text:
    Henry Nason, Respondent, v. Jacob H. V. Cockroft, Appellant.
    When an agent to whom goods have heen sold and delivered, has rendered him self personally Bable by not disclosing in time the name of his principal, he is not discharged from such liability merely by the fact that the seller subsequently agreed with the principal to submit to arbitration a controversy between them relative to the quality and price of the goods.
    A new trial will not be granted for the sole purpose of letting in evidence merely cumulative. *
    (Before Oaklet, C. J., Campbell and Boswobth, J.J.)
    May 11;
    May 20, 1854.
    This was an action to recover the price of a quantity of flour which it was alleged that the plaintiff had sold and delivered to the defendant. The complaint demanded judgment for the sum of $2,485.95, with interest, but it was admitted on the trial that the balance due was only $288.91, and interest.
    The principal defence set up in the answer was, that the defendant, in making the purchase, acted as the agent and broker of the firm of O’Conner and Purcell, flour merchants, in the city of JN"ew York, and that the fact was known to the plaintiff before the sale and delivery of the flour.
    The cause was tried before the Chief Justice and a jury in June, 1852.
    The contested question of fact upon the trial was, whether it was known to the plaintiff before the sale and delivery of the flour, that the defendant was acting merely as the broker of O’Conner and Purcell; and whether the delivery was in fact made to him or to them. There was much contradictory evidence—oral and documentary—in relation to these questions, which it is deemed unnecessary to state; and the finding of the jury upon both was in favor of the plaintiff.
    There was no exception to the charge- of the judge to the jury, and the only question of law that arose during the trial, related to the effect of the following paper, which was read in evidence on the part of the defendant, and relied on as a bar to the plaintiff’s recovery. The judge decided that such was not its effect.
    “We, Henry Hason and Purcell & O’Conner, merchants, having a dispute concerning a certain lot of flour, branded Iceland Mills, do hereby agree to leave the same to be decided by arbitrators, each party to name one, and if they do not agree, the two thus chosen shall name a third, and the decision of a majority shall be binding on us severally, and any balance to be paid immediately on the decision of arbitrators.
    “ Henry Hason.
    “ O’Conner & Purcell.
    “Hew York, March 27th, 1851.”
    The jury found a verdict for the plaintiff for $319.62.
    The defendant moved at special term before Mr. Justice Campbell, for a new trial, both upon the ground that the verdict was against evidence, and also that the question of law above stated had been erroneously decided.
    He also moved for a new trial to enable him to read in evidence the deposition of Purcell, which had been taken under a commission that had arrived and been opened since the trial already had. The testimony of Purcell, if admitted, it was said, would conclusively show that the defendant ought not to be held liable in this action.
    The several motions were denied, and judgment entered for the plaintiff upon the verdict. The defendant appealed from the orders at special term, as well as from the judgment, but the grounds of the appeal upon the questions of fact, as involving no questions of law, are omitted.

      E. Sandford, for the defendant, appellant,
    insisted that the submission to arbitration • was conclusive evidence that the plaintiff at that time considered O’Conner & Purcell as alone liable, and until their failure had never looked to the defendant at: all.

      A. H. Dana, for the plaintiff, respondent,
    contended that the submission, not having been acted upon at all, was wholly immaterial.
   By the Court. Oakley, C. J.

The plaintiff, Eason, sues Cockroft to recover the value of a quantity of. flour. In point of fact it seems that Cockroft was acting as a broker, buying flour from Eason and selling it to Purcell and O’Conner. Purcell and O’Conner left the country, and Eason seeks to recover from Cockroft, on the ground that he is personally responsible. There was no written agreement between Cockroft and the plaintiff, and the judge instructed the jury that as this was a contract for the sale of goods, above the value of fifty dollars, it could not be valid and binding upon the parties under the statute of frauds, until the delivery of the goods. The question of fact, which arose as to whom the delivery was made, was strongly eontésted. The plaintiff contended that the délivery was to Cockroft, and Cockroft, that Eason having been apprised of the fact that O’Conner and Purcell were the real purchasers, the property was delivered to them. The court told the jury that, as there was no binding contract until the delivery of the goqds, the liability of the defendant depended upon the fact of delivery; and, therefore, even though the contract for the sale of the goods were made by the defendant with the plaintiff, still if they were delivered by the plaintiff to O’Conner and Purcell, the defendant was discharged; and that if the plaintiff treated with O’Conner and Purcell as the purchasers of these goods, and delivered the goods to their carman for them, he could not recover from the defendant; and if, from the evidence in the case, the jury believed that the plaintiff treated with O’Conner and Purcell, as principals, they must find a verdict for the defendant. To this charge no exception was taken, and we think that it presents correctly the rules of law applicable to the case. The jury found a verdict for the plaintiff upon the ground that, the evidence showed a delivery to Oockroft, and that he, not having disclosed the name of his principal, was responsible. It follows that, unless the plaintiff relinquished or lost his rights by some transaction subsequent to the sale and delivery of the goods, he must be entitled to his judgment upon the verdict.

Among the evidence offered was a paper in this form, signed by Henry Nason and O’Conner and Purcell. . “We, Henry Nason and Purcell and O’Conner, merchants, having a dispute concerning a certain lot of flour, branded Leland Mills, do hereby agree to leave the same to be decided by arbitrators, each party to name one, and if they do not agree, the two thus chosen shall name a third, and the decision of a majority shall be binding on us severally; and any balance to be paid immediately on the decision of arbitrators.”

This paper was doubtless evidence that Nason, at some period, was dealing with O’Conner and Purcell, as the owners of the * flour; but, on the argument before us, it was urged by the counsel of Oockroft, that of itself, by operation of law, it discharged the defendant, Oockroft; that it was evidence of the plaintiff’s election to proceed against O’Conner and Purcell, as the purchasers of the flour; and that it was in consequence of this election that it was agreed to submit certain disputes, which arose between them as to the quality of the flour, to arbitrators; and it was contended that the plaintiff was thereby concluded, as matter of law, from subsequently suing Oockroft. We have given this matter due consideration, and we do not think that this paper can receive a construction which would render it absolutely binding upon the parties, so as to conclude Nason from maintaining this action. Where an agent purchases goods, without disclosing the name of his principal, it has certainly never been, supposed that he is discharged from the liability which he thus incurs, by the subsequent discovery of the name of his principal. The only effect of the discovery is, that principal and agent are both liable; and the seller may, at his election, proceed against either or both; and, as it is clear that the mere commencement of suit against the principal would not discharge the agent, we cannot see why that effect should be given to a submission to an arbitration which had no result. We cannot, therefore., give to the paper in question the legal effect which the counsel for the defendant claimed for it. As respects the questions arising upon the evidence, we are not dissatisfied with the conclusions to which the jury came.

Coupled with this case was an application of this character. It seems that a commission was taken out, at a certain period during the case, to examine Mr. Purcell, who was in England, as to this transaction. Eor some cause or other, the commission did not arrive before the trial of the case, and at the trial a motion was made to postpone it to await the arrival of the commission. The motion was granted by the judge upon certain terms as to costs, &c. The defendant, it seems, considered these terms as- too rigorous, and did" not choose to accept the order made by the court. The case was directed to go to trial, and the result was as I have already stated. He now appeals for liberty to open the case for ‘another trial, in order to have the benefit, of the deposition taken. As he made his election to dispense with the testimony of Purcell, we do not think that he has a right to claim another trial, or to expect that, as a favor, it will be granted; especially as the testimony which he seeks to produce bears upon the same questions which were decided by the jury. It is plainly and merely cumulative. It does not seem to us, in this stage of the litigation, expedient to open the case for a new trial.

Judgment and orders appealed from affirmed with costs.

       The above opinion is published^ with some corrections, as taken down in short-hand by L Abbott, Esq., at the time of its delivery.


source: Caselaw Access Project

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

license: Public Domain

text:
    Henry Castanos v. John Ritter.
    " In an action brought by a father to recover for expenses incurred in the care of his infant son, in consequence of an injury resulting from the negligence of the defendants, and for his loss of the services of his son, also alleged to have resulted from the injury, although no evidence was offered upon the trial tending to show loss of service, yet the jury were instructed that the plaintiff might recover for loss of service, if any were shown.

      Held, that this instruction, as calculated to mislead the jury, was erroneous; and as the verdict plainly covered damages for a loss of services, although none had been rendered, that a new trial must be granted.
    (Before Oakley, C.J., Campbell and Boswobth, J.J.)
    May 12;
    May 20, 1854.

    This cause was tried before Ohief-Justice Qakley and a jury, on the 23rd day of May, 1853, and a verdict rendered for the plaintiff for two hundred dollars, and judgment rendered thereon. The defendant appealed from the judgment, on the ground that the jury were misdirected. The facts appear sufficiently in the opinion of the court.

      Geo. W. Cook, for appellant,
    cited Hall v. Hollander, 4 B. & Cross. 660; 1 Salk. 119; 3 Black. Com. 142; 19 Wend. 399; 6 Hill 592; 21 Wend. 615.

      L. Gardenier, for respondent,
    cited Ford v. Monroe, 20 Wend. 210, 24, id. 429 ; Sedgwick on Damages, 104, 9, 13.

       Ex relatione, L. Abbott, Esq[.

   By the Court. Oakley, C. J.

This was an action brought by the father of a child, under the age of four years, to recover damages for injury done to the child by the negligence of the defendant Ritter. The defendant dug a hole in his yard some 10 or 15 feet deep; the child fell into it and was injured. The claim set up by the plaintiff was for compensation for the expenses necessarily incurred by the father in taking care of the child, and also for his loss of the services of the child. The question in the case arises upon the correctness of the direction of the judge at the trial, in respect to this latter point—that is, the loss of service. The judge told the jury that if the plaintiff was not guilty of any negligence in letting this little child run at large, and if they found that the defendant was guilty of negligence in not sufficiently guarding the hole which he had dug, the plaintiff had a right to recover. The court said he might recover for expenses incurred by him, and also for loss of services, if any were shown to have been incurred. It appears by the evidence that the father became liable for expenses, amounting to $53. What the jury allowed beyond that sum, in assessing the damages of the father at $200, could only have been allowed for a supposed loss of services.

Strictly speaking, it might be considered that a child, however young, might possibly render some service to its father; but it does not appear that any such services, however slight, were ever rendered by the plaintiff’s child; and when the child is of such tender years that there can be no presumption that he rendered services to the parent, some proof of the fact, we think, is necessary. It is true that the Supreme Court has decided, in a case where a child of ten years of age was killed by the negligence of the defendants, that the jury were properly instructed to allow damages for the loss of the services of the child, not only to that time, but prospective losses up to the time that the child should arrive at the age of twenty-one years. Whether that was correct or not, we are not called upon to say. But that was a case in which the possibility of rendering any future service was destroyed. In this case, however, the injury, we are bound to suppose, was only temporary. For aught that appears in the case, the child recovered from it, and was again capable of rendering services. We think, therefore, that the jury may have been misled by the suggestion of the court, that they might allow damages for loss of services, if any were proved to their satisfaction, while in fact no such proof had been given. The verdict must therefore be set aside, and there must be a new trial, with costs to abide the event, unless the plaintiff will consent to reduce the verdict to $53, the amount of his expenses proved; in which case, the judgment will be affirmed, but without costs to either party upon this appeal.


author: By the Court. Bosworth, J.

text:
    John H. Keyser v. William H. Harbeck, John H. Harbeck, Samuel Ward, and Rodman M. Price.
    A person obtaining a delivery of goods under a contract of sale, though it be procured by false pretences, indictable under 2 R S. p. 677, § 63, can vest a title valid as against his vendor, in a bond fide purchaser. Such a contract is not absolutely void, as between the original parties. A title passes under it, defeasible and avoidable at the election of the first vendor, while the goods remain in the possession of his vendee, or in that of any person merely succeeding to the rights of the latter or standing upon his title. But all mesne dispositions to any party who pays value, and is not privy to nor cognizant of the fraud, will pass an indefeasible title to such party: 2 R S. p. 702, § 30, defining the word felony, does not affect the common law rule, applicable to such a state of facts.
    One bond fide advancing to a person thus obtaining goods, and acquiring a documentary title, and the constructive but not the actual possession of the goods, is not liable in trover to the first owner, for not giving him the manual possession of the goods, on a demand made, and offer to refund his advances, when he offers to assign all his documentary evidence of title to, and to confer all the actual power of disposition he possesses, on the original owner.
    A master of a vessel, who has issued a bill of lading in good faith to a person returning shipping receipts issued to the true owner on his putting goods on board of a vessel for transportation, is not liable in trover to the shipper of the goods, on a demand of them, without the bills of lading are surrendered or fully indemnified against, nor unless the master is also indemnified against all damages consequent upon the delay necessary to unload them, and is paid the expenses of loading and unloading them, notwithstanding possession of the shipping receipts may have been obtained from the shipper by false pretences. Nor are the owners of the vessel liable for the goods on such a state of facts.
    (Before Doer, Bosworth, and Slosson, J.J.)
    April 5;
    May 27, 1854.
    In April, 1850, one Louis Dietz called on the plaintiff, who is in business in Hew York, and applied to purchase of him a large quantity of hardware, to be shipped to California. He represented that he wished and was authorized to purchase for a rich firm in Wall street, who did not wish to be known as being then engaged in the California trade; that they would pay in cash on the goods being delivered on board the ship W. H. Harbeek. He procured from the plaintiff a statement of his prices for the articles proposed to be bought, under pretence of showing it to his alleged principals. He subsequently reported to the plaintiff that his prices were satisfactory to them. At an early stage of the negotiations, but not at the first interview, he told the plaintiff that the defendants, Ward & Price, were his principals.
    The plaintiff, without conferring with Ward & Price, but believing the representations, commenced delivering the goods on board the W. H. Harbeck. As he delivered them, he took from the master receipts, stating that the plaintiff had put the goods on board to be carried to California.
    When portions had been delivered, the plaintiff asked Dietz for mopey, who said his principals would not pay without the shipping receipts, to show that all was right. Dietz was thereupon intrusted with shipping receipts, and brought to plaintiff the full amount covered by such receipts. This occurred two or three times; when all had been put on board, being some 200- cases, and amounting at the contract price to ovei* $8,000, Dietz was intrusted with all the remaining receipts, in order to obtain payment from his alleged principals.
    He did not return with the money, but from day to day "excused the non-payment, until the plaintiff becoming alarmed sought Ward & Price, and then ascertained that Dietz’s representations were untrue. . That they had advanced to him on the representation and belief that the goods were his, and on the security of the shipping receipts. These they had returned to the master, and had obtained from him a bill of lading. The bill of lading stated that Louis Dietz had shipped the goods, and made them deliverable to the order of Ward & Price, at San Francisco, and was dated Hay 6, 1850.
    About the last of Hay, 1850, the plaintiff formally demanded of Ward & Price, the manual possession of the goods ; the latter offered to assign to plaintiff the bill of lading on being paid $4,030, the amount of their advances. The plaintiff offered to pay this sum if Ward & Price would give him the manual possession of the goods. They declining to do more than to assign and deliver the bill of lading to the plaintiff, he finally tendered the amount, $4,030, and demanded an actual restoration of the goods.
    The plaintiff also demanded the goods of the master, and of the defendants Harbecks, the owners of the vessel, and offered to pay the expenses of taking them ont of the vessel. The Harbecks refused to give up the goods, unless the bill of lading was returned, and they were paid the expenses of discharging, and indemnified against all liability to other shippers that might arise from delaying the voyage during the time necessary to unload. The master insisted that he was entitled to freight, as well as to a return of the bill of lading. It was proved to be the uniform custom for the master to issue a bill of lading to the person who presented and surrendered the shipping receipts.
    The case states that “ the counsel for the respective parties summed up the case to the jury, upon the question whether Dietz had obtained the property in dispute by false pretences, with intent to defraud the plaintiff.”
    “The Chief Justice recapitulated the evidence, and reserved all the questions of law arising between the' plaintiff and the respective defendants, for future consideration. He stated, in writing, the following question: ‘ Did Dietz obtain the property in question by false pretences V and directed the jury to make a written finding thereon. He explained to them the provisions of the statute in relation to obtaining property by false pretences, and what was necessary in order to. constitute the offence; and further instructed them, that, in order to bring the case within the statute, Keyser was bound to have exercised reasonable care and prudence, and that they must consider whether he had acted with ordinary diligence and precaution.
    “ The jury returned into court, and found in the affirmative in answer to the particular question submitted to them, and they also found a general verdict for the plaintiff, and assessed the value of the property at five thousand and seventy-nine dollars and thirty-one cents (5,079.31), and thereupon the chief justice ordered that the questions of law reserved, be heard in the first instance at a general term of the court. The verdict having been taken subject to the opinion of the court upon this case, with liberty to either party to turn the same into a bill of exceptions, and with liberty to the court to order a nonsuit or judgment for the defendants, or any of them.”

      E. Sandford, for plaintiff, argued the following points.
    I. The goods in question having been feloniously taken from the possession of the plaintiff, he was entitled to reclaim them wherever he could find them. The plaintiff did not part with his title to the property (2 R. S. 677, § 53; 2 Id. 702, § 30; Ward v. The People, 3 Hill 395). 1. It was not necessary for the plaintiff to prosecute the felon to conviction before be could recover his goods (2 R. S. 292, § 2; Grinson v. Woodfull, 2 C. & P. 41, and note; Hoffman v. Carow, 22 Wend. 285, 321). 2. The goods were obtained by means of false pretences, made with an intent to defraud the plaintiff (Young v. The King, 3 Term Rep. 98, 102; The People v. Haynes, 11 Wend. 557, 565; Regina v. Abbott, 2 Car. & Kir. 630; The Queen v. Kenrick, 5 Q. B. 49, 64; The People v. Kendall, 25 Wend. 399, 401; Regina v. Copeland, 1 Car. & Marsh. 516, 20 ; Rex v. Asterley, 7 Car. & P. 191, 92; Rex v. Parker, 7 Id. 825, 828, 831; Commonwealth v. Hulbert, 12 Met. 446; Commonwealth v. Drew, 19 Pick. 179, 184, 185; The People v. Johnson, 12 J. R. 292; Commonwealth v. Burdick, 5 Penn. Law Jour. 173, 175 ; The People v. Crissie, 4 Denio, 525-29.
    H. The rule which has been applied to purchases effected by means of a simple fraud, that a third person may acquire a good title from the fraudulent vendee, by giving him value for the property, or incurring some responsibility upon the credit of it, without notice of the fraud, is an exception to the general rule of law, and it is not applicable, and cannot, consistently with established principle, be extended to cases where the possession of the property was acquired by means of “ false pretences” within the statute. 1. In cases of simple fraud, the fraudulent vendee acquires no title as against the vendor, and has no interest which can be seized on execution (Mowry v. Walsh, 8 Cow. 238 ; Carey v. Hotaling, 1 Hill, 311; Olmsted v. Hotaling, 1 Id. 317; Root v. French, 13 Wend. 570 ; Bristol v. Wilsmore, 1 B. & C. 514; Ash v. Putnam, 1 Hill 302, 305). 2. The general rule of law that a bond fide purchaser from a person in the possession of property who has no title to it, and no authority from the owner to sell or dispose of it, cannot acquire any title against the true proprietor, is declared and applied in the following cases (Everett v. Coffin, 6 Wend. 609 ; Williams v. Merle, 11 Wend. 80; Everett v. Saltus, 15 Wend. 474, 76, 78; Saltus v. Everett, 20 Wend. 267, 75 ; Hoffman v. Carow, 20 Id. 21, 22; Hoffman v. Carow, 22 Wend. 285, 318 ; Ely v. Ehle, 3 Comst. 506, 509, 10). 3. The obtaining of goods by means of a fraud which would render the sale voidable at the election of the vendor, does not constitute an indictable offence within the meaning of the statute (Commonwealth v. Hickey, 3 Penn. Law. Jour. 86, 89). 4. Where the possession of property is obtained by means of such a fraud, the owner has an election to rescind the contract on discovering the fraud, or to be bound by it, and sue for damages for the deceit (Masson v. Bovet, 1 Denio 69, 73, 74; Campbell v. Fleming, 1 Ad. & Ellis, 40, 42 ; Whitney v. Allaire, 1 Comst. 305). 5. The rule that a bond fide purchaser from a fraudulent vendee may acquire a good title as against the original owner, is an anomaly in the law; it is contrary to the general principles of the law of property, resting upon very questionable suggestions of equity and expediency, and it ought not to be extended (Ash v. Putnam, 1 Hill, 302, 305 to 307). 6. When the statute made the obtaining of goods by means of false pretences a felony, the general rules of law, applicable to the possession of the property feloniously obtained, and the rights of the owners of such property, became applicable to such cases. It was the design of the Legislature to protect the owners of the property as well as to punish the felon. 7. This application of the statute has been made since its passage by the courts in this State, and in England (Andrew v. Dietrich, 14 Wend. 31, 35 ; Robinson v. Dauchy, 3 Barb. S. C. R. 20, 29, 30; Peer v. Humphrey, 2 Ad. & Ellis, 495-98-99). By this last case, Parker v. Patrick, 5 T. R. 175, which governed the Chancellor as circuit judge, in the trial of the case of Mowry v. Walsh, and controlled the opinion of the Supreme Court in the judgment given by them in that case (see 8 Cow. 244, 245) was overruled.
    HI. There was no delivery of the property in question to Dietz, which would bring this case within the rule applied in the case of Mowry v. Walsh, if that rule be applicable to goods obtained by means of false pretences within the statute. 1. The plaintiff placed the goods on board of the vessel, and took the receipts therefor in his own name. 2. When he gave the. receipts to Dietz to carry to Ward & Price, as the alleged principals of Dietz, the papers informed them of plaintiff’s title to the property. 3. The plaintiff did not deliver the goods to any person as purchaser with his own hands, nor part with their possession, so as to disenable himself from bringing an action therefor against any person who withheld them from him (Ely v. Ehle, 3 Comst. 506, 508; Fonda v. Van Horne, 15 Wend. 631, 635-6). 4. There was no evidence of any title to the goods in Dietz, or of the shipment of the goods by him. He had not the actual possession, nor any appearance of any actual possession of the goods. Dietz had not any invoice of the goods, nor any paper showing either their description, or their value, nor any wMoia of property in him. Keyser attended to the shipment of the goods, appearing to be the owner, and the receipts taken by him showed the title to be in him.
    IY. Ward & Price made their advances to Dietz under circumstances which were sufficient to have put them upon inquiry, and they were not bond fide purchasers, or pledgees, within the rule of the case of Howry v. Walsh, if that rule be applicable to this case. 1. There was no manual possession of the property by Dietz." They knew that he had not the actual possession. 2. Dietz had no bill of sale, or invoice, or bill of lading, or other usual documentary evidence of title.' He had nothing but receipts for so many boxes, not specifying their contents or value; and on the face of the papers these boxes purported to have been shipped by Keyser. The list of prices could not enable Ward & Price to know what articles were in the boxes. This list contained no quantities. 3. Ward & Price knew that Keyser was the original owner of these goods—Ward had inquired as to the prices at Keyser’s store. 4. Ward & Price knew that Dietz had no means, and had already detected him in dishonest practices. 5. Ward & Price enabled Dietz to commit the felony upon the plaintiff; they delivered, to him the letter from their correspondents in San Francisco, and thus gave him currency; they allowed him to use it to obtain the goods; sanctioned the appearances with which they had clothed him, by personally calling and examining the goods he was proposing to buy; allowed both Stebbins & Olcott to believe that Dietz was their agent, and the plaintiff to make the agreement to sell without any communication or explanation. 6. Making an advance under such circumstances, when Keyser could have been communicated with by them within ten minutes’ time, was an act of gross negligence (Peabody v. Fenton, 3 Bar. Ch. R. 464; Saltus v. Everett, 20 Wend. 267, 272, 275, 281, 284; Ash v. Putnam, 1 Hill, 307). 7. They were not bond fide holders, because their agreement upon which the advances were made was usurious (Ramsdell v. Morgan, 16 Wend. 574). And also because they were temporary loans to Dietz to be replaced by paper at six and nine months. The advances constituted a debt due from Dietz.
    V. Ward & Price did not acquire any lien upon the goods by means of their advances upon the receipts. The Factors’ Act of 1830 does not apply to the case. 1. Dietz was not' a factor of plaintiff. 2. He was not intrusted with any bill of lading or other documentary evidence of any title in him. 3. He was not an agent of plaintiff for the sale of this property. 4. The statute was made to protect advances made on the faith of the ownership of the property by the person possessed or intrusted (Zachrisson v. Ahman, 2 Sand. S. C. R. 75 ; Stevens v. Wilson, 6 Hill, 512; 3 Denio, 474, S. C.)
    VI. Messrs. Harbeck & Co. had no right to detain the goods of the plaintiff from him—the rule does not depend upon the position of the property, whether it be in a warehouse or in a ship, or if in a ship, whether it be upon deck or between decks, or in the lower hold (Cummings v. Vorce, 3 Hill, 282; Zachrisson v. Ahman, 2 Sandf. S. C. R. 73).
    VH. Ho tender to them was necessary. If it had been, the offer of the plaintiff to pay all the expenses, and the peremptory refusal to deliver, was sufficient to dispense with any further tender. The bills of lading were not asked for nor set up as a ground for refusing to deliver. If that ground had been taken, the plaintiff might have obtained them from Ward & Price, and removed that difficulty.
    VIH. Keyser was the actual shipper, and took receipts in his own name—the signing of bills of lading in favor of Dietz, and afterwards in favor of Ward & Price, was without any endorsement from or consent of Keyser. Harbeck & Co. issued these bills of lading at their own risk; their delivery to any other person than Keyser, showed a want of caution on their part.
    IX. The plaintiff is entitled to recover the goods from Ward & Price, even if they had made bond fide advances thereon, after making a demand from.them and offering to pay their advances, and their refusal. He is also entitled to recover against Harbeck & Co., after making a demand of them, and offering to pay all expenses of taking them out of the ship, and their refusal to deliver.
    X. Judgment should be given for the plaintiff on the verdict.

      J. W. Gerard, for defendants, Harbecks.

      J. Larocque, for Ward & Price, argued the following points.
    I. Assuming the finding of the jury on the point submitted to them to be in accordance with the evidence, there must on the case be judgment for the defendants, Harbeck & Co., and Ward & Price. They are bond fide purchasers, without notice, for value, and having advanced money, and incurred responsibilities on the faith of the documentary title of the property in question, to a person in possession, are entitled to hold the same against the plaintiff, the obtainment of goods by false pretences not being such a felonious taking as will avoid their title. In other words; if there is a sale and delivery of goods obtained by fraud, third persons, who, bond fide, and without notice, purchase from, or enter into responsibilities with or for the fraudulent vendee, on the credit of the goods, are protected against the claims of the original vendor. (Mowry v. Walsh, 8 Cowen, 238; Root v. French, after the revised statutes, 13 Wend. 570.) The plaintiff’s claim rests on a technical statutory forfeiture, arising only by implication. It may be thus stated : 1. At common law no title can be acquired through a felony. 2. The statute defines felony to be an offence punishable by imprisonment in a state prison (2 R. S. 4th ed. 886, marg. p. 702, § 30). The offence of obtaining money by false pretences may be punishable by such imprisonment (p. 861,4th ed. § 53, marg. p. 677). 3. Therefore, the obtainment of goods by false pretences may be a felonious taking. The answers are, first, obtaining goods by false pretences is not a felony at common law, and the statute has not changed the rule. It has not been, and should not be, so construed. (Mowry v. Walsh, 8 Cowen, 238 ; Root v. French, 13 Wend. 570.) They do not change the rule; the provisions of the two sections are as follows (2 R. S. 4th ed. p. 861, marg. paging, p. 677, § 53): “Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any other false pretence, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, on conviction thereof shall be punished by imprisonment in a state prison not exceeding three years, or in a county jail not exceeding one year, or by a fine not exceeding three times the value of the money, property, or thing so obtained, or by both fine and imprisonment.” (2 R. S. 4th ed. p. 886, marg. paging, 702, § 30:) “ The term felony when used in this act, or in any other statute, shall be construed to mean an offence, for which the offender on conviction shall be liable by law to be punished by death or imprisonment in a state prison.” In the first (§ 53), not only is the term felony not used, nor the offence in terms declared to be a felony, but the punishment is not necessarily limited to that species or duration of imprisonment which gives the offence, according to the plaintiff’s view, its baptismal title. The second section does not say that every offence for which a man shall be imprisoned in the state’s prison is a felony. There is no connexion, by express reference, between the two sections; in the connexion in which the latter section is found, it is one of a series of, definitions; the object of the section is to define the meaning of the word felony, when it is used in the statute, and only when it is so úsed; thus, necessarily leaving offences not declared by statute to be felonies, to remain what they were at common law. (Ward v. The People, 3 Hill, 398.) Another answer is, it is conceded that the offence is only made a felonious taking by implication, it is a constructive and artificial felony. How the effect of the construction contended for being to forfeit previously recognised rights of bond fide purchasers under situations- similar to the defendants, these legal principles are opposed to its adoption. l.,It would work a penalty and forfeiture to third persons, which cannot be created by implication, only by express terms. (Jones v. Estis, 2 T. R. 379 ; Myers v. Foster, 6 Cow. R. 567.) 2. The place or extent of punishment does not characterize crime or affect the right of third parties. When the case of- Mowry v. Walsh was decided, the offence of obtaining money or goods by false pretences was punishable, in the discretion of the court, by imprisonment in a county jail, or in a state prison (1 R. L. 1813, p. 410, § 13), and by § 14, persons sentenced to be imprisoned for three years or more shall be imprisoned in the state prison. In the case of Mowry v. Walsh, the possession of the goods was obtained through the crime of forgery, which, by the .then statute, was expressly declared to be a felony, and punishable by imprisonment for fourteen years in the state’s prison. (1 R. L. 1813, p. 404, § 1; also 409, § 5.) It will be perceived that the punishment under the revised laws for obtaining goods by false pretences, in case of imprisonment, was heavier than under the revised statutes, being for three years in the state prison, whereas, under the revised statutes, the imprisonment may be in a county jail for a term not exceeding one year, so that the statute of 1830, being at most but a re-enactment of the law of 1813, the only change in the phraseology being a modification in the punishment, will not work a change in the law to affect third persons; the intention to produce such change nowhere clearly appearing, but the reverse. (2 Caine’s Cases in Error, 143,151,; 4 John. R. 317, 359; 21 Wend. 316, 319; 2 Hill, 380.) The third great answer is, that the statute did not mean to alter the law, so as to take away or affect the rights of bond fide purchasers without notice, but merely to save repetition in penal statutes, as to the place where criminals, who commit certain offences, shall be confined.
    II. The felony which will avoid the title of a bond fide purchaser, without notice, must be a larceny, or taking by theft or violence, and not the constructive artificial felony, the creature of the statute. Hence, though the goods in question may have been -obtained by such a fraud as would have subjected Dietz to the punishment prescribed by the statute, and made him a constructive felon, yet, as Keyser delivered possession with intention of passing the title t o Dietz, the title of the defendants, Ward & Price, and Harbeck & Co., is not impaired by his fraudulent aóts.” (8 Cowen, 238; Carey v. Hotaling, 315 ; 1 Hill, 311; 14 Wend. 32 ; 22 Wend. 278-9 ; Malcom v. Lowendge, 13 Barb. 372.) This was the principle on which the case of Mowry v. Walsh was decided; that case is adopted and recognised as law in cases subsequent in time, and superior in authority, to the case óf Andrews v. Dieterich, in 14 Wend. 36. This case, in fact, decides nothing against us, because the verdict was reversed upon the independent ground that no title in the carpet had passed to the purchaser on account of the delivery not being completed. It does not appear what was the final disposition of the case. The doctrine we contend for has been the uniform doctrine to the present time of the New York Superior Court, and has never been questioned in the numerous instances in which it has been applied. (Vide Root v. French, 13 Wend. 570; Saltus v. Everett, 20 Wend. 272, 278-9, 284; Hoffman v. Carow, 22 Wend. 292, 294; Peabody v. Fenton, 3 Barb. C. R. 463 ; Ash v. Putnam, 1 Hill, 308; Carey v. Hotaling, 1 Hill, 313.) In which last case the distinction is very clearly drawn between the effect of fraud on the sale, as between the original parties, and the same case when bond fide purchasers are concerned. Vide also, particularly, page 315, where the court said, “ that the indictable quality of the fraud has no bearing whatever on the question of nullity of the sale.” The question in Mowry v. Walsh was, not whether the offence, perpetrated by the fraudulent vendee, was or not a statutory felony in terms, but whether he got possession of the property with or without the consent of the owner; if with such consent, by whatever fraudulent means it was obtained, there could be no felonious taking. (2 East. P. C. 668.) Mowry v. Walsh was confirmed in the following cases, decided since the Revised Statutes, and after Dieterich v. Andrews, in 14 Wend., viz. Putnam v. Ash, 1 Hill, 305-8; 20 Wend. 272, 278-9, 284; Hoffman v. Carow, 22 Wend. 292.
    IH. Keyser having shipped these goods himself, and having given to Dietz the possession of the shipping receipts, the documentary evidences of title, the defendants, dealing with him on the faith thereof, are within the exception established by the Court of Errors, by which title passes to those who bona fide deal with the holder of the documentary evidence of title, though the fraud by which such evidence was obtained may now be a statutory felony. (Everett v. Saltus, 15 Wend. 476; same case in Court of Errors, by the Chancellor, 20 Wend. 272; Senator Verplanck, 278-9, 80-4..) All these are after the case of Andrews v. Dieterich.

    IY. The defendants may claim protection under the statute of agency, the first and third sections thereof, where money is advanced on the faith of the bill of lading, and this, too, where there was no intention by the owner to sell or part with his property. (Laws of 1830, p. 203; 1 R. S. 4th ed. p. 184; Jennings v. Merrill, 20 Wend. 9 ; Covill v. Hill, 4 Denio, 330.)
    Y. The conceded acts of Keyser amount to an estoppel in pais, and prevent him from claiming his goods as against third persons who have given credit to such acts, especially as he received such advances, and got an order from Dietz for the balance of the goods. Whatever may have been originally Keyser’s rights, or the character of Dietz’s representations, by his own acts, the plaintiff is estopped from setting up his present claim. The law will not tolerate so gross a wrong that he shall keep our. advances and the goods too. (Matteawan Co. v. Bentley, 13 Barb. S. C. R. 641; Wheaton v. Baker, 14 Ib. 597; 4 Comst. 309-10; 4 Paige, 544.)
    YI. The sale was not made on representations, because the property was not delivered on them. Keyser shipped the property himself; all he delivered was the shipping receipts, not, however, on the original representation as to who was to he the purchaser, but on Dietz’s promise to bring the money for them, which was not a false pretence. Dietz might have been liable in a special action for deceit in the sale, but not for obtaining possession of the property.
    YH. The pretences proved were not such as are contemplated by the statute, not being such as would have been likely to mislead a man of ordinary care and prudence. In the early stage of the proceedings, long before the goods were delivered, Dietz disclosed the name of Ward & Price, and it became his duty to inquire, Dietz being an entire stranger to him. (The People v. Stetson, 4 Barb. S. C. R. 151; The People v. Williams, 4 Hill, 9 ; The People v. Haynes, 14 Wend. 562, 546, and 549.) The representations must be at the time of the sale and before delivery.
    VIII. Neither Ward & Price, nor the Harbecks, under the circumstances proved, have been guilty of a conversion. There has been no proper demand, no improper refusal. As to Ward & Price, Keyser could not demand the goods or the bill of lading without tendering them their advances and charges. He did so. Then Ward & Price, he having Dietz’s consent, immediately offered to transfer the bill of lading, the documentary evidence, all they had; they never had the goods or shipped them, only the bill of lading; they then were not guilty of & conversion. As to Harbeek & Go., Keyser shipped the goods himself, took the receipts, put them in circulation, on which the Harbecks issued bills of lading; they could not consent to deliver the goods until the bills were tendered back with security to pay the expenses and damages consequent in unloading the vessel, and also freight to- California under the shipment made to Keyser himself. ' Without any tender or offer whatever he sought to compel them to deliver the goods
    IX. The finding of the jury is against law and evidence. '
   By the Court. Bosworth, J.

The question argued at the general term by the counsel of all the parties, as being the principal one arising in the cause, is this : Can a party who has been fraudulently induced to sell and deliver goods by means of false pretences, indictable under the revised statutes, reclaim them from one who has bond fide bought and obtained possession of them from the fraudulent vendee %

The plaintiff’s counsel insists, that when a party is deprived of his goods by acts amounting to a felony at common law, his title cannot be divested by a sale to a bond fide purchaser. This is not denied. But he also insists, that the revised statutes have made the obtaining of goods by false pretences a felony, and that it follows that the general rules of law applicable to the rights of an owner of property feloniously taken, are applicable with equal force to property taken from him by false • pretences, indictable by the revised statutes (14 Wend. 31, 35; 3 Barb. S. C. R. 20, 29, 30; 2d Ad. & Ellis, 495-98-99).

The defendants concede that a party who has been deprived of his property by acts amounting to a felony at common law, may reclaim them from one who has bond fide bought them from the felon. But they insist, that when the owner has delivered them to a third person, intending, at the time of the delivery, to part with his title to such person, though he may have been induced to deliver them with such intent by fraud or false pretences, he cannot reclaim them from one who may have bond fide bought them from the person to whom they were so delivered. That such was and is the well settled rule, unless it has been altered by 2 R. S.. 677, § 53, and Id. 702, § 30.

That § 30 (p.. 702) creates a statutory definition of the word felony, for the mere- purpose of attaching to it a precise and definite meaning whenever found in any statute of the State, and not for the purpose of affecting the rights of property of third persons, growing out of any bona ficHe dealings between them and their vendors, in relation to property obtained by the latter, by acts which- were not a felony at common law, but which might be such under this statutory definition.

That under a just construction of the two sections cited, the obtaining of goods by false pretences is- not a felony within the definition of the word given by the- statute that the obtaining of goods by false pretences is not declared' by 2 R. S.. 677, § 53, to be a felony, nor is the word felony to- be found in that section, nor in the article containing that section. That although the offender may be punished by imprisonment in a state prison not exceeding three years, yet he may be imprisoned in a county jail only, and for less than- one year, and may be punished merely by the imposition of a fine.

The section defining the word “felony” reads thus:

“ The term ‘ felony,’ when used in this act, or in any other statute, shall be construed to- mean an offence for which the offender, on conviction,, shall be-liable by law to be punished by death or by imprisonment in- a state prison” (2 R. S. 702, § 30).

Tire revisors’ note- to> the section states, that “ the term felony originally imported an offence for which the offender forfeited his fief, his lands and tenements, goods and chattels (4th Black. 94). Such forfeitures have long been abolished, and the term has really no signification in our law. It is frequently used in statutes, and it is therefore desirable to give it a definite meaning. The definition proposed is conformable to the common understanding” (3d R. S., 2d edit., p. 836-7).

Does the term, as defined in § 30, mean an offence for which the offender, on conviction, must necessarily be punished by imprisonment in a state prison, or is it enough that he is liable to be so punished, although the punishment may, in fact, be only a fine ?

If sentenced merely to pay a fine, is he rendered incompetent as a witness, under § 23 of 2 E. S. 701. If sentenced to imprisonment in a state prison, does that section render him incompetent? Whatever may be the sentence, it is pronounced upon a conviction of having obtained property by false pretences.” The offence, in the case supposed, is necessarily a felony or no felony, irrespective of the degree or character of the punishment that may be actually adjudged, or else it depends upon the sentence that may be pronounced, and not upon ' the nature of the offence alone, whether it is to be the one or the other, with the resulting consequences? If it depends upon the sentence, then one obtaining goods by false pretences must be convicted and sentenced before it can be known whether he obtained them by felony within the statutory definition of the word.

- If sentenced to imprisonment in a state prison, is the person ' who was defrauded of his property by the false pretences, a creditor of the convict under 2 E. S. 700, § 14?

I think the definition of the term “ felony” found in the statute, was enacted for the mere purpose of giving it a definite meaning when found in statutory law, and without any design of affecting by it the rights or liabilities of third persons, resulting from ordinary and bond fide business transactions between them, and any one who may have obtained the property to which the transactions relate, by acts which were not a felony at common law, but which, by the revised statutes, may possibly be an offence, coming within their definition of a felony.

Petit larceny was a felony at common law, under the statutory definition it is not; being punishable by imprisonment in a county jail not exceeding six months, or by fine not exceeding one hundred dollars, or by both such fine and imprisonment. Accordingly it was held in Carpenter v. Nixon, that a person who had been convicted of petit larceny was a competent witness; that, though still a felony at common law, it was not so by statute, and that the statute declaring a person convicted of a felony incompetent to be a witness, excluded only such as were guilty of the offence as defined by the statute; that this word, in the disqualifying section (2 E. S. 701, § 23), was used as defined by § 30, p. 702; and therefore the offender was competent, though convicted of an offence which was a felony at common law (Carpenter v. Nixon, 5 Hill, 260; and see Ward v. The People, 3 Hill, 395).

Conceiving that the question is not affected by the revised statutes, it remains to be considered how it should be determined on principle and authority.

There is no question that a vendor who has been induced by false pretences, within the meaning of those terms as used in the revised statutes, or by fraud not indictable, may reclaim the property from the fraudulent vendee.

But when a question of right or title arises between the vendor and a bond fide purchaser from the fraudulent vendee, an entirely different case is presented, and other considerations are to be taken into account. Hence it has been held that when the owner of property is induced to sell it, though by fraud, and actually delivers possession of it, intending at the time to then part with his title to it, a bond fide purchaser from the fraudulent vendee will hold it against the defrauded vendor. In such a case one of the persons must suffer, the original vendor or the last purchaser. Either the party who has actually consented to sell and deliver his property, and has delivered it with intent to part with his title, dr the one who has bought it in good faith from the person to whom such sale and delivery were made.

Mowry v. Walsh, 8 Cowen, 238, is in point, and if the settled law of this State is in conformity with the rule it adjudged, it is decisive of this question.

In deciding the., latter case, the court seem to have been much influenced by the decision in Parker v. Patrick, 5 T. R. 175. In Parker v. Patrick, a pawnee of goods, which had been obtained from the defendant, the true owner, by fraud and false pretences, recovered their value, notwithstanding the defendant had procured the offender,.who pawned them to the plaintiff, to be indicted and convicted.

The plaintiff’s counsel insists that Parker v. Patrick is discredited by the subsequent decision of Peer v. Humphrey (2 Ad. & Ellis, 495), and that the latter establishes the doctrine that the right of an owner to reclaim his property from third persons is the same, whether it was taken from him by acts amounting to felony at common law, or by false pretences. The only thing said in Peer v. Humphrey, by way of questioning Parker v. Patrick, is this remark of Lord Denman : “ Another difficulty arises from the case of Parker v. Patrick, 5 T. R. 175. There, indeed, the court distinguished between fraud and felony ; but in the argument for the present defendant it is denied that such distinction can be taken ; if so, the decision in that case was incorrect. And if the question of goods fraudulently obtained were before us, I cannot help thinking that the case of Parker v. Patrick would not bear examination. • The Earl of Bristol v. Wilsmore, 1 B. & C. 514, seems to me quite inconsistent with it.”

It is difficult to see what inconsistency there is between Parker v. Patrick and the Earl of Bristol v. Wilsmore. The plaintiff, in the latter case, was not a purchaser from, or paw-nee, in good faith, of the offender. But he was a sheriff, and as such had seized the property on an execution against the wrong-doer. The latter acquired no title as against the defendant, the true owner, and the sheriff, by merely levying on his interest, acquired no equity superior to the legal title of the true owner, but, on the contrary, stood solely upon the title of the wrong-doer. Again, it is to be observed that Parker v. Patrick was decided while the act of 21 Hen. 8, c. 11, was in force, and was put on the ground that that statute gave an absolute right of restitution to an owner who had been deprived of his property by felony, on prosecuting the offender to conviction, but gave no such right to one who had been deprived of it by false pretences, which offence was not a felony. Before Peer v. Humphrey arose, the 21st of Hen. 8, c. 11, had been repealed by statute of 7 and 8 G. 4, c. 27, § 1. The statute of 7 and 8 G. 4, c. 29, § 57, substituted other enactments as to restitution, and gave the right to one whose goods had heen obtained by fraud, on prosecuting the offender to conviction. The case of Peer v. Humphrey was one of larceny, and therefore was clearly distinguishable from Parker v. Patrick; and if what Avas unnecessarily said of the latter, was said without adverting to the fact, that the statutes in force at the time the two cases were decided, were essentially different, there is nothing in the remark to shake the decision in Parker v. Patrick.

In White v. Garden et al., 5 Law and Equ. R. 379, the case of Parker v. Patrick was approved by the judges of the Court of Common Pleas, who thought it sustainable on the ground that the contract, though induced by false pretences, was not absolutely void, but only voidable at the election of the first vendor, who might affirm it and sue upon it. That unless he avoided it, before the property had passed into the possession of one who had bought or advanced upon it, without notice of the fraud, his title would be divested, as between him and such purchaser, or the person so advancing (see Lord v. Green, 15 Mee. and W. 216).

In Rowley v. Biglow, 12 Pick. 307, 312, the court say: “We taire the rule to be well settled, that where there is a contract of sale, and an actual delivery pursuant to it, a title to the property passes, but voidable and defeasible as between the vendor and vendee, if obtained by false and fraudulent.represénta■tions. The vendor therefore can reclaim his property as against the vendee, or any other person claiming under him and standing upon his title, but not against a lana fide purchaser without anotice of the fraud. The ground of exception in favor of the latter is, that he purchased of one having a possession under a contract of sale, and with a title to the property, though defeasible and voidable on the ground of fraud ; but as the second purchaser takes without fraud, and without notice of the fraud of the first purchaser, he takes a title freed from the taint of fraud (Parker v. Patrick, 5 T. R. 175). The same rule holds iib regard to real estate.” “ The difference between the case of ¡property thus obtained, and property obtained by felony, is obvious. In the latter case, no right either of property or possession is acquired, and the felony can convey none.” (Hoffman et al. v. Noble et al., 6 Met. 68).

It may be contended, with much force, that when a person obtains property by false, pretences, he acquires no right either of property or possession, and the false pretences can convey none. That such a party may be sued in trespass de bonis asportatis, or by replevin in the cepit, without a previous demand (Carey v. Hotailing, 1 Hill, 311, and ed. 317, ed. 302).

I think it a more accurate statement of the rule which protects a bond fide purchaser from- a fraudulent vendee, to say, “ that where there has been a contract of sale and a delivery under it, sufficient in law to vest the property in the first purchaser, and make a good title, if not tainted with fraud, the bond fide vendee of such a purchaser, buying and obtaining possession before the contract has been rescinded, will acquire a perfect title as against the first vendor.”

So if the true owner has intrusted to a third person written evidence of title, or of an absolute and unqualified power of disposition, any one who advances his money to and obtains possession of the property from such third person, in good faith, relying on the facts being in conformity with this written evidence of their truth, will acquire an indefeasible title as against the true owner. In the case of a sale, the. property is sold and delivered with an actual intent, that the purchaser may sell or otherwise convert it to his own use. A third person buying and taking a delivery of the property from the first purchaser, does only what the first vendor actually expected would be done by some one in respect to the property. He has enabled his vendee, and intended to enable him, to sell and deliver the property to others, who might bond fide part with their money and take the property in entire confidence of acquiring a perfect title. If in such a case the first vendor can afterwards rescind the sale and treat it as absolutely void as between himself and such a purchaser, then every bond fide purchase of chattels may be avoided by any former owner from whom they may have been obtained by a fraud, .which would avoid the sale as between him and his immediate vendee. Ho one could buy chattels with security of acquiring a title, even in the cases in which a former owner had made a sale in fact, and a delivery under it with intent to then pass the title, if it should subsequently appear that he had been induced by fraud to sell and deliver them., When goods have been stolen or taken by an actual trespass, or have been delivered’ for a special purpose without any authority to sell, a different principle applies. In the first two cases supposed, the owner never made any delivery of the property, nor gave any actual or constructive assent to it. He never intended to part with the title or possession, in any event. He has done nothing which could aid the efforts of the felon or trespasser to defraud third persons. It is not a case m which his acts have enabled a third person to commit- a fraud, by which one of two persons equally innocent of any actual bad faith must suffer. In the case last supposed, he parted voluntarily with the possession. It is true that the only difference between that case, and the case of a sale and delivery of goods not accompanied by a bill of sale, or a bill of parcels, with payment receipted, so far as third persons can ascertain the truth of the transaction from appearances only, is hardly perceptible. In either case, the only evidence of title which the possessor of the property has or can exhibit, is the fact of actual possession. In either case, a person wishing, or solicited to purchase, sees him in the actual possession, claiming to be owner. Why, then, should a vendee acquire a title, if it turns out that possession was acquired under a fraudulent purchase, and none where it was obtained for a special purpose, and without any authority to sell in any event ?

It is difficult to find any principle on which to discriminate between them, except that above stated. The cases already cited, as well as numerous others, protect the bona fide purchaser on that principle. The rule is briefly and clearly, and, as we think, correctly stated in the recent case of Stevenson v. Newman, 16 Law and Eq. R. 401,408. “ The fraud only gives a right to rescind. In the first instance, the property passes in the subject matter. An innocent purchaser from the fraudulent possessor may acquire an indefeasible title to it, though it is . voidable between the original parties. It must be considered therefore as established, that the fraud only gives a right to avoid a contract or purchase; that the property vests until avoided, and that all the mesne dispositions to persons not parties-to, or at least not cognizant of) the fraud, are valid.”

■See Colton et al. v. Gage et al., 13 Illinois E. 610, 614; McMahon v. Sloan, 2 Jones, 283 ; Kensbivry v. Smith, 9 N. H. 109.

Assuming the defendants, Ward & Price, to have advanced their money in good faith, we are of opinion that the plaintiff had no right against them to require the bill of lading to be endorsed and delivered to him, except upon the terms of paying what they had so advanced; all they could be required to do was to endorse and deliver the bills of lading to the plaintiff ; this they offered to do on being paid their expenses. The plaintiff offered to pay, and tendered to them the amount of their advances on condition of their giving him the manual possession of the goods; such possession he demanded of them, and clearly he had no right to require this. The defendants, Ward & Price, cannot be charged with the value of the goods for not complying with this demand. They offered to do all they had the power to do, viz. to give him all the evidence of title, and all the actual title, with all the consequent power of disposition and control which they possessed.

As there was no objection made to the competency or sufficiency of the evidence given in relation to the general usage for the master to issue a bill of lading to the person in possession of the shipping receipts, and as no counter evidence was offered, we consider it as assumed and conceded at the trial, that the usual and known course of business corresponded with the usage relied upon ; its existence seems to be recognised by adjudged cases. (Craven et al. v. Ryder, 6 Taunt. 433; Ruck v. Hatfield, Barn. & Ald. 632 ; Jones Shealf v. Bradner et al. 10 Barb. S. C. 194; Abbott on Shipping, 5th Am. ed. 321, 347, marginal paging; and see Bank of Rochester v. Jones, 4 Comst. 496.)

The Harbecks were not under any obligation by reason of the offer made to them or to the master by the plaintiff, and the accompanying demand to unload the goods. Keyser himself put the goods on board to be transported to California. Eeceipts imposing that obligation on the master had been taken by the plaintiff. Bills of lading had been issued in good faith by the master, and were in hands of persons who had bond fide advanced on the goods. Without returning the bills of lading, and paying or fully indemnifying the vessel against the expenses of loading and unloading, and the damages to which her owners might be subjected by the delay unavoidably consequent upon unloading, neither the owners nor the master were in fault for not giving up the goods. This the plaintiff did not offer to do ; he neither tendered nor offered to procure and return the bills of lading, nor was it at any time in his power to return them. He offered, at most, merely to pay the expenses of unloading; he did not offer to pay the expenses of stowing the cargo, nor damages consequent upon the delay that would be caused by unloading.

Whether he would be obliged to pay, in addition, full or any freight, it is unnecessary to decide. There was no offer to pay.freight, although the captain insisted he was entitled to it; the captain was at least entitled to his freight or to be paid the expenses of stowing the cargo and of unloading it, and to full indemnity against the damages which would result from delaying the voyage until this part of the cargo could be taken out of the vessel, and to have the bills of lading restored to him.

Neither was tendered. No cause of action was primá fade established against the Harbecks.

From the manner in which the cause was submitted to the jury, it is quite evident that the plaintiff’s counsel did not suppose that there was any evidence on which he could anticipate a verdict, that the defendants, Ward & Price, did not advance in good faith, nor that there was any use to have that question submitted. We do not think that the evidence discloses a knowledge on their part of any facts or circumstances which make it proper to grant a new trial for the purpose of having that question submitted.

The verdict being subject to the opinion of the court upon the questions of law arising upon the evidence, and that being of a character to justify specific instructions to the jury upon' all the questions of fact, except the one specially found; and the liberty being resumed to the court to order a nonsuit, and that disposition being a just one, according to the case presented to us, a judgment of nonsuit must be entered.


author: By the Court. Duer, J.

text:
    George F. Talman and Cyrus W. Field v. Henry L. Franklin.
    An entry in the hooks of an auctioneer, which was produced as a sufficient note or memorandum of a contract for the sale of certain lots in the city of Hew York, contained no statement of the terms and conditions of the sale, except such as was contained in a letter from the owner of the lots to the auctioneer, which on the day of sale was attached to the entry in the hooks.

      Held, that this letter was a distinct paper, and not a constituent part of the entry signed by the auctioneer; and consequently, that the entry, as containing no statement of the terms "of the sale, was, as a memorandum of the contract, defective and void.
    The entry in the books of the auctioneer described the lots intended to be sold as eight lots, mentioning their numbers in 132d and 133d streets, without specifying to which street the lots severally belonged.

      Held, that this description of the lots was insufficient, and that its defects could ■ not be supplied by a reference to another entry in the books of the auctioneer, relative to a former sale of the same lots.
    {Before Duek, Campbell, and Slosson, J.J.)
    Feb. 23;
    May 29, 1854.
    This action was brought to recover damages against the defendant for his refusal to complete a purchase alleged to have been made by him from the plaintiff, Taiman, of eight lots in the city of Hew York. The allegations in the complaint cannot be stated more briefly than in the words of the complaint itself, which are as follow: .

      City and Cowniy of New YbrJc :

    George F. Taiman and Cyrus W. Field, plaintiffs, complain :

      Firi'st. That George F. Taiman, being the owner in fee of twenty-six lots of land at Harlem, in the Twelfth "Ward of the city of Hew York, once part of the estate of the late Charles Henry Hall, put them up to sale by auction, at the Merchants’ Exchange, in the city of Hew York, on the 25th day of May, 1852, and announced before the commencement of the sale, as apart of the terms of .sale, that ten per cent, of the purchase money was, on the day of sale, to be paid by the purchaser to the plaintiff, George F. Taiman, and to the auctioneer, Anthony J. Bleecker, the auctioneer’s fee of ten dollars on each avenue lot, and five dollars on each street lot, and that if any purchaser failed to make such payments, the lots would be resold and he be charged with the deficiency.

      Second. That at the said sale, Henry L. Franklin, the defendant, bid in and became the purchaser of eight lots, four on 132d street, and four on 133d street, between the 5th and 6th avenues, being the lots numbered 132,133,134,135, 154,155, 156, 157,. on the map of the said sale, for the price of $471, each lot.

      Thwd. That the said defendant did not, on the day of sale, or at any other time, pay ten per cent., or any part of the price bid, or purchase money, or the auctioneer’s fees, or any part thereof.

      Fowrth. That in - consequence of such neglect of payment, and after previous notice given to the defendant of the time and place of re-sale, and that he would be charged with the deficiency, the said lots were put up to re-sale, and re-sold at the price of $400 for each lot, making a deficiency of $568 upon the eight lots.

      Fifth. That the beneficial interest in the said claim belongs to the said Cyrus W. Field, who is entitled to the benefit of any recovery herein, and for whom the said George F. Taiman is trustee.
    Wherefore, the plaintiffs demand judgment against the de- ■ fendant for the sum of $568, with interest from the 25th day of May, 1852.'
    The answer of the defendant denied specifically each allegation in the complaint.
    The cause was tried before the Chief Justice and a jury on the 25th October, 1853.
    The evidence upon the trial established the following facts, upon which, as undisputed, the questions of law arose to be determined by the court.
    The lots in question were originally sold at auction by direction of the owner, Mr. Taiman, on the 18th May, 1852, and were then struck down to G. Ohesterman as the highest bidder and purchaser. In the entry made in the books of the auctioneer of the sale on that day, the lots were described as Eos. 132, 133, 134, 135, in 132d street, and Nos. 154, 155, 156, 157, in 133d street; and the price for which each was sold was stated to be $490. On the day previous to the sale, the plaintiff, Taiman, addressed a letter to the auctioneer, stating the terms and conditions of the sale, and particularly that ten per cent, of the price of each lot was required to be paid on the day of the sale; and if not paid, that the seller should then have the option of selling the lot the next day by auction, without notice, and Of charging any deficiency to the first purchaser. This letter was pinned in the book of the auctioneer to the entry therein of the sale on the 18 th May, and was the only statement of the terms of the sale which -that entry contained. Chesterman, the purchaser, not having complied with these terms, the lots were re-sold by the auctioneer on the 25th of Hay, and were struck down to the defendant, Franklin, at the price of $471 for each lot. On the day of sale, and before it took place, the letter of Taiman was detached from the former entry, and was pinned to that of the sales then made, which entry, like the former, contained no other statement of the terms and conditions of the sale. This entry, which was produced, and read as a valid memorandum within the statute of frauds, is as follows [see next page]—the blank column headed “ Terms of sale” being that to which the letter which covered it at the time of the sale was attached.
    The defendant not having paid the ten per cent, required, the lots were again re-sold on the 2d of June, 1852, when D. P. Hall became the purchaser, at the price of $400 for each lot. At the commencement of the sale on the 25th May, its terms and conditions were read by the auctioneer from the letter of Hr. Taiman.
    A verdict was rendered, by consent, for the plaintiffs for the sum of $624.33, being the amount of the deficiency on the sale of the 4th of June, with interest from that day, subject, however, to the opinion of the court, at general term, upon the questions of law arising under the statute of frauds, and with liberty to the court, if against the plaintiffs upon these questions, to dismiss the complaint.

      D. D. Field, for the plaintiffs,
    in moving for judgment upon the verdict, insisted that the entry in the sales-book of the auctioneer on the 25th of May, taken in connexion with the paper then attached and forming a part of it, contained all the particulars that the law requires. to be inserted, and was a valid note or memorandum of the contract of sale, within the provisions of the statute of frauds. (He cited 2 R. S. 135, §§ 8, 9; Champlin v. Parish, 11 Paige, 411; Nat. Fire Ins. Co. v. Lewis, 11 Paige, 433 ; Baptist Church v. Bigelow, 16 Wend. 30 ; Mc Comb v. Wright, 4 John. C. 660.)
    ENTRY IN SALES BOOK.

      Sales at Auction continued May the 25th, 1852, by Anthony J. Bleecker, at the. Merchants' Exchange,

    ' A. J. BLEECKER.

      H. L. Clinton, for the defendant,
    insisted that the verdict ought to be set aside, and the complaint dismissed, and relied upon the following points and authorities.

      I. The trustee and cestui que trust were improperly joined as plaintiffs in this action.
    II. Mo contract, binding within the statute of frauds, was proved on the trial. The memorandum, to be valid, must contain everything to show the contract between the parties, so that there be no need of parole proof to explain the intention of the parties, or the terms of the agreement, (Trustees of the First Baptist Church of Ithaca v. Bigelow, 16 Wend. 28.) The auctioneer (Bleecker), if he were the agent of the vendor, duly authorized for that purpose, in order to render the contract of sale binding (to use the language of the Chancellor in Champlin v. Parish, 11 Paige R. 410), “ must reduce the contract to writing, at the time of the sale, and must subscribe as the lawfully authorized agent of the parties, or at least as the agent of the vendor, in order to render it a valid contract of sale, under the provisions of the revised statutes relative to contracts for the sale of lands.” Here no memorandum at all was made at the time of sale. In fact, it affirmatively appears that the memorandum was not signed until after a large number of lots, other than those struck off to defendant, were sold. A contract for the sale of lands, in order to be binding within the statute of frauds, must be so far evidenced by writing as to enable a court of equity to decree a specific performance without the aid of parole testimony. (Ray v. Crue, 6 B. Monroe, 100.) Here the contract, as “ evidenced by writing,” is fatally defective in many particulars. It does not contain a description of the lots, the terms of payment, nor the names of the owners. Hnless the “memorandum of sale” contain within itself, or by reference to some other writing, all the particular’s necessary in order to decree a specific performance, it is of no binding validity within the statute of frauds.” (Boydell v. Drummond, 11 East. 142.) Here the alleged contract, although fatally defective, contains no reference to .any other paper whatever.
    IH. The memorandum in this case was not, in point of fact or in point of law, signed by the party by whom the sale was “ to be made.” It was signed by the auctioneer for himself alone, not by the principal or auctioneer on behalf of his principal. The only signing is that of “ A. J. Bleecker.”
   By the Court. Duer, J.

It is with considerable reluctance that we have arrived at the conclusion that this action, upon the evidence before us, cannot be maintained; but we are now satisfied, that, without an entire disregard of the authorities that ought to govern us, it is a conclusion from which we cannot escape.

It is very doubtful whether Mr. Taiman, who, by the assignment to his co-plaintiff, had divested himself of all interest in the subject of the .action, could properly be made a party, but as this objection is not raised in the pleadings, and was riot taken on the trial, it cannot now be entertained. Admitting that the proof that has been given of his entire want of interest would preclude us from rendering a judgment in his favor, yet, under the provisions of the Code (§ 294), it would be no bar to a judgment in favor of his co-plaintiff, whose right to maintain the action, if maintainable at all, is not disputed.

The only question, therefore, and that which alone was meant to be reserved upon the trial, plainly is, whether the entry in the sales-book of the auctioneer is a sufficient note or memorandum of the alleged sale to the defendant, within those provisions of the statute of frauds which declare “ that every contract for the sale of lands shall be void, unless the same, or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the sale is to be made, or by an agent of such party, lawfully authorized.” (2 R. S. 135, §§ 8, 9.)

There are some of the objections that have been taken to the sufficiency of the memorandum that we are clearly of opinion are' untenable, and these I shall first notice.

It is said that the writing produced, as evidence of the contract, does not contain the names of the owners of the lots to be sold, but the statute does not require that it should. When the sale is by auction the name of the person directing or authorizing the sale, and by whom a title is to be given, must .doubtless be stated ; but it is not necessary that he should be the owner of the lands, in the full sense of the term, or indeed have any beneficial interest whatever. It is quite immaterial whether he is an absolute owner, or a trustee having a legal title, or acting merely under a power. It is enough that he is legally competent to make and complete the sale. Here the name of George F. Taiman, trustee, is entered in the column of the entry of the sales-book which is headed £‘ Employers,” and we think this a sufficient declaration, that, as a trustee, he directed the sale of the lots, and would convey them to the purchasers entitled to demand conveyances. It was quite unnecessary to mention the names of those for whom, as a trustee, he was acting.

The objection that the entry in the sales-book, although subscribed by the auctioneer, is subscribed by him in his own name, and not as agent for the party making the sale, we are also convinced ought not to be sustained. This objection, it is true, derives some countenance from the language of Chancellor Walworth in Champlin v. Parish, but when that case is examined it will be found that the entry, which was then relied on as a sufficient memorandum, was not subscribed by the auctioneer at all; and all that the Chancellor probably meant to say is, that since that alteration in the law which the revised statutes have made, an actual subscription, as distinguished from a mere signing of the name, either of the party making the sale, or of his agent, the auctioneer, is indispensable, which is undoubtedly true, and has in several cases been expressly decided. (Davis v. Shields, 26 Wend. 34; Townsend v. Hubbard, 4 Hill, 351.) Hnder the old statute of frauds, which required that the necessary writing, the evidence of the sale, should be signed, not subscribed, by the party to be charged, or his agent, it was held, that when the sale of lands is by auction, an entry by the auctioneer in his sales-book of the name of the highest bidder, as the purchaser, is a sufficient signing to give validity to the contract. It was not necessary that the auctioneer should sign his own name at all. (White v. Proctor, 4 Taunt. 209; McComb v. Wright, 4 John. C. R. 659.) Hnder our present statute it is still necessary that the name of the purchaser should be stated in the writing, which is designed to be a memorandum of the contract, but it is also necessary, to render the memorandum valid, that it shall be subscribed by the party making the sale, or by the auctioneer, as his agent. It is not necessary, however, we are convinced, that when the auctioneer subscribes he should declare, by some addition to his signature, that it is made on. behalf of, or as the agent of, the seller. It is sufficient that it is apparent, on the face of the writing, that it is only in the capacity of an agent that he can be acting; and this is manifest, in all cases, where the writing, as in the case before us, contains the names of other persons as the seller and purchaser.

The exact question arose, and was decided by this court, as we now decide. it, in the case of Pinckney v. Hagadorn, 1 Duer, 89. Hor should we have thought it expedient to reconsider it had we not been pressed with the authority of the Chancellor’s observation in Champlin v. Parish. We believe that we have given the true explanation of his language in that case, but were we satisfied that he meant to be understood in the literal sense that his words import, we should still esteem it our duty to adhere to our former decision.

The last of the objections that we hold to be groundless is, that the particulars of the contract were not reduced to writing at the time of the sale. The argument is, that, as the lots were separately sold, the sale of each was a separate contract, which to render it valid ought to have been signed by the auctioneer as soon the name of the purchaser was declared ; whereas, the name of the auctioneer was not subscribed at all until the sales of the day, which embraced many lots, in addition to those struck down to the defendant, were completed, and it was then subscribed to an entry which embraced them all. We think that this course of proceeding on the part of the auctioneer was entirely correct, and it is not denied to have been that which a long and invariable usage has sanctioned. Although his name was subscribed but once, and not until the sales of the day were closed, the subscription then made was intended to apply, and ought, therefore, to be construed as applying, to every sale, considered as a distinct contract, which the entry that he subscribed properly embraced. The sales made by an auctioneer on the same day and without interruption are usually, and we think properly, regarded as a contimious proceeding, and when the proper entries in relation to each lot that is sold are made, as the sale proceeds, the final signature, by which all are to be attested, may with propriety be delayed, until the sales, considered as one proceeding, have been fully closed.

Such would be our decision, even were it true, as was assumed upon the argument, that the statutory provision, which requires that in sales by auction all the particulars of the contract must be entered by the auctioneer in his sale-book at the time of the sale, were applicable to the sale of lands; but it so happens that the provision is, by its express words, confined to the sale of goods (2 R. S. 136, § 4), and, for ourselves, we should decline, upon a supposed analogy, to extend its application. When lands, are sold by auction the proper entries, as a memorandum of the contract, must, doubtless, be made by the auctioneer, within a reasonable time; but that they must be made at the time of the sale, in the same strict and literal sense of the words in which it seems that they must be understood in their application to the sale of goods (Goelet v. Cowdrey, 1 Duer, 131), has never yet been decided, and it is a decision that we are not prepared, nor, unless constrained by an overruling authority, would consent to make.

The objections to the sufficiency of the memorandum that remain to be stated, are those to which no satisfactory answer has, in our judgment, been given. They are—that the entry in the sale-book, as subscribed by the auctioneer, contains no statement of the terms and conditions of the sale; and that the description of the lots is too indefinite and uncertain; and that these are defects which, even in a court of equity, would render the contract void, and prevent a decree for its specific performance.

In the early case of Parkhurst v. Van Cortlandt (1 John. Ch. R. 273), Chancellor Kent, after a careful review of the prior decisions, states, with admirable precision, the requisites of a valid note or memorandum in writing, within the provisions of the statute. It must not only be signed by the proper party, but must contain all the essential terms of the contract, expressed with such clearness and certainty that they may be understood from the writing itself, or some other paper to which the writing refers, without the necessity of resorting to parole proof. It is true that the decree of the Chancellor in this case was reversed in the Court of Errors, but it was so upon the sole ground that there was sufficient proof of a part performance to let in parole proof, and take the casé out of the statute (14 John. 15). And Thomson,. C. J., in delivering his judgment, distinctly admits, that when there is no part performance, and the action is founded alone upon the writing which is relied on as evidence of the contract, parole evidence, to remove its ambiguities and supply its defects, cannot be received. The writing, unless it contain all the particulars of a valid contract, so as to enable a court of equity, without further proof, to decree its performance, is wholly void; and it is scarcely necessary to add, that where the contract, upon the face of the writing, is so uncertain and defective, that its performance can-, not be decreed in equity, no action for its breach can be maintained at law. We are not aware that these rules have ever been departed from. On the contrary, we believe that in all subsequent cases their authority is implicitly, or distinctly admitted.

Let us apply them to the case now before us. In the entry in the sale book which was produced on the trial as evidence of the contract, the column headed “ terms of sale” was an entire blank; and it is not denied, that if such was its condition on the day of the sale, there was no contract between the parties, upon which the action can be maintained. It was, however, proved upon the trial, that upon the day of the sale, and before it was opened, a letter from Mr. Taiman to the auctioneer, dated the 17th of May, in which the terms and conditions of the sale he directed to be made were fully stated, was attached to the entry in the book; and that from it the terms of the sale were read by the auctioneer, and made known to the bidders—and it has been contended that by this proof the defects in the entry, as a memorandum in writing of the contract, were supplied, and the right of the plaintiff to maintain the action fully established.

We have found ourselves unable to adopt this conclusion. We cannot regard the letter of Mr. Taiman as a constituent part of the entry, which, as a memorandum of the contract, was subscribed by the auctioneer. We do not think it was rendered so by the mere circumstance that, for a temporary purpose, it was attached to the entry on the day of sale. This did not and could not alter its original character of a separate, paper, written and completed as such before any sales were made—signed not by the auctioneer, but by Mr. Taiman himself, and designed to convey his instructions to the auctioneer as to the conduct of future sales, and not to form a part of any contract with future purchasers. It was still a letter which, as such, belonged to the auctioneer, which, for his own convenience and in the exercise of his discretion, he attached to the entry, and in the exercise of his own discretion had a right to remove, and did remove. It was not considered and treated by him as a constituent and permanent part of the entry which he subscribed. If the letter retained its character of a separate paper, the fact that the auctioneer read from it the terms of the sale was wholly unimportant. The terms of the sale might just as well have been orally stated. The reading of them from a separate paper had not the effect of so connecting the letter and the entry as to make them conjointly sufficient legal proof of an entire contract subscribed as agent by the auctioneer. In each of the cases of Hende v. Whitehouse (7 East. 558), and The First Baptist Church v. Bigelow (16 Wend. 130), it appears that the terms of sale had been read by the auctioneer from a separate paper, and in each it was held that the paper could not be received as evidence, to supply the defects of the memorandum in writing which the auctioneer had signed.

Again, if the letter could be used for the purpose of making known the terms of sale, and by such use become, as evidence, a part of the contract, it had been used for that purpose on the previous sale of the same lots on the 18th May, and had thus become an essential part of the memorandum of the contract of sale then made. It could not, however, be at the same time an integral part of two distinct contracts, each of which the purposes of the action required to be proved.

Next, as to the uncertainty in the description of the lots. They are described by their numbers as lots in 132d and 133d streets, without any designation of the lots belonging severally to each, and it cannot be denied that the uncertainty which this omission created, rendered the contract, without extrinsic proof, incapable of execution. It is said, however, and it is the only answer that has been given to the objection, that the lots are described with sufficient certainty in the entry in the sale-book of their former sale on the 18th May; but to this the reply seems conclusive, that there was no reference to this prior entry in that on which the present action is founded, and consequently, that the proof relied on was inadmissible.

In the exercise of the power reserved to us on the trial, the verdict must be set aside, and a judgment, dismissing the complaint with costs, be entered for the defendant.