author: Willard, J.

text:
    Moss against Averell.
    The acts of corporations may be proved in the same way as the acts of individuals. If there be no record evidence they may be proved by the testimony of individuals. Per WinnAnn, J.
    If no direct evidence be given, fasts and circumstances may be proved from which the acts may be inferred. Id.

    A corporation created “ for the purpose of raising and smelting lead ore,” has power to purchase smelting works with all the appurtenances which are necessary for carrying on the business, and to assume a contract entered into by their vendors, providing means for transporting their ores, when smelted, to market. Id.

    If in making such purchase some articles should be included which were not needed for the business of the corporation, the contract would not be thereby rendered void, if the purchase altogether was made in good faith, for the sole purpose of prosecuting its legitimate business.
    Corporations having power to purchase property, can give promissory notes on such purchase, if not expressly prohibited by statute. Id.

      Evidence that other notes besides those in question before the court, had been given by the same officers, and recognized by the directors, is competent upon the question of the authority of the officers. Id.

    Such evidence may be given without producing the notes. Id.

    The indorsee of a note is a creditor within the provisions of a charter making stockholders personally liable for debts of a corporation. Id.

    The stockholders of such corporation are not guarantors or sureties for the payment of debts of the corporation, but are conditionally liable as partners. Id.

    An officer of a private corporation having executed in behalf of the corporation a note for the price of property sold to it by a stranger, is estopped in a suit brought to charge him as a stockholder with the payment of such note, from alleging a want of power in the corporation to make the purchase. Id.

    The estoppel is available to an indorsee of the note, as well as to the person to whom it was given. Id.

    Judgment below affirmed upon an equal division of the court.
    Appeal from the supreme court. The action was brought August 20th, 1846, against the defendant as a stockholder of the “Bossie Lead Mining Company,” a corporation created by statute “for the purpose of raising and smelting lead ore” (Laws of 1837, 441), to enforce in favor of the plaintiff as a creditor, the individual liability of the defendant under the 9th section of the charter. The provision isas follows: “The stockholders of said corporation shall be jointly and severally personally liable for the payment of all debts or demands contracted by the said corporation, or their authorized agent or agents; and any person having any demand against the said corporation may sue any stockholder, director or directors in any court having cognizance thereof, and recover the same with costs.” (§ 9.)
    The plaintiff proved the execution of two promissory notes, dated October 9th, 1836, for $4,050 and $4,560, respectively, purporting to be made by the corporation, and which were signed* by James Averell, the defendant, as president, and David C. Judson as secretary, payable to the order of Messrs. Moss & Knapp, the first in one year and the other in two years from date ; and that the same were indorsed by the payees to the plaintiff. He proved that said Averell and Judson were respectively the president and secretary of the corporation at the date of the notes, and that the former was then the general managing agent of the corporation, having an annual salary for that duty; that before the commencement of this suit, judgments liad been recovered by the plaintiff on each of these notes, and executions had been returned unsatisfied; and he also proved that the defendant was a stockholder of the corporation from its organization, until after the giving of the notes. The plaintiff also proved that the consideration of the notes, and of other notes given at the same time, amounting in the aggregate, without interest, to $15,000, was the sale by Moss & Knapp, to the corporation, of certain real and personal property, consisting of a smelting house, and certain shops, and a large quantity of pots, moulds, implements and machinery, the whole establishment consisting 'of property which had been got together by Moss & Knapp for the business of washing and smelting lead, the same being esteemed by them necessary in carrying on that business, and Moss & Knapp having, prior to and until the sale, been engaged in prosecuting that business. There was no evidence of a meeting of the directors, as such, at which the purchase was authorized; but a resolution for that purpose was passed at a meeting at which four of the five directors were present, and a large number of the stockholders assembled to consult upon the subject. They voted without any distinction between stockholders and directors, and were unanimously in favor of the purchase, except the defendant, who did no more than acquiesce.
    The purchase embraced fifty acres of land which was the site of the smelting house and of some eighteen shanties occupied by the workmen, together with eighteen stoves used in the shanties, and some agricultural tools. One of the shanties had been used as a schoolhouse for the children of the workmen. It appeared that the wood, cut upon the land, was used in the process of smelting, and the cleared land was seeded down and used for pasturing the team horses employed about the works. There was also a separate three-acre lot on which was a house occupied by the superintendent of the smelting works, and which was the only one fit for his use within some miles. In the contract of purchase the company agreed to perform the engagements of Moss & Knapp contained in a contract between them and Fitzhugh & Vandewater, by which the former had rented to the latter certain lake boats, and agreed that all the ore smelted by them, or their assigns of the smelting works, should be transported to market by the latter, who were engaged in the transportation business.
    On the part of the defence it was insisted that the purchase of the property and the giving of the notes were not authorized by the corporation, and that a portion of the property was such as the corporation had no right to purchase. A motion by the defendant for a nonsuit for these causes was denied, and the defendant excepted. Verdict and judgment for the plaintiff, for the amount of the notes. There was an affirmance at general term, and the defendant appealed to this court. Some additional facts are stated in the opinion of Mr. Justice Willard.

      John Van Buren, for the appellant.

      Hiram Denio, for the respondent.
   Willard, J.

In Moss v. McCullough (7 Barb., 279), the supreme court in the fourth district decided that in an action against a stockholder of the Rossie Lead Mining Company to recover a debt contracted by the company, a judgment previously recovered by the plaintiff against the corporation upon the same demand, was primafacie evidence of a debt against the defendant; but subject to be impeached for collusion or mistake. If that case was rightly decided, as I think it was, the objection to the plaintiff’s right of recovery, founded on a failure to prove a debt against the corporation, was untenable.

But it is unnecessary to rest this case upon the authority of Moss v. McCullough. That case had not been decided at the time this cause was tried. In the present action, the plaintiff rested his right to recover upon evidence given on the trial, satisfactory to the court below, of the indebtedness of the corporation, by other evidence than the record of the recovery. ’

The first inquiry, therefore, is, whether the evidence thus given would have entitled the plaintiff to recover, had the action been brought against the corporation. The production and proof of the execution of the notes by the proper officers of the company was, prima facie, sufficient for that purpose. It was unnecessary, in the first instance, to show the consideration of the notes. It will be shown presently, that a corporation, not restricted by its charter, has the same right to give notes as evidence of its indebtedness that an individual possesses.

The purchase of the property for which the notes in this case were given, was made by the directors. Although this fact is not shown by the minutes of the secretary, yet it is established, beyond controversy, that the directors as well as leading stockholders had the subject of the purchase under consideration for weeks. “It was a purchase,” says Mr. Vilas, one of the directors, “ made by the directors on great deliberation. The directors were unanimously in favor of the purchase, but as the transaction was one of great importance, they consulted the stockholders in relation to it, and all who were consulted concurred in advising it to be made.” - The omission to make an entry in the book of minutes, of the time and place when and where the meeting was held, and who presided at it, does not invalidate the purchase or raise a doubt as to the fact that it was made. The defendant was the managing agent of the company, and president of the board, and he, in fact, executed the necessary papers by which the purchase was completed. The direct evidence to prove the contract is quite strong, and was not brought into doubt by any opposing facts.

The acts of corporations may be proved in the same way as the acts of individuals. If there be no record evidence, they may be proved by the testimony of witnesses; and even where no direct evidence of such acts can be given, facts and circumstances may be proved from which the acts may be inferred. The tendency of the modern decisions is to assimulate the actions, rights, duties and liabilities of corporations to those of individuals. (Bank of the United States v. Dandridge, 12 Wheat., 64; Bank of Columbia v. Patterson's admrs., 7 Cranch, 299; Trustees v. Cagger, 6 Barb., 576, 58; Perkins v. Washington Insurance Company, 4 Cow., 645; Munn v. Commission Company, 15 J. R., 44, 55; Conro v. Port Henry Iron Company, 12 Barb., 27, 53.) Moss & Knapp made an absolute conveyance in presentí of all the smelting property to the corporation, and the proper corporate officers gave their notes for the price, and took immediate possession of all the property, and used and employed it in its corporate business of smelting, lead. This act of payment and taking possession was an unequivocal act of ratification. Subsequent ratification is equivalent to previous authority. (Moss v. Rossie Lead Mining Company, 5 Hill, 137; Clark's Executors v. Van Riemsdyk, 9 Cranch, 153; Conro v. Port Henry Iron Company, 12 Barb., 27, 53; Corning v. Southland, 3 Hill, 552.)

The purchase of the property of Moss & Knapp for which the notes in question was given was within the scope of the legitimate business of the company. The business for which the company was incorporated was “for the purpose of rais-* ing and smelting lead ore at Rossie.” Had the company embarked at the beginning in both branches of the business, no doubt can be entertained that they would have been empowered to adopt the proper means, and to make the requisite purchases for accomplishing those objects. (Act of 1837, 441, § 1; 1 R. S., 599, § 1.) The officers of the company saw fit in the beginning to restrict their operation to one branch of the business for which they were incorporated, that of raising the ore, and to employ Moss & Knapp to perform the business of smelting. At length they judged it for their interest to purchase the works of Moss & Knapp, and to carry on both branches of business themselves. They did not embark in any other business than that for which they were incorporated. The property they purchased had been got together by Moss & Knapp for the smelting business and nothing else; and was necessary to carry on that business. It was situate in a new country, at a distance from any village, and required for the accommodation of their hands the erection of suitable habitations. The country was a wilderness and had to be cleared. The men and animals employed by them had to be supported. If they raised a little grain on their clearings it must be harvested and prepared for food, or it would be lost. The few implements of husbandry which had been procured by Moss & Knapp were of no value to be removed and were sold in a lump with the residue of the property. They were mere incidents, and whether added to the inventory or omit-ed would not eventually have varied the result. One of the shanties had been used by Moss & Knapp as a school house for the children of their men. Whether it was so used at the time of the purchase, does not appear. It would have been no objection to the validity of the sale had it been at that time devoted to so laudable an object. There was no attempt on the part of this company to divert their fund from the legitimate objects of the charter, to the support and endowment of literary institutions, or for agricultural purposes.

The company had the same right to compromise and settle the claim which Moss & Knapp had against them, as to pay or to compromise any other debt. And they had the same right to do either, that a natural person possesses in relation to his outstanding liabilities.

The powers conferred on the corporation by the charter were broad enough to authorize them to transport their lead to market. It could not have been supposed by the legislature that the ore when smelted should remain in the woods of Eossie until purchasers came to buy it. The company had a right to adopt any reasonable mode of transporting it to market. It was not shown that the agreement to carry out the stipulations of Moss & Knapp with Pitzhugh & Co., with regard to transportation, was disadvantageous to the company. It was probably greatly for their interest. If they could contract to send one ton of lead to market, they could contract for sending to market by a single company, the whole produce of the season. An arrangement on so large a scale was doubtless more advantageous than a multitude of contracts. The company did not purchase the boats but they remained the property of Moss & Knapp, in the hands of Pitzhugh & Co., to whom they were rented, and were returned to their owners on the expiration of the term.

The exception taken to the ruling of the judge on this part of the subject was quite frivolous. The plaintiff’s counsel did not ask the witness, Knapp a question the answer to which would tend to vary the written contract. And yet the defendant’s counsel objected to any evidence to vary the written contract on this subject. The court overruled the objection, not because evidence "tending to vary a written contract was admissible, but because the objection was misplaced and had nothing to rest upon. The subsequent testimony discloses that no evidence, such as was anticipated by the objection, was given.

If the corporation could make the purchase, as it has been shown they could, they might lawfully make promissory notes on time for the price. An ability to make a contract implies an ability to make a promissory note. Indeed the statute “ of promissory notes and bills of exchange,” expressly includes corporations, having a capacity to make contracts, among the persons who may make notes in writing. (1 R. S., 768, §§ 1, 2, 3.) No question is better settled upon authority, than that a corporation, not prohibited by law from doing so, and without any express power in its charter for that purpose, may make a negotiable promissory note payable either at a future day, or upon demand when such note is given for any of the legitimate purposes for which the company was incorporated. (Attorney-General v. Life and Fire Insurance Company, 9 Paige, 470; Mott v. Hicks, 1 Cowen, 513; Barber v. Mechanics' Insurance Company, 3 Wend., 94; Moss v. Oakley, 2 Hill, 265; Safford v. Wyckoff, 4 Hill, 442; Kelley v. The Mayor of Brooklyn, Ib., 263; Moss v. The Rossie Lead Mining Company, 5 Hill, 137; Conro v. The Port Henry Iron Company, 12 Barb., 27.) The ancient notion that a corporation aggregate could only express its assent by its corporate seal has long since yielded to the necessities and conveniences of business. The usual mode of contracting is through the intervention of agents, duly authorized for that purpose. These are either specially appointed, or, as is more common, the general officers and boards, as directors, managers, &c., elected by the members, but usually deriving their power from the charter. (Angell & Ames on Corporations, ch. 8; passim, Ib., 203.) The charter of the Rossie Lead Mining Company authorized its business and affairs to be conducted by five directors, whom it appointed by name to hold their offices till others were elected. And the directors were required to appoint one of their number president. The notes in this case were executed by the proper officers of the corporation, were made upon a sufficient consideration and were legally obligatory upon the company.

The defendant was an original stockholder, and so continued till after the making of the notes in question. He was a director named in the charter and was subsequently elected by the stockholders, and was the duly elected president during the whole time. The plaintiff, having exhausted his remedy against the corporation, was entitled to prosecute the individual stockholder according to the 9th section of the act. He proved enough, upon well settled principles, to entitle him to recover.

No error was committed by the judge in receiving evidence of other notes given by the proper officers of the company. Such evidence tended to show the author!ly of the officers to contract. Followed up by the acquiescence of the directors, and the subsequent payment of the notes, it would have afforded conclusive evidence of such authority. The defendant’s objection was not to the non-production of the notes ; at least that was not specified as the objection. It seems rather to have been to the evidence generally. But admitting that the objection was sufficiently specific, and that it extended to the evidence generally, and to the non-production of the notes also, it was in either case insufficient. This action was not brought upon those notes. Their existence was a mere collateral fact tending to show the usiige of the company. If they had been paid and taken up, the presumption was that they were in the hands of the defendant or some other officer of the company ; and the objection was not' put upon the ground that no notice to produce them had been served. (Clark v. Farmers' Manufacturing Company, 15 Wend., 256; The Troy Turnpike v. McChesney, 21 Id., 296; The Commercial Bank of Buffalo v. Kortright, 22 Wend., 348.)

There is no force in the objection to the admissibility of the letter of Mr. Judson, the secretary, addressed to Lewis Moss, apprising the latter of the resolution of the stockholders, of October, 1839. The same facts were proved by Mr. Judson without objection, immediately afterwards, and thus the exception was waived. But the testimony was admissible, as it tended to show a purchase by the directors of^ the smelting works of Moss & Knapp. On its face, it contemplated further action of the officers of the company, before the bargain was consummated. It afforded one link,- «and an important one, in the chain of proof. The objection was not urged on the argument in this court.

The indorser of a note made by the corporation is a creditor within the meaning of the 9th section of the statute. , This was so ruled in Moss v. Oakley (2 Hill, 265). The notion which at one time prevailed, that the stockholders were guarantors or sureties of the corporation, has been repudiated by this court. (Corning v. McCullough, 1 Comst., 47.) The stockholders are partners, but their liability in that character is qualified by the charter, and postponed till the inability of the corporation to pay has been tested by the return of an execution unsatisfied.

The foregoing view of this case covers every objection, and shows that the plaintiff was entitled to recover. But there is another ground on which the defendant is liable. The Bossie Lead Mining Company was a private as distinguished from a public corporation. It was so treated on the trial, and the act of incorporation was given in evidence by the plaintiff. Moss & Knapp were not therefore chargeable with notice of the extent of its corporate powers. The defendant signed the contract and the notes as president of the corporation. He thus affirmed the transaction to have been authorized by the corporation ; and to be such a one as they had a right to enter into. On well settled principles, he is estopped to assert its invalidity. The act on his part amounts to an assertion that the corporation had a right to make the purchase, and that the proper managing agents of the corporation had authorized it to be made. Moss & Knapp confided in those representations and parted with their property. To allow the defendant now to contest the legality of the transaction would work the greatest injustice to Moss & Knapp and enable the defendant to make a profit out of his own wrong. (The Presbyterian Congregation of Salem v. Williams, 9 Wend., 147; Welland Canal Company v. Hathaway, 8 Wend., 483; Dyer v. Odell, 3 Hill, 215; Whelan v. Whelan, 3 Cowen, 537; Frost v. Saratoga Mutual Insttrance Company, 5 Denio, 154; Watson v. McLaren, 19 Wend., 557.) The plaintiff stands, in the same position as Moss & Knapp, and can equally with them insist on that estoppel.

On the argument the greatest stress was laid upon the objection that the corporation had no right to make the purchase of the smelting works; and certainly not of the building called a school-house, and the implements of husbandry mentioned in the inventory. A few observations will be added on this branch of the case.

It is conceded that, in addition to the powers enumerated in the Revised Statutes, and those expressly granted by its charter or act of incorporation, no corporation can possess or exercise any corporate powers except such as shall be necessary to the exercise of the powers so enumerated and given. This principle is expressly enacted. (2 R. S., 600, § 3.) Had the corporation subscribed $15,000 for the erection of a chapel to Union College, or purchased a farm for an agricultural seminary, or a wholesale store in the city of New York for the general purposes of trade, it would not have been denied that those acts were unauthorized by the charter. In a case so strongly marked as the one supposed, the judge at the circuit would have been authorized to non-suit a plaintiff, if the sustaining of the action required the acknowledgment of the validity of those acts, or to direct a verdict in conformity to the law. But where a case is not so strongly marked, when the property purchased falls within the general scope of the charter, and the only objection is that some articles, apparently unnecessary, are included, the good faith of the purchaser should be submitted as a question of fact to the jury. The corporation should not be permitted to repudiate the purchase after acquiring the plaintiff’s property, except under circumstances which would justify an individual to repudiate it. The individual stockholders are in no better plight than the corporation.

The defendant did not ask to submit the question to the jury, whether the property purchased was adapted to the legitimate business of the corporation, but he called upon the court to nonsuit the plaintiff upon the ground, among others, that the debt for which the notes were given was not contracted in the ordinary and legitimate business of the said company, or within their corporate powers. He thus called upon the court to decide, as matter of law, what was the appropriate province of the jury to determine under suitable instructions. The objection to the purchase was not of such a character that the court could, as matter of law, pronounce it void.

If we compare the transaction in question with that of other corporations, the validity of which has never been doubted, the legality of the recovery in this case will be still more obvious. By the general railroad act the companies formed under it are to lay out their road not exceeding six rods in width; and for the purpose of cuttings and embankments, to take as much more land as is necessary. (Laws of 1850, 224.) They are also, by the same act, authorized to purchase, hold and use all such real estate, and other property as may be necessary for the construction and maintenance of their railroad, and the stations and other accommodations necessary to accomplish the objects of the incorporation. (lb.) The statute fixes no other limit to the amount of real estate they may take and purchase. Suppose that a school-house should stand on the land embraced within their lines, are they prohibited from purchasing the land, because the education of youth is not within the powers conferred by their charter ? Could they for this reason resist a recovery upon a note given for the purchase money? Would a deed to the Utica and Schenectady Railroad Company, of the premises on which their tracks and station-house, &c, in the village of Amsterdam are placed, be void, if in addition to the general description of the land by its boundaries, it should be added, “being the land on which the school-house of District No. 10, in Amsterdam, is situated.”

In these and similar cases, it would, in my judgment, be a question for the jury, whether the real estate bought was bona fide purchased for the legitimate purposes of the road, or as an incident to the carrying on of a .school.

In the acquisition of land for a station or a depot, the company are restricted to no limits except their necessities. Should a railroad corporation, under pretence of procuring land for a depot, purchase a thousand acres of land and lay it out into city or village lots, to be sold on speculation, most jurors would probably find, under suitable instructions, that the corporation had transcended its powers. But suppose the quantity purchased wasf actually enclosed for a depot and occupied as such, would the purchase be invalidated because men might differ as to the precise size .of the building required by the necessities of business. If a witness could be found who would swear that the depot at Rouse’s Point, is ten feet longer than is required by present wants, could the Northern Railroad hold the ground without payment, because the company bought ten feet more land than they actually needed ? Must the building revert to the grantors of the land, or be forfeited to the state? Would not the question always be one of fact, whether, all things being considered, the purchase was not made in good faith, for the purposes contemplated by the charter ?

A case must be strongly marked which would warrant a judge in pronouncing a purchase void, without submitting it to the consideration of a jury.

On every ground, therefore, I think the judgment should be affirmed.

Ruggles, Mason and Morse, Js., concurred.

Jewett, Gardiner, Johnson'and Taggart, Js., were for reversal.

This being the second re-argument of the cause, and a majority of the judges not agreeing, by force of the statute,

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Hill against The People.
    A writ of error does not lie to reverse a conviction in a criminal case until after sentence has been pronounced, and the sentence must appear in the record. The proceedings upon an indictment in the Oyer and Terminer may be reviewed by the Supreme Court before sentence, when the judgment has been stayed under 2 Revised Statutes, 736, % 37, but in such case they are brought up by certiorari.

    Writ of error to the supreme court. The facts sufficiently appear in the following opinion.

      H. D. Tucker, for the plaintiff in error.

      W. J. McAllister, for the defendant in error.
   By the court,

Willard, J.

This is a writ of error to the supreme court, and is brought to review a judgment of that court affirming a judgment of the court of oyer and terminer for the county of Orleans.

The error book contains what purports to be the record of the judgment of the supreme court. It contains a copy of the indictment and the defendant’s plea of not guilty, and the bill of exceptions taken on the trial to sundry rulings of the oyer and terminer. From the bill of exceptions it appears that the jury found the prisoner guilty. It does not appear that the court of oyer and terminer ever gave judgment upon that verdict. And yet the supreme court affirmed the judgment of the oyer and terminer.

This judgment was erroneous and must be reversed. The court had no jurisdiction of the matter until after the oyer and terminer had pronounced judgment, unless the giving of judgment had been stayed by a certificate of a judge of the supreme court, that there was probable cause, in pursuance of 2 Revised Statutes, 736, §§ 22-27. In cases where judgment is stayed by a certificate, the statute requires the district attorney to remove the indictment and bill of exceptions by certiorari from the oyer and terminer into the supreme court, and the clerk is required to return thereto a transcript of the indictment, bill of exceptions and the certificate staying judgment. (2 R. 3., 736, § 27.) In this case there is no certiorari or certificate in ther record. But there is a writ of error which asserts that the defendant was convicted by a jury upon the trial in the court of oyer and terminer of Orleans county for felony, in obtaining property by false pretences, and that sentence of the court had been passed upon him. But it no where appears what that sentence was.

There is no assignment and joinder in error in this court, as there should have been. We take jurisdiction of this case under the judiciary act of 1847, which adopts, as far as applicable, the practice of the former court of errors on writs of error to the late supreme court. (Laws of 1847, 321, § 8 5 2 R. S., 740, §§ 15, 16.)

Neither of the counsel has adverted to the ground now taken; and it is not improbable that there has been a mistake in making up the record or in certifying the return.

We can decline giving judgment and strike the cause from the calendar as being prematurely submitted, there being no issue in error on the record. That will leave the writ of error pending and either party can allege discrimination, pray a certiorari and procure a return whether there is a judgment in the oyer and terminer or not.

All the judges concurring,

Cause stricken from the calendar.


author: Gardiner, J.

text:
    Price against McGown.
    Default having been made by the purchasers in performing the conditions of a contract for the sale of lands, a new contract was entered into between the parties for the sale of the same lands, and left in esarow, to take effect on the payment of a sum of money the next day: Held, that the second contract, although conditional, superseded the first, and that the condition not having been performed, neither contract could be enforced.
    Appeal from the supreme court. Bill in the late court of chancery for the specific performance of a contract. The facts were that the defendant Andrew McQown entered into an agreement in writing without any date, but which was delivered in February or March, 1834, in the words and figures following:

      Sale of high land east of Third avenue at $38,000.
    “All marsh meadow, and water right thrown in, subject to the lease and conditions to Minell Platt: payment $35,000, to remain on bond and mortgage at 6 per cent, on or before ten years ; interest half-yearly. Interest to commence 1st May, 1834; McQ-own to receive rents to that time ; $15,000 to be secured by collateral mortgage on other property on the inland of New-York, satisfactory property to McQown; $3,000 to be allowed to W. and P. for services rendered to McQown.
    (Signed) Andrew McQown.
    Enoch Wiswall.
    Francis Price.”
    It was admitted by McQown’s answer that the land thus vaguely indicated was the same as that described by the subsequent writing hereinafter mentioned. This contract was to be executed, by the understanding of the parties, on the 1st of May, 1834. Wiswall and Price, finding that they would not be able to perform the contract on their part by that time, applied to McGown for an extension of the time, for performance, and it was therefore agreed between them, without any valuable consideration, or writing, that the time for the performance of said contract should be extended till the 1st day of November, 1834. A similar arrangement was made, by which the time for performance, on the part of Wiswall and Price, was further extended by parol to the 15th of November, 1834. Wiswall and Price were not ready to perform the contract on their part at either of those periods.
    After the 15th of November, 1834, McGown informed Wiswall that he could give the title to the lands, but in consideration of the trouble to which he had been put by Wis-wall and Price, they must give to him four lots of ground, to which Wiswall and Price assented. At this time Isaac Adriance acted as counsel for the respondent, and on the 9th of December, 1834, an agreement in writing was drawn up by Mr. Adriance, and assented to by McGown, upon the express condition that $4,000 in money should be paid on that day. This agreement was signed by all the parties but left in the hands of Adriance upon that express condition, and was to be inoperative unless the money was paid on that day. McGown caused a deed to be prepared and to be ready for delivery in case the condition of the agreement of the ninth of December should be complied with, and the money should be paid. The money was not paid on that day. On the tenth of December, the defendant instructed Mr. Adriance, that if the money should be paid to him on that day he might receive it, and deliver the papers ; but if not, he would have nothing more to do with it. The money was not paid on the tenth of December, and the defendant declined to have any further negotiation with Wiswall and Price on the subject.
    In the month of January, 1835, the defendant conveyed the premises in fee to Edward Sandford. The cause was heard by the late Assistant Vice-Chancellor Hoffman, who adjudged that the respondent, McGown, was liable specifically to perform his agreement with Wiswall and Price ; and that as he had disabled himself from performing it, he should pay to them such damages as they had sustained by reason of his non-performance thereof. The respondent, McGown, appealed. The plaintiffs also appealed from a part of the decree. Afterwards Wiswall departed this life, and Price continued the prosecution of the suit as survivor.
    The appeals were heard in the supreme court, and the decree of the assistant vice-chancellor against McGown, was reversed, and the bill of complaint was dismissed with costs. (2 Barí. S. C. R., 277.)
    From this decree of the supreme court Price appealed to this court.

      James T. Brady, for the appellant.

      Edward Sandford, for the respondent.
   Gardiner, J.

The bill in this case was filed to compel a specific performance of a contract for the purchase and sale of land in the city of New-York. There were two agreements. The first made in February, 1834, which was continued by the verbal agreement of the parties until the fifteenth of November, of the same year, at the request and for the benefit of the purchasers. No time was fixed by the memorandum executed by the parties for the performance of this agreement, but by a verbal understanding it was to be executed on the first of May following its delivery.

The complainants were not ready to perform on the day last mentioned, and a negotiation subsequently took place ■between the parties, which resulted, on the ninth of December, in an agreement which the complainants allege to be a mere continuation of the first one above mentioned, and which the defendant in his answer in response to the bill declares to be a new contract, one intended by all parties as a substitute for the former.

The answer must prevail unless disproved; it is, however, sustained by Adriance, the only witness examined, and by the intrinsic probabilities of the case. The last agreement is set forth in the bill and differs from the one originally made, in the premises to be conveyed: of course, in the consideration : in the amount to be collaterally secured, as well as the time of performance. It is, however, immaterial whether the agreement of the ninth of December is viewed as an alteration of the former one, or a substitute for it. It was the only contract in existence, in operation between the parties from the time of its execution—the only one to be performed by them.

This is conceded by the learned vice-chancellor, who has accordingly decreed in' conformity with its provisions. But the answer expressly avers that this agreement was left in escrow with Adriance, to become operative upon the condition that $4,000 should be paid by the complainants on the day of its execution. Adriance states that as the first contract had expired, he proposed that a new one should be drawn and left in his hands, so that if Reed who was expected to furnish or pay the money should do so on that day, the counterpart should be delivered to the vendors, Wiswall and Price, otherwise to be null and void. The time of payment was thus definitely fixed, as the condition upon which the new agreement should become operative; whether the effect of the contract when established would be according to the construction of the vendees or vendor. There is no pretence that the condition was complied with on the day appointed for the performance. There was consequently no agreement between the parties. It is true that McDown said that he would notwithstanding receive the money on the day following, and not afterwards, and directed Adriance so to inform Reed, which was done accordingly.

But the payment was not made or offered on the day last mentioned, and I agree with the learned judge who delivered the opinion of the supreme court that the .extension for the performance of the condition was gratuitous and cannot be enlarged beyond the prescribed period, by the act of the court. This will dispose of the case without adverting to the other questions presented. I place my opinion upon the ground that the inchoate agreement of the ninth of December was a substitute for the one first made; that the condition upon which its validity was made to depend was never complied with by the complainant, and of course, there was no contract which could be enforced against McGfown in equity or elsewhere.

The decree of the supreme court should be affirmed.

Mason and Taggart, Js., dissented; all the other judges concurring,

Judgment affirmed.


author: Morse, J. Jewett, J.

text:
    Leeds against Dunn.
    Unless the conditions of a guaranty are strictly complied with by the party to whom the guaranty is given, the guarantor will not be bound. »
    Where a guaranty is given to pay for different kinds of goods to be sold on a credit of six months, and the goods are sold, one kind on a credit of six, and the other on a credit of four months, the guarantor is not holden for any part of such sale.
    Evidence that the goods were sold, the terms not appearing, and no demand of the price until the expiration of six months, would establish, prima facie, a sale on that credit. Per Jewett, J.
    But where the bills sent with the goods contained a memorandum, made by the seller’s book-keeper, that the credit for part of the goods was four months, no"contrary presumption could arise from the delay.

      Where such bills are produced by the defendant, on notice from the plaintiff, requiring their production, the evidence of the terms of credit appearing on their face is not overcome by the testimony of the book-keeper that he had no instructions from the seller to make such memorandum.
    Action of assumpsit brought in 1846, in the superior court of the city of New-York, by Leeds, as surviving partner of the firm of Leeds & Thayer, against the defendant as guarantor of the payment for goods sold to John H. Woodcock, on the credit of the defendant’s guaranty. At the trial before Mason, J., in February, 1851, the plaintiff was non-suited, and the nonsuit was sustained at the general term, from which decisión the plaintiff appealed to this court.

      E. Sandford, for the appellant.
    I. The writing subscribed by the defendant sufficiently expresses the consideration, and no notice of the acceptance of the guaranty was required to be given to the guarantor. (2 R. S., 135, § 2; Marquand v. Hipper, 12 Wend., 520; Douglass v. Howland, 24 Id., 35-41-43; Staats v. Howlett, 4 Denio, 559, 568, 569; Durham v. Manrow, 2 Comst., 533-550.)
    II. In the construction of the guaranty, the court will adopt that which ascribes the most reasonable, probable and ■ natural conduct to the parties, without any strict technical nicety. The intention of the parties is to be ascertained from the writing and the facts and circumstances accompanying the transaction. (Dick v. Lee, 10 Pet., 482-493; Dell v. Bruen, 1 How., 169, 185, 187; Mauran v. Bullus, 16 Pet., 528, 535, 537; Lawrence v. McCalmont, 2 How., 426, 450; Mason v. Prichard, 12 East., 227; Mayer v. Isaac, 6 M. & W., 605; Hough v. Brooks, 10 Ad. & Ellis, 309; Michigan v. Evans, 4 Barb., 487; Walrath v. Thompson, 4 Hill, 200.)
    III. The undertaking in the guaranty was to pay for such goods as Leeds & Thayer should furnish to Woodcock, or procure for him on credit upon the faith of the guaranty. It was not a promise to pay only upon the contingency, that they should supply or procure every article of the precise description and quantity stated in Woodcock’s application. (Story on Contracts, %% 27, 972; Dox v. Dey, 3 Wend., 356.)
    IY. The liability of the defendant was commensurate with that of Woodcock, and the references to the order and bills of goods were intended only as limitations of the amount of credit. (Fell on Guaranties, 105, § 3, 114, § 9; Merle v. Wells, 2 Campb., 413; Pitman on Pr. and Surety, 33.)
    Y. The evidence should have been submitted to the jury, upon the question, whether all the goods sold and delivered to Woodcock, mentioned in the order, were not sold on a credit of six months.

      Gerardus Clark, for the respondent.
    I. The appellant did not comply with the terms of the guaranty, and the respondent as guarantor was therefore exonerated from all liability.
    1. In all cases of guaranty, the terms must be strictly complied with, or the guarantor will not be liable, it being a claim strictissimi juris. (3 Kent Com., 124; Story on Contracts, % 574; Bacon v. Chesney, 1 Stark., 192.)
    2. The time of credit must be given in strict conformity with the guaranty, and any deviation in this respect however small, will exonerate the guarantor. (Walrath v. Thompson, 6 Hill, 540; S. C., 2 Comst., 185; Smith v. Dana, 6 Hill, 545; Berkhead v. Brown, 5 Id., 635.)
    3. It matters not that such deviation may be beneficial to the guarantor. What is called a substantial performance will not answer. (Story on Contracts, % 870; 1 Mass. R., 323; 5 Hill, 640.)
    4. It is not enough to show that the appellant sold the goods and waited beyond the stipulated time of credit before bringing suit, he must show that he agreed to wait, when the goods were sold. (6 Cow., 669; 6 Hill, 562; 8 Wend. 516; 17 Id., 422; 1 Stark., 192.)
    5. Where several parcels of goods are ordered at one time and are delivered at several different times, the time of credit does not begin to run until the whole are delivered. (Chitty on Contracts, 430, ed. of 1839; 1 Barn. & Cress., 92; 3 Chitty's Com. Law, 125-129.)
    II. The contract proposed by the guarantor was an entire contract, and it was incumbent on the appellant to show a complete fulfillment of all its terms to entitle him to recover. It cannot' be apportioned. (Story on Contracts, %% 16, 18; Chitty on Contracts, 936; 3 Chitty's Common Law, 129; 3 Viner's Abr., title, Apportionment; King v. Poppet, 1 T. R., 240; Bruce v. Pearson, 3 Johns., 534; Whitcher v. Hall, 5 Barn. & Cress., 269; Eliason v. Henshaw, 4 Wheat., 225; Symond v. Carr, 1 Campb., 561.)
    1. It having been proved that only four months’ credit was given for part of the goods, it was a variation from the terms stipulated for by the guarantor, and he was thereby exonerated from all liability. (Ludlow v. Simond, 2 Caines' Cases, 67, 68; Wright v. Johnson, 8 Wend., 516; Dobbin v. Bradley, 17 Id., 422; Bacon v. Chesney, 1 Stark., 192; Whitcher v. Hull, 5 Barn. & Cress., 269; Walsh v. Bailie, 10 John., 180; Miller v. Stewart, 9 Wheat., 703; Sasscer v. Young, 6 Gill & John., 257; Walrath v. Thompson, 6 Hill, 540; Smith v. Dunn, Id., 545 ; Birckhead v. Brown, 5 Id., 635; Stratton v. Bartlett, 2 T. R., 370; Farmers' Bank v. Evans, 4 Barb., 490.)
    2. It was necessary for the plaintiff to declare specially on the contract, according to its terms, and he has done so. He cannot resort to the common counts to recover for that part of the goods on which the six months’ credit was given. (Butler v. Rawson, 1 Denio, 106; Wells v. Ganling, 8 Taun., 737; Hull v. Heightman, 2 East., 147.)
    III. There was no proof that the plaintiff accepted, or acted upon the guaranty, and agreed to furnish the goods, or any part of them, on the credit stipulated for, consequently no contract was proved binding the guarantor. (McFarland v. Smith, 6 Cowen, 669; Corning v. Colt, 5 Wend., 256; Bruce v. Pearson, 3 John., 534; Elinson v. Henshaw, 4 Wheat., 225; Mussey v. Raynor, 22 Pick., 223; Story on Contracts, 500.)
    IV. If it be contended that the contract with Woodcock was in the alternative, four or six months, then it should have been so stated in the declaration, and the variance is fatal. (Hatch v. Adams, 8 Cowen, 35; 1 Chitty Pl., 302; 2 East., 2; 8 Id., 8; 18 John., 455.)
   Morse, J.

This action was brought upon a contract of guaranty. Woodcock, a retail druggist and market gardener in Mobile, wrote to the plaintiffs’ firm, druggists in New-York, an order for certain specified goods, to be sent to him at Mobile, consisting of drugs, medicines and garden seeds. In his letter, ordering the goods, Woodcock stated that he wanted the seeds for himself and for a Mrs. Barnes of Mobile. His letter contemplated that the plaintiffs’ firm, not being themselves seedsmen, would procure the seeds for him and on his own credit, of Smith of Broadway, seedsman, or of some other respectable house in that line. The plaintiffs’ firm procured the seeds of Smith, not on the credit of Woodcock, whom Smith refused to trust, but on their own credit, and at four months.

In speaking of the credit to be obtained on the seeds, Woodcock in his letter said he wished the seeds “ at four to six months time if possible,” for himself, and that Mrs. Barnes would pay her bill in thirty days from the arrival of the seeds. He said nothing in his order as to the credit expected upon the drugs and medicines, but left that to the usage of the firm, with which (as a member of a firm then dissolved) he had dealt before. The usage of the plaintiffs’ firm to give a credit of six months was uniform, and was, no doubt, known to Woodcock.

A written guaranty, signed by J. Perrine, was annexed to Woodcock’s order for the goods, as follows :

“ The undersigned hereby consider, and make themselves responsible for the foregoing order of drugs, medicines and garden seeds, and hereby bind themselves, their heirs, executors and administrators, that if said goods are not paid for within six months from their shipment, by the aforesaid John H. Woodcock, then and in that case they will well and .truly pay, or cause to be paid, the total amount of said purchases, in lawful money of the United States.
“ J. Perrine.”

The order to which this guaranty was annexed, bore date at Mobile, 10th September, 1841. Thus far no term of credit was expressly mentioned in the papers, except the desire to procure the garden seeds at four to six months, mentioned in Woodcock’s order for the goods.

On the 15th September, 1841, Woodcock forwarded an instrument, of which the following is a copy, to the plaintiffs’ firm:

“ State of Alabama, )
“Mobile County. )
“Whereas, Dr. John H. Woodcock of county and state aforesaid, did, on the 10th day of September, 1841, address an order to Leeds & Thayer of New-York, for the purchase of them, or through them, a bill of drugs, medicines, garden seeds, &c., on six months’ time, the payment of which said order was guaranteed to said Leeds & Thayer by Dr. James Perrine of Mobile, now be it known, that I, W. D. Dunn, of state and county aforesaid, hereby bind myself in law, and consider myself equally responsible with said J. Perrine, in having said amount of order paid at maturity by the aforesaid J. H. Woodcock. In failure whereof, on the part of said Woodcock, I hereby bind myself, my executors, administrators and assigns, to save said Leeds & Thayer of New-York harmless in the sale of the aforesaid bill or bills sold as aforesaid to J. H. Woodcock. In testimony whereof, I hereby affix my hand and seal, this 15th day of September, A. D., 1841.
“ Wm. D. Dunn (Seal).”

The recitals in this instrument shows, and with entire precision, the contract into which the defendant proposed to enter. It was optional with the plaintiffs’ firm to accept the proposition, and enter into the contract or to refuse it. If they accepted the contract, they could only do so on the terms proposed by the defendant. If they did not comply with the terms so proposed there was no contract made; there was no meeting of minds between the parties. (Walrath v. Thompson, 6 Hill, 540.) The contract proposed by the defendant was to guaranty the payment of a debt to be contracted by a third person, upon certain terms. The compliance with those terms formed the only consideration of the defendant’s contract. The plaintiffs’ firm did not comply with the terms, for they sold a part of the goods ordered on a credit of four instead of six months. The consequence was that no contract was made between the plaintiffs’ firm and the defendant. The defendant, by his guaranty, did not offer to the plaintiffs’ firm to become responsible for the payment of the goods to be sold Woodcock upon a credit of four and of six months, but for the goods to be sold all on a credit of six months. The guaranty offered was entire and went to the whole order. If accepted it must be accepted as offered. It was not, therefore, in contemplation of law, accepted. No contract was made.

I have taken it as clear that the garden seeds were sold upon a credit of four months. The plaintiff’s counsel insist, however, that “ the court below erred in deciding as a matter of fact that it plainly appeared that the seeds were sold on a credit of four months.” The letter accompanying the invoice, and written by Vermilye the book-keeper of the plaintiffs’ firm, says to Woodcock in relation to the seeds “ we think we can get four months on them, at all events you shall have that time on them,” then followed the bill of the seeds, and at the bottom of it “ 4 mo.,” and the like entry was made in like manner in the invoice book. The only evidence to countervail this unequivocal written evidence, is that of Vermilye, who says, he had no instructions from Leeds & Thayer as to the term of credit at the time of writing the word and figure “ 4 mos.,” at the foot of the bill. On his cross-examination he said he meant to say he did not recollect having any such instructions. If it were necessary for the defendant to prove affirmatively that the entries upon the invoice made and forwarded by the plaintiffs’ firm, by their book-keeper, were made upon the express instructions of the principals, the want of recollection of this witness might cause a failure of the requisite evidence, affirmatively to establish the fact. But in this case the letter and invoice were produced by the defendant, under a notice to produce served on him by the plaintiffs, and by the plaintiffs read in evidence to establish the sale and delivery of the goods referred to in the guaranty. It became necéssary for the plaintiff to show that there was a mistake on the subject of credit, if such a mistake existed. The defendant had a right to rest upon this evidence until it was shown to be erroneous, which was neither done nor attempted. There was no conflict of evidence upon the point. The evidence on this point was all on one side, and so conclusive that there could be no doubt if it had been given by the defendant. Being given by the plaintiff cannot make it less so as against him.

I think the judgment of the superior court ought to be affirmed.

Jewett, J.

The principle that there must be a strict compliance with the terms of a guaranty or the surety will not be bound, is too well settled to be controverted at this day. Where the surety proposes a particular credit to be given his principal, that must be given; and it is not enough that the creditor waits until the proposed time of credit has expired before he calls for payment. He must agree to wait, so that he cannot sue in the meantime. (Walrath v. Thompson, 6 Hill, 540; S. C., 2 Comstock, 185; Smith v. Dam, 6 Hill, 543; Wright v. Johnson, 8 Wend., 512; Dobbin v. Bradley, 17 Wend., 422.)

Woodcock, on the 10th of September, 1841, made his order on Leeds & Thayer, particularly specifying the various kinds and quantity of each kind of drugs, medicines, garden seeds, &c., which he wished to purchase of them or procure them to supply him, and forwarded it to Leeds & Thayer, with a guaranty of Perrine annexed ; on the 15th day of the same month, the defendant, after reciting that fact substantially, and that credit for the amount was asked for the term of six months from the time of shipment of the goods, and that the payment of the order was guaranteed to Leeds & Thayer by Dr. James Perrine of Mobile, thereby bound himself and agreed to be responsible, with Perrine, that the order of Woodcock should be paid by him at its maturity, that is at the expiration of six months’ credit from the time of the shipment to be given by Leeds & Thayer to Woodcock. The first question to be determined is, whether the plaintiff’ gave evidence enough to entitle him to have it submitted to the jury whether such credit was agreed to be given by Leeds & Thayer to Woodcock on their furnishing him the goods ordered. If there had been no other evidence in respect to giving the credit proposed, than that Leeds & Thayer received the order and contract of guaranty; furnished and forwarded the goods, and did not call for payment until the expiration of the six months from the time o’f shipment, the ground for presuming that they agreed to give the proposed credit would no doubt be sufficient. The guaranty by the defendant to pay for the goods specified in the order was indivisible and could not be apportioned by Leeds & Thayer at their option. They could not furnish Woodcock with the drugs at a credit of six months and the garden seeds at a credit of four months and hold the defendant liable upon his guaranty for the payment of either portion. It was a precedent condition to his liability that Leeds & Thayer should furnish all the goods, which they did supply Woodcock with to fill the order, at the credit proposed, in order to bind the defendant under his contract. They could not furnish any part of the goods ordered, to Woodcock, upon a longer or shorter term of credit and hold the defendant liable to pay for them or any part of them under his guaranty without his assent to such altered terms. The evidence, however, in this case, rebuts the presumption that would arise from facts to which I have adverted, that Leeds & Thayer agreed to give six months’ credit. The proof was that the goods were shipped at five different periods, in as many parcels: namely, on the 9th of October, 1841, the 1st, 20th and 30th of November and the 24th of December, in the same year. The invoice of garden seeds of the 30th of October shows on its face that these were furnished at a credit of four months, and besides the proof shows that on the 9th day of March, 1842, about five months from the time of the first shipment and within about two and a half months from the last, Leeds & Thayer drew on Woodcock, generally, on account of their goods, for $650, at seven days’ sight, thus showing that they did not intend giving the credit of six months for any portion of the goods furnished by them.

I think the nonsuit was properly granted and that the judgment should be affirmed.

All the judges concurring,

Judgment affirmed.


text:
    Wood against Hubbell et al.

    A lease ordered to be surrendered and canceled with perpetual injunction against the lessor’s proceeding to recover the rent reserved, upon evidence that the demised premises were destroyed by fire after the execution of the lease and before the commencement of the term thereby to be created, and that a condition agreed upon by the parties, that the lease should determine in case of a destruction of the premises by fire, had been omitted by accident or mistake.
    Whether upon the demise of a term to commence in futuro, and the destruction of the demised premises before the commencement of the term, the lessor’s claim for rent is not gone, independent of any provision to that effect, Quere.

    Appeal from the supreme court. The original bill of complaint was filed on the 1st October, 1845, before the vice-chancellor of the eighth district. Its main object was to obtain a decree re-forming a lease, bearing date the 8th of November, 1843, from the defendants to the complainant, of a building in the city of Rochester, known as the Mansion House, for the term of eight years, from the 1st day of April, 1844. The lease contained the usual covenants for the payment of rent, but no clause terminating it in case of the destruction of the premises by fire. The premises were accidently destroyed by fire on the 29th February, 1844, and before the complainant’s term commenced; and the defendants, after the first quarter’s rent became due in July, 1844, commenced an action of covenant against the plaintiff therefor. The bill alleges that it was agreed between the parties, before the lease was executed, that it should contain a clause providing that in case of the destruction of the Mansion House by fire the payment of rent was to cease, and the lease to be thereby terminated; and that this clause was omitted in the lease by mistake of the scrivener, and the omission was not discovered by the complainant till the twenty-ninth December following. It is • further alleged that when the omission was pointed out to the defendant Hubbell, he said it was a mistake and expressed a willingness to have it corrected. He however subsequently refused to correct it. This bill was not only filed to re-form the lease in the particulars before-mentioned, but also to restrain the further prosecution of the action at law on the covenant.
    The bill was sworn to and an injunction allowed. An answer under oath was waived, but the defendants nevertheless swore to their answer. The vice-chancellor of the eighth circuit, in March, 1846, dismissed the bill with costs, on the sole ground that the testimony was in his judgment insufficient to establish the fact of the agreement. An appeal was taken to the chancellor by the complainant, which was heard before the supreme court in the seventh district; and which court, in May, 1849, reversed the decision of the vice-chancellor, and directed the defendants to surrender the lease within ten days after notice of the decree, and granted a perpetual injunction against the further prosecution of the action at law, and adjudged that the defendants should pay the complainant’s costs. From this decree the original defendants appealed to this court.

      L. Farrer, for the appellant.

      Harvey Humphrey, for the respondent.
   Willard, J.

The supreme court intimated an opinion that the testimony was too doubtful to warrant a decree reforming the lease, concurring, in this respect, with the vice-chancellor ; but they held that the destruction of the premises by fire, before the commencement of the term, excused, the plaintiff from the payment of rent; and that in equity, the defendants were bound, when requested, to surrender the lease.

The reason why a court is reluctant to disturb the verdict of a jury on a mere question of fact, and why they will not disturb it on a mere difference of opinion as to the weight of evidence, when it has been fairly submitted to them, is that the jury is the appropriate tribunal to decide questions of fact; that they have peculiar advantages, by seeing and hearing the witnesses testify, to determine the degree of credit to be given to them; and that from their intercourse with the world and observation of human conduct, they are more capable than a more secluded tribunal to appreciate the force of the various circumstances which attend a transaction. None of these reasons present any obstacle to the review by an appellate court, of a decree founded on testimony not taken in the presence of the court whose decision is under review, but before examiners out of court and reduced to writing. We have the same means which the courts below had, to form a correct conclusion from the testimony before them. The Code obviously contemplates that this court has the power to review every actual determination of the court below, whether based upon fact or law. (§11.) I shall therefore, proceed, but with the deference due to others, to examine the testimony in this case.

The court below did not give the proper force to the circumstance. that the witness called by the plaintiff was the only one who, from the nature of the case, could be presumed to know the facts in dispute; that he was an unwilling witness for the plaintiff, and obviously anxious for the success of the defendants; and that he was strongly interested in his own exculpation. They remarked, indeed, on his reluctance to testify to facts bearing against the defend- ' ants, but did not draw such deductions from his conduct as the case required.

In weighing evidence introduced to prove or disprove a given hypothesis, the intrinsic probability of the fact sought to be established is not to be overlooked. It requires less evidence to prove a fact that is highly probable in itself, and which is in accordance with the general course of business, than one which is improbable, or which stands in a state of indifference. We may draw inferences from facts disclosed by a prejudiced or an unwilling witness, which would scarcely be admissible if he was impartial and unbiassed.

If the complainants’ hypothesis, that it was agreed betweeen the parties that the lease should contain a clause terminating it on the destruction of the building by fire, be the true one, the witness, Wentworth, who was the person employed to draw the lease, and who, the hypothesis assumes, left out that clause by mistake, is under a strong temptation to suppress the fact in his own exculpation. The admission of it involves an acknowledgment of his own carelessness, or incompetency in his profession, or of an act of fraud towards the complainant. His pride, aside from other motives, would prompt him to conceal or disguise a fact, so derogatory to his professional character. The manner in which he answered the interrogatories of the plaintiff’s counsel was such as to entitle the latter to the rights of cross-examination of his own witness.

From the testimony of the witness, it appears, that the lease was filled up by him in his office, on the day of its date, 8th November, 1843. Before drawing the lease, the witness put on a little memorandum the directions given to him by the parties with reference to the contents of the lease. This memorandum, he admits, he kept until after the building was burnt; and that it has since been lost. At the time the instructions for the lease' were given, there was a conversation between the parties in relation to inserting in the lease a clause that it should terminate if the building was destroyed by fire. The defendants made the inquiry whether the lease would terminate on the building being destroyed by fire, and the witness told him it would not, unless a clause to that effect was inserted in the lease. The complainant was present at that time, and spoke about having the clause to that effect put into the lease. But the witness could not tell whether he was particularly requested to insert that clause, but could tell if he had the memorandum. If the testimony closed here the inference would be quite strong that both parties agreed to the insertion of that clause. It was, however, left out, and the witness says, that if it was on the memorandum, it was omitted in the lease by mistake.

The inference that such was the bargain is strongly fortified by what followed. On the twenty-ninth December, and two months before the building was burnt, the plaintiff discovered, as he says for the first time, that the clause in question was omitted. He procured his attorney to draw up a separate instrument, to be signed by all the parties, agreeing that in case the said building should be injured or destroyed by fire or otherwise, or either of said buildings should be destroyed as aforesaid, then the lessee should be discharged therefrom and the lease be null and void. He carried this instrument and the lease to the store of the defendant, Hubbell. The attorney who drew the lease, Went-worth, was then sent for, and came to Hubbell’s store, where the plaintiff then was. Hubbell asked him what would be the effect, if the buildings should be burned before the expiration of the lease, and the witness answered that he supposed it would terminate the lease. The plaintiff then said there had been such a clause inserted, or should have been inserted in the lease. Hubbell then asked the witness, why, if it was his understanding, that that clause should be inserted, he did not insert it in the lease ? To this no answer was given. Hubbell then handed the witness the leases, together with the writing which the plaintiff’s attorney had prepared, and consulted him as to the propriety of signing it; and told the witness if he could insert a clause in the lease he was willing. The witness took them to his office for examination ; and while there drew an instrument, which would have the effect, if executed, to terminate the lease if the building should be destroyed by fire. He returned the lease to Mr. Hubbell, together with the instrument he drew. This instrument was not produced in evidence by the defendants. The reason why Hubbell would not sign the instrument prepared by the plaintiff’s attorney was that it was not such a thing as he was willing to sign, because it said if the building or any part thereof should be destroyed by fire, it should end the lease. This was the only objection, he made to it, except he said the inside of the lease was the proper place for it.

This is very strong evidence of the existence of the agreement, as claimed by the plaintiff. The objection of Mr. Hubbell to the agreement, drawn up by the plaintiff’s attorney, was well founded. The effect of it would have been to avoid the lease, on the burning of a small part of the premises. No such agreement was probably made by the parties. But if no agreement of any kind had been made contemplating the termination of the lease on the destruction of the premises by fire, would Mr. Hubbell have entertained the question of alteration or correction for a moment? Would he not have said at once, the lease as drawn contains the whole agreement as we made it, and I will consent to no alteration without a further consideration. Would he have requested his attorney to examine the lease and see in what blanks he could insert the agreement ? Would he have said that the inside of the lease was the place to insert it rather than to have it on a separate paper ?

The conduct of the defendant Hubbell, by whom the whole business on the part of the defendants was conducted from first to last, is consistent with no other hypothesis than that set up by the plaintiff Presumptions from a man’s conduct operates in the nature of admissions; for as against himself, it is to be presumed that a man’s actions and representations correspond with the truth. (2 Stark. Ev., 688.) Numerous and most important presumptions are founded merely on the common and ordinary experience of mankind.. They are derived also from the course and habit of dealing in a particular trade or business, as that the parties intended to contract according to the usual course of dealing. (Id., 688.) In this case, it is every day’s experience that a clause like that claimed to be inserted by the plaintiff, is almost invariably contained in every lease of buildings. It is such a safeguard as eveiy man of ordinary experience would require, and which every fair-minded landlord would grant. It is obvious, from the testimony, that it was not forgotten on this occasion.

At the time the negotiation for the lease was going on, the defendants made the inquiry whether the lease would terminate on the buildings being destroyed by fire, and was answered by his attorney that it would not, unless a clause to that effect was inserted in the lease. When he was sent for by Hubbell on the twenty-ninth December following, in consequence of the complaint of the plaintiff that no such clause was in the lease, the defendants again asked him what would be the éffect if the building should be burned before the expiration of the lease, and the witness gave for answer that he supposed it would terminate the lease. This answer is inconsistent with his former answer, unless the witness believed that the fire clause had been in fact inserted in the lease. If the plaintiff’s hypothesis be true, both answers of the witness can be reconciled. The answers, in fact, go far to corroborate that theory; and the witness added, that he thought it was the understanding between the parties that there should be such a clause in the lease.

It must be remembered that the conversation at the store on the twenty-ninth December, was two months before the buildings were burnt, and when neither party could be supposed to be under any inducement to misrepresent the facts. Neither party anticipated the calamity which befel the defendants so soon. They had no controversy about it. And both leases, together with the memorandum prepared by the plaintiff’s attorney, were handed to the person who drew the lease and who was the witness in this case. The parties did not attempt to make a new agreement. The plaintiff wanted the original agreement carried out, and the defendants had no objection. The attorney who drew the lease was-expected to find a place in the lease where the agreement could be inserted, or to prepare a separate one which would conform to the original intention. He pursued the latter course, and delivered the leases and the prepared instrument to the defendants. This instrument was drawn within about six weeks of the original contract, and was intended to be so framed as to carry out' the original agreement. It was drawn up at a time when the facts were fresh in the recollection of the parties, and their attention had been called to it by the conversation at the defendants’ store. That prepared agreement was delivered to the defendant, Hubbell. Why has it not been produced by him on this trial ? Why has it been withheld by the defendants ? According to the testimony of the attorney, already adverted to, that agreement, if executed, would have the effect to terminate the lease if the building should be destroyed by fire. How came he to draw an agreement in that form, unless such in truth was the original contract ?„ If the witness is mistaken, it was in the power of the defendants to set him right by producing the paper itself. His failure to do so is a silent admission that the paper spoke the truth, whatever may be the case with the witness in some parts of his testimony. If the issue was on trial before a jury at nisi pins with this evidence orally given, and they were asked whether the parties agreed that the fire clause should be inserted in the lease, not a jury could be found who would not answer in the affirmative.

If such agreement was made, there is no doubt it was omitted to be inserted by the neglect or mistake of the scrivener. It is clear from the authorities that the court has power to re-form the lease, and to order it to be given up and canceled. If the omitted clause were inserted, the lease would have terminated when the buildings were consumed. Substantial relief is given to the complainant, in conformity to the bill, by decreeing that the lease should be given up and canceled. Such was the decree of the chancellor in Gates v. Green (4 Paige, 355). That the court can correct mistakes in written agreements, see Wiser v. Markly, 1 J. Ch. R., 607; Gillespie v. Moore, 2 Id., 585; Keisdback v. Livingston, 4 Id., 144; Storey's Equity, Vol. 1, §§ 153, 155, 156, 161, and the cases there cited.

But if the court do not coincide with me in the above, we must then examine the grounds on which the supreme court decided. The main objection to sustaining the views of the supreme court arises from the shape of the pleadings. The bill was not drawn with a double aspect; nor did the pleader contemplate other relief than that which I have proposed to give him. It is difficult, without an alteration of the frame of the bill, to grant the relief, under the general prayer. No amendment was asked for in either court.

But assuming that this obstacle is removed, or is shown to be unfounded, it remains to consider, whether the tenant is liable on an express covenant for rent where the premises leased are destroyed by fire between the time when the lease is executed and that when the term commences, and before the tenant ever had the actual possession. The cases which hold that the tenant is liable, after the destruction of the buildings by fire, upon his covenant for rent, are all cases where the tenant had entered under his lease, and the term had actually commenced before the fire. Such was Hallett v. Wyler (3 J. R., 44); Mark v. Cooper (2 Stark., 763). And this is assumed to be the case in every instance where the doctrine has been advanced, even where the fact is not expressly stated. (Fowler v. Note, 6 Mass., 63; Balfour v. Weston, 1 T. R., 311; Holtzapffel v. Baker, 18 Ves., 115; Leeds v. Chuthan, 1 Sims., 146; Philips v. Stevens, 16 Mass., 238; Green v. Gates, 4 Paige, 355; Stockwell v. Hunter, 11 Mitc., 448.)

The lessee of premises to commence at a future day has only an interesse termini between the date of the lease and the commencement of the term. (Kent's Com., 97; Co. Lit., 270 a, 345 b, 46; 2 Bl. Com., 144, 314.) An interesse termini is a right to the possession of a term at a future time. It is a mere interest in contradistinction to a term in possession ; and its essential qualities arises from the want of possession. (4 Kent, 97.) A release to him, says Littleton, before entry, is void. (Lit. 3, § 459 ) The estate does not vest in him until entry. (2 Bl. Com., 144, 314; Co. Lit., 46; Crane v. O’Conner, 4 Edw. Ch. R., 409.) And a judgment against him creates no lien on the premises. (Id.)

, It seems to follow that a destruction of the premises by ■fire, between the making of the lease and the commencement of the term, discharges the tenant from the obligation of his covenant to pay rent. The loss must fall upon the landlord and not upon the tenant. The latter is prevented from taking possession without his fault, and it is inequitable that he should be compelled to pay for the use of that of which he can have no enjoyment. To him it is the same as if the premises bad been made less valuable by the landlord himself. (See Morse v. Willoughby, 7 Hill, 83.)

If the court think we are at liberty to consider this branch of the case, the judgment should be affirmed.

Gardiner, Mason, Morse ana Taggart, Js., concurred in affirming the judgment on the ground first discussed in the preceding opinion. The court expressed no opinion upon the question whether the lessee was discharged from his obligation to pay rent by the destruction of the building before the commencement of the term, without a re-formation of the lease.

Ruggles, Johnson and Jewett, Js., dissented.

Judgment affirmed.