author: By the Court.—Sedgwick, J.

text:
    JAMES V. HAGAMAN, Plaintiff and Appellant, v. EDWARD BURR, Defendant and Respondent.
    Before Sedgwick and Speir, JJ.

      Decided, November 20, 1876.
    In a case where it was the right of either party to go to the jury upon a question of fact, they may waive that right and make the court the judge of the fact as well as the law.
    If a party moves for a direction to the jury in his favor as matter of law, and the court upon that motion, ofiupon a similar one made by the opposite party for a direction in his favor, directs the jury to •find for the opposite party, both parties,by this action assume and assert that the facts are not in dispute, and the court proceeds upon such assumption and assertion. In such a case the parties waive their rights in the premises (Leggett v. Hyde, 58 N. Y. 275).
    If a party allows the case to be decided in this way, and does not place his right of a submission of a question of fact to the jury before the court in a different aspect, then upon appeal he suffers from not making a distinct request to the court 'for the submission to and the intervention of the jury; and upon appeal the only question for the appellate court to decide is, as to whether the facts given in evidence were of a character that woul -1 have supported a verdict in the same direction as the decision of the court.
    No discrimination can be made between the different questions of fact that may be submitted to a jury but which a party does not ask to be submitted.
    The court by consent, in the place of a jury, decides the questions of fact, and its decision as to the credibility of testimony is as final as á decision in regard to the inferences to be drawn from it. Upon the appeal the question is substantially, can the decision of the court be maintained upon any state of facts warranted by the testimony ?
    Appeal from judgment.
    The action was against the defendant as maker of certain promissory notes. The defense was that plaintiff was a purchaser of the notes after maturity, and that the notes had been given by the defendant, to a third person, his creditor, upon the latter requiring it as a condition of signing a composition deed in fraud of other creditors. The plaintiff contended that one Avery had bought the notes before maturity bona fide, and that plaintiff took Avery’s rights. The plaintiff and Avery testified as witnesses. At the end of the testimony the plaintiff’s counsel moved that the court direct in plaintiff’s favor. Before a decision of this motion, the defendant’s counsel moved that the court direct a verdict in favor of defendant. The court granted the defendant’s motion, and directed a verdict for defendant. The plaintiff’s counsel excepted to the denial of his motion, and to the direction in defendant’s favor, .bnt did not ask to be permitted to go to the jury on any question of fact.

      Samuel H. Randall, for appellant.

      George H. Yeaman, for respondent.
   By the Court.—Sedgwick, J.

Beyond doubt if Avery were a bona fide purchaser of the notes, before maturity, his rights could be transferred by him so as to give a cause of action to any one to whom he delivered the notes after maturity. In this case, the defendant having shown that the notes had an origin fraudulent as to him, the burden was laid upon the plaintiff to show that Avery was in fact a bona fide purchaser. If he failed to show this, the defendant was entitled to the direction given in Bis favor. The plaintiff was not bound to show more ¡than the payment of a consideration in good faith, i. e., -.without notice of the defense. Necessarily he was ¡bound to show this by a credible witness. The witness ¡testifying for the plaintiff was to be judged in the same way as other witnesses are judged. If there were circumstances which tended to affect his credit, under the ordinary course, the jury would judge of his credibility ; and although the facts stated by him might, if believed, indisputably show a purchase bona fide, yet the plaintiff would fail if the jury did not deem the witness credible.

In this case it was the right of both parties to go to the jury on the credibility of plaintiff’s witnesses, and upon the inferences to be drawn from their testimony ; but they might waive their right' and make the court the judge of the facts as well as of the law. I understand the court of appeals to say that this is the result, if a party do not ask to go to the jury, after he has moved for a direction in his favor as matter of law, and the court, upon such motion, or upon a similar motion made by the opposite party, directs the jury to find in favor of the opposite party. By making the motion he asserts the facts are not in dispute ; the opposite party takes the same position; and the court proceeds upon the same assumption. If a party allows the case to be decided in this way, and does not place his right before the court in a different aspect than upon appeal, he suffers from not pointing out to the court that he asks for the interposition of the jury.

In Leggett v. Hyde (58 N. Y. 275), the court said: “ At the trial each party asked the court to direct a verdict in his favor. Each thereby conceded that there was left for decision only a question of law, and that it arose upon a settled and uncontradicted state of facts.”

In Barnes v. Perine (12 N. Y. 18), the judge, at the trial, denied the motion for a nonsuit, and the counsel for defendant excepted; and the judge thereupon directed the jury to find for the plaintiff. To this direction the counsel for the defendant excepted. The court of appeals says : “ The direction to the jury to render a verdict for the plaintiff, was but one form of overruling the objections taken by the defendant to a recovery against him, and cannot be held, as in effect, a decision adverse to the defendant upon the point now sought to be made—that the case should have been submitted to the jury. If the defendant supposed there was a disputed question of fact, material to the issue, he should have made a distinct request that it should be ■ submitted • to • the jury. But having treated the questions as purely legal, and acquiesced in the disposal of them by the court as such, he cannot now be heard to object that facts were involved which should have been decided by the jury.”

In Stone v. Flower (47 N. Y. 569), the court said that where a court directs a jury to find a verdict for defendant, and the plaintiff excepts without having taken a position that the facts are undisputed, the exception will raise the question whether, upon any construction of the facts, the plaintiff- could recover, without the plaintiff asking to go to the jury on any issue of fact. The court said that the principle, upon which the cases requiring a party to ask to go to the jury were decided, is this; “that the defendants had, by the course adopted by them, assumed that there were no disputed facts to be. determined by the jury, but that questions of law only were involved, the decision ■ of which determined the .rights of the parties.”

I do not see that any discrimination can be made between the questions of fact that might go to the jury, but which a party does not ask to have sent to the jury. The court is virtually put by consent in the place of the jury, to pass upon all questions of fact; and a decision as to the. credibility is as final as a decision as to the inferences. to be drawn from the testimony. The question, substantially, is whether, upon any state of facts warranted by the testimony, the decision of the court can be maintained.

.If it could be seen, from the remarks of the learned judge, that he decided the case upon the ground that the fraud in which the notes originated made them absolutely void from the first, and that they were therefore void in the hands of all subsequent holders, then we think there would have been error. A. bona fide holder before maturity could recover upon-them (Dalrymple v. Hillenbrand, 62 N. Y.). Such a position is not necessarily involved in the remarks of the learned judge. He said the plaintiff is a purchaser after maturity, and holds the notes subject to all equities between the original parties. There can be no doubt.that this is correct, as matter of law, if, as matter of fact, it was found that Avery was not a bona fide purchaser. The judge being, by the acts of the parties, in the place of the jury, were there facts which would have supported a verdict that Avery was not a bona fide purchaser?

Of course he would be a bona fide purchaser if he paid the consideration without notice of the original fraud, or the equivalent of notice. This is not absolutely proven by testimony denying notice, or by a statement of a transaction which does not comprise facts showing notice. If. there should be found an intentional concealment of something, it must-be decided as a matter of fact, whether occurrences are not concealed which would show notice. It is a proper consideration whether or not' the facts stated are not so unusual and improbable as to call for a disbelief in their existence. It seems to me that the facts given in evidence-were of a character that would have supported a verdict against the plaintiff. The manner in which the notes were received and parted with by Avery, and the manner in which he acted in guarding himself against possible loss,.as contrasted with the usual conduct of men in protecting their interests, and other circumstances, were proper for the scrutiny of a jury, if left to them, and by the action of the parties, the judge was passing upon the-facts.

For these reasons, inasmuch as the judge, in passing upon the facts, assumed that Avery was not a bona fide purchaser, and the plaintiff did not require the verdict of a jury upon that point, it must be said that there was no error, as matter of law, in the court deciding that the plaintiff, being a purchaser after maturity, could not recover, as the notes were originally void for fraud as to the defendant, the maker.

I am of opinion that the judgment should be affirmed with costs.

Speir, J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    JESSE F. TALMADGE, Plaintiff and Respondent, v. PAUL N. SPOFFORD, Defendant and Appellant.
    Before Sedgwick and Speir, JJ.

      Decided, November 20, 1876.
    contbact.

      When void for want of consideration, and, under statute offrauds, when not in writing.

    In the case at bar, the plaintiff entered into a contract with a third party to do certain work at a stipulated price. After-wards (upon a view of the evidence most favorable to plaintiff) the defendant directed the plaintiff to go on with the contracted work, agreeing that, on its completion, he would take the plaintiff’s claim against the other party to the contract, and pay one thousand eight hundred dollars for it. This direction and agreement was oral and not in writing.

      Eeld, that this was not a valid contract.- It was without consideration, and was collateral to the contract with the third party (Larsen v. Wyman, 14 Wend. 246).
    Upon a consideration of the case that the transaction was one for the sale of the contract to the defendant,—Eeld, that the defendant could only be held by a writing signed by him, agreeably to the. third section of the Statute of Frauds.

      An appeal from judgment, and from order denying motion to set aside verdict, and for a new trial upon the judge’s minutes.
    The complaint averred that the “plaintiff entered into a contract with the above named defendant as follows, to wit: That this plaintiff should enter into a contract with the Steam Derrick Company, to raise their sunken derrick, then sunk at the foot of Bethune street, and place her upon the Jersey flats, for the sum of two thousand dollars ; that this plaintiff should perform or cause to be performed all the work and labor necessary in raising said derrick, and placing her on said flats; that the defendant agreed that at the conclusion of the work of raising the said derrick, and placing her on said flats, that he would pay to this plaintiff, the sum of eighteen hundred dollars in cash, and take the said contract.” The complaint further averred, performance on the part of plaintiff, and an offer to assign to the defendant said contract, and a demand of the eighteen hundred dollars, and a refusal on the part of defendant.
    ■ The answer, with other defenses, made a general denial."
    On the trial the plaintiff ’ s counsel admitted that there was no written contract between the parties to this action.
    The plaintiff as a witness gave testimony as to the arrangement between the parties, which was vague in character. In one part of his testimony he swore that defendant directed him to go on and raise the derrick, and that he, the defendant, would pay eighteen hundred dollars. It was uncertain whether the witness did not intend that testimony as his construction of certain writings signed by him, to which he testified, viz : he wrote and delivered to the defendant, who was president of this Derrick Company, the following, on October 7,1869; “I shall charge two thousand dollars, if I have only the responsibility of the Steam Derrick Company; but if, oh completion of the work, you will see that the cash is paid to me, I-will assign you all my liens on the property of the Derrick Company, and, at your expense, do all I can to obtain security for you, and pay you two hundred dollars, or at that rate, for a portion of said guarantee and settlement of bill.” Likewise, he delivered to the defendant, as president, the following:
    “The Steam Derrick Company,
    “Hew York:
    “ Sir, I will raise the boom derrick, now sunk at the foot of Hammond street, or near there, and place her on the Jersey flats, for the sum of two thousand dollars.
    “ J. F. Talmadge.”
    On the same date, the witness received an acceptance in writing, by the Derrick Company, of his offer.
    The plaintiff testified that the defendant said to him to go on and do the work, and that he would pay eighteen hundred dollars, between the 7th and 9th of October, after the contract with the Derrick Company was made.
    In due time the defendant objected to the plaintiff making any claim upon a contract, not set up in the complaint; and at the end of "the case, moved for dismissal of complaint, and for a direction to the jury in his favor, on the. ground that the evidence did not establish the contract set up in the complaint, and that, on any construction of the testimony, the contract claimed to be established, was void by the statute of frauds, as a verbal contract of purchase of a chose in action of greater value than fifty dollars. The court refused the motion, and defendant excepted.

      Evarts, Southmayd & Choate, attorneys for appellant ; Charles Tweed, of counsel.

      Oscar Frisbie, for respondent.
   By the Court.—Sedgwick, J.

The plaintiff was bound to prove the contract set up in the complaint. Whatever difficulties might attend an application of the statute of frauds to a case where a defendant had requested a plaintiff to enter into a contract with a third person, and to perform services under it, promising to piay therefor, they do" not exist in the case made by the testimony here. The weight of the testimony was, and perhaps no. other construction was possible, that the defendant entered into no arrangement or negotiation, on his own behalf, until after the plaintiff had made the contract with the company. Thereafter only, on a view of the testimony most favorable to plaintiff, did the defendant direct the plaintiff to go on with the work, agreeing that at the end of it he would take plaintiff’s claim against the company, and pay eighteen hundred dollars, or did the plaintiff give to the defendant the option of taking the contract and the claim upon it, after performance, for eighteen hundred dollars.

Under such circumstances, the direction to proceed with the work, and the promise to pay, did not establish a valid contract. It was without consideration, and was collateral to the contract with the company (Larsen v. Wyman, 14 Wend. 246).

Looking at the transaction as one for the sale of the contract to the defendant, the defendant could only be held by a writing signed by him, under the third section of the statute of frauds, that enacts that a contract for the sale of any chose in action, for the price of fifty dollars or more, is void, unless a note of such contract is -signed by the party to be bound by it. I am therefore of opinion, that the defendant’s motion to dismiss should have been granted with costs.

Judgment reversed, with costs.

Speir, J., concurred.


author: By the Court. —Sedgwick, J.

text:
    FRANCIS C. WRIGHT, Plaintiff and Appellant, v. GEORGE S. WRIGHT, Defendant and Respondent.
    Before Sedgwick and Speir, JJ.

      Decided, November 20, 1876.
    DISCONTINUANCE OF ACTION ON PAYMENT OF COSTS.

      Attorney’s fees or compensation.

    After action brought and sent to referee for trial, the parties settled and plaintiff gave a release to defendant, who agreed to pay all costs. Defendant moved the court for a discontinuance, and an order was entered directing discontinuance on payment of plaintiff’s taxable costs.

    The plaintiff’s attorney showed upon the motion that the agreement between him and his client was that he should not charge the plaintiff personally for services or disbursements, but that he should be paid, out of the amount collected, a fee contingent upon recovery; but it did not appear, as matter of fact, that any amount beyond taxable costs and disbursements was due to him.

      Held, that upon these facts the court should not have held, as matter of law, that the attorney for the plaintiff was entitled to an allowance for compensation beyond the taxable costs and disbursements.
    The court would not have been justified in holding, as matter of law, that the contingency in the agreement between plaintiff and his attorney, gave the attorney a right to a greater amount than the value of his services.
    No value beyond taxable costs having been shown, the decision of the court, discontinuing the action on payment of taxable costs, &c., was sustained.

      Appeal from order, on motion of defendant, directing a discontinuance of the action on payment of plaintiff’s taxable costs.
    On the motion below, the following facts were shown : The action was to recover eighteen thousand dollars upon an account stated. The issues were referred for trial. On the trial the defendant offered in evidence a general release by plaintiff of defendant. This release was executed after the action was brought, and was not pleaded. The referee refused to receive it in evidence. On the ground of this release the defendant moved. The plaintiff showed by his affidavit that he lived in California, that the defendant went to him there and applied to settle the action. “I asked him what was to be done about the fees of my attorney, who had been employed to represent my interests in this action ; and I wanted to telegraph to Mr. Fleming, who held my power of attorney in New York. The defendant objected, and begged me not to telegraph, saying-that he would pay all costs.,” The affidavit of plaintiff’s attorney, among other facts, showed that when he was retained, he was informed by the attorney-in-fact of plaintiff, and by letter of plaintiff, that the latter was without means to pay counsel, or for the costs and disbursements of the action, whereupon it was agreed that he should be paid out of the amount . collected, a fee contingent upon recovery.
    The plaintiff’s attorney claimed that the action should not be discontinued until payment was made for his services, in addition to taxable costs.
    The court below directed a discontinuance upon payment of taxable costs and disbursements.

      Mr. Thain, for appellant.

      Mr. Potter, for respondent.
   By the Court. —Sedgwick, J.

Under the decisions, which are not few, nor indeed, in all respects harmonious, the learned judge below recognized the right of plaintiff’s attorney to have the settlement between the parties themselves so far opened as not to allow a discontinuance without payment of costs and disbursements. Accordingly, payment of these was imposed as a condition of discontinuance. The appellant now claims that the court should have directed a reference to ascertain what counsel fee, in addition, should be paid.

I am of opinion that the court was not called upon to do this, unless the affidavit disclosed, as matter of fact, that something beyond taxable costs and disbursements was due. The agreement was that the attorney should not charge the plaintiff, personally, for services or disbursements, but that “he should be paid out of the amount collected, a fee contingent upon recovery.” Under such an agreement I do not think that the attorney could recover as for professional" services any greater amount than the value of his services. At any rate, the fact of the compensation being contingent, by itself, does not show that as a fact the attorney could recover a greater amount, bio professional expert shows that usually the rate of compensation is increased by such contingency. Plaintiff’s attorney does not testify to this, although he assumes it to be so. The court would not have been justified in holding, as matter of law, that the contingency gave the attorney a right to a greater amount than the value of his services.

Í am of opinion that the order should be affirmed, with $10 costs, and disbursements, if any, to be taxed by clerk. -

Speir, J., concurred.


author: By the Court.—Speir, J.

text:
    WILLIAM R. CARNES, Plaintiff and Appellant, v. GEORGE W. PLATT, Defendant and Respondent.
    EJECTMENT, ACTION IN THE NATURE OP.
    . DeLiveky of deed. Evidence of, and issue in.
    The date of a deed, and the possession of it by a party claim- . ing under it, is presumptive evidence of’its delivery.
    Although it may be necessary to have a commissioners’ certificate of the execution of the deed and a county clerk’s certificate of official character of the commissioner, and the genuineness of the signature, to entitle the same to be recorded, yet they are not necessary, upon the deed, to make the same valid and effectual as a conveyance to pass the title to real estate.
    The production of a deed by a defendant properly executed in . the possession of the party plaiming under it, is presumptive evidence of its delivery at .the time of its execution as appears from its date, or the date of its acknowledgment, and the plaintiff has the affirmative of the issue thus raised. He must show affirmatively, and beyond reasonable doubt, that the deed was not delivered; and if his proofs are contradicted by other proofs, so as to leave the matter in doubt, 1 that doubt may be considered in favor of the delivery of the deed.
    The plaintiff, having the affirmative to sustain, namely : that •• the deed was not delivered, he must satisfy the jury that he had made out his case and established the fact of nondelivery. If he does not satisfy the jury of the fact leyond a reasonable doubt, he is not entitled to the verdict, and the defendant is entitled to a verdict sustaining the delivery of the deed.
    JUDGE’S CHARGE TO THE .JURY.
    'An appellate court will not seize hold of isolated portions of a . charge for the discovery of error. If the charge, as a whole, conveys to the jury the correct rule of law upon a given ques- . tion, the judgment will not be reversed.
    If the language of a charge is capable of different constructions, that one will be adopted which will lead to the affirmance of an judgment, unless it fairly appears that the jury were or might have been misled (Caldwell v. N. J. Steamboat Co., 47 N. T. 888),
    Before Sedgwick and Speir, JJ.

      Decided, November 20, 1876.
    This is an appeal by the plaintiff from a judgment, entered upon a verdict of a jury, in favor of the defendant, dismissing the complaint, and from an order denying the plaintiff’s motion for a new trial on the judge’s minutes.
    The case has been a protracted one, having been tried several times, and carried to the court of appeals twice. The action is in the nature of ejectment to recover possession of two lots of land in the city of New York, and was originally brought by Martha B. Carnes, as plaintiff. Upon her death, after the first trial, the present plaintiff was substituted, he claiming possession as tenant by the curtesy.
    The verdict on this last trial was for the plaintiff, and the judgment entered thereon was affirmed by the appellate court. The defendant took a new trial under the statute.
    Both parties claim under Charles W. Houghton, a former owner of the property. Plaintiff claimed title under and by virtue of a sheriff’s deed to said Martha B. Carnes, upon a sale of the lands, by virtue of an execution issued upon a judgment recovered and duly docketed August 10, 1854, in favor of the Merchants’ Bank of Boston against said Houghton. The judgment was purchased of the bank and assigned to Mrs. Carnes in • April, 1865. She thereupon caused the execution to be issued thereon, and the lots to be sold.
    Defendant claimed under a deed, with warranty, from said Houghton to one Charles Anthony, dated July 26, 1854, and which deed, as found by the verdict of the jury, was delivered to any accepted by Anthony before the docketing of the said judgment. Anthony conveyed to Elijah and Edwin Houghton, who mortgaged the premises in question to defendant Platt, which mortgage was foreclosed, and upon the sale the premises were bid in by Platt, who received a deed, and by virtue thereof entered into possession.

      D. T. Walden , for appellant.

      James C. Carter, for respondent.
   By the Court.—Speir, J.

The only question submitted to the jury by the trial judge, was whether the deed of Houghton to Anthony, dated July 10,1854, was delivered to Anthony before the docketing of the judgment, August 10,1854. It is admitted by the counsel on the argument, that this was the issue to be tried, and the matters in controversy between them here relate exclusively to certain exceptions taken by the plaintiff’s counsel to irrelevant testimony claimed by him to have been admitted by the judge, which may have influenced the verdict of the jury, and to certain statements made in his charge to the jury, and his refusal to charge as requested by the plaintiff’s counsel.

Were the exceptions taken to the ruling of the court admitting evidence offered by the defendant, tending to show that Charles W. Houghton was the party in interest, well taken %

The answer avers “that all of said proceedings on the part of the plaintiff were taken in pursuance of the fraudulent conspiracy, and with the design, intent and understanding, between said Houghton and the plaintiff, to wrongfully deprive the said defendant of the said premises, and that said Houghton was the real assignee in interest of said judgment, and the plaintiff holds the said deed of said premises for said Houghton’s benefit, arid that this action was commenced and is prosecuted for" the immediate benefit of said Houghton.” The issue is here distinctly made that Charles' W. Houghton was the real party in interest, for whose ' benefit the judgment was purchased, and who was seeking to recover the property in the name of the " plaintiff. If the evidence" admitted under- the exception tended to prove defendant’s allegation, as we think it did, it was clearly admissible. The counsel far the plaintiff refers to the decision in 59 N. Y. 411, showing that this issue was not in the case.

I do not so understand the opinion of the learned court, it did not decide that this defense was insufficient as pleaded, but admitted that it was competent" on that issue. It did decide that the case, proved on the former trial, did not establish the defense. The reason given was that "it appeared, as the casé then stood, that. Mrs. Carnes might have an interest, and that interest could not be disposed of without making her heirs parties to the suit. It is difficult to seé how the trial judge could refuse to receive the evidence. After all the evidence was in, and it should then have been found to be insufficient to show that the heirs of Mrs. Carnes had no claim, it would be out of the case.' Moreover, the evidence tended to show that Houghton was a parity to a fraudulent conspiracy ■ to execute against the property a judgment against himself, and that he was a party in interest. He had been called as a witness for the plaintiff, and swore that the deed re- ■ mairied in his possession from the time it was executed until the time it went on record! This testimony was contradicted by another witness, and in direct conflict with other statements made by Houghton. The evi- • dence was material, as affecting his credibility with the jury.

I have examined the numerous requests to charge, - and the decisions and charge of the court, with more than ordinary care, and have come to the conclusion that no injustice has been done in these particulars.

The learned counsel for the appellants insists that several errors were committed by the judge, in his instructions to the jury, and objects to the charge that the date of the deed, by itself, was proof that it was delivered and accepted before the judgment was obtained, and to the charge, which was in effect, that the plaintiff has the affirmative of the issue, and that the jury were to be aided by the probability in determining the fact. It is a familiar principle that the date and possession of a deed by a party claiming under it, is presumptive evidence of its delivery. This the judge charged, and added, that it was not necessary to have a county clerk’s certificate to the deed certifying to the genuineness of the commission, to complete it so as to pass the title, though such -.certificate was necessary for the purpose of having the deed recorded.

This charge met the case made by the witness, Houghton. He claimed that he held possession of the deed up to the time the county clerk’s certificate was obtained, which was evidence of non-delivery at that time. When the deed was put in evidence, the defendant rested, and without objection, thus admitting the presumptive evidence of the date and delivery of the deed, and by proceeding to show affirmatively, the nondelivery. It is plain that the plaintiff had the affirmative of the issue specifically arising out of the proof, on the delivery of the deed, as clearly as he had it on the issue raised by the pleadings.

The instruction giving to the defendant the benefit of any reasonable doubt arising on the evidence, cannot, I think, be considered erroneous, when taken in connection with the whole of the charge. The learned Chief Justice, in (47 N. Y. 282) Caldwell v. New Jersey Steamboat Company, lays down the rule which I think is applicable here. He says, “An appellate court will not seize hold of isolated portions of a charge for the purpose of discovering error. If the charge as a whole conveys to the jury the correct rule of law, upon a given question, the judgment will not be reversed. If the language used is capable of different constructions, the one will be adopted which will lead to an affirmance of the judgment, unless it fairly appears the jury were, or at least might have been misled.”

The charge, taken as a whole, was in effect that the burden of proof in the case was on the plaintiff, as well as the burden of establishing that the deed was not delivered until after August 10,1854; that the jury must be satisfied that the deed was not delivered until after that date. The court had called the attention of the jury to all the facts and circumstances which appeared in evidence, which had the slightest tendency to throw light on the question of delivery,—that if they believed the testimony of Charles W. Houghton, from the time of the execution of the deed to him and his wife, he held custody of it until September 12, following, the plaintiff was entitled to a verdict. And, on the other hand, if they should come to the conclusion that Houghton delivered the deed to Whitmore, for the use of Anthony, prior to August 10, 1854, intending at the time to part with all control over it, and that it should take effect immediately, and that Whitmore so accepted it, and had power from Anthony so to accept it, the defendant is entitled to a verdict. Then the court say, “The plaintiff has the affirmative of the issue. He is bound to satisfy you, by evidence, that the deed was delivered after August 10, 1854. If upon the whole case you have reasonable doubt upon that point arising, upon the evidence, that doubt enures to the benefit of the defendant, and he is entitled to your verdict.” If the. case was balanced, the jury must have understood that the defendant was entitled to their verdict. This conveyed to the jury the correct rule. If the plaintiff, having the affirmative of the issue as to the delivery of the deed, he must satisfy the jury that he had made out his case. If not so satisfied, he was not entitled to their verdict.

The judgment appealed from must be affirmed with costs.

Sedgwick, J., concurred.


author: Curtis, J. By the Court.—Speir, J.

text:
    VIRGINIA W. BURLEIGH and HENRY J. SCHENCK, as Trustee of VIRGINIA W. BURLEIGH, Plaintiffs and Appellants, v. ROBERT CENTER, Trustee, Defendant and Respondent.
    I. APPORTIONMENT. Between principal and income.
    1. Equitable doctrine of, when it does not prevail.

      (a) When a trust deed contains the law governing the action of the trustees.
    II. APPLICATION OF PRINCIPLE.
    1. Asset, expense of collection.
    1. A trust deed of real and personal estate directed and empowered the trustees to take possession of the real estate, manage, let, demise, repair, insure, mortgage and sell the same; and to receive, audit and settle all claims and demands as to the real estate, and as to the personal estate and the income of the. same, making such compromises or allowances as to the same as they may think just; and to invest and keep invested the proceeds of any real estate and also the personal estate; and to apply the net rents, issues and profits of all the trust property to the use of the grantor of the trust for life, and upon her death to convey the whole trust property according to the provisions of the trust deed which disposed of the remainder in every possible contingency). A part of the principal of the trust property consisted of a bond for $7500, secured by a second mortgage; the first mortgage was foreclosed, and nothing was realized on the second mortgage, and the bondsman being insolvent, an action was commenced by the trustees, against the sole devisee and legatee of the investor of the seven thousand five hundred dollars. This action was compromised and the whole seven thousand five hundred dollars and interest obtained ; the trustees paid their attorney in that action five hundred dollars.
    Before Sedgwick and Speir, JJ.
    Decided, November 20, 1876.
    One of the trustees claimed that the five hundred dollars should be deducted from the income; and in accounting for the income to the life-tenant deducted the amount and refused to pay it. Thereupon the other trustees and the life-tenant commenced this action against the refusing trustee to compel him to unite with the plaintiff trustee in paying to the plaintiff life-tenant four hundred and forty-nine dollars and sixty-three cents (being the proportion of the five hundred dollars which plaintiff claimed to be chargeable to principal), and to have that sum charged to principal as a necessary payment for its rescue and preservation.
    Held,
    that under the terms and scope of the trust deed, the whole of the five hundred dollars was chargeable on and to be paid out of the income; that the equitable doctrine of apportionment had no application ; that the trust deed contained the law governing the action of the trustees; that it was their plain duty to pay the five hundred dollars out of the income; and consequently that the complaint stated no cause of action for the relief demanded.

      HEAD NOTE TO SPECIAL TERM DECISION.

    1. Holds same propositions as held at General Term.
    H. TAXES AND ASSESSMENTS.
    1. Act of Mat 35, 1841, as to apportionment.
    1. Action must be brought bringing all the parties before the court, and giving proper data for ascertaining the value of the estate of each party.
    3. Personal estate. The remedy does not extend to personal estate or charges on it of the character of the one in question.
    Curtis, J.

      TMs is an appeal from an order sustaining a demurrer to the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action, and from a judgment thereon dismissing the complaint.
    In May, 1870, the plaintiff, Virginia W. Burleigh, being the owner of a large property, real and personal, conveyed it to trustees by a deed of trust.
    Among the property conveyed to the trustees was an undivided interest in the estate of her father.
    "Upon the division of this estate, there was set apart to Virginia W. Burleigh, among other property, a second mortgage for seven thousand five hundred dollars, on property in Hew York, being security for a loan of a part of the estate money, made by Mr. Bowdoin, the executor, to the mortgagor, prior to May, 1870, the date of the deed of trust.
    The first mortgage was foreclosed, and the amount received on the foreclosure was insufficient to pay the mortgage and expenses. The bondsman was insolvent. The trustees began an action against the devisee and legatee of Mr. Bowdoin, to whom he had bequeathed all his estate, real and personal, to recover the amount of the loan, and the interest thereon. After the action was at issue, and before trial, it was settled, and the trustees recovered the principal, seven thousand five hundred dollars, and the accrued interest. The attorney for the trustees was paid by them five hundred dollars for services.
    The complaint sets forth the above matters, and then continues as follows:
    “ Eighth. That the plaintiffs herein claim that said sum of five hundred dollars should not be wholly charged to, and deducted from the income of said trust estate, payable under said trust deed to the plaintiff Virginia, but that it should be charged to, and paid from both principal and income thereof, in the proportion which the amount of principal and interest recovered by the aforesaid action bears to the whole amount recovered, namely: That the sum of four hundred and forty-nine dollars and sixty-three cents of said payment of five hundred dollars should be charged to and deducted from the principal of said trust estate, and the sum of fifty dollars and thirty-seven cents, be charged to, and deducted from the income thereof.

      ‘ ‘ That the defendant, Robert Center, on the contrary, claims and insists that the whole of said payment of five hundred dollars should be charged to and deducted from the income of said trust estate.
    “ That there is now in the hands of the defendant, Robert Center, and the plaintiff, Henry J. Schenck, and subject only to their joint check as trustees, of moneys belonging to said trust estate, more than the sum of four hundred and forty-nine dollars and sixty-three cents, and that if the plaintiffs are correct in their view of the manner in which the aforesaid payment of five hundred dollars should be charged, four hundred and forty-nine dollars and sixty-three cents of said moneys should be paid to the plaintiff, Virginia, as income under the provision of the trust deed aforesaid ; that the plaintiff, Virginia, has demanded the payment to her of said sum of four hundred and forty-nine dollars and sixty-three cents ; that the plaintiff, Henry J. Schenck, as trustee, is willing to make such payment, but that the defendant, Robert Center, as such trustee, refuses to make the same.

      ‘ ‘ Wherefore the plaintiffs demand judgment that the defendant, Robert Center, as trustee as aforesaid, unite with the plaintiff, Henry J. Schenck, in the payment to the plaintiff, Virginia W. Burleigh, of the sum of four hundred and forty-nine dollars and sixty-three cents, now in their hands as trustees aforesaid, being the proportion of said payment of five hundred dollars, chargeable to the principal of said estate, and that said sum of four hundred and forty-nine dollars and sixty-three cents, heretofore paid to the aforesaid Edward J. Patterson, be charged to the principal of said trust estate, as a necessary payment for the rescue and preservation of the same, and for such other and further relief as may be proper.”
    Annexed to the complaint, and made a part of it, was a copy of the trust deed.
    This deed conveyed the property, real and personal, thereby granted to the trustees upon trust, to take possession of the real estate, manage, let, demise, repair, insure, mortgage, and sell the same ; and to receive, audit, and settle all claims and demands as to the real estate, and as to the personal estate, and the income of the same, making such compromises or allowances as to the same, as they might think just; and to invest, and keep invested, the proceeds of any real estate, and also the personal estate ; and upon the trusts mentioned in the opinion.
    The defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and judgment was entered dismissing the complaint.
    The plaintiffs appealed from the judgment to the general term.
    The question involved is, whether the five hundred dollars should be paid entirely from the income, or ratably from income and principal.
   The following special term opinion was rendered:

Curtis, J.

The only question raised by defendant’s demurrer is, whether an indebtedness of five hundred dollars for legal services, in a suit in reference to one of the assets of the trust estate in which the principal sum sought to be recovered with interest was paid before trial, should be paid by the proportional pay-meat of four hundred and forty-nine dollars and sixty-three cents, from the corpus of the trust estate, and the balance from the income thereof, the same being in proportion to the respective amounts of principal of the trust estate and of interest thereon collected.

By reference to the trust deed, it will be seen that, among the powers conferred upon the trustees, there is none that authorizes any payment from the principal of the estate for any expenses incurred in the making or collecting of any investments by the trustees. By the provisions of this trust, the trustees are required to apply the net rents, issues, income and profits of all the trust property to the use of the plaintiff, Virginia W. Burleigh, during her life. This specification of net income to be paid to her seems to clearly imply that all the expenses and disbursements attending the execution of the trust, and the investing and collecting of the trust funds, should be first paid from the income before any part of it is to be paid to her. It also apparently indicates that those persons who succeed to the trust property after her decease shall recover the principal of it unimpaired by reductions from it to meet this class of expenditures.

It is the duty of the court to give effect to the terms of the trust. If the principal of a trust estate thus limited could be reduced by charges and expenses incident to its custody and management, the intentions of the party creating the trust would be made liable to be defeated, and even the interests of the cestui que trust, that it was intended especially to protect, greatly prejudiced.

If it was competent for the court, in its discretion, as a matter of equity, to order that this charge should be paid from the corpus of the trust estate, it does not satisfactorily appear from the complaint that the case is one where the court, in the exercise of this discretion, should so direct.

Douglas Campbell, attorney, and of counsel, for appellant, urged:

I. This action is properly brought as an action to enforce a trust (McCartney v. Bostwick, 32 N. Y. 53; 6 Wait's Practice, 182).

II. The proper parties are before the court (Cunningham v. Pell, 5 Paige, 607; Sherman v. Parish, 53 N. Y. 483).

TTT. The payment of five hundred dollars to the attorney, by the trustees, should be charged proportionably to principal and income.' The principal, seven thousand five hundred dollars, was lost; the security was worthless, it could only be recovered by an action. The services for which the charge was made were not for the recovery of the income, but for the recovery of the principal; and upon no theory should the income be compelled to bear the whole of the burden. This case is, in principle, exactly like the common one of charges upon real estate distributed among life-tenants and remainder-men (Final accounting in estate of W. E. Miller, 1 Tucker, 346 ; Fleet v. Dorland, 11 How. Pr. 489). The learned justice below, in referring to this branch of the argument in his opinion, cites the statute of blew York regarding assessments, &c., upon real estate, as if the doctrine of apportioning such payments were the creation of our statute of May 26, 1841. In fact, the statute was but declaratory of the common law, and only settled the mode of obtaining the contribution, while the doctrine is as old as equity itself. The life-tenant is not bound to pay the principal of any money charged upon the estate ; if he does, he is entitled to contribution (1 Washburn on R. P. 94, &c.). The theory of the contribution is, that the life-tenant has paid the money “to save the estate.” The rule applies to assessments, mortgages, and all charges of a like character (Id. 95). The doctrine is fully expounded by Story in his Equity Jurisprudence, § 483. See also Bradford v. Brownjohn, Law Rep. 8 Chan. App. 711; Cox v. Cox, Law Rep. 8 Equity, 343; Allhusen v. Whittell, Law Rep. 4 Equity, 295. The plaintiffs claim that all the equitable principles controlling the above cases apply, with full force, to the case at bar.

The provisions of the act of May 26,1841, in respect to real estate owned by several persons having estates therein, in possession, reversion or remainder, by which a just and equitable apportionment of taxes and assessments on such real estate may be made among them, is only made operative, by an action commenced for this purpose, bringing the parties before the court, and giving such data as enables the value of the estate of each party to be ascertained, calculating that of the tenant for life, according to the common tables respecting the probabilities of life.

But this remedy does not extend to personal estate, or to charges upon it of the character of that in question ; and if it did, it would be neither just nor equitable to enforce it in contravention of the provisions of the trust; and to apply it in any case, the complaint should furnish some data by which the value of any intervening life estate could be calculated as the primary element in arriving at the adjustment of a contribution, and all the parties whose interests are affected should be brought before the court.

There should be judgment for the defendant upon the demurrer, with the usual leave for the plaintiffs to amend.

(b.) This doctrine prevails as well in trusts regarding personal property (Re Staples’ Settlement, 13 Jurist, 237).

(<?.) The conclusion of the judge below, that the words in the trust deed “net rents, issues, income and profits,” show plainly that such charges as this are to be borne by the income, it is submitted, is erroneous. These words have no bearing upon the question. The law, with reference to which the trust deed was made, decides what is net income. Net income is that which is left of the income after deducting- the charges and expenses legally chargeable to such income. This is the very question at issue in this case, whether the charge is by the law to be borne by the income or principal. The only effect of introducing the word “ net ” into the trust deed is to throw upon the trustees the duty of deciding, before they pay over any income to the eestui que trust, what charges are to be deducted from it, and such charges can only be those which by the law are to be borne by the income; if chargeable to the principal, the income, whether gross or not, has nothing to do with them.

(d.) Upon general principles of justice, the question seems to be very plain. It is to be noticed that this disbursement is nob an ordinary charge “incident to the custody or management” of the trust estate, as it is called by the judge below. When the trust deed was made, this claim against Mr. Bowdoin was in existence. It became part' of the trust estate. The principal of the estate did not consist of seven thousand-five hundred dollars, but of a claim against Mr. Bowdoin for seven thousand five hundred dollars, which could only be realized by a suit, which would cost money to prosecute. According to the theory of the plaintiffs, the mode of stating the account would be a claim against Mr. Bowdoin for seven thousand five hundred dollars—realized after deducting cost of collection, five hundred dollars—and only this latter sum would be carried to principal. The courts have perfectly well settled this question regarding trusts created by wills, &c. Every day litigations arise under wills where the income, as net income, is given to one person, and the remainder to another. If the litigation involves the principal of the estate, and is reasonable, the courts impose the costs on the estate, and they come out of the corpus, not the income. The trustees, as executors, credit the estate with the original amount, less the costs and charges, and then compute income from that. The same is true of ordinary expenses of administration ; they are paid out of the principal, not the income. On both of these questions a late case in Massachusetts is in point (Mandell v. Green, &c. ; Howland v. Green, 108 Mass. 277, 283). Suppose some of the real estate taken by the city for improvement, and an award made, and the trustees pay an attorney to collect the award. Is it possible that the whole amount of the award would be credited to the principal and the income be compelled to pay the expenses ? Ho such thing would be thought of. The expense would be deducted from the award, and the balance would be credited to principal. So the illustrations might be multiplied indefinitely.

IV. The mode of apportionment of' the charge claimed in the complaint is correct. The learned judge below suggests that if the plaintiffs are correct in the former point, the complaint should have given the age of the cestui que trust in order that an apportionment should be made based on the accepted table respecting the probability of life. It is respectfully submitted that this is incorrect. In case of an assessment or mortgage on land paid by a life tenant, such life tenant and the remainder-man contribute in a ratio which will be determined by the age of the life tenant. But that is where one party pays the whole. The life tenant pays a sum which would purchase an annuity equal to the interest from which he is relieved, and he pays it because he is relieved from the interest, and pays a sum in gross, because the whole amount of the charge has to be paid at once, and there is no principal sum from which it can be paid. The remainder-man, being liable for the principal, after the death of the life tenant, instead of waiting to pay it after such death, pays it down at once, by contributing a sum which, upon the theory of probable life, will be equal to the sum to be paid in the future. The result attained is, that the life tenant contributes the interest, the remainder-man contributes the principal. But in case of a charge upon the principal which consists of money, the case is very different. There is a fund from which the charge can be paid, and by paying it from the fund itself, exact justice is done, the life tenant loses the income, and the remainder-man loses the principal after death of the life tenant. The cases referred to in the third point, of charges, costs, &c., upon the principal, bear out this reasoning. When chargeable to the principal, they are deducted from it, and in that way the burden is equitable apportioned among all parties (Brown v. Brown, 41 N. Y. 515).

Shipman, Barlow, Larocque & Macfarland, attorneys, and Joseph Larocque, of counsel for respondent, urged:

I. There is no analogy between the case at bar and the cases reported in the books, relative to the apportionment between tenants for life, and remainder-men, of charges upon real estate for taxes, assessments, and other like purposes. The rights of the parties to the present litigation depend entirely upon the construction to be given to the agreement in writing, entered into between them, that is to say, the trust deed, of which a copy is annexed to the complaint. A careful examination of that deed will show that the purpose and intention of the parties thereto was to keep together, during the lifetime of the said Virginia, the capital of the trust estate, intact and unimpaired. The trustees are given the most ample authority for the management of the estate, with large discretionary powers. After paying the necessary expenses of administration, the net income only is to be paid to the plaintiff, Virginia, during her life. Upon her decease, the capital of the estate, in the event of her failure to make a will, is to go to her children. The counsel fee in question, which is sought to have charged against the capital of the estate, was one of the usual, ordinary expenses of administration. It makes no difference whether the debt for the collection of which it was paid was in the form of a mortgage or of a promissory note. It was a debt due, which it was the business of the trustees to collect, and which, in pursuance of their duty, they did collect. It could with no more propriety be charged against the capital that could the services of a book-keeper, or the rent of an office. ISTo cause of action is therefore made out by the complaint.

II. Assuming, however, for the sake of argument, that some sort of analogy is to be found between, the case at bar, and the class of cases referred to in the preceding first point, arising between, tenants for life of real estate and remainder-men.; still the complaint does not state facts sufficient to constitute a cause of action. The rule as to apportionment in cases where any apportionment is proper, is that the charge is to be equitably- apportioned according to what may appear to be the relative advantages enuring to the several parties according to the precise circumstances of each case. Let us look for a moment as to what are the relative advantages accruing to the several parties in interest in the case at bar from the collection of the mortgage debt in question. By the terms of the trust deed, the plaintiff, Virginia, is entitled to the net income of the whole estate during the term of her natural life. She would, therefore, be entitled to the interest on the sum of seven thousand five hundred dollars, being the principal of the. mortgage debt in question, annually, for the term of her life, which would be the sum of five hundred and twenty-five dollars a year. Assuming that her probable life, according to the tables, would be twenty years, the value of her interest in the amount recovered could be readily ascertained. Upon like data, the interest of the children, who will only be entitled to this seven thousand five hundred dollars on their mother’s death, could be also ascertained. Their interest would be the selling price of a principal sum of seven thousand five hundred dollars, to be paid without interest twenty years hence. It will, be readily seen, therefore, that upon such a hypothesis, the advantage to accrue to the plaintiff, Virginia, from the fund, for the collection of which the charge in question was incurred, would be very much greater than any likely to accrue to the children from such collection. The complaint, however, does not state any facts respecting the age of the said Virginia, or other facts necessary to enable the court to say, that the disposition made of the charge in question would not be a proper disposition, assuming that, upon any principle of law, any apportionment could, under any circumstances, be proper. The complaint, in this point of view, therefore, is also fatally defective (1 Story Eq. Jur. §§ 487, 488, [a]).

By the Court.—Speir, J.

The demurrer raises only the question, whether an indebtedness of five hundred dollars for legal services in an action in reference to one of the assets of the trust estate in which the principal sum sought to be recovered with interest was paid before trial, should be paid by the proportional payment of four hundred and forty-nine dollars and sixty-three cents, from the corpus of the trust, estate, and the balance from the income thereof, the same being in proportion to the respective amounts of principal of the trust estate, and of interest -thereon collected.

The trustees have, under the deed, the most ample authority for the management of the estate, with large discretionary powers. The party of the first part, after conveying to the trustees, all and singular the real estate, and all and every title and interest in and to the estate of her father, and also all her personal estate, and claims of every nature and kind, which she holds against all and every person or persons, gives to them, their successors and survivors, power to receive, audit, and settle all claims and demands as to both real and personal estate, and to the income, making full compromises and allowances as to the same as they might think just and discreet.

The trusts are declared to be—First. To apply the net rents, issues, income and profits of all the trust property, to the use of the party of the first part, for, and during her life.

Second. Upon her death to convey the whole trust property as she may direct by will.

Third. If she die without a will, to convey to her children.

Fourth. If she die intestate, and without children, then to convey to such person or persons as by the laws of the State of Hew York, then in force, relating to the descent and distribution of the estate of intestate decedents, would be entitled to receive the property, if the deed of trust had not been executed.

Among the powers conferred upon the trustees there is none authorizing any payments from the principal of the estate, for any expenses incurred in the making or collecting of any investments by the trustees. On the contrary, the trustees are required to apply the net rents, issues, income and profits of all the trust property to the use of the plaintiff during her life.’ The counsel fee paid out as an expense, in the collection of the mortgage debt, was one of the ordinary expenses of administration. They were in duty bound to make the collection, and under the trust they had no authority to charge it against the capital of the estate.

The whole deed, as well as its specific trusts and provisions, clearly manifests a purpose and intention of the parties to maintain the corpus of the estate entire and unimpaired. The mutual rights of the parties are fixed and settled under the trust deed. Wo complicated adjustments are stated in the deed. Virginia Burleigh, the plaintiff, of her own good will, gives her whole estate to trusted agents, to manage and administer during life. It is true that a nominal consideration of one dollar is named in the deed, but after all, the intention of disposing absolutely of the whole body of the estate to others, reserving to herself only the net rents, issues and profits, constitutes the real beneficial consideration. The mere pleasure of doing good to others stands in the place of a cause on the part of the person who receives the benefit and gives nothing. The will of the donor will be sufficient to support a gift against himself: “ Stet pro ratione voluntas ” (1 Fonbl. Equity, ch. 5, § 9). The court will pay that faith and deference to the solemnity of deeds of this character, so as to give full effect to the terms of the trust.

I think the learned counsel has mistaken the principle involved in the determination of this case. There is no analogy between the case at bar and the cases reported in the books, relative to charges upon real estate distributed among life tenants and remainder-men. Here there are none of the common elements of the uncertainties belonging to all calculation of contingencies. There are no charges to be distributed and apportioned among life-tenants and remainder-men. Wor am I able to see the application of the doctrine that the income shall bear all the expenses relating to itself, and that the principal shall bear all extraordinary expenses incurred in saving it from destruction,' or in its improvement, as applied to assessments, mortgages, rents, &c. The duty of the trustees is plainly set forth in the instrument, which of itself contains all the law of their action. No complications have yet arisen since the execution of the deed, which call upon a court of equity to invoke the doctrine of any of the cases referred to.

The judgment appealed from should be affirmed with costs.

Sedgwick, J., concurred.


text:
    SAMUEL H. RANDALL, Plaintiff and Appellant, v. CHARLES DUSENBURY, Defendant and Respondent.
    Before Sedgwick and Speir, JJ.
    Decided, November 20, 1876.

      GONTBMPT. What cannot be punished as.
    1. Payment of money. Disobedience of a judgment or order directing the payment of money cannot be punished as.

      (a) Trust Fund. This although the payment is directed to be made out of a trust fund, and in priority to all other payments.
    Appeal from an order denying a motion to punish as for a contempt for not obeying a judgment requiring the payment of money.

      Samuel H. Randall, for appellant.

      Charles Blandy, for respondent.
   By the Court.—Speir, J.

The judgment entered June 8, 1874, directed defendant forthwith to pay to plaintiff the sum of three thousand four hundred and ten dollars and seventy-three cents, out of and from a certain fund received by defendant under deed of assignment from Selah Hiler, and prior to all other payments. The judgment further provided “that the plaintiff have leave to apply to this court on the foot of this judgment for any further order, direction, or decree, to carry this judgment into effect.”

But a single question is presented by the record before us on this appeal. Has the plaintiff mistaken his remedy ? Is the only proper mode of enforcing this judgment by execution against defendant’s property %

Proceedings as for contempt to enforce civil remedies and to protect the rights of parties in civil actions are regulated by the statute (2 R. S. 534), and the cases are therein specifically defined and limited. Where by law execution can be awarded for the collection of a sum of money, it seems very clear that no proceedings as for contempt can be had for the non-payment of money ordered by the court to be paid. The first section enacts, “Every court shall have power to punish by fine and imprisonment or either, &c. by subdivision three, “Parties to suits, &c., . . . for non-payment of any sum of money ordered by such court to be paid, in cases where by law execution cannot be awarded for the collection of such sum” (2 R. S. 534, § 1, subd. 3).

How the judgment before us requires the payment of money. There can be no doubt that by law an' execution can be awarded for the collection of the money thus ordered to be paid. The provisions of the Code are substantially the same as existed before the Code under the Revised Statutes. Section 2S5, “Where a judgment requires the payment of money, or the delivery of real or personal property, the same may be enforced in those respects by execution as provided in this title. Where it requires the performance of any other act, a certified copy of the judgment may be served upon the party against whom it is given, or the person or officer who is required thereby, or by law, to obey the same, and his obedience thereto enforced. If he refuse, he may be punished by the court as for a contempt.” By both the Code and Revised Statutes, there is a specific authority to issue execution for the moneys in question, because an execution can be awarded for their collection. The authority to take proceedings to enforce civil remedies and to protect the rights of parties in civil actions, is limited, and cannot extend for the non-payment of money in a case where by law, execution can be awarded for the collection of such sums of money.

It is argued that the defendant being further directed to pay the money out of a particular fund in priority to other payments, and having leave to apply to the court on the foot of the judgment, for any further order, direction or decree, to carry the judgment into full effect, it was intended to grant to the appellant the remedy he is now seeking to enforce. The judgment requires only the payment of money, and it appearing that an execution can issue to collect it, the plaintiff is restricted to the issue of an execution as the only remedy he can resort to.

What proceedings he may take in the future, after exhausting the remedy by execution, has nothing to do with the present question. The court is not now called upon to take into consideration any future action which the defendant may become liable for, as malappropriation of the fund, or other misconduct. This court has decided that where a judgment directed the payment of money into court, that if the judgment directed the performance of certain acts, and also required the payment of money, it may be enforced in the latter respect by execution; and that is the only proceeding that can be resorted to, in the first instance, to compel payment (Gray v. Cook, 24 How. Pr. 432, Bosworth, Ch. J.).

The order must be affirmed with costs.

Sedgwick, J., concurred.


text:
    COLIN CAMPBELL, Plaintiff and Respondent, v. WILLIAM C. CONNER, Sheriff, Defendant and Appellant.
    I. VESSELS.

    1. Seizure under attachment against non-resident or absconding debtors of goods shipped in good faith for transportation •without re-shipment or tran-shipment in this State, to any port or place out of this State.
    1. OWNER OR MASTER OF VESSEL,—RIGHTS OF.

      (a.) Gommon law. He had a right to insist on payment of freight, and full indemnity against the consequences of any bill of lading signed by him, before releasing and delivering the goods.
    (5.) Statute. Laws of 1841, chop. 242.
    1. A bond must be given to the owner or master before the issue of the attachment, conditioned for the payment of all expenses, damages and charges, which they may incur or be subjected to by unloading the goods, and for all unnecessary detention of the vessel.
    («.) The indemnity given by the bond, is the same as that afforded by the common law.
    1. Change. The only change is the requiring a bond before the attachment can issue.

      (b.) Damages; see Sheriff.

    2. SHERIFF.

      (a.) Liability of, for seizure of the goods without the bond.
    1. Trespasser, liable as.

      Before Sedgwick and Speir, JJ.

      Decided, November 20, 1876.
    (Z>.) Damages against.
    1. Value of goods. Liable for the value of .such for which any part of the bill of lading remains outstanding.
    2. Demurrage, re-stowage; liable for, so far as necessary.
    H. TRESPASS,—ACTION FOR, IN OASE OF SUCH SEIZURE WITHOUT BOND.

    1. In whose f amor, and against whom.

      (a.) In favor of the owner or master of the vessel, against the sheriff.
    This is an appeal from a judgment, entered on a verdict of the jury, directed by the court.
    The defendant seized and took ont of the barque John Campbell, owned by the plaintiff, ten hundred and fourteen barrels of flour, and detained the vessel, and broke up the cargo. The sheriff sought to justify his acts by certain warrants of attachment, issued to him against Sigismund Appel, as an absconding debtor, who was the shipper of the flour, and to whom the bills of lading had been delivered.
    The flour had been shipped on board the vessel in good faith for transportation, without re-shipment or tran-shipment in this State, to Hamburg, Germany. Ho bond was given under the statute, and the sheriff, having his attention called to this fact, claimed that he was fully indemnified. The sheriff took the flour by force, although forbidden by the master. The vessel being released, the master procured a quantity of rosin to make up his cargo, and properly trim his vessel, and employed a stevedore to re-stow. the cargo that had been broken up. The vessel was ready to .go to sea. She was detained ten days by the action pf the sheriff. The bills of lading had been signed and delivered before the seizure, and were outstanding at the time of the trial, but in whose hands was unknown. The jury, under the direction of the court, found a verdict for the plaintiff for the sum of nine thousand two hundred and seven dollars and fifty-seven cents.
    Motion for a new trial on the judge’s minutes was denied.

      Vanderpool, Green & Cuming, attorneys, and Robert S. Green, of counsel for appellant, on the points discussed by the court, urged:
    I. The learned judge erred in directing a verdict in favor of the plaintiff, for the sum of nine thousand two hundred and seven dollars and fifty-seven cents. The judge proceeded on the theory that this court, in the case of Bartlett v. Carnley (6 Duer, 194), had decided that in these cases the plaintiff was entitled to recover as damages the amount of any bills of lading which had been issued upon the cargo of the ship and were then outstanding. In Bartlett v. Carnley, the owner of the ship had paid the price of the goods in San Francisco. That was his actual damage. In this case the owner of the ship has paid nothing; and where is his damage ? If a bond had been delivered and suit was now brought upon it, certainly the measure of damages would have been only the outlay of the owner of the vessel up to the time of the commencement of the suit. And can the plaintiff’s recovery now be for more than it would have been if the bond had been given and suit was oh the bond ? In a suit against a sheriff for not taking sufficient sureties in the old action of replevin, the measure of damages was what might have been recovered on a sufficient bond (Baker v. Garrett, 3 Bing. 56). The fact that these bills are outstanding, and that the plaintiff may at some future time be called upon to pay something upon them, does not give him a right to recover the whole amount. The amount of recovery is not certain ; it would vary with different testimony and different juries. The principle of Burt v. Dewey (40 N. Y. 283), covers the case. In the City of Memphis v. Brown (20 Wall. 289), one of the elements of damage claimed was for the failure of the city to guarantee the payment of bonds. The court holds that the damage is too indefinite; so here the damage is not only indefinite, but none has been suffered. Now why should the sheriff be called upon to pay into the hands of the owner of this vessel, leaving in the British provinces the full amount of the value of this property covered by the bills of lading, when he has not suffered any damages in consequence of the sheriff having seized it-? We never can recover it back, and he may never be called upon to part with a particle of it or suffer any damage.
    II. The charge of sixteen dollars paid Capt. Marshall for watching. The same requests to go to the jury were made, as in the other instances. This money was paid by the agent of the ship to a man named Captain Marshall. He was employed by. the agent to watch the vessel, at the same time the captain and crew of the ship, who had charge of her, were also there. It is submitted, that under no principle of law can we be held liable for such a charge.
    Benedict, Taft & Benedict, attorneys, and E. N. Taft, of counsel, for respondent, urged:
    I. The plaintiff was entitled to hold and transport the flour in question under and by force of the statute, notwithstanding the attachments (4 Edm. Stat. 479).
    II. It being the lawful right of the plaintiff, to transport and deliver the flour, notwithstanding the attachments as provided in the statute, it was unlawful for the sheriff to seize and take it. The sheriff, in all that he did, was a willful violater of the plaintiff’s rights.

      III. Independent of the statute, the plaintiff was entitled to hold the goods until his freight was paid, and until he was secured against any liability on the bills of lading (Bartlett v. Carnley, 6 Duer, 194; 3 Kent, 12 Ed. 228, note C ; Parsons on Ship. & Adm. 179, 209 ; Abb. on Ship. 595; Tindall v. Taylor, 28 L. & Eq. 210 ; The Hermitage, 4 Blatchf 474; See Ellis v. Willard, 9 N. Y: 529). He has a lien on the goods for his freight (See Parsons, as above).
    IV. The sheriff therefore was clearly liable, and as he refused to indemnify the plaintiff against the bills of lading as requested at the trial, the plaintiff was clearly entitled to a verdict for the full value of the flour for his indemnity, and for his damages ; as to all of which the evidence of the plaintiff was wholly uncontradicted, and there was therefore nothing for the jury. The court, therefore, properly directed a verdict for such items, as the plaintiff was legally entitled to recover.
    V. The court did not err in any of the items of damages allowed.
    VI. H there are any items that should have been disallowed, it will not be a ground for reversal of the judgment, but only for reducing it pro tanto.

   By the Court.—Speir, J.

The law was settled before the enactment of the statute—Session Laws of 1841, chap. 242 (4 Edm. Rev. Stat. 479)—that the owner or master of the vessel could insist that upon having the goods released and delivered under the attachment, the freight should be paid for the carriage, and a fuá indemnity against the consequences of any bill of lading signed by him. The statute directs what that indemnity shall be. It requires, before the attachment shall issue, the attaching creditor shall execute a bond with sufficient sureties to any or either of the owners or masters of the vessel on board of which such goods shall be shipped, conditioned to pay such owner or master all expenses, damages and charges, which may be incurred by such owner or master, or to which they may be subjected for unlading said goods from said vessel, and for all unnecessary detention of said vessel for that purpose. Since the act went into operation no attachment can issue until the bond has been given. This is the only change made in the law. It prohibits the issuing of the attachment until the indemnity specified shall have been executed and . delivered to the master.

It appears the sheriff’s attention was called to the omission to give such bond, and he justified his action on the ground that he himself was indemnified.

The defendant’s counsel claims that the plaintiff ought not to recover the value of the goods, for the reason that the plaintiff had not been called upon to pay anything in consequence of the bills of lading in- the hands of other parties.

It must be regarded as too firmly established, as well upon principle as by authority, to be now questioned, that prior to the passage of the act, a master who had signed a bill of lading, could not, with prudence, deliver back the goods without having all the parts of the bill of lading delivered up to him. If any part has -been transmitted to third parties, they may have acquired an interest in the goods (See Abbott on Shipping, 739, marg. 595, and cases cited; 3 Kent’s Com. 228, note C). The statute did not in the least change the law as it stood before the enactment. It merely made provision that sufficient indemnity should be made to the master or owner before the attachment should be executed. In the absence of this bond of indemnity, the sheriff had no right to take the goods from the possession of the plaintiff. Having taken them in violation of law, the plaintiff is entitled to full redress, which is the full value of the goods, until the bills of lading are surrendered or the bond of indemnity is given to him under the statute. On the trial, the plaintiff claimed to be indemnified by the verdict of the jury, unless a satisfactory bond was given to him. for any liability on the bills of lading. This was refused by the defendant. To the exceptions taken by the appellant to the items allowed there seems to be no conflict of evidence, as claimed by him, except in one instance.

I think the charge of sixteen dollars paid Captain Marshall for watching should be disallowed. Captain Marshall appears, by the evidence, to have been out of employment at _the time, and this sum was paid to him for looking over. the vessel while they were taking the flour out, and at the same time Captain Hankinson, the master, and the crew, were there ; it being a part of the duty of the captain to look after the ship when seized. This charge must be deducted from the amount recovered.

The value of the twenty-nine barrels of flour was fixed at the lowest rates proven.

The judgment should be affirmed, without costs on this appeal, upon the plaintiffs deducting the sum of sixteen dollars from the amount of the judgment.

Sedgwick, J., concurred.


author: Per Curiam.

text:
    CHARLES G. SMITH, Plaintiff and Appellant, v. MARY A. CANTRELL, Defendant and Respondent.
    Before Sedgwick and Speir, JJ.

      Decided, November 20, 1876.
    MECHANICS’ LIEN, DISCHARGE OF.

      Bond, filing of,—under section 18, act of 1875, cha/p. 379, what liens cannot he discharged thereby.

    Liens on which proceedings were commenced before July 1, 1875, cannot be.
    Appeal from order giving defendant leave to file a bond, for the purpose of discharging a mechanic’s lien, by virtue of section 18 of act of May 17, 1875.

      Jefferson M. Levy, for appellant.

      Henry H. Morange, for respondent.
   Per Curiam.

By the affidavit in the papers on appeal, this proceeding to foreclose a mechanic’s lien was begun in the month of June, 1875. The act of May 17, 1875,—which provides for the discharge of a mechanic’s lien upon a bond being filled,—expressly enacts that its provisions shall not affect any proceedings taken before July 1, 1875. It is probable that this was not pointed out to the learned judge below, as it was only orally stated before the court on appeal, and is not upon the brief of appellant’s counsel. Its effect clearly is to preserve the mechanic’s lien in this case.

It is also suggested that the proceeding was in fact taken upon July 7, 1875. If this be so, it would be necessary to re-open the motion below, for in the present affidavits it is stated that the action was begun in June, 1875.

The order appealed from should be reversed, with ten dollars costs and disbursements to be taxed.


text:
    JOHN C. RUST, Plaintiff and Appellant, v. CHARLES HAUSELT and HENRY RANCKE, Defendants and Respondents.
    I. PARTNERSHIP.

    1. Individual debt.

    1. Notes, ob indorsements of the firm in payment thereof; (a) One partner has no power, without the assent of his copartner, to give to his individual creditor, in payment of an individual indebtedness due by Mm, a note drawn by Mm in the firm name, or an indorsement made by Mm in the firm name.
    (1) Assent—burthen of proof as to.

      (a) Creditors must, in this State, show the assent (Dobs v. Halsey, 16 J. R. p. 38).
    3. Settlement by one partner with a debtor of the firm.
    1. When not binding on the firm, so as to call upon the other partners to falsify it by particular allegations of mistake or fraud.

      (a) Individual transactions. It is not so binding when it comprises individual transactions, wMch the parties engaged in the settlement knew should not enter into the firm , accounts.
    (1) Debtor remitted in such case to his pri/me obligation.

    H. PLEDGEE.

    1. Cessation of rights as such.

    When the proceeds of the pledge and charges against them are carried by mutual consent into general accounts with the pledgor.
    HI. ASSIGNEE IN TRUST FOR BENEFIT OF THE CREDITORS OF A FIRM.

    1. Accounting.

      Before Sedgwick and Speir, JJ.

      Decided, June 5, 1876.

      (a) Action for, by one of the partners against his copartner and the assignee.
    1. Application op above principles.

      Held,

    1. That the assignee could- not" charge against the' proceeds of the assets of the firm, a note drawn by the defendant partner, and indorsed by him in the firm name, and by him given the assignee (before the assignment) to secure his individual debt due by him to the assignee, it not appearing that the plaintiff partners had assented thereto.
    3. That notwithstanding a settlement made between tlm defendant partner and the asSignee, yet as the assignee was allowed to charge in the settlement such a note so given, he was thereby remitted to his prime obligation to account for the proceeds of the trust, and the plaintiff partner was not called on to falsify it by particular allegations and mistakes.
    3. That the assignee was chargeable with the proceeds of property of the firm, which prior to the assignment he had received, and, by mutual consent, carried, with the charges thereon, into general account with the firm, although the property was originally pledged to him by one member of the firm as security for an individual indebtedness.
    (1) The proceeds and charges thereon having been carried into general account with the firm before the assignment, his right as pledgee ceased, and upon the making of the assignment be became liable thereon as trustee for such proceeds.

      (a) The effect is either an increase of the assets of the firm, or a diminution of its indebtedness to the assignee.
    Appeal from judgment
    The plaintiff and Henry' Banclte, the defendant, partners, being insolvent, made an assignment to defendant Hauselt, of all the firm property, upon trust that defendant Hauselt should turn the property into money and therewith settle and pay all the debts of the firm, and, after so doing, should account for and return to said firm the balance of the property or money left remaining after settlement of the debts. The assignment contained clauses making defendant Hauselt the attorney of the firm for the purpose of the trust.
    By the articles of copartnership, the plaintiff was entitled, upon a winding up of the firm business, to receive, after payment of debts, six thousand dollars before defendant Rancke should receive any proceeds.
    The complaint averred that Rancke was made defendant, because he refused to be joined as plaintiff. It further averred that defendant Hauselt had refused upon demand to account, and charged that a large amount of property or money remained in his hands after settlement of the debts, and asked for an accounting and judgment for the amount remaining in defendant Hauselt’s hands, and that six thousand dollars thereof, if it should amount to so much, be paid to the plaintiff, and the remainder, if any, to the defendant Rancke,
    The defendant Hauselt was a creditor of the firm. In executing his trust, he paid to the other creditors a per-centage and received an assignment of the claims. He then made up a statement of his trust, in which he charged himself with the moneys- received as proceeds of the property assigned to him, and credited himself with the moneys paid to creditors, and also with an amount specified in the statement as indebtedness to him, viz., three thousand dollars. The statement showed that the firm remained indebted to Hauselt in one thousand two hundred and thirty-one dollars and eight cents, and in the further sum of six hunched and fifty dollars, for commission in executing the trust. This statement he presented with the assignments of the claims to defendant Rancke, who gave him a receipt stating that it was in full payment and discharge of his trust. The plaintiff testified, and was not contradicted, that he knew nothing of this statement or discharge, and had never assented thereto.
    The plaintiff on the trial endeavored to show by testimony that the firm was not indebted to Hauselt in the sum of three thousand dollars.
    The defendant claimed judgment on his counterclaim in the action for the above two amounts, viz., one thousand eight hundred and eighty-one dollars and eight cents.
    It appeared upon the trial, that before the firm was formed, defendant Rancke was indebted individually to defendant Hauselt, in the sum of five thousand dollars. After the firm was formed, Rancke gave his individual notes, making thereon the indorsement of the firm name, without, as plaintiff testified, his knowledge or assent. Thereafter, on an accounting between defendants Hauselt and Rancke personally, wire gauze, the property of the firm, was in a manner left doubtful by the evidence, turned over to defendant Hauselt. Bills of sale were passed, but, by the books of Hauselt, from which he was examined as a witness, the value of the wire gauze was credited to the firm, in a general account. The account contained also charges against the firm, for expenses upon the wire gauze, such as duties, brokerage. This general account charged the firm with the amount due by Rancke individually, and interest. Hauselt testified that if this amount of five thousand dollars were left out of the account, there would be a balance in the favor of the firm in the sum of one thousand nine hundred and fifty dollars and thirty cents, and that he was unable to say in what way the amount of his indebtedness, viz., tliree thousand dollars, as he claimed, was made up. ■

      The judge at special term gave judgment in favor of the defendant, in the amount of his counter-claim.
    The plaintiff appealed.

      Dixon, Whitlock and Anderson, attorneys, and Joseph M. Dixon, of counsel, for appellants.

      Sigismund Kaufmann and Mr. Sanders, of counsel for respondent, Hauselt, urged:
    I. 1. The plea of non-joinder of Henry Rancke, is established. Plaintiff’s witness, and Rust says, Rancke said, “that he thought I had no claim or suit against Mr. Hauselt.”
    II. The answer avers, that Hauselt had fully accounted to Rancke and Rust, and that on such accounting there was a balance found due Hauselt of one thousand eight hundred and eighty-one dollars, and eight cents. The reply is a general denial. It does not seek to impeach the accounting for covin, fraud, error or mistake. The plaintiff cannot, and did not attempt to shift Ms ground, on the tidal, from a plea of “no accounting” to one impeaching the settlement made by Ms copartner. The issue was squarely raised by the pleadings, the plaintiff went to trial with full notice of the defense, and must abide the issue he has made—“accounting” or “no accounting” (Dudley v. Scranton, 57 N. Y. 427). 2. But there was no fraud, error or mistake.
    III. a. The wire gauze was sold to Hauselt, July 9, 1873, and October 20, 1873,—absolutely, Hauselt says. To cover advances, Rancke says. Rust says, he knew nothing of it. 5. If this sale was unauthorized by Rust, and the firm had never recogmzed Hauselt’s claim, or received any consideration for it, Rust would have two remedies. First. To disaffirm the sale and replevy the goods. Second. To demand the goods, and on refusal to sue in trover. But if he calls for the proceeds of the sale he ratifies the transaction and all the means by which it was carried out. He cannot lie by and wait to see which will be most advantageous. Nor can he affirm in part and repudiate in part—it must be total. The receipt of money or the benefits of a transaction is “a ratification of the agency in that respect, and an adoption of the means by which it was obtained” (Lislie v. Wiley, 47 N. Y. 652; Dexter v. Adams, 2 Denio, 646, 651, Beardsley, J. See Story on Agency, §§ 239, 244, 250 ; Moss v. Rossiehead M’g. Co., 5 Hill, 139). The adoption of the transaction in part is an adoption of the whole (Paley on Agency, § 172; Cowing v. Southland, 3 Hill, 556). c. If he would rescind the transaction he must restore or offer to restore the six thousand dollars of notes made or indorsed by Rancke and Rust. He who asks equity must do equity, cl. There is no evidence that Hauselt knew that the six thousand dollar notes were made or the bills of sale of wire gauze delivered without Rust’s knowledge or consent. The burden of proof was on Rust to show it. Plaintiff called Hauselt as Ms witness ; why did he not aslc him. e. Rust says, it was agreed between himself, Rancke and Hauselt to falsely represent to their creditors that their debt of one thousand dollars to Hauselt was three thousand dollars,—so that in a settlement with their creditors Hauselt should get all of his money. If true, the agreement is void against public policy, and the parties being injpari delicto the court will leave them where it finds them (Knowlton v. Congress & Em. S. Co., 57 N. Y. 530 ; Saratoga Co. Bank v. King, 44 Id. 92). Any agreement by which one creditor (Hauselt) was to obtain an advantage over the. other creditors is void in law, and no action can be maintained upon it (Adams v. Outhouse, 45 N. Y. 321; Bliss v. Matteson, 45 Id. 25). But Rust’s statement is. not true.
    ,IY. .Hotes of Ranche and Rust and indorsements

      valid: When Ranche and Rust formed their copartnership, Ranche pnt into the firm goods which belonged to Mr. Hauselt absolutely, Tie had the legal title. By a chattel mortgage which was then due, on default in the payment of the sum secured, title to the goods became absolute in Hauselt (Judson v. Easton, 58 N. Y. 664). And Ranche, a member of the firm, had a right to buy the goods and give the firm’s obligation for them. He did so, and the firm received the benefit of the purchase. The schedule attached to the chattel mortgage shows the goods to be of the same hind dealt in by Ranche and Rust.
    Y. To obtain a review of the evidence, plaintiff should have applied for additional findings in support of the facts he deemed established. Not having done this, the judgment must be affirmed if there be any evidence to sustain the findings of the court below (Simmons v. Richardson, 5 Hun, 177; Dewey v. Supervisors of Niagara, 4 Supreme Ct. 609 ; Meacham v. Burke, 54 N. Y. 219; Caswell v. Davis, 58 Id. 229). An error in law arises upon a refusal to find on request (Beck v. Sheldon, 48 N. Y. 369).
   By the Court.—Sedgwick, J.

The learned judge on the trial, gave final effect to the accounting between the trustee defendant Hauselt, and defendant Ranche. I tahe it, he was led to this result not because the plaintiff was not entitled to open the discharge given by Ranche, but because the burden of proof being, as he considered, upon the plaintiff to give cause for opening it, he had failed to satisfy the judge’s mind by a preponderance of evidence. Indeed, the mass of plaintiff’s evidence on this point was remarhably vague, obscure and tangled. So far as the case is affected by the testimony as to the specific dealings between defendant Hauselt and the firm, the plaintiff gives no satisfactory evidence upon which an account between them could be made. The defendant Hauselt, however, testified to what, in absence of explanation by proof of other facts, would show that whatever were the specific dealings between him and the firm, he did not owe him three thousand dollars. He presented his own ledger, and said it showed the indebtedness. But the balance against the firm was made by charging it with a debt due by an individual partner Bancke, in the amount of five thousand dollars and interest incurred before the firm was formed. The basis for this being done, was that at a former time Bancke, to secure his individual debt, had given his own notes with the firm name, indorsed by himself. In the leading case of Dob v. Halsey, 16 Johns. 38, Justice Spencer said that the law in this State requires ‘ ‘ the separate creditor, who has obtained the partnership paper for the private debts of one of the partners, to show the assent of the whole firm to be bound while in England the burden of avoiding the security is upon the firm. .

In the present case the circumstances were at least suspicious, and the plaintiff testified without proof or intimation to the contrary, that he never knew of the indorsement. If, then, all the statements of the account that. might be made upon the testimony for plaintiffs be disregarded it will appear that at the time the defendant Bancke gave the receipt in discharge of defendant Hauselt, the amount of indebtedness given in the accompanying statement as three thousand dollars was greater than it should be. As the testimony stands, I do not think justice can be done on this, appeal by modifying the judgment. Additional evidence may affect the merits. As to one point I am particularly in doubt. By the evidence of Bancke, it appears that in the transaction, as stated by him, of the wire gauze, a note of one thousand dollars of the firm was given up by Hauselt. The evidence does not show whether that was due besides the note of the firm, for one thousand dollars dated August 12, 1873.

I am of opinion, that although, as matter of evidence, the statement made by Hauselt, and the receipt thereupon by Rancke, was prima facie evidence against the firm, yet upon it appearing that the item of three thousand dollars was incorrect for the reason stated, the settlement was not such that the plaintiff was called upon to falsify it by particular allegations of mistake or fraud. It would be binding upon the plaintiff as a settlement on the ground that in it Rancke represented the firm, from his authority as partner. This authority would, however, be negatived upon proof that the settlement comprised individual transactions, which both Rancke and Hauselt knew should not enter into firm accounts. Thereupon the defendant Hauselt is held to his prime obligation to account for the proceeds of the trust property.

At the best for the defendant Hauselt, if it is granted that the proof shows that the individual indebtedness of Rancke was at one time secured by mortgage of his property, part of which was put in as his share of the capital stock of the firm, Rancke could never pay his individual debt wholly out of property of the firm, not included in the mortgage.

The transaction of the wire gauze did not remain in such a state that the rights of Hauselt were those of pledgee, and therefore that he was not responsible as pledgee under his liability as trustee. At least, the present evidence shows that the proceeds of the gauze had been taken by general consent into the account with Hauselt, before the trust was created, and the result was an increase of the assets of the firm, or a reduction of its indebtedness to Hauselt.

Under the facts of the case, I think Hiere was an implied promise that Hauselt should be compensated for his services in the execution of the trust.

Judgment reversed and new trial ordered.

Speir, J., concurred.