objected to the admission of the paper in evidence, on the ground that there was ho evidence of any receipt of the execution by the sheriff, or of any return by him of the same. The referee overruled the objection, and the defendants duly excepted. ■.
    When the plaintiff rested, the defendants moved to dismiss the complaint, but the referee allowed the plaintiff to produce further evidence, showing that the present action was hot commenced for more than sixty days after the execution was issued, and also testimony of a witness, Newman, the attorney’s clerk, as to the execution having been filed, which was as follows : “ I went to the clerk’s office and found the execution had been returned, and we directly after commenced this suit. When I went there, paper marked, (witness referred to execution already introduced,) was the execution which I found returned. I should say this paper (referring to the same execution,) was the original execution which I saw at the clerk’s office, or an exact copy of it; I have no doubt it is the original.”
    The defendant excepted to the refusal of the referee to dismiss the complaint.
    The conveyances which the plaintiff sought to have set aside, were a deed of real property made by the defendants Mohr and his wife, the latter joining therein to release her right of dower, to the defendant Emmons, and a deed of even date therewith, by Emmons and his wife to the wife of Mohr. "
    The referee found that John H. Mohr was indebted to Meyer at the time of the conveyance- of the real estate, and that Meyer recovered a judgment against Mohr for such debt, which was only docketed and a transcript filed in the proper county clerk’s office; that an executión was issued thereon to the sheriff of the county where Mohr then resided, which was thereafter returned wholly unsatisfied, and filed in the proper clerk’s office, before the commencement of this action; and the referee also found that the conveyance was made with intent to defraud Mohr’s creditors. Judgment was thereupon rendered in favor of the plaintiff, adjudging the conveyances to be void, and ordering the defendants Mohr and wife, unless the plaintiff’s demand, with interest and costs, were paid in five days after notice of the judgment, to convey the real estate in question, to a receiver, who was directed by the judgment" to sell the same and apply the proceeds, after payment of expenses, &c. to the satisfaction of the plaintiff’s demand with interest and costs; and dismissing the complaint without costs as to Emmons and wife.
    The defendants, Mohr and wife, excepted to the. findings of the referee, and appealed from the judgment.

      John L. Cadwalader, for the defendants, appellants.
    I. The present action is intended as an action under the Revised Statutes, after the issue and return of an execution unsatisfied. To sustain the bill • under the Revised Statutes a proper execution must be issued, and properly returned and filed. (2 R. S. 173, §§ 38, 39. Crippen v. Hudson, 3 Kern. 161. Forbes v. Logan, 4 Bosw. 475. Chautauqua Co. Bank v. White, 2 Seld. 252.)
    II. The referee erred on the trial in admitting the papers offered in evidence as executions, and in finding, as matter of fact, that an execution on the judgment had been duly issued and returned unsatisfied.
    (1.) Not only not the best evidence, but no evidence at all was produced. For any thing that appeared to the contrary, the paper offered may have been drawn up an hour before the trial.
    (2.) No evidence was offered as to the issuing of the execution, or that the "defendant resided, at that time, in the city and county of New York.
    (3.) No evidence was offered that the execution was ever in the hands of the sheriff— that any indorsement thereon was made by any person officially—nor was the handwriting proved.
    (4.) No evidence was offered as to the custody of the execution, or that it was or had been on file. The return is not complete until it reaches the place of final deposit. (Beck v. Burdett, 1 Paige, 305. Garlick v. Sangster, 9 Bing. 46. Fager v. Campbell, 5 Watts, 288. Welsh v. Joy, 13 Pick, 482. Winslow v. Pitkin, 1 Barb. Ch. 402.)
    (5.) After the execution was returned, it then became a record of the Superior Court, and could only be proved as such. (Greenl. Evid. § 521, 7th ed. 2 Phillips’ Evid. C. & H. n. p. 376, (n.) 4th Am ed. Brush v. Taggart, 7 John. 19. Jenner v. Joliffe, 6 id. 9. Foster v. Trull, 12 id. 456.)
    III. The referee erred in refusing to dismiss the complaint, on the ground that the remedy at law had not been exhausted. (Forbes v. Logan, 4 Bosw. 475, Bosworth, J. Cassidy v. Meacham, 3 Paige, 311. Cases on Point 3d.)

    IV. The referee erred in refusing to admit the evidence offered, that the defendant had ample property to satisfy the judgment.
    The evidence was material, as the defendant was charged with a fraud. (Tappan v. Butler, 7 Bosw. 480.) It was an issue in the case. The answer denied the issuing of the execution. The. evidence was. material to show the remedy at law had not been properly exhausted, as the defendant’s personal property must be first applied to satisfy the judgment.
    V. The referee erred in rejecting the evidence offered to impeach the credibility of Degener, a witness—and erred in finding as matter of fact that the defendant’s shop property was of no value.
    VI. The referee erred in his estimate of the defendant’s property—and of his debts.
    VII. The referee erred in finding that the conveyances in question were fraudulent. The defendant retained ample property to pay all his debts; he even offered to show he possessed it at the time of the judgment. It has never been claimed the defendant was or became insolvent. No fraud, or intent to defraud is shown, which is requisite under the Revised Statutes. (3 R. S. 5th ed. 225, § 4.) It is settled in this state that a voluntary conveyance, by one indebted at the time, is valid, where the grantor is solvent, and retains ample property to satisfy all his creditors. (3 R. S. 5th ed. 225, § 4. Carpenter v. Roe, 10 N. Y. Rep. 227. Seward v. Jackson, 8 Cowen, 406. Hinde’s Lessee v. Longworth, 11 Wheat. 213. Verplank v. Sterry, 12 John. 536. Bank U. S. v. Housman, 6 Paige, 526. Jackson v. Post, 15 Wend. 593. Jackson v. Peek, 4 id. 300. Planck v. Schermerhorn, 3 Barb. Ch. 644. Babcock v. Eckler, 24 N. Y. Rep. 623. Tappan v. Butler, 7 Bosw. 480.)

      William Ware Peck, for the plaintiff, respondent,
    As to the evidence of the return of the execution, cited 1 R. S. 4th ed. 330, §§ 22, 27 ; Hyskill v. Given, 7 Serg. & Raw. 369 ; 1 Phil. on Ev. 391; Dulton v. Tracy, 4 Conn. R. 79 ; Russell v. Gray, 11 Barb. 541 ; Baker v. McDuffie, 23 Wend. 269 ; Cornell v. Cook, 7 Cowen 310 ; Browning v. Hanford, 5 Denio, 586 ; Henderson v. Cairns & Henderson, 14 Barb. 15 ; Sheldon v. Payne, 3 Seld. 453 ; Wardwell v. Patrick, 1 Bosw. 406 ; Savacool v. Boughton, 5 Wend. 170 ; Henry
      v. Lowell and others, 16 Barb. 268 ; Cowen & Hill’s Notes to Ph. Ev. note 740, 1083 ; Id. note 734, p. 1076.
   By the Court, White, J.

In support of the appeal the defendant alleged in substance :

1st. That the defendant Mohr was not insolvent or in such embarrassed circumstances at the time of the conveyance of his real estate to his wife as to render the conveyance void as against his then existing creditors, and that neither upon that, nor upon any other ground was the conveyance void.

2d. That there was no sufficient proof given before the referee that the execution issued upon the judgment recovered by Meyer against Mohr was returned by the sheriff and filed in the clerk’s office before the commencement of the present action.

3d. That the present action was brought without cause, and in bad faith, the defendant having ample personal property subject to levy, from which the execution might have been satisfied if the plaintiff or the sheriff had honestly attempted to collect it; that the plaintiff was, therefore, not entitled to bring the action, and the complaint should be dismissed.

The judgment was also objected to' as not recognizing or providing for the wife’s right of dower. But none of these objections appear to have been sustained by the proof before the referee.

The assets or personal property remaining in Mohr’s hands after he had conveyed his real estate to his wife, formed a very unreliable and insufficient security for the payment of his debts, especially when the probable necessary and reasonable demands for the support of himself and his family, to. which it might be subjected, should be taken into account and deducted from it. And Mohr seems to have been conscious of that fact himself, as appears from the testimony of Schafer, who states that Mohr said that he must have time to enable him to pay Meyer and Hunerhoff, and that it would ruin him if they enforced immediate payment; and to the same effect was the testimony of Hunerhoff and of Steinbrenner ; and the testimony of these witnesses shows also a deliberate fraudulent intent on the part of Mohr to hinder and delay his creditors.

The proof of the issuing, return and filing of the execution before the commencement of'this action was" sufficient. It consisted of the execution and the indorsements upon it by the sheriff and clerk, respectively, showing its receipt and return by the sheriff, and its filing in the clerk’s office, and the statement of the witness Newman that he saw it on file in the clerk’s office. The testimony of Newman is not as pointed as it should be in its designation of the process which he saw on file ; but it is reasonable to assume that he intended or referred to the execution in the suit of Meyer u. Mohr.

The proof does nót show that there was sufficient property of the defendant, besides the real estate, that might have been levied upon ; and the testimony that was offered by the defendant and excluded does not appear to be material. The return of “ no property” by the sheriff upon the execution was sufficient to justify the institution of the present action. To show that there was some personal property that might have been seized would not.affect the plaintiff’s right, unless it was also shown that he knew of its existence and omitted to act upon it. And the testimony of Degener respecting the value of the defendant’s tools was not important. Taking Mohr’s own statement of their value, and rejecting Degener’s altogether, would not materially alter the facts from those found by the referee.

And with respect to the omission in the judgment to provide for the defendant Margarita’s dower in the real estate, it is only necessary to observe, that having united in the fraudulent deed of the property to Emmons, (the party through whom the real estate was transferred to her,) she thereby divested herself of her inchoate right of dower, and must abide the consequences.

The judgment must be affirmed with costs,


text:
    John W. Paddon, plaintiff and respondent, vs. Isaac Williams et al. defendants and appellants.
    1. One in whose name a business is carried on by other persons in order to protect it and their funds, against their creditors, as between himself and them and persons claiming under them, has the legal title to property or the proceeds of property intrusted to him by third persons, in the course of such business, notwithstanding any secret agreement by him .with the persons for whpmhe conducts such business that he shall be only their clerk; and he may maintain an action to recover from them any thing converted by them to their own use 'against'his will.
    2. If they have any remedy against his claim to be the owper of the assets, it is only by an action for equitable relief, in which the rights of persons dealing in good faith with him may be protected, and the suins due them be first paid.
    (Before Bosworth, Ch. J. and White and Monell, JJ.)
    Heard November 6,1863;
    decided November 28, 1863.
    This was an appeal by the defendants from an order-denying a new trial after verdict against them, and from the judgment 'entered on the verdict.
    The action was brought against the defendants Isaac Williams and William . Menck to -recover the amount of ten bank checks which the plaintiff, Paddon, alleged in his complaint,, were payable-to his order and belonged to him, and he had delivered to the defendant Williams, as his clerk, to deposit in bank to the plaintiff’s credit, and which Williams embezzled and converted to his own use with the complicity of the defendant Menck, to whom Williams had delivered them, and who had applied them in payment of a debt due to him from Williams.
    The answer of the defendant Williams denied that he was the plaintiff’s clerk, and that the checks belonged to the plaintiff, and averred that they belonged to the firm of D. M. Berry & Co., of .which firm the defendant Williams was a member, and that the plaintiff was their clerk; and that-he (Williams) had taken the checks as his own property; that .the plaintiff had long been the clerk of D. M. Berry & Co., who were commission dealers in produce, and when they became so embarrassed that they could not safely continue business in their own names, he induced them to open a bank account and a new set of books in his name, and enter consignments and deposit moneys accordingly; but that with these exceptions, it was agreed that the business of the firm should be transacted as it had theretofore been, and the interest of the members of the firm should remain as it then was ; the plaintiff to continue in his capacity of clerk, and to be paid the same salary, and in the same way, as it had theretofore been paid. That in pursuance of this plan there was a nominal dissolution of partnership, which it was agreed should not be real, but the relations of the parties were to continue and did continue as before, except that the name of the plaintiff was to be used instead of that of the firm; that when the defendant demanded an accounting, the plaintiff refused it, and claimed that the business belonged to himself, and that the defendant was a mere clerk of his ; and in order to protect himself against such fraud, he had appropriated the checks, and that he was ready to account, but denied that any thing would be due from him upon an accounting.
    The defendant Menck answered, averring that the checks had been the property of Williams who had delivered them to him in payment of a debt.
    The action was tried before Mr. Justice Barbour and a jury on the 12th day of November, 1862.
    It appeard that the checks, with one exception, were received in payment for merchandise which had been consigned to John W. Paddon, the plaintiff, by various persons and which had been accordingly sold.
    Upon the opening of the defense, in answer to objections, the defendant’s counsel made the following offer of proof:
    That it was agreed between the defendant Williams and the two Messrs. Berry and Mr. Paddon, the plaintiff, that the business of “ D. M. Berry & Co. ” was to be can.ied.on by having the goods consigned to “D. M. Berry & Co.,” and sold by them, and the proceeds of all sales deposited in the name of the plaintiff, Paddon, and that the business was so carried on a considerable length of time. That then there was a pretended dissolution pf partnership and an agreement between the same parties that the goods should be consigned to the plaintiff, and the business done in his name. But, that during all this time the agreement was between all the parties, including the plaintiff, that the business was to belong to the firm of “ D. M. Berry & Go.,” in fact, and that the plaintiff was to be simply a clerk. The members of the old firm were to fake all the gains, and profits, and proceeds of the business, and that that understanding was in operation when Mr. Williams took the checks in question. That he took the checks and turned them over to Mr. Menck,. in payment of an individual debt, which was for the capital which Mr. Williams put into the business.
    The court held that the facts constituted no defense, and-excluded the evidence, denied a motion to dismiss the complaint as. against the defendant Menck, and directed a verdict for the plaintiff.
    The defendants moved for a new trial, which being denied, and judgment having been entered on the verdict, they now appealed.

      William Fullerton, for the defendants, appellants.

      William M. Evarts, for the plaintiff, respondent.
   By the Court, Bosworth, Ch. J.

Ho authority is cited by either counsel, in support of any propositions argued on this appeal.

The plaintiff was possessed of ten checks, payable to his own order ; he indorsed them, and delivered them to his clerk, the defendant, Williams, with instructions to deposit them to the plaintiff’s credit in the Hanover Bank. Williams received them, accompanied with such instructions, and virtually promised to so deposit them. Instead of doing so, Williams transferred them to the defendant Menck. Williams and Menck refusing to return the checks, this action is brought to recover their amount.

It was not contended on the argument that Menck has any defense unless Williams has. It is quite clear on the evidence that Menck has no rights superior to those which Williams had. Clark testifies that on' the 7th of March, “Mr. Menck stated that Mr. Williams had come to him before taking the checks, asking what he should do.” It was also testified that Menck said to the plaintiff in the interview when the checks were demanded, “I will come Monday afternoon, at four o’clock ; I will come and settle the matter with you. I am free to confess that when I see I am wrong, I am willing to give upthat the settlement was to be a return of the checks or their equivalent in money. Menck also said, “ I have been advised that this money must not be squandered away.” All this imports that Menck had' notice when he took the checks, how-Williams got them. It was no part of the evidence offered and rejected that he took them without notice. This brings us to a consideration of the defense. The defense is that, although Paddon was doing business ostensibly as principal, and Williams was apparently his clerk, and it was so represented to the public to induce business ; yet in fact the business was that of a ‘firm formerly trading under the name of D. M. Berry & Co., of whom Williams was one; that the plaintiff was in fact their clerk ; that the checks were therefore the property of D. M. Berry & Co.,- and that Williams, as between him and the plaintiff, had a right to take them nolens volens, and dispose of them as he pleased.

If the property of the old firm of D. M. Berry & Co. was transferred to the plaintiff under the circumstances stated in the answer, it was evidently done to place it beyond the reach of the creditors of that firm. Although that fact would not disable those creditors from reaching it, yet as between the plaintiff and such firm the title would be in him, and D. M. Berry & Co. could not reclaim it by legal proceedings ; nor defend themselves against a suit for taking it by force.

It would be a fraud upon all persons consigning their property to Paddon for sale, believing him to be the principal in and proprietor of the business, to permit D. M. Berry & Co. to take. the .proceeds of property thus consigned, and dispose of it as their own. Hine of these checks are for the price of property consigned by third persons to Paddon for sale, and sold by him, pursuant to such consignments. By virtue of the contract between Paddon and those persons, the legal title to the consigned property, as against all .third persons, was vested in- Paddon, and the proceeds were his. As between the consignors, Paddon, D. M. Berry & Go., and all creditors of the latter firm, or of either member of it, the consignors are entitled to the proceeds of their property.

To.-prevent fraud upon the public, and upon any person consigning his property to Paddon for sale, the -legal relations 'between the'parties should be held to be such as Paddon and D. M.: Berry &'Co. have represented them to the public. If D. M. Berry & Go. have any rights as between themselves and Paddon, which a court of ■ equity will protect, founded upon their alleged agreed relation to each other, they should be treated as équitáble rights, and enforced in a suit proceeding .on equitable -grounds, and looking to the protection and payment, as the primary consideration of the creditors of Pad-don-in rekpect of-business represented to the world, as his, and only his.

He should be treated as having the -legal title and the legal right to reclaim any .property from D. M. Berry & Co., which they may forcibly or against the will of Paddon convert to their own use.

The-'evidence proffered and rejected, was, “ that during" all this -time the agreement was between all the parties,- including' the -plaintiff, that the. business was to belong-to D. M. Berry & Co., and that" the plaintiff, Paddon, was to .be simply a clerk. ■ The members of the old firm of D. M, Berry &"Co. were to: take all the gains arid profits, and proceeds of the business, and that -that understanding was in operation when Mr. Williams took the cheek in question.”

According to the terms of this offer, the legal title to the corpus of the property and effects constituting the capital and resources of the business, was not to be in D. M. Berry & Co., but in Paddon. Their right extended to the gains and profits, and only that. They would have no right, legal or equitable, to violently or fraudulently possess themselves of the corpus.

They might file a bill, if the case be not so infected with fraud that a court would not lend its aid, and if there could not be an amicable adjustment, for an accounting and an application of the property of Paddon in that business, to pay its debts, and then distribute the surplus. The. protection of those dealing with Paddon, and the prevention of fraud, requires a court, in a case like this, to hold that Williams has no right to convert any part of the property against the consent of Paddon, and that his only remedy is by .action for equitable relief, in which the rights of persons dealing in good faith with Paddon will be protected, snd the sums due them be first paid.

The judgment should be affirmed.


author: Monell, J.

text:
    Frederick, Henry and John E. Hazelton, plaintiffs and respondents, vs. Marcus Colburn, defendant and appellant.
    1. Bank checks issued and payable m the city of New York, must he presented during the same or the next succeeding day, during the usual hanking hours, in order to charge the drawer in case of the insolvency of the bank. A later presentment, without any excuse, will discharge the drawer.
    2. The fact that the payees of a check received it as agents of third persons (also doing business in the same city) whereby delay occurred in passing the check to their principals, is not a sufficient legal excuse for that delay.
    3. The drawer’s promise to pay a check which has not been seasonably presented, is not binding as a waiver of due presentment, unless he had notice of all the facts in relation to such presentment tending to discharge him.
    (Before Bosworth, Ch. J. and White and Monell, JJ.)
    Heard November 6,1863;
    decided November 28, 1863.
    This was an appeal from a judgment taken upon a bill of exceptions.
    This action was to recover the amount of a check drawn by the defendant upon the Suffolk Bank. The check bore date the 10th of October, 1854; was made payable to the order of Bristow, Moore & Co., and was given for a piano forte sold to the defendant by Bristow, Morse & Co., as agents of the plaintiffs.. On the 11th of October, Bristow, Morse & Co. delivered the check to the plaintiffs, and it was by them presented for payment to the bank, on the 12 th, on which day, and previous to the presentment, the bank stopped payment.
    There was evidence given tending to show a promise by the defendant to pay the check.
    The defendant moved to dismiss the complaint on the ground that the check had not been presented in season to charge the drawer, which was refused, and the defendant excepted.
    The defendant requested the justice to charge the jury that ee a promise made by Colburn subsequent to dishonor’, to pay the check, will not bind him, unless he was aware or had notice of all the facts as to presentment, that would tend to discharge him." The court' refused so to charge, and the defendant excepted.
    The court charged that “ a promise made to Bristow, Morse & Co., unless they were agents in that particular matter, was of no more importance than if made to any stranger. But if he (the defendant,) made, the promise to Hazelton, (plaintiff,) he is bound by it." To this latter part of the charge the defendant excepted.
    The jury rendered a verdict for the plaintiffs, upon which judgment was entered, and the defendant appealed.

      L. A Fuller, for the defendant, appellant.
    I. The testimony shows that the check, made and delivered to the plaintiff’s agents on the 10th, was not presented for payment till the 12th, which by all the authorities was too late, and discharged the makers. (Little v. Phoenix Bank, 2 Hill, 425. 2 Greenleaf’s Evidence, § 195 a. Chitty on Bills, 11 Am. ed. 387, 513, and note 2. Story’s Prom. Notes, §§ 493, 494, 496. Smith’s Merc. Law, 3d ed, 263, note. Parsons’ Merc. Law, 91. Byles on Bills, 15. Down v. Halling, 4 B. & C. 330. Alexander v. Brouchfield, 1 Carr.

      and Marsh. 75. Manning & Gr. 1061. Maule v. Brown, 4 Bing. N. C. 266. East River Bank v. Gedney, 4 E. D. Smith, 584.)
    II. The promise of the defendant, which was relied on to cure this defect, was not shown to have been made with a knowledge of the facts, and therefore did not bind the defendant. (2 Greenleaf’s Evid. § 190, note 2. Myers v. Coleman, Anthon’s N. P. 205. Griffin v. Goff, 12 John. 423. Trimble v. Thorne, 16 id. 151. Crain v. Colwell, 8 id. 384 and note. Garland v. Salem Bank, 9 Mass. R. 408. Sice v. Cunningham, 1 Cowen, 398, 406. Jones v. Savage, 6 Wend. 658. Tebbetts v. Dowd, 23 id. 378. Story’s Prom. Notes, § 361.)

      C. M. Sandford, for the plaintiffs, respondents.
    1. The only question in the cause, which was submitted to the jury, was, whether the defendant had promised to pay the plaintiffs, after he knew that the bank had refused payment. Their verdict is conclusive upon it, and is sustained by the evidence.
    II. Checks are inland bills of exchange payable on demand, and must be presented within a reasonable time. What is a reasonable time depends upon the facts. (Chitty on Bills, 410. Chitty, Jr. on Bills and Checks, 26 a. McCullough’s Dic. of Commerce, title Checks. Harker v. Anderson, 21 Wend. 373. Chapman v. White, 2 Selden, 417.) “ The holder may, within a reasonoble time, put the check into circulation, that is, within the time allowed for presentment; and the transferee will have the same privileges, and the prior parties will not be discharged if the last assignee makes due presentment.” . (Chitty, Jr. on Bills and Checks, p. 52. Approved, Harker v. Anderson, 21 Wend. 387.)
    III. The check was drawn on the afternoon of the 10th, passed to the plaintiff on the 11th, and presented the next morning. This was clearly in good time, according to established rules.
   Monell, J.

Two questions are presented in this case. 1st, did the non-presentment of the check until the 12th of October discharge the drawer ? and 2d, was the promise óf the defendant to pay the check, a waiver of due presentment and notice P

Bank checks, for all the purposes of presentment and protest, are regarded like inland bills of exchange payable, on demand. (Harker v. Anderson, 21 Wend. 373.) They must be presented within a reasonable time, after delivery to the payee. What is a reasonable time, is a question of law, and must depend upon the circumstances of each case. (Mohawk Bank v. Broderick, 10 Wend. 304.) Very few of the cases have undertaken to define the period which may elapse between the giving and presentment; and probably no general rule can be established. As the circumstances of each case differ, so will the rule differ, and it will be suspended or applied to meet the exigencies or peculiarities of each case. In Beeching v. Gower, (1 Holt, 313,) it was decided that a check given and payable in London in the morning, must be presented the next morning, or at farthest during the banking horns of the next day. In Merchants’ Bank v. Spicer, (6 Wend. 443,) the check was given between two and three o’clock p. m., and presented by noon the next day, and it was held seasonable..

Most of the cases in the books arise upon bills, and between indorser and indorsee. In those cases less diligence is required. (Mohawk Bank v. Broderick, supra.)

In the .uncertainty in which the books have .left this question of reasonable time, I think it may safely be considered that checks issued and payable in this city, must be presented during, the same or the next succeeding day, during the usual banking hours. A later presentment, except under circumstances excusing the delay, will discharge the drawer. (See Parsons on Bills and Notes, vol. 2, p. 72.)

The check in question was received by Bristow, Morse & Co., about four o’clock in the afternoon of the 10th of Octoberon the next day, between three and six p. M. it was delivered by B. M. & Co. to the plaintiffs. It was not presented for payment until the next day, the 12th ; at what hour on that day • it was presented, does not appear.

The circumstance that the payees of the check were the agents of the plaintiffs, did not authorize them to withhold the presentment; nor would the delay in passing the check to the principals until after banking hours the next day, excuse the presentment. There was nothing to prevent the presentment on the next day after the check was received, and the holders must be regarded as guilty of laches in not doing so. The drawer of the check had a much larger sum on deposit with the bank than the amount of the check, and the check would have been paid, if it had been presented before the failure of the bank. The plaintiffs must suffer for their own laches. The learned judge was therefore right in instructing the jury that the check was not presented within a reasonable time.

Was the promise of the defendant to pay the check a waiver of due presentment and notice ?

The evidence of the promise is contained in the testimony of F. Hazelton, one of the plaintiffs, who testified that he saw the defendant the next day after the failure of thebank ; that the defendant then knew the bank had stopped payment; that the defendant expressed great confidence that the bank would resume payment, and “ assured us that we would get our money, and if the bank did not pay, he would.”

This evidence was contradicted by the defendant, upon his examination; but the judge submitted the question to the jury, who, by their verdict, have found that the promise was made.

The learned justice refused, in submitting this question to the jury, to charge them that the promise would not bind the defendant, unless he was aware or had notice of all the facts, as to presentment, that would tend to discharge him; and charged that the promise to Hazelton, would bind him.

It is settled by numerous and uniform decisions, that to make a waiver, however clearly proved, obligatory upon the party ■making it, it is indispensable that it should be made with full knowledge of all the facts ; that is, with full knowledge that there has been a want of due presentment and notice. (Thurston v. Wynn, 12 Wheat. 183. Reynolds v. Douglas, 12 Pet. 497. Story on Prom. Notes, § 361. Tebbetts v. Dowd, 23 Wend. 379, 411. Sigerson v. Mathews, 20 How. 496. 1 Parsons on Bills and Notes, 595, where all the cases are collected.)

The principle upon which these decisions proceed, is, that these declarations and acts amount to an admission of the party that the holder has the right to resort to him, and that he has received no damage for want of notice. (Rogers v. Stephens, 2 Term R. 713.)

In this case there is no evidence whatever, that the defendant knew at the time he made the promise, that the check had not been presented until the 12th, two days after it was issued. He knew the bank had stopped payment, but did not know of the laches of the holder in demanding payment. Even had there been any evidence on that subject, or, if knowledge of the bank’s failure could be imputed as knowledge that the check had been dishonored, yet the question was one for the jury, and should not have been kept from their consideration.

The learned justice, therefore, in my opinion, erred, both in his refusal to. charge as requested, and in his charge, that if the defendant made a promise to Hazelton, he was bound by it, without qualifying the instruction, that the jury must also find that the promise was made with a knowledge of the plaintiffs’ laches.

This is a bill of exceptions and not a case, and we can not look into it to see whether the evidence would have been sufficient ; nor speculate upon the effect which the instruction, had it been given to'the jury, would have had upon their- verdict. (Willard v. Warren, 17 Wend. 257. People v. Rathbun, 21 id. 509.)

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

Bosworth, Oh. J.” concurred.

Eew trial granted.


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    Henry J. Harrington, plaintiff and appellant, vs. James A Dorr, defendant and respondent.
    An accommodation indorsement is.not binding unless the instrument indorsed is transferred before maturity. The rule that a note transferred after due is subject to all the equities attaching to it in the hands of the person so transferring it, is not applicable to accommodation paper transferred to subserve the purpose forw hich it was made.
    (Before Bosworth, Ch. J. and White and Monell, JJ.)
    Heard November 9,1863;
    decided November 28, 1863.
    This was an appeal by the plaintiff. The plaintiff sued the defendant as payee and first indorser of six promissory notes, made by the “Northfield Brick Company, by James A. Dorr, Treasurer.”
    The evidence showed that this company was indebted to one Myers, who held its notes past due. Myers took the notes in suit in exchange for the notes over due. The testimony tends to show that Dorr indorsed the notes in suit at the request of Myers, and to accommodate him, and that after they became due, Myers transferred them to the plaintiff, in payment of notes of like • amount held by the plaintiff and made by Myers.
    ■ At the close of the testimony “ the court charged the jury that, it appearing* to be undisputed that the plaintiff came into possession of the notes after they matured, and also that the defendant indorsed them without consideration, as a matter of accommodation for M. Myers, they should render a verdict for the defendant.” The jury found accordingly. The plaintiff excepted to the charge, and moved for a new trial on the judge’s minutes, which motion was denied. From the order denying this motion, and from the judgment entered on the verdict, the plaintiff appealed to the general term.

      E. W. Chester, for the plaintiff, appellant.
    I. The notes being for a valuable consideration, were indorsed by the defendant for the purpose of being used by Myers. Myers’ use of them was in strict accordance with the understanding between him and the indorser. (De Zeng v. Fyfe, 1 Bosw. 335, affirmed in the Court of Appeals.)

    II. All the cases and authorities agree that it is no defense to a bill or note, held by an indorser who has given value for it, that it was made without consideration paid to the acceptor or indorser, where no fraud is practiced in the use made of it, or where such use is in accordance with the purpose for which it was accepted or indorsed. It does not affect the responsibility of such an acceptor or indorser that it was passed away after maturity, or that the purchaser for value knew that the acceptor or indorser was an accommodation acceptor or indorser, or that he took it in payment or as security for a precedent debt. (Edw. on Bills, 316. Smith v. Knox, 3 Esp. R. 46, per Lord Eldon. Bank of Rutland v. Buck, 5 Wend. 66. Powell v. Waters, 17 John. 176. Grandin v. Le Roy, 2 Paige, 509. Seneca County Bank v. Neass, 3 Comst. 442. Deuel v. Spence, 1 Abb. 237. Mohawk Bank v. Corey, 1 Hill, 513. Brown v. Mott, 7 John. 361. Grant & Cary v. Ellicott, 7 Wend. 227. Story on Prom. Notes, p. 214, §§ 194, 195. Parsons on Notes and Bills, p. 29, and cases there referred to. Charles v. Marsden, 1 Taunt. 224. Caruthers v. West, 11 Queen’s B. 143. Sturtevant v. Ford, 4 Man. & Gr. 101. Thompson v. Shepherd, 12 Met. 311. 4 Scott N. P. 668.)
    III. Taking a note in payment of or security for a precedent debt, or with the knowledge that it was made or indorsed for the accommodation of the party using it, or after maturity, all stand upon the same footing. Against holders taking notes in either of these ways, the maker or indorser can not set up as a defense that he became a party to it entirely for the accommodation of the party who held and passed it away. It is enough that the use of it is consistent with the purpose for which it was made or indorsed.

      E. T. Rice, for the defendant, respondent.
    I. The indorsements were given without consideration, and for the accommodation of Myers. Myers transferred them when past due, to the plaintiff. Upon this state of facts the defendant was of right entitled to a verdict.
    II. The plaintiff held the notes subject to all defenses, legal or equitable, which existed against the notes in the hands of Mr. Myers. (De Mott v. Starkey, 3 Barb. Ch. 403.)
    III. The cases cited by the plaintiff’s counsel are cases where the holder of an accommodation note at the time of maturity had taken it for value. Such holder, by a subsequent transfer, would of course pass the same right of action which he himself held.
    In Thompson v. Shepherd, (12 Met. 311,) cited by the plaintiff, the true rule is stated in the opinion given by the court. (See also 1 Abb. Dig. 471, § 504, and cases cited; Furniss v. Gilchrist, 1 Sandf. 53 ; Anderson v. Busteed, 5 Duer, 485 ; Chitty on Bills, 12th Am. Perkins’ ed. marg. p. 69, note 1; also marg. p. 217, 218, 220, note 2; Story on Bills, § 187; Story on Prom. Notes, § 178, &c; Edw. on Bills, 321.)
   By the Court, Bosworth, Ch. J.

The judge at the trial ordered a verdict for. the defendant, apparently on the idea that an accommodation maker or indorser of a note is not liable upon it to a party to whom it is transferred by the party accommodated, after maturity. In this, we think, he inadvertently erred.

A note made or indorsed for the general accommodation of a party, without any restriction as to the manner in which it is to be used, or the time in which it is to be negotiated, may be transferred by him either before or after maturity, and the indorsee, if he takes it for value, may recover upon it, even though he took it with notice that it was made or indorsed for the accommodation of his immediate indorser. This is settled by repeated adjudications. (Grant et al. v. Ellicott, 7 Wend. 227. Sturtevant v. Ford, 4 Mann. & Gr. 101. Caruthers v. West, 11 Q. B. 143.)

The payee of an accommodation note can never recover upon it from the maker, nor the indorser of a note against his accommodation indorser. The fact that Myers could not recover against Dorr, is not, therefore, any reason why the plaintiff, his indorsee, should not. Allowing the latter to recover, is only allowing payment to he enforced against the indorser in accordance with the purpose and object for which the indorsement was made.

The rule that a note transferred after due is subject to all the equities attaching to it in the hands of the one so transferring it, has no application to accommodation paper transferred to subserve the purpose for which it was made. That rule is to protect parties from being defrauded, by being compelled to pay the note in any event where it is transferred after it is due, or with notice of its infirmities, and places the indorsee of the maturity in the precise position he would have been if he had taken it before maturity with notice.

A party who takes accommodation paper before maturity, with notice of its character, may recover if he "has paid value. The only thing essential to his right to recover, is that he has paid value ; and that allowing him to recover is enforcing payment in accordance with the object for which the note was, as matter of accommodation, made or indorsed. When such is the character of the transaction, it is of no consequence to the defendant, whether the note was transferred before or after ' maturity. The cases above cited determine these questions as we have stated them, and no conflicting authority has been brought to our notice.

The judgment should be reversed, the verdict set aside, and a new trial granted, with costs to abide the event.

Ordered accordingly.


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    Horatio R. Wilcox et al. plaintiffs, vs. Uriah M. Lee et al. defendants.
    1. A judgment rendered for the defendants in an action to recover the price of goods sold, because they were sold on a credit which had not expired when the action was brought, is not a bar to a second action brought after such credit has expired.
    2. Where such judgment does not affirmatively disclose the ground upon which it was rendered, but there was evidence that uncontradicted proof of such unexpired credit wasjntroduced upon the trial of the issues in the action in which such judgment was given, and that the existence of such credit was made the only question on submitting the case to the court on such trial, it will be presumed that the judgment proceeded solely on that ground, notwithstanding evidence in support of another defense was given on the trial.
    (Before Bosworth, Ch. J. and White and Monell, JJ.)
    Heard November 10, 1863;
    decided November 28, 1863.
    This was a motion by the defendants for a new trial, on exceptions taken at the trial, and there ordered to be heard at general term in the first instance.
    The action is for goods sold and delivered in March 1861, to a firm composed of the defendants and one Geo. A. Dunlap, at the agreed price of $450, on eight months credit. The defendants, Ripley & Hoyt, in their answer set up a former trial in the Marine Court in July, 1861, for the same cause of action in a suit by these plaintiffs against these defendants, and said Dunlap and allege in their answer that “judgment therein was rendered in favor of the defendants, on a question of fact, on the 24th of July, 1861.” The sale and delivery of the goods in March 1861, to the defendants at the agreed price of $450, on a credit of eight months, was fully proved on the present trial. The defendants then proved that in July, 1861, these plaintiffs sued these defendants and Dunlap in the Marine Court, and in their complaint claimed to recover for goods sold and delivered to such defendants in March, 1861, at the agreed price of $450. The complaint in that action did not state whether the goods were or were not sold on a credit, but it alleged that the $450 was due with interest from April 1,1861, and prayed judgment accordingly.

      The answer of Ripley & Hoyt in that suit denied each and every allegation in the complaint.
    It was proved on the trial of this action that, on the trial in the Marine Court, evidence was given of the sale and delivery of the goods, and that they were sold on a credit of eight months. George B. Bonta, the person who made the sale, was asked with reference, to his testimony on the former trial thus : “ Q. did you not testify that the sale was a cash sale, and you applied to them for a note, according to the custom of that kind of sale.”
    “ A. I applied for a note; it was not given ; it was then considered a cash sale, according to the custom of merchants.”
    It was also "proved that the question raised and argued in the Marine Court was, whether the goods were sold on a credit of eight months, and that this was the only question argued on submitting the case.
    The judge who tried the cause, testified that he did not recollect on what ground he decided it, “whether on the ground of unexpired credit, or on the ground that the sale was made by Bonta individually.” The defendants sought to prove that Bonta sold the goods in his own name and on his own account. No judgment was entered in the docket in the Marine Court, but there was indorsed on the summons and complaint, in the hand writing of the judge, the words — “ Judgment for defendants with costs and ten dollars allowance.” On the present trial, the judge ordered a verdict for the plaintiffs for $481.50, the amount of the goods and interest, and the defendants excepted to the decision.

      L. S. Chatfield, for the defendants.
    I. The former trial and decision was a full and complete bar to this action. Every thing was the same, the parties, the pleadings, the cause of action and the evidence the same. That cause was finally submitted on the merits and decided by the court. (McGuinty v. Herrick, 5 Wend. 244. Brockway v. Kinney, 2 John. 210. Rice v. King, 7 id. 20. Thomas v. Rumsey, 6 id. 26. Johnson v. Smith, 8 id. 383. Platner
      v. Best, 11 id. 530. 15 id. 432. Phillips v. Berick, 16 id. 136. Gardner v. Buckbee, 3 Cowen, 120. Coles v. Carter, 6 id. 691. Morgan v. Plumb, 9 Wend. 287.)
    II. The record was conclusive, and could not be varied by parol. The record of the former trial was complete, and established a sufficient bar. (Sutton v. Dillaye, 3 Barb. 529. Noyes v. Butler, 6 id. 613. Foster v. Trull, 12 John. 456. Brush v. Taggart, 7 id 19.)
    III. There is no force in the objection that the judgment was not docketed. If the cause is finally submitted to the court it is enough, whether it is decided or not—but here it was decided. (Felter v. Mulliner, 2 John. 181. Burt v. Sternburgh, 4 Cowen, 559.) The grounds of decision were not inquirable into. The cause was submitted on the merits, and it is not material on what ground the judge decided. The judgment as entered was, “judgment for defendants, with costs, and ten dollars allowance,” and was not a nonsuit or dismissal.
    IV. The action could not be maintained against these defendants. Hoyt was not a member of the firm when the goods were sold, and no notice of dissolution to Wilcox & Draper was necessary.

      Gilbert Dean, for the plaintiffs.
    I. Where a former judgment is set up as a defense, parol evidence is admissible to show what was actually in controversy between the parties, and the grounds upon which the judgment was rendered. (Doty v. Brown, 4 Comst. 71. 8 Wend. 9. 4 Barb. 457. 36 id. 95.)
    II. The decision of the Marine Court, ordering judgment for the defendants, was therefore merely a judgment of nonsuit, and no bar to this action.
    III. The judge who tried this cause properly ordered judgment for the plaintiff, as there was no disputed question of fact. But if there had been, the defendant should have specifically excepted, or requested him to submit the question to the jury.
   By the Court, Bosworth, Ch. J.

The defendants have had the goods for which the verdict was ordered, and have not paid for them. The questioñ now is, whether the former trial and judgment therein, are a bar to a recovery in this action. It is quite clear that on the trial in the Marine Court, as in this, the evidence of the sale of the goods, at the agreed price of $450, on a credit of eight months, was uncontradicted. The evidence -on the trial shows that, in the suit in the Marine Court, Bonta testified that he sold the goods as agent of the plaintiffs,- and so informed the defendants at the time of the sale. It does not appear that there was any attempt to contradict him, and no evidence in conflict with such being the facts, was given on the trial.

This case comes therefore to this point. Judgment was given for the defendants in the Marine Court, on uncontradicted proof that the sale was on a credit of eight months, which had not elapsed. It can not be conjectured that it proceeded. on any other ground or fact. On what ground, or fact found, the judge decided it, he does not recollect, and I lay his testimony out of view. But it does appear that the only question discussed before him, on the close of the evidence was, whether the credit had expired. I think it should be inferred that this was the only question of fact which he determined adversely to the plaintiffs, and finding that it had not, and it being his duty to so find, he gave judgment for the defendants on that ground, and for that cause.

If this be the correct view, then it is clear that it was not determined in the Marine Court, that the plaintiffs did not sell'and deliver the goods at the agreed price of $450.

If it had affirmatively appeared on the present trial, that the judgment in the Marine Court was given expressly on the ground that the suit was prematurely brought, then Quackenbush v. Ehle, (5 Barb. 469, 472,) would be an authority that the former trial and judgment was not a bar. In the present case, the contrary does not appear, either by the record or the proofs : and presumptively, the first judgment could not have proceeded on any other grpund.

Quackenbush v. Ehle, is not in conflict with. Morgan v. Plumb, (9 Wend. 287, 317.) In the latter case, the plaintiff was entitled to recover, upon the evidence given, but judgment was given against him, contrary to the law and the evidence. His remedy was a review on a case or exceptions ; and not by another suit, on the same evidence.

It can not be affirmed, or established inferentially, that the judgment in the Marine Court determined any fact, except the fact that that suit was brought before the agreed term of credit had expired. As it does not appear that any other fact was determined, and as that fact was undisputed and entitled the defendants to judgment, and as presumptively no other fact could have been determined in their favor, I think the suit and judgment do not bar this action.

The facts that the plaintiffs sold the goods to the defendants at the agreed price of $450, and that the defendants have not paid any part thereof, have not been passed upon and decided against the plaintiffs. But a fact consistent with them, and proved on the first trial by uncontradicted evidence, viz. that the goods were sold on a credit of eight months, was found in the Marine Court, and having been found, the defendants had judgment.

Holding that such judgment is not a bar to this action, does not • conflict with the rule that “ a fact which has once been directly decided shall not be again disputed between the same partiesnor with the rule that the judgment of a court of concurrent jurisdiction directly on the point is as a plea, a bar, and as evidence conclusive between the same parties upon the same matter directly in question in another court.” (Wood v. Jackson, 8 Wend. 9. Doty v. Brown, 4 N. Y. Rep. 71.)

I .think the motion for a new trial should be denied and judgment for the plaintiffs on the verdict ordered.