author: By the Court. Campbell, J.

text:
    Darby and others v. Pettee and another.
    The defendants, merchants in New York, signed and delivered to an agent of the plaintiffs, merchants in Liverpool, the following order to be executed by them.

      (Before Duer, Campbell, and Bosworth, J.J.)
    February 22.
    April 30, 1853.
    “ 500 tons Scotch pig iron of the Glengarnock, Summerlee, Govan, Cambro, Calder, Dundyvan, Coltness, or Gartsherrie brands, to be purchased and shipped immediately at current rates and bargains made for freight as low as they can make it."

      Held, that the order, although not addressed in writing, was rendered valid by its delivery to the agent and its acceptance by him.

      Held also, that the order was a direction to the plaintiffs to purchase from others as agents, and not evidence of an agreement to purchase from them as owners.
    Hew trial granted for the purpose of ascertaining whether plaintiffs purchased the iron which they shipped under the order or furnished the same from their own stock.
    This was an action to recover damages against the defendants for their breach of a contract relative to the sale and delivery to them of 500 tons of Scotch iron.
    The complaint set forth that the plaintiffs, Francis Darby, Abraham Darby, and Alfred Darby, on the 1st of February, 1849, were and ever since have been, and now are partners in business established, and carrying on business in Liverpool, in that part of Great Britain, called England, under the name and firm of The Coalbrookdale Company, and that the said defendants, at and during the times aforesaid, were partners in business, trading and doing business in the city of New York, under the name and firm of Pettee and Mann; and that said defendants, on or about the said first day of February'aforesaid, at the said city of New York, under their said firm name, made and signed an order or contract in writing, for certain goods and merchandise therein mentioned, and then and there delivered the same to Septimus Crookes, at the city of New York, then and there being the general agent and factor of said plaintiffs, to be by him forwarded to said plaintiffs for their execution and performance, which order or contract was and is in the words and figures following:
    “ 500 tons Ho. 1 Scotch Pig Ron of the Glengarnock, Summerlee, Govan, Cambro, Calder, Dundyvan, Coltness, or Gartsherrie brands. Do not want Gartsherrie if it comes higher than the other brands. To be purchased and shipped immediately at current rates, and bargain made for freight as low as they can make it. Our object is to get the iron to this market as soon as possible, believing that the price of freights and iron will keep advancing for a time.
    (Signed) “ Pettee & Mark.”
    “ Feb. 1, 1849. New York.”
    That the said Septimus Crookes, as such agent and factor of said plaintiffs, received said order or contract, and without delay and in due and reasonable course of communication, forwarded the same to the said plaintiffs at Liverpool aforesaid, by whom the same was there received on or about the twentieth day of the said month of February; and the said plaintiffs thereupon, in consideration of the said order and request of the said defendants, undertook to execute the same, and without delay, and in due and reasonable course of communication, advised the said defendants thereof in and by a certain written letter or contract in the words and figures following:
    “New York, March 12,1849.
    “ Messrs. Pettee & Marr,
    “ New York:
    “Dear Sirs,—Your order for 500 tons Pig Iron has been received in Liverpool, and entered at the following prices, say £3 Is. 6d. at Liverpool, but if shipped from the Clyde (which will be done if possible) the price will be £3 and 2s. 6d. charges. The brands will be 1st class, most likely Gartsherrie or Glengarnock. The C. B. Dale Eefined Bars ordered with the above are entered at £8 and 2s. 6d. charges, which with the pigs are subject to the usual credit—4 months from date bill lading.
    “Bespectfully yours,
    (Signed) “ Septs Crookes, Agt.
    “C. B. Dare, Co.”
    Which said letter was received by the said defendants at the City of blew York, on or about the day on which it bears date.
    That the said plaintiffs, in consideration of said order of said defendants, and in performance of the same and of said undertaking of said plaintiffs to execute the same, did forward and ship from Liverpool aforesaid, to their said agent and factor at the City of New York, Septimus Crookes, for delivery to the said defendants, five hundred tons of Ho. 1 Scotch Pig Iron of the Glengarnock, Summerlee and Gartsherrie brands, in the quantities and by the ships, at the times following, that is to say: the said plaintiffs at Liverpool shipped, on or about the fourteenth day of March, in the year one thousand eight hundred and forty-nine, on board the ship “ Blanchard,” 155 tons of the “ Glengarnock” brand, and the same arrived at the city of New York, on or about the ninth day of the month of May following; on or about the seventeenth day of the said month of March, on board of the ship “ E. & E. Perkins,” 101 tons of the “ Glengarnock” brand, and 60 tons of the “ Gartsherrie” brand, which arrived at the city of New York on or about the fifth day of the said month of May; and on or about the twenty-second day of said month of March, on board of the ship “ Caleb Grimshaw,” 186 tons of the “ Summerlee”' brand, which arrived at the city of New York on or about the ninth day of the said month of May.
    That the said shipments and each of them were made by said plaintiffs as early after the receipt by them of said order of said defendants, as in the course of trade was reasonable and practicable, and that the bargains for the freight of said iron upon each of said shipments, were made by said plaintiffs as low as they could be made by them, and at reasonable and proper rates and prices.
    That upon the arrival of said iron at the city of New York, the said .agent and factor of said plaintiffs, and in their behalf, tendered and offered to .deliver the same to said defendants, and particularly so tendered and offered in writing, and by the following letter :

      “ New York, May 11th, 1849.
    “ Messrs. Pettee & Makn,
    “ New York :

      “ Dear Sirs,'—The quantity of pig iron, say (500) Five Hundred Tons, ordered by you on the 1st February, from the Coalbrookdale Co., is now ready for delivery, of which please take due notice, as it is liable to be sent to the public , stores. “Yours respectfully,
    (Signed) “ Septimus Cbookes.”
    Which said letter was sent to, and received by the said defendants, on or about the said day of its date.
    That at the time of the receipt by the said plaintiffs, at Liverpool, of the said order of said defendants, the current rates of price, and the market value of the said iron of the description in and by said order required, at Liverpool aforesaid, was three pounds seven shillings and six-pence sterling, lawful money of the realm of Great Britain and Ireland, at and upon a credit of four months from the date of shipment ; and that by the said order of said defendants, and the acceptance thereof by said plaintiffs, the said defendants bargained for, and bought of said plaintiffs, and said plaintiffs bargained and sold to said defendants, said five hundred tons of iron so required, in and by said order of said defendants, and so shipped by said plaintiffs at Liverpool, and forwarded to, and arriving at New York as aforesaid, and thereupon the said defendants undertook, and became and were liable to the said plaintiffs to accept said iron on its arrival as aforesaid, and to take and pay for the same at the rates and price last aforesaid.
    That though the said plaintiffs tendered, and offered to deliver said iron to said defendants as aforesaid, yet the said defendants did not accept, or receive, or pay for the same, or any part thereof, but refused and neglected so to do, and expressly advised and informed the said agent and factor of said plaintiffs at the city of New York, that they would not accept, or receive, or pay for the said iron, or any part thereof.
    That upon and after such neglect and refusal of said defendants, and such notice thereof to the said agent and factor of said plaintiffs, their said agent and factor in their behalf, gave express notice to said defendants, that he should sell said iron on account of said defendants, and charge any loss upon such sale, and all costs, charges and expenses concerning said iron and such sale thereof, to said defendants, and that he gave such notice both verbally and in and by a certain written letter, in the words and figurés following:

      u New York, May 14th, 1849.
    “ Messrs, Pettee & Mass,
    “ New York :
    “ Dear Sirs,—Referring to my note of the 11th inst., I have now to advise you that I shall place the five hundred tons of pig iron ordered hy you from the Coalbrookdale Co., in the hands of a broker for immediate sale, at the market price ; and any loss that may occur on such sale I shall debit to your account, as well as all duties, freights, and expenses of cartage, storage, &c.
    “Yours very respectfully,
    (Signed)
    “ Septimus Crookes,
    “ Per Charles Corremos, Att’y.”
    Which said letter was delivered to, and received by said defendants, on or about the day on which it bears date.
    That after giving such notice last aforesaid to said defendants, and on or about the eighteenth day of May, in the year one thousand eight hundred and forty-nine, said plaintiffs, by their said agent and factor, sold said quantity of said iron, received by said ship “ Blanchard” as aforesaid, for account of said defendants, and that the net proceeds of said sale were the sum of one thousand eight hundred and thirty-five dollars and fifty-six cents, as shown by and upon schedule A, hereunto annexed; that on or about the thirtieth day of the same month of May, the said plaintiffs, by their said agent and factor, sold said quantities of said iron, received by said ships “ E. & E. Perkins” and “ Caleb Grimshaw” respectively, for account of the said defendants, and that the net proceeds of said quantity of pig iron by said ship “ Caleb Grimshaw,” upon such sale, was the sum of one thousand eight hundred and forty-five dollars and fourteen cents, as shown by and upon schedule B, hereunto annexed; and the net proceeds of said quantity of said iron by said ship “ E. & E. Perkins,” upon such sale, was the sum of one thousand seven hundred and sixty-seven dollars and sixty-three cents, as shown by and upon schedule C, hereunto annexed. That such sales, and each of them, were made in the ordinary and usual manner, according to the custom of the iron trade in the city of New York, and that the net proceeds of said sales were the true market value of said iron in the city of New York at the time thereof, and that such sales were made as soon after the said refusal of said defendants to accept said iron as was reasonable or practicable, without a sacrifice of said iron by a forced sale thereof.
    That the amounts due to the said plaintiffs from the said defendants, under their said contract for said iron, were as follows, that is to say: for said quantity by said ship “ Blanchard,” two thousand six hundred and sixteen dollars and twenty-nine cents, due on the fourteenth day of July, in the year one thousand eight hundred and forty-nine; for said quantity by said ship “ E. & E. Perkins,” two thousand seven hundred and seventeen dollars and thirty-two cents, due on the seventeenth day of the same month; for said quantity by said ship “Caleb Grimshaw,” three thousand one hundred and thirty-nine dollars and twenty-six cents, of which the said defendants had notice; and that after the said sales of said iron by said plaintiffs for account of said defendants, and on or about the twentieth day of September, in the year one thousand eight hundred and forty-nine, said plaintiffs made up an account of the amount due said plaintiffs, and rendered the same to said defendants, and demanded payment thereof; that a copy of said account is hereto annexed, marked schedule D, and the same justly and truly states the amount due said plaintiffs on the twentieth day of September aforesaid, from said defendants, that is to say, the sum of three thousand and seventy-nine dollars and twenty-seven cents, and that said amount still remains wholly due and unpaid; wherefore said plaintiffs demand judgment against said defendants for the sum of three thousand and seventy-nine dollars and twenty-seven cents, with interest thereon from the twentieth day of September, in the year one thousand eight hundred and forty-nine.
    It appeared from the schedules annexed that the balance due to the plaintiffs was the sum for which they demanded judgment.
    The answer of the defendants took issue upon all the material allegations in the complaint, and denied that they had ever made any contract with the plaintiffs for the purchase of iron valid and effectual within the statute of frauds. The issues made, the pleadings were tried, before Mr. Justice Sandford and a jury on the 22d February, 1852, and on the trial the witnesses on the part of the plaintiffs proved substantially all the material facts set forth in the complaint.
    The following order in writing addressed by the agent Crookes to the plaintiffs was also given in evidence.
    “ The Coalbrookdale Co. will please purchase, and ship to my order, for account of Pettee & Mann, New York, 1000 tons Ho. 1 Scotch pig iron of the following brands: Glengarnock, Summerlee, 'Govan, Cambro, Calder, Dundyvan, Coltness, or Gartsherrie, the latter preferred, if at same price as other brands. To be purchased and shipped immediately, at current rates. The lowest possible rate of freight to be obtained. Shipments from the Clyde would be preferred, invoice and bills lading to S. Crookes. Insurance will be made on this side.
    (Signed) "S. Ceookes.”
    This order was dated February 6,1849, and Crookes, who was examined as a witness, stated that the insertion of 1000 instead of 500 tons was his mistake.
    It did not appear from any of the testimony or evidence upon the trial whether the plaintiffs had purchased the iron which they shipped, after they received the order from their agent, or had furnished the same from a stock then belonging to them. The fact was left wholly uncertain.
    The jury by consent found a verdict for the plaintiffs for $3600, subject to the opinion of the court upon a case, with liberty to turn the same into a bill of exceptions, and to the court to dismiss the complaint. The verdict, if sustained, to be subject to adjustment.

      W. M. Evarts, for the plaintiffs,
    moved for judgment in their favor upon the verdict, and rested the motion upon the following points and authorities.
    I. The plaintiffs proved their whole case, as stated in the complaint, and must have a recovery in accordance with the verdict, unless the complaint be demurrable.

      JI. The order of defendants of February 1st, 1849, and the notice of acceptance of the order and undertaking to execute it, in the plaintiffs’ letter to defendants, of March 12, 1849, constitute a complete contract in writing, signed by the parties. It was a contract of bargain and sale of 500 tons of pig iron, at £3 7s. 6d. per ton at Liverpool, and was the ordinary case of contract, made by letter of proposal, on one part, and of undertaking, on the other part. (Mactier v. Frith, 6 Wend. 105; Downer v. Thompson, 6 Hill, 208; Eliason v. Henshaw, 4 Wheat. 225; McCullock v. The Eagle Insurance Company, 1 Pick. 283; Adams v. Lindsell, 1 B. & Ald. 681; Long on Sales (Rand’s Ed.), 183.
    m. If the contract were of an agreement to purchase and ship on the part of plaintiffs, and of defendants .to accept and pay for, the rule of damages and recovery would be precisely • the same. The foreign factor, to purchase, buys in his own name, and upon his own credit; he has the possession and control of the property, and a lien for his advances and commissions.
    IY. The absence of commissions, however, shows that the relation between plaintiffs and defendants was of vendors and vendees. The order of defendants, given under same date, to Beeh Kunhardt, was an employment on commission, to purchase and ship iron to defendants; the order to defendants was an absolute order of so much iron.
    Y. The tender, refusal, and notice of resale, entitled the plaintiffs to resell on defendants’ account; the sale by brokers, the usual mode of selling iron in this market, fixes the plaintiffs’ damages from the defendants’ breach of contract. (Crockes v. Moore, 1 Sandf. Sup’r Ct. Rep. 297.)
    YI. The defendants’ evidence was inadmissible; a special purchase of the defendants at Glasgow is not proper evidence to contradict the market price at Liverpool, established by the plaintiffs’ testimony. If admissible, it is ineffectual against the conclusive evidence that the prices charged the defendants by plaintiffs, were at or within the “ current rates,” on receipt of the defendants’ order at Liverpool.
    YH. The verdict should be adjusted at $3,518.60, being the amount shown on schedule D, with the deductions mentioned afterwards in the bill, and interest from date of account rendered, to the date of verdict.

      C. O'Conor, for the defendants,
    insisted that the complaint ought to be dismissed upon the following grounds.
    I. The various papers, acts, and conversations spread over the case, .cannot be misinterpreted, ingeniously dovetailed together, and the compound so construed as to create, by inference, an agreement on the part of the defendants, to purchase from the plaintiffs the iron in question, (a.) Such an inference would be directly contrary to the plain terms of the written evidence, and wholly unsupported by any just view of the facts proven. 1. The letter of acceptance from the plaintiffs’ agent, dated March 12, 1849, does not intimate that they intended to supply the order from their own stock. 2. If such an inference could arise, the defendants never assented to this new proposal, and consequently there was no agreement. (Mactier v. Frith, 6 Wend. 103; Tucker v. Wood, 12 Johns. 191; Bruce v. Pierson, 3 Johns. 534.) (5.) The goods in question being, of greater value than $50, the want of a writing subscribed by the defendants, expressing a contract to pinchase, and of any payment of the price or acceptance of the goods, is fatal to the claim in this aspect. (Davis v. Shields, 26 Wend. 360; Parker v. Wilson, 15 Wend. 360; Cammeyer v. United G. Church, 2 Sand. Ch. R. 248, 249.) (c). The order is void by the statute of frauds, as an agreement to buy; because it contains no indication whatever, by which the intended seller could be ascertained. (Story on Sales, § 257; Champion v. Plummer, 4 Bos. & Pul. 252; Laythoarp v. Bryant, 2 Bingh. N. C. 736; 10 Bingh. 383; 2 B. & Cresw. 627; 5. B & Cresw. 583; 13 Johns. 301.)
    H. The order or contract on which this action is founded is not an. agreement, to purchase iron from the plaintiffs, but at most only an employment of the plaintiffs, or a proposal to employ them to purchase iron for and on account of the defendants.
    HI. An agent or factor to buy. or sell for his principal cannot buy from or sell to himself; this is an. universal principle.
      (Michoud v. Girod, 4 Howard’s U. S. R. 553 to 560; Davoue v. Fanning, 2 Johns. Ch. R. 252, cited in 4 Howard, at p. 646; see cases of Agents, cited 4 Howard’s U. S. R. 554; 1 Hovenden on Frauds, p. 146, and the cases cited in Notes K. and L.; Att'y Gen'l v. Cochran, Wightwicke, 14; Massey v. Davis, 2 Vesey, jr., 320; Dunlap’s Paley on Agency, p. 33, and notes: Van Epps v. Van Epps, 9 Paige, 241; Hays v. Stone, 7 Hill, 135; S. C. in error, 3 Denio, 580.)
    IY. The order was widely and wilfully departed from, to the great prejudice of the defendants. 1. The goods were shipped to and in the name of the plaintiff’s agent, instead of being shipped, as required by the order, to the defendants themselves, which delayed the defendants in making sales for fifty days. (Case, fol. 72; Smith’s Merc. Law, 499, 500, ch. 12, § 3.) 2. The plaintiffs were unreasonably dilatory in making the shipments ; they improperly mingled the goods intended for defendants with others in the shipments and freight accounts, and their charges are excessive.
   By the Court. Campbell, J.

The principal points raised and discussed on the argument, were these:—

I. That there was no evidence of a contract, or if there was evidence, the contract was void, not being in writing, and subscribed by the defendants.

II. That the order or contract was not an agreement to purchase iron of the plaintiffs, but only an employment of the plaintiffs to purchase iron for the defendants, and that it did not appear that the plaintiffs had made any such purchase, and therefore could not recover.

As to the first point, we are all of opinion that this is a legal and valid order, and binding upon the defendants. It was not necessary that it should be addressed. It was delivered to the agents of the plaintiffs. The case of The Union Bank of Louisiana v. Coster (1 Sand. S. C. R. 566, affirmed in Court of Appeals, 3d Coms. 205), is an authority that the absence of an address or designation in writing, of the party to whom a proposition of contract is made, does not render the contract void under the statute of frauds. This proposition and acceptance we deem sufficient.

As to the second point: The defendants’ order or proposition was for 500 tons of iron, &c., “ to be purchased and shipped immediately, at current rates,” and as showing how the agent, Crookes, himself understood the order, he says, in his letter to plaintiffs forwarding the order: The Coalbrookdale Co. will please purchase and ship to my order, &c.” The rule contended for by the defendants is well settled, that an agent or factor to buy or sell for his principal, cannot buy from or sell to himself. (--- v. Girod, 4 How. U. S. R. 553 to 560; Heys v. Stone, 7 Hill, 135, and same case in Court of Errors, 3 Denio, 580.)

It does not satisfactorily appear what the facts are, whether the plaintiffs purchased the iron, or furnished it from their own stock. If purchased, we think the fact should be made to appear, and if proved, the plaintiff would be entitled to recover. If, on the other hand, the iron was furnished from their own stock, the defendants would be entitled to a dismissal of the complaint.

Where an agent or factor sells to a purchaser from himself, it is not sufficient that it is made to appear that the prices paid or charged were the current rates in the market. The contract set up in such cases cannot be enforced, not because the principal has been injured, but because it is against public policy. In this case, on a careful examination., it will be found that the other 500 tons of iron, purchased by the defendants, and forwarded from Glasgow, and the evidence in reference to which was put in by the defendants, when difference in freight and commission are added, must have been within a small portion of the price charged for the iron in question. Conceding that the iron in question was furnished by the plaintiffs from their own stock, the defendants were not sufferers, as it appears from other evidence that the price charged was the current ruling price in the market. Still, in the view we take of the law, the plaintiffs are bound to show that they made the purchase of the iron in question, and were not themselves the sellers, and to -enable them to give this evidence there must be a new trial. Costs to abide the event.


source: Caselaw Access Project

license: Public Domain

text:
    M‘Arthur and another v. Frances Bloom.
    (Before Oakley, Ch. J., Campbell and Bosworth, J.J.)
    April 6;
    April 30, 1850.
    The defendant was sued as the maker of two promissory notes, and the only defence set up was coverture. It appeared that she was a native of Prussia, but had lived in New York for more than seven years; and during that time had carried on business in her maiden name, as a feme sole. It also appeared that her husband, to whom she had been married more than twenty years, had continued to live in Prussia, and by the law of that country could not leave the kingdom without the express permission of the government.

      Held, that the defendant, under these circumstances, might justly be considered and treated as a feme sole, and that the plaintiffs were therefore entitled to judgment.
    This action was brought to recover judgment for two promissory notes, made by the defendant, payable to the plaintiff’s order. The making of the notes was not denied, but the defendant, in her answer, set up that she was a married woman; and that at the time of the making of the notes, and at the time of putting in her answer, her husband was living. The cause was tried before Mr. Justice Campbell and a jury, in January, 1853. On the trial, it appeared that the defendant was a native of Prussia; that she was married in that country over twenty years ago to a citizen of Prussia, named Argoe; that about seven years ago the defendant came to the United States,_ and took up her residence in New York, where she has passed under her maiden name, Frances Bloom; and in that name executed the notes in question. Argoe, the husband, still continues to live in Prussia; has never been in the United States; and it does not appear that he has ever had any intention of changing his residence. It also appeared that, by the laws of Prussia, no subject of that country can leave without a passport or permit from the government. Upon that state of facts the judge decided that the defendant must be considered and treated as a single woman; and he ordered a verdict for the plaintiff, subject to the opinion of the court. The verdict was rendered for $630.48, the amount proved to be due upon the notes.

      J. G. M'Adam, for plaintiffs,
    moved for judgment upon the verdict. He cited 1 H. Black. R. 349; Gregory v. Paul, 15 Mass. 31; 2 Kent’s Com. pp. 138, 155, 156.

      W. H. Taggard for defendant.
   By the Court. Campbell, J.

It would be difficult to distinguish this case from that of Gregory v. Paul, 15 Mass. 31, except in that case it appeared that the husband had deserted the wife in England, while in this case the reasons of the separation, and of the wife assuming her maiden name, do not appear.

There is in the case before us, however, another fact, which may be considered of importance. It is, that, by the laws of Prussia, a passport or permit is required, to enable a subject of that country to emigrate. It may be that such permit would not be given to the husband, and thus the case would be brought within the rule of many of the English cases, as well as the principle upon which the rule was founded. Thus, when the husband was an alien enemy residing atiroad, the wife was always treated as a ftme sole, because it might well be that he would not be permitted to come into the country where she resided. So, when the husband was transported, even though for a limited period, the wife was also treated as a ftme sole, as the husband might not be permitted to return, or might be disposed never to return—even after his term of banishment had expired.

In such cases, it is said that it is greatly for the interest of the wife that she should be treated and considered as a ftme sole, or otherwise she could neither sue nor be sued; could neither enforce her rights, nor obtain the credit which might be necessary, in order to enable her to make a support for herself. (See cases, Gregory v. Paul, 15 Mass. 31; 1 Bosanquet and Pullen, 357; 2 Espinasse, 554; Robinson v. Reynolds, 1 Aiken, 174.)

There must be judgment on the verdict rendered in this case:


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

text:
    Fagen v. Davison.
    (Before Oakley, Ch. J., Campbell and Bosworth, J.J.)
    April 6 ;
    April 30, 1853.
    Tn an action to recover damages for the breach of a contract, relative to the sale and exchange of lands, if the only defence set up in the answer is, that the premises were in fact encumbered by judgments, the defendant is not permitted to show that there were outstanding judgments, which, although not a real, were an apparent lien, rendering the title unsatisfactory, and justifying his refusal to accept it.
    The judge, upon the trial of a cause, has no right to strike out the only defence made by the answer, and substitute another, which is distinct and inconsistent.
    A title, which is required to be satisfactory to the party by whom it is to be received, means a title to which there is no reasonable objection, and with which the party ought to be satisfied. Such a title he is bound to accept.
    When the complaint alleges that the defendant was requested, and refused, to convey, and the allegation is not denied by the answer, no proof of a demand of the deed is necessary to be given upon the trial.
    When it is proved that the premises to be conveyed by the plaintiff were of less value than those to be conveyed to him by the defendant, this difference of value, together with the expense of examining the title, is the true measure of damages.
    Special damage is only necessary to be averred, when it constitutes in part the cause of action.
    Appeal, by defendant, from a judgment at special term, in favor of the plaintiff, for $1,441.25.
    The action was brought to recover damages for the breach of an agreement, relative to the sale and exchange of certain real estate in the city of New York.
    The complaint averred that, on the 1st of April, 1851, the plaintiff and defendant entered into an agreement, in writing, under seal, and then set forth the agreement verbatim. The following are its substantial provisions :—The defendant agreed to sell and convey to the plaintiff a house and lot in the city of New York, known as No. 149 Fourth Avenue, for the price of $7,500 ; to be free and clear of all encumbrances, except a certain mortgage for $5,000 which the plaintiff agreed to assume. The balance of the price, $2,500, the plaintiff agreed to pay, by conveying to the defendant four lots of ground in the city of New York, on NT. W. corner of 41st street and the NTinth avenue, for the price of $7,500, to be free and clear of • all encumbrances,’ at the time of the delivery of the deed; at which time the defendant agreed to execute and deliver to the plaintiff a bond and mortgage on the lots so conveyed, conditioned for the payment, in one year, of $5,000, with interest.
    The deeds were to be warranty deeds, and were to be executed and delivered, together with possession of the premises, on or before the 15th of the same month.
    “The title to be good and satisfactory to the party to receive the same.”
    The complaint then alleged that at the time of making the agreement, the plaintiff was and had continued to be the owner in fee of the lots which he agreed to convey, and that he had at all times been ready and willing, and had offered to perform the agreement on his part, but that the defendant had wholly neglected and refused to perform the same; and demanded judgment for $2,500 as damages.
    The answer of the defendant denied none of the allegations in the complaint, but averred upon information and belief, that the lots which the plaintiff agreed to convey were not, on the day appointed for the delivery of the deed, “ free and clear of all and every incumbrance,”-but that there were several judgments outstanding of record against one John McDonald, a former owner of the lots, which were at that time a lien thereon. The reply took issue upon this defence.
    Upon these pleadings the cause was brought to a trial before Mr. Justice Sandford, and a jury, on the 12th December, 1851. It was proved upon the trial that there w4ere no judgments unsatisfied of record against John McDonald, from whom the plaintiff derived his title.
    A. witness, however, on the part of the defendant, swears, that the plaintiff, in a conversation with him about eight days after the agreement, had admitted, that there was a judgment against McDonald, unsatisfied of record.
    The plaintiff proved that the house and lot bio. 149 Fourth avenue was worth from $1,500 to $2,000 more than the lots which he had agreed to convey. To the decision of the judge . admitting this evidence, the counsel for the defendant excepted. The judge also admitted in evidence an abstract of the title of the plaintiff to the lots he was bound to convey, with the proper searches annexed thereto, and an affidavit of McDonald, the grantor of the plaintiff, that certain judgments against John McDonald, which it appeared from the searches were unsatisfied of record, were not against himself, but against some other person of the same name. It was proved that all these papers had been exhibited to the defendant before the commencement of the suit. The defendant’s counsel excepted to the decision admitting them to be read in evidence. It was also proved, on the part of the plaintiff, that the defendant was not, and never had been, the owner of the house and lot which he had agreed to convey to the plaintiff.
    "When the testimony was closed-, the counsel for the defendant requested the judge to charge the jury, 1. That there being no special damage alleged, the plaintiff could only recover under the general allegation of damage, the expense of his searches, and of preparing his papers. 2. That as there was no sufficient proof of a demand of a deed from the defendant, the plaintiff was not entitled to a verdict. Lastly, that the existence of judgments against John McDonald was an apparent lien, and that the defendant was, therefore, not bound to be satisfied with the plaintiff’s title.
    The judge charged the jury that the case turned upon the point whether or not the plaintiff’s lands were encumbered when he tendered his deed to the defendant. The only incumbrances alleged are judgments against John McDonald. If there were any judgments outstanding against the John McDonald through whom the plaintiff derived his title, he cannot recover. If there were no outstanding judgments, the plaintiff is entitled to recover the amount of the difference in the value of the ^premises agreed to be exchanged, together with his costs and expense of preparing his papera, and abstract tendered.
    The defendant’s counsel excepted to this charge, and also to the omission of the judge to charge as requested.
    The jury found a verdict for the plaintiff for $1,250.
    The motion for a new trial, upon the exceptions, was denied at special term, and judgment rendered upon the verdict.

      The exceptions were npw argued upon an appeal from this judgment.

      Newton, for the defendant,
    insisted that a new trial ought to be granted, and argued the following points.
    I. The court erred in refusing to charge that a demand of a deed from defendant to plaintiff was not necessary. (Fuller v. Hubbard, 6 Cowen R. 14; Sage v. Ranney, 2 Wend. R. 532; Connolly v. Pierce, 7 Wend. R. 130.)
    H. There were apparent liens upon the premises in the Seventh Avenué, rendering the title doubtful; and the defendant was not bound, according to the terms of the agreement, to be satisfied with the title; because one of the conditions particularly mentioned in the agreement between the parties, required “ the title of the respective premises to be good and satisfactory to the party to receive the same.” There is no rule of law that will oblige a party to be satisfied when it is one of the conditions of the agreement that it is optional with him to be satisfied or not.
    HI. The rule of damages, as laid down by the court, was incorrect. 1. There being no special damages alleged in the complaint, the plaintiff could only recover under the general allegation of damages, the expenses of his searches and preparing his papers. 2. The recovery should be limited to the actual injury sustained, without regard to the profits plaintiff might have made by a sale of the premises. (Peters v. McKeon, 4 Denio R. 546.)
    IY. The court erred in allowing the affidavit annexed to the abstract to be read to the jury ; the searches attached to the abstract, and not the abstract, were put in evidence by the defendant.

      R. S. Emmet and A. L. Robertson, for plaintiffs,
    claimed the affirmance of the judgment upon the following grounds.
    I. The defendant could not, on the trial, set up any other defence than that contained in his answer, to wit, actual incumbrances upon the land agreed to be conveyed by the plaintiff, "by judgment against John McDonald, a former owner.
    II. The demand of a deed by the plaintiff, if necessary, was admitted by the failure of the defendant, to deny the allegations of it in the complaint (Code, § 168).
    m. The defendant admits the title was good and satisfactory by not objecting, except as to judgments against Mr. McDonald, which issue was found against him by the jury.
    TV". Even if the defendant could reject the title on the ground of an apparent incumbrance, he has placed his objection on the ground of an actual incumbrance, which has been found against him.
    V. The rule of damages was correct, at least so far as the defendant is concerned. 1. This was an agreement not merely for the sale of lands, but for the exchange of them. 2. The evidence showed that the defendant had no title to the lands agreed to be conveyed by him, so that the plaintiff could not enforce specific performance (Florence v. Thornhill, 2 W. Bl. 1078; Hopkins v. Grazebrook, 6 B. & C. 31; Robinson v. Hannan, 1 Ex. 849; Betner v. Brough, 11 Penn. St. R. 127). 3. If the defendant could have given a title, and refused, he was also liable (Driggs v. Dwight, 17 Wend. 71).
    VI. The damages given by the jury, under the rule laid down by the judge, were admissible under the pleadings. I. The loss of the difference in value to the plaintiff between the completion and the agreement, and its valuation, was a direct and immediate consequence of the latter, and need not have been stated, even in a declaration at common law. 2. Even consequential damages could be recovered under an allegation of general damages in such case (Ward v. Smith, 11 Price, 19). 3. The plaintiff could formerly have had the same relief in equity, and the principles applicable to pleadings in equity did not require an allegation in the bill of special damages to recover them in an issue of guamtmm dammificatus. 4. An allegation of such special damage cannot form part of a complaint. (a.) It is not part of the cause of action, which the complaint is to contain (Code, § 142, subd. 2); if so, it will be admitted, unless issue be taken on it by the answer (Code, § 168, s. 149), which was not permitted or required under the former system of pleading (Robinson v. Merchant, 7 Q. B. 918; Wilby v. Elston, 8 Man. Gr. & S. 142). (b.) If it form part of the cause of action, a defendant might confine his defence to taking issue on it alone, (c.) They may be recovered under the demand for relief (Code, § 142, subd. 3 ; § 275, 276).
    VII. The whole abstract of title, with papers annexed, was properly in evidence. 1. It was called for by the defendant, who thereby made the whole evidence. 2. The introduction of the affidavit of McDonald was proper, to show that every reasonable mode had been adopted to inform the defendant as to the' state of the title. 3. The whole abstract and papers were proper, to show that the declaration of Mr. Fagen, that there was an outstanding judgment, if ever made, was corrected by the contents of these papers.
   By the Court. Oakley, Ch. J.

The pleadings in this case furnish a full answer to nearly all the objections that have been raised on the part of the defendant.

The answer, by not controverting, admits all the material allegations in the complaint, and sets up as a sole defence that the judgments against McDonald were a subsisting lien upon the plaintiff’s lots, on the day appointed for the exchange and delivery of the deeds. The answer, therefore, admits that but for this objection the title was satisfactory, and that if the objection were proved to be groundless, the refusal of the defendant to perform the agreement was without justification or excuse.

The defendant could not, therefore, be permitted upon the trial, nor can he now be permitted, to shift his ground, by saying that the judgments against one John McDonald, which the searches disclosed, although not a real were an apparent lien, which, as clouding the title and rendering it unsatisfactory, justified his refusal to accept it. Whether had this defence been set up in the answer it could have availed the defendant may well be doubted, but it is quite certain that it could not be admitted under the pleadings. The judge could not strike out the answer that had been put in and substitute another, nor make any addition to the answer by which a new and entirely distinct issue would be raised ; and were it admitted that he might have carried the power of amendment to this extent, no application for its exercise was in fact made to him. His charge therefore to the jury, that the case turned wholly upon the question whether the plaintiff’s lots were in fact encumbered when he offered to convey them, was entirely correct. It is the only charge that he could have given.

The assertion that the provision in the agreement that the title should be satisfactory to the party who was to receive it, gave to the defendant an absolute right to reject that which was tendered, scarcely requires an answer. We cannot give a construction to the agreement that, by enabling each party to rescind it at his pleasure, would have robbed it wholly of its obligatory character. We cannot say that there was no contract for the breach of which an action could be maintained. A title, satisfactory to the party to whom it is to be given, means a title to which there is nq reasonable objection, and with which therefore the party to whom it is tendered ought to be satisfied. When such is its nature, so far from having a discretion to reject, he is bound to accept it.

The objection that there was no proof upon the trial of a • demand of a deed from the defendant is untenable. As we read the case the fact was sufficiently proved, but in truth no such proof was necessary to be given. The complaint expressly alleges that the plaintiff requested the defendant to perform the agreement by conveying or causing to be conveyed the house and lot which he had agreed to convey, and that the defendant had refused to comply with the request. These allegations are not denied by the answer, and their truth is therefore admitted upon the record. In the actual state of the pleadings the plaintiff was not required to give any proof whatever in order to maintain his action. He had only to show the amount of the damages he had sustained, and to repel the evidence on the part of the defendant.

It only remains to say, that in our opinion the rule of damages laid down by the judge was entirely correct, and that the abstract of title, with all the papers annexed, under the circumstances and for the reasons stated by the plaintiff’s counsel, was properly admitted in evidence. It is an erroneous supposition that the plaintiff was not entitled to recover the whole damages that were given, because no special damage was alleged in the complaint. Special damage is only necessary to he averred where it constitutes in part the cause of action. In other words, where the right to maintain the action depends upon the fact that the damage has been sustained. (Kendall v. Stone, 1 Selden, 14. Linden v. Graham, 1 Duer, 670.)

All the exceptions that appear in the case being overruled, the judgment appealed from is affirmed with costs.


author: By the Court. Bosworth, J.

text:
    Edward Baggott v. Ann Boulger and Margaret Boulger, Executrixes of J. Boulger, deceased, impleaded with Ann C. Baggott and Wm. R. Goulding.
    (Before Oakley, Ch. J., Campbell and Bosworth, J.J.)
    April 6;
    April 30, 1853.
    The objection, that there is an improper joinder of parties, when the facts appear on the face of the complaint, can only be taken by a demurrer. Code, §§ 144, 147, 148.
    When a claim against an estate is not presented to the executrixes or administrators within the 6 months prescribed by the Revised Statutes, the only effect of the omission is to limit the recovery in a subsequent suit by the creditor to the amount of the assets in the hands of the executor or administrator at the time of the commencement of the suit, and to deprive the plaintiff of all right to recover costs. (2 R. S., p. 88, § 34.)
    The right of action is only barred when the claim was presented, and having been disputed or rejected was neither referred nor prosecuted within 6 months thereafter. <2 R. S. ib. §§ 38, 39, 40, 42.)
    Where an order is made by the surrogate for the payment of a sum of money by the administrator to a creditor or distributee, and the order upon appeal has been affirmed by the Supreme Court, the administrator is estopped by such affirmance from alleging any error or defect in the proceedings before the surrogate.
    An order which concludes the administrator equally concludes his sureties.
    An administration bond is more than a bond of indemnity; its breach gives an immediate right of action against the sureties.
    An order of the surrogate directing the prosecution of the bond and declaring it to be assigned, is a sufficient assignment within the statute; the surrogate, not . being a party to the bond, cannot assign it as an obligee.
    The action upon the bond is, under the Code, properly brought in the name of the person for whose benefit its prosecution is directed. Judgment for plaintiff.

      This was an action upon a bond given by Ann 0. Baggott with the defendant Goulding and J. Boulger deceased as her sureties for the faithful administration by her of the personal estate of an intestate Joseph Baggott deceased. It was tried before the chief justice and a jury on the 13th of February, 1852.
    The following are the material facts of the case as proved upon the trial.
    On the 9th of July, 1838, Joseph Baggott departed this life, leaving Ann 0. Baggott, his widow, and the plaintiff and eight other children him surviving. He left a large amount of personal property. On the 25th of July, 1838, letters of administration were granted by the surrogate of the county of New York, to his widow. To obtain these letters, she executed a bond, together with William R. Goulding and John Boulger, to the People of the State of New York, in the penal sum of $10,000; conditioned that she should faithfully execute the trust, and also, should obey all orders of the surrogate of the county of New York, touching the administration of the estate committed to her. The amount of the inventory filed was $24,164.10. The debts due and paid, were $6,414.43.
    On the 15tli of September, 1845, the plaintiff presented his petition to the surrogate, praying that the administratrix might account, and that she be ordered to pay to him his distributive share. Thereupon, the surrogate made an order requiring the administratrix to appear before him, on the 20th of October, 1845, and render an account of her proceedings as such, and show cause why she should not pay to the petitioner the amount of his distributive share in said estate.
    On the day appointed, the administratrix appeared and filed an account.
    The parties in interest not being satisfied with such account, on the sixteenth of December, 1845, the surrogate referred the account to Nathan Skidmore as auditor, and directed said auditor to make a report of his proceedings and determination to the surrogate, at the surrogate’s office, in the city of New York, on the sixth day of January then next, and appointing that day for the appearance of the parties, to be heard on the question of confirming such report, or for asking such other order as might be deemed proper.

      On the 26th March, 1846, the said Skidmore made his report, that the estate of deceased amounted to $12,464.70, after payment of all debts and expenses, and that plaintiff was entitled to be paid $1113. The testimony taken was annexed to said report.
    On the 5th of May, 1846, the administratrix filed with the surrogate exceptions to the report of Mr. Skidmore.
    On the 15th July, 1846, the surrogate made a decree thereon, and after modifying the said report, ordered that the said ad- 0 ministratrix do pay the said Edward Baggott the sum of $773.76, being the amount due to him, as one of the next of kin of said intestate, together with the expenses of said accounting $19.90, and the costs of the applicant, which were taxed at $92.19.
    The administratrix appealed from said order to the Chancellor, on the 22d of July, 1846. The cause was heard upon said appeal, in the Supreme Court, and the order of the surrogate appealed from was affirmed with costs on the 13th of March, 1849. On the 7th day of May, 1849, the surrogate, in pursuance of said order of the Supreme Court, farther ordered and decreed, that Ann C. Baggott, administratrix, pay Edward Baggott the sum of $1248.43. A certificate of the amount of said decree was filed and docketed in the county clerk’s office, on the 7th of May, 1849, and execution was issued thereon on the 8th June, 1849, against Ann C. Baggott, and returned unsatisfied.
    On the 14th of May, 1850, the surrogate made an order-assigning the bond to the plaintiff, for the purpose of being prosecuted, in pursuance of said assignment; this action was brought on the 30th day of Mot. 1850.
    It was proved on the trial that a second administration bond in the penalty of $-■, dated 20th August, 1839, had been executed by the administratrix with the defendants Goulding and Joseph Outwell as her sureties.
    The following is the order made by the surrogate for the assignment and prosecution of the bonds.
    “ At a Surrogate’s Court, held at the City Hall, of the City of Mew York, on the' fourteenth day of May, One Thousand Eight Hundred and Fifty.

      “ Present, Hon. Alexandeb W. Beadeobd, Surrogate.
    “Edwaed Baggott, against Ann C. Baggott, Administratrix of Jos. Baggott, deceased.

      “ On reading and filing the petition of the above named Edward Baggott duly verified, setting forth the entry of the decree in the above court, on the seventh day of May, One Thousand Eight Hundred and Forty-nine; whereby the said Ann C. Baggott, ■ as administratrix, &c., of Joseph Baggott, deceased, was ordered, adjudged, and decreed to pay to the said Edward Bag- • gott, as one of the next of kin of said Joseph Baggott, deceased, the sum of -twelve hundred and forty-eight dollars and forty-three cents, and also, the filing of a certificate or transcript thereof, under the hand and seal of the Surrogate of said County, in the office of the Clerk' of the City and County of New York, on the same day, and the issuing of an execution thereon, to the Sheriff of the City and County of New York, on the eighth day of June, 1849 ; against the property, real and personal, of the said Ann C. Baggott, as administratrix, &c., as aforesaid; and the return of the said execution by the Sheriff of the City and County of New York, with his return thereon endorsed in substance, that the said Ann C. Baggott, administratrix, &c., as aforesaid, had no goods, chattels, or real estate, whereof to satisfy the said execution.
    “ On motion of George Carpenter of counsel for said Edward Baggott, it is ordered according to the statute in such case made and provided, that the bonds given by the said Ann C. Baggott, as administratrix of the estate of Joseph Baggott, deceased, on the 25th day of July, 1838, and on the 20th day of August, 1839, for the faithful execution of the trust reposed-in her as such administratrix, &c., be and the same hereby are assigned to the said Edward Baggott, in whose favor said decree was made for the purpose of being prosecuted.
    (Signed) . “ A. W. Beadfobd, Surrogate.”
    The order was admitted in evidence, subject to the objection of the defendants’ counsel, that it could not operate as an assignment.
    When the testimony was closed on the part of the plaintiff, the counsel for the defendants moved to dismiss the complaint, and excepted to the decision of the judge overruling the motion. The grounds of the motion are not necessary to be stated, as they involve the same questions that were argued at general term.
    A verdict was rendered for the plaintiff, assessing his damages, by reason of the breach of the condition of the bond, at $1,490.10. The verdict, was taken, subject to the opinion of ‘ the court, upon a case to be heard at the general term. Either party to be at liberty to turn the case into a bill of exceptions.

      E. Sandford, for the plaintiff,
    now moved for judgment on the verdict, and argued as follows:
    I. The assignment of the bond, by the surrogate, was properly admitted. The objection taken, that it was not an assignment, but only an order, is incorrect in point of fact. It is both--an order and an assignment. The statute requires the surrogate, on application, to assign the bond of the administrator to the person in whose favor such decree is made, for the purpose, of prosecuting it, but prescribes no form of transfer. (Laws of 1837, p. 535, § 65; Bradley v. Root, 5 Paige, 632; Thigpen v. Harne, 1 Iredell’s Ch. R. 20.)
    . II. The notice to dismiss the complaint was properly overruled. 1. There was no misjoinder of causes of action or of parties. Ueither the administratrix nor the surety, referred to in the objection, was summoned in the action, nor did either - appear therein. The plaintiff was entitled to amend the summons and title of the action, by striking out their names. As the persons objected to were not before the court, no foundation for this objection existed. If any objection could be taken by the defendants at the trial, the only proper objection was, that the cause was not in readiness for trial. The defendants should have demtirred, if the objection existed. (Code, § 144, sub. 5; Id. §§ 172,173.) 2. The proceedings before the surrogate were . within the jurisdiction of that officer, the administratrix was duly cited to appear, and actually appeared before him, in all the proceedings, and his orders or' decrees made thereupon against her, were legal apd binding upon her and her sureties. (a.) The surrogate’s, courts are at all tim.es open for the Hearing of any matters within the jurisdiction thereof. (2 R. S. 221, § 2.) Ho record of. adjournments is required to be kept, nor is there any roll of the proceedings upon which entries of continuances can be made. The jurisdiction being shown, every proper requisite to the act of jurisdiction is to be presumed as a conclusion of law. (The Philadelphia and Trenton R. R. v. Stimpson, 14 Peters, 448, 458; Gignou's Lessee v. Astor, 2 How. S. C. R. 319, 339; Corwin v. Lowry, 7 How. 172, 181.) (5.) The surrogate had jurisdiction of the subject matter of compelling the administratrix to render an account, upon the application of one of the next of kin, and had jurisdiction of the person of the administratrix, by the issuing and service of Ms citation, and by her appearance thereupon, and rendering her account. Upon this, the surrogate acquired jurisdiction immediately to decree the payment and distribution of the share of the petitioner by the administratrix. (2 R. S. 92, § 52, 53, 51; Id. 95, § 71; Id. 96, § 82; Gignou’s Lessee v. Astor, 2 How. 319, 338.) (e.) Having thus jurisdiction, if the surrogate decided against the administratrix without any evidence, or upon any evidence received by him, which was not legally competent, or without legal authority, directed Hr. Skidmore to take such evidence as the parties should think it proper to offer, and he to receive, and to report such evidence with his opinion thereon," and then decided upon such evidence and report ; such acts would be merely errors, for which the decree of the surrogate might be reversed upon appeal. The order-having been affirmed on appeal, cannot be impeached in this collateral manner by any such alleged errors. ( United States v. Annedouds, 6 Peters, 691, 729; Thompson v. Tobruie, 2 Peters, 157, 168; The State of R. I. v. The Commonwealth of Massachusetts, 12 Peters, 657, 718; Ex parte Natkins, 3 Peters, 193, 206, 7; Voorhees v. The Bank of United States, 10 Peters, 449, 473; Gignou’s Lessee v. Astor, 2 How. 319, 339, 313.) (d.) The statute conferred express authority upon the surrogate to appoint one or more auditors to examine the accounts presented to him, and to make a report thereon, subject to his confirmation. (2 R. S. 91, § 61.) (e.) If the surrogate had not such authority, the papers produced show that, the administratrix assented to it. She was present when it was made, and did not oppose. She attended personally, and by counsel, before the auditor. She agreed that the account settled in 1840 should be the substratum of' that account, and that oaths to witnesses should be waived. She produced witnesses before the auditor. She excepted to his report, and thereupon obtained a further allowance of $3,072.24. The sureties employed the counsel to prepare and argue these exceptions, (f.) The order of the surrogate, if unauthorized, did not deprive him of his jurisdiction. The accounts were referred to the auditor to make a report thereon to the surrogate’s court, and appointed a time in that court for the appearance of the parties, and the decision of the questions arising upon the accounts, (gr.) If the order were not authorized, the accounts remained before the surrogate for his judicial action. The parties agreed that he should base that action upon the evidence reported by Mr. Skidmore, and voluntarily appeared before him, and submitted the accounts thereupon to his decision. If the order had ampunted to a discontinuance, a new citation could have been issued by the surrogate, and jurisdiction over the person of the administratrix have, been gained thereby. The right to require such a citation was a personal privilege, which the administratrix waived by her appearance. The sureties concurred personally in this waiver. (Kendall v. The U. S., 12 Peters, 524, 623; Voorhees v. Bank of U. S., 10 Peters, 423.) (h.) The appeal from the decree of the surrogate was taken by the administratrix and her sureties. She asked that such decree might be made thereon as should be just, and the Supreme Court affirmed the surrogate’s decree with costs, and remitted it to the surrogate to be carried into effect. In obedience to this judgment, the surrogate decreed the payment of the amount adjudged to be due from the administratrix to Edward Baggott, by the Supreme Court upon her appeal. He had jurisdiction to make that decree, and it is for the non-performance of that order that this action is brought. 3. The objections that the surrogate never fixed the security, and did not approve the bond, are not true in fact. He took the bond, and thereupon issued letters testamentary. The bond, on its production from the records of the surrogate’s office, disproves these objections. (Philadelphia and Trenton R. R. v. Stimpson, 14 Peters, 448, 58; People v. Falconer, 2 Sandf. R. 81, 83.) 4. The objection that letters were issued before the bond was executed, is not correct in fact. 5. The administratrix being bound by the decree, the sureties were also bound by it. Their undertaking was, that she should obey all orders made by the surrogate, touching the administration of the estate committed to her. (Mann v. Eckford’s Exrs., 15 Wend. 502, 510; Willey v. Paulk, 6 Conn. R. 74; Jackson v. Griswold, 4 Hill, 522, 32; People v. Falconer, 2 Sandf. R. 81, 84.) 6. The suit was properly brought in the name of the plaintiff. (Code, § 111.)
    III. Ho defence was proved. There was no claim presented by the plaintiff to the executrixes, nor any disputing or rejection thereof, within the statute, so as to require a suit to be brought within six months thereafter. Here a suit was brought, and an answer put in, and it was then discovered that no order for prosecution of the bond had been in fact entered. It was thereupon-discontinued, and the order obtained, and the present action was brought. (2 R. S. 88, 89, §§ 34 to 38.)
    IV. Judgment should be given for the plaintiff for the amount of the damages assessed by the jury, for the breach of the condition of the bond $1,490.10, with interest thereon, from the 13th of February, 1852, and "costs of suit.

      J. Van Buren, contra,

    insisted that the action could not be maintained, and that the complaint ought to have been dismissed, upon the following grounds.
    I. This action, upon an administration bond alleged to have been executed by the defendants, Ann C. Baggott (as principal), and William R. Goulding and John Boulger (in his lifetime) as sureties, brought jointly against the principal and one of the sureties, and the executrixes of the other, praying judgment personally against all the defendants, cannot be maintained. (2 Burr. 1190; Grant v. Shuster, 1 Wend. 148; Code, § 143; Alga v. Scoville & Co., 6 How. Pr. R. 131.)
    H. Hor can it be maintained, because not instituted within the time required by 2 R. S. 89, § 38. The notice to creditors was first published 20-21 October, 1848, requiring the presentation of claims by the 24th of April, 1849. The surrogate’s decree, which constitutes the cause of action, was entered May 7, 1849. The claim upon it was presented by the present claimant (by suit) June 27, 1849, and disputed (by answer); this suit was subsequently instituted November 30, 1850.
    IH. The decree of the surrogate was void. 1st. It was founded upon the report of Walter Skidmore, auditor, on an accounting, which was not a final accounting. (Bronson v. Ward, 3 Paige, 189; Stone v. Morgan, 10 Paige, 615.) The surrogate had no authority to appoint an auditor, except upon a final accounting. (2 R. S. 92; 2 R. S. 320, § 1, sub. 3.) His court being one of special and limited jurisdiction, his action, except in the mode prescribed, was void. (People v. Corlies, 1 Sand. Sup. C. R. 228, 247; Corwin, v. Merritt, 3 Barb. S. C. R. 431; Sharp v. Speir, 4 Hill, 76; McDonald v. Bunn, 3 Denio, 45.) 2. The reference to an auditor, by the consent of the creditor and administratrix, was a discontinuance of the proceeding before the surrogate. (Green v. Patchin, 13 Wend. 292; Bank of Monroe v. Winder, 11 Paige, 533; West v. Stanley, 1 Hill, 69.) 3. The proceedings before the surrogate do not appear to have been adjourned from time to time. (2 R. S. 3 ed., 320.) 4. The proceedings do not show that the surrogate of the city and county of New York had jurisdiction to grant letters of administration upon the estate of Joseph Baggott, deceased.
    IY. The sureties on the bond of administration were discharged from liability for the plaintiff’s claim, because, pending the reference to the auditor, the remedy against the principal, in the legitimate mode, was suspended, and the rights of the sureties changed. (Clark v. Niblo, 6 Wend. 236; Rathbone v. Warren, 10 J. R. 592; Bangs v. Strong, 7 Hill, 250.)
    V. The order of the surrogate of the 14th May, 1850, entered in his records, did not constitute the assignment of the bond contemplated by the statute. 1. It did not authorize the plaintiff to maintain a suit in his own name. (Bos v. Seaman, 2 Code R. 1.) 2. No written transfer was executed, nor wa’s the bond delivered to the plaintiff. (Sess. Laws, 1837, §§ 63, 64, 65.)
   By the Court. Bosworth, J.

It is objected that the plaintiff has improperly joined in the action the surviving obligors and the personal representatives of their deceased co-obligor.

The facts on which the objection is based, appear upon the face of the complaint. If the objection supposed to exist is, that several causes of action are improperly united, the only mode by which advantage could be taken of it, was by demurrer. (Code, §§ 144, 147, and 148.) It was not so taken in this action.

The only effect of omitting to present to an executor or administrator, a claim against his testator or intestate, within the six months prescribed by § 31 of 2 R. S., p. 88, is to limit the recovery in a suit subsequently brought by such a creditor, to the amount of such assets as may be in the hands of the administrator or executor at the time such suit is commenced, and to deprive him of all right to recover costs. (2 R. S. 89, §§ 39,40, and 41.)

The right of action is not barred where the claim was not presented at all, but only where it was presented and disputed, or rejected, and neither referred nor prosecuted within six months after being disputed or rejected. (§§ 38, 39,10, and 12.)

The initiatory proceedings before the surrogate to compel Ann C. Baggott to appear and render an account, conformed to the statute. She appeared and presented her account, and such proceedings were had that he made a decree, directing her to pay, on account of the assets she had received, a certain sum to the plaintiff. She appealed to the Supreme Court, and that court affirmed the decree. Hie judgment of the Supreme Court remains in full force and effect, and the surrogate, in obedience to the mandate of that court, decreed she should pay the sum originally decreed to be paid, with interest and costs.

We have no doubt that she is concluded by the order appealed from, and its affirmance by the Supreme Court, and is now estopped from alleging any error or defect in the. proceedings before the surrogate.

Whenever any order is made by a surrogate, in respect to the administration of an estate cognizable by him, which concludes the administrator, the sureties of the latter are also concluded by it.

This is more than a mere bond of indemnity. The condition of it is, that their principal “ shall obey all orders of the surrogate of the city of New York, touching the administration of the estate committed to her.” It is equivalent to a covenant to pay all judgments that maybe recovered against her for a specified cause.

The making of. the order for payment of a certain sum, and refusal to pay, or the recovery of a judgment and non-payment, give an immediate right of action, and the order or judgment concludes the surety or covenantor, until impeached and avoided for fraud. (Chace v. Henman, 8 Wend. 452; Rockfeller v. Donnelly, 8 Cowen, 628; Jackson v. Griswold, 4 Hill, 532; People v. Falconer, 2 Sand. S. C. R. 81.)

There is no attempt to impeach and avoid the surrogate’s order for fraud; There is no attempt to impeach its intrinsic justice.

The objection, that the surrogate’s order of May 14, 1850, did not constitute the assignment of the bond contemplated by the statute is, We think, untenable. The surrogate was not a party to the bond, and, in the nature of things, could not execute an assignment fts an obligee.

He commonly acts by order, and this order, by its terms, “assigns” it, “for the purpose of being prosecuted.” This is in substance and effect the only assignment contemplated by the statute.

notwithstanding the assignment, he retains the custody of it, for the common benefit of all persons having claims against the estate. The assignment contemplated by the statute is in effect only the grant of a permission or authority to prosecute the bond.

We see no objection to the action being brought in the name of the plaintiff. It is a useless proceeding to bring it in the name of “the people, on the relation of Edward Baggott.”

Whether sued in the name of the party for whose benefit it is ordered to be prosecuted, or in the name of the people, the same facts are to be stated, the same number of separate suits may be had, and the consequences are the same, in either case, to” the sureties.

The common law rule, that an action on a bond must be brought in, the name of the obligee, whoever may be the owner, is abrogated by the Code. It must now be brought “in the name of the real party in interest.” (Code, § 111; 2 R. S. 476 ; Title 5 of chap. 8, part 3; Code, § 471.)

The plaintiff is the real and only party in interest prosecuting the action. The Code says that he may sue in his own name.

If a defect, it is a defect of parties, the defect being not that his name appears as a party, but that the people are not named with him as the parties prosecuting “on his relation.” This defect, if it be one, appears on the face of the complaint, and is not objected to by demurrer. (Code, § 144.)

We concur in the opinion that the plaintiff is entitled to a judgment on the verdict.

The claim not having been presented to the defendants, as required by § 34 of 2 R. S. 88, the plaintiff is not entitled to costs to be collected of the estate of John Boulger, dec’d, or from his executrixes personally. (2 R. S. 90, § 41; Code, § 317.)

A judgment will be entered in proper form for the amount of the verdict .against Margaret Boulger and Ann Boulger, executrixes, &c.


author: By the Court.

text:
    Lang v. Wilbraham.
    (Before Oakley, Ch. J., Campbell and Bosworth, J. J.)
    April 11:
    April 30, 1853.
    Section 31 in the title of Ejectment in the E. S. is one of those general provisions relating to actions concerning real property which apply to actions under the Code, according to the subject matter of the action, and without regard to its form (Code, § 455).
    'JL'he provisions in the section, by their reasonable interpretation, apply to all cases where, from any cause, the title of the plaintiff has ceased to exist before the trial.
    It is not necessary to file a supplemental answer to enable a defendant to avail himself of the defence which these provisions furnish.
    Judgment for plaintiff, for damages for withholding possession, and against him for the recovery of possession.

      Tras was an action to recover possession of an equal undivided tenth part of two houses and lots, in the city of New York, and was commenced on the 19th of May, 1851.
    It was tried before Mr. Justice Campbell, on the 28th January, 1853, by consent of the parties, without a jury.
    The counsel for the plaintiff, to maintain the issue on his part, read in evidence the following stipulation, signed by the attorneys of the parties
    “ The parties hereto mutually agree to admit on the trial of this action, the following facts, subject to all legal exceptions to their relevancy and admissibility at the trial:
    “ ‘ John Lang, of the city of New York, died March 17,1836, having left a will duly executed, attested, and proven, of which, or of so much thereof as is material in this action, a copy is hereunto annexed, marked A.
    “ ‘ On or before the first day of May, 1851, George S. Puffer, as the agent of Edward Harris, surviving executor of John Lang, deceased, and of the heirs at law of the testator (the plaintiff and his sister, Sarah Lang, excepted), let to the defendant the premises described in the complaint (of which the said John Lang died seized), which he occupied as their tenant until the first day of May, 1852, when the said premises were sold and conveyed by the said Harris, executor, as aforesaid, to Wilhelm Ropke. Since which time, the defendant has continued, and now remains in possession thereof, as tenant of said Ropke.
    “ ‘Robert U. Lang, the plaintiff’s father, on the thirteenth day of June, 1836, by a paper writing, subscribed by him and delivered to the executors of the testator, admitted that he was indebted to the estate of the testator, in the sum of ten thousand dollars, for moneys advanced to him, and that he was to be charged that sum in the settlement of the estate of the testator.
    “ ‘ At the time of the death of the testator, there were living, his widow, Sarah Lang, and seven children, namely: Hannah Gamble, Robert U. Lang, John Lang, junior, Sarah Lang (now Spencer), Charles E. Lang, William Lang, and Edmund Lang.

      “ All of the children above named, excepting Edmund Lang, were of age at the time of the death of the testator.
    “ At the time of the publication of the codicil to the will (July 29, 1831), two of the children above named, to wit, William Lang and Edmund Lang, were under the age of twenty-one years.
    “ ‘ Edmund Lang became of age in the month of October, 1837.
    “ Robert IJ. Lang died intestate, July 10, 1837, leaving three children him surviving, viz. John Lang (since deceased), Sarah Lang, and Robert Lang.
    “ John Lang, junior, died August 7, 1836, intestate, and without issue.

      “ ‘ Oharles E. Lang died July 9,1848, intestate, and without issue.
    " Sarah Lang, the widow of the testator, died in March, 1850.

      “ ‘ The estate of the testator consisted of some personal property, bxit chiefly of real, consisting of seven houses and lots, in the city of New York, of unequal value, so that no one house and lot coxxld be given to any one child as his equal share.

      “ ‘ Januaxy 27, 1853.’ ”
    It is not deemed necessary to transcribe the copy of the will annexed to the stipulation, as all the material provisions of the will are set forth in the case of Lang v. Ropke, 5 Sand. S. C. R. 364.
    The defendant’s counsel objected to the admissibility and relevancy of the facts set forth in the stipulation, excepting the 2d and 3d paragraphs thereof. The court overruled the objection, and the defendant’s counsel excepted.
    The plaintiff’s coxmsel, on his part, objected to the admissibility and relevancy of the facts set forth in the 2d and 3d paragraphs of the said stipulation. The court overruled the objection, and the plaintiff’s coxmsel excepted.
    The plaintiff’s counsel hereupon rested his case; and the defendant’s counsel moved to dismiss the complaint.
    The judge stated, that without expressing any opinions upon the admissibility and relevancy of the facts set forth in the stipulation, or upon the questions of law involved in the case, and in the motion to dismiss the complaint, he would deny the motion, and leave the defendant to take an exception.
    The defendant’s counsel then and there excepted to such decision, and prayed the said judge to note such exception, and the same was noted accordingly.
    The court then ordered judgment for the plaintiff, subject to the opinion of the court, on a case to be made by the plaintiff, and to be heard at the general term, in the first instance, without security, and the general term to give such judgment as should have been given at the special term, and with liberty to either party to turn the case into' a bill of exceptions or special verdict.

      W. C. Noyes, for the plaintiff,
    insisted that the provisions of the will were invalid, upon the same grounds that were relied on by the counsel for the plaintiff in Lang v. Ropke. He also contended that in some respects the case differed essentially from Lang v. Ropke. There the action was against a purchaser from the surviving trustee, and the court decided in favor of the purchaser upon the ground that the power of sale contained in the will was valid. Here the suit is against a lessee from the trustee, and the premises not having been sold before the suit was commenced, the question was whether the power of the trustee to lease continued fourteen years after the youngest child had attained his age. The facts of the sale to Ropke and of the defendant’s holding under him, having occurred since the commencement of the suit, he contended could not be set up as a defence, no supplemental answer having been put in pursuant to the provisions of the Code, § 197 (Jackson v. McCall, 3 Cowen, 75.)

      C. P. Kirkland, for the defendants,
    upon the principal questions, relied on Lang v. Ropke as a controlling authority. Even should the court hold that the trustee had no power to lease, and that the plaintiff had consequently a legal title as a tenant in common when the suit was commenced, yet, .as. before the trial, his title was divested by the sale to Ropke, he could not now be permitted to recover the possession; nor could any other judgment be given than that which the Rev. Stat. prescribed. (2 R. S, p. 308, § 31.) If the statute was applicable, a supplemental answer was unnecessary.
   By the Court.

The main questions upon which this controversy turns, have been decided by this court in Lang v. Ropke, and as we see no reason to doubt the propriety of that decision, we shall certainly adhere to it. We must, therefore, hold that the provisions of the will created no undue suspense of the power of alienation ; and that the power of sale, given to the executors and trustees, was valid as a power in trust, and was duly exercised by the sale to Ropke.

Although by the terms of the will, the whole real estate of the testator vested in the executors at the time of his decease, yet as they were only to hold it úntil the youngest child should attain his age, their title, as devisees in trust, having power as such to rent-the property, wholly ceased when Edmund attained his age in 1839. Their power to sell was from that time a naked power in trust, wholly unconnected with any right of possession or control. The lease made to the defendant on the 1st of May, 1851, by the agent of the surviving executor, was therefore void as against the plaintiff, it being admitted that it was not made under any authority derived from him; nor can it be denied that when he commenced this suit, he had a clear right, as a tenant in common in fee, to recover the undivided share which he claims. But we hold it to be just as certain, that his title as owner, and consequent right to the possession, were wholly divested by the sale to Ropke; and as this sale was perfected before the trial, the only question is, whether the defendant could then avail himself of the defence which it created.

The Rev. Statutes provided exactly for the case, by declaring “ that if the right or title of a plaintiff in ejectment expire after the commencement of the suit, but before trial, the verdict shall be returned according to the fact, and judgment shall be entered, that he recover his damages by reason of the withholding of the premises by the defendant to be assessed; and that as to the premises claimed, the defendant go thereof without day.” (2 R. S. p. 308, § 31.) We are clearly of opinion that this is one of those general provisions which we are hound to apply to actions under the Code (Code, § 455), and that by its reasonable interpretation, it applies to all cases where the title upon which a plaintiff seeks to recover the' possession of real property, has from any cause ceased to exist before the trial. It would be a narrow construction to confine it to cases in which the title expires by its own limitation. As under the former practice, a "defendant could avail himself of the defence which the provision furnishes without a plea puis da/rrein continuance, we do not think that a supplemental answer ought now to be required. When the defence would operate as a surprise, the judge would doubtless deem it proper to postpone the trial.

A rule for judgment must be entered, in conformity to the statute. If the counsel shall have any difficulty in agreeing upon its terms, it will be settled by one of the judges at chambers.


author: By the Court. Duer, J.

text:
    John Gihon, and others, v. J. P. Levy.
    (Before Duer & Campbell, J.J.)
    April 26 and 30, 1853.
    Facts, relied on as constituting a defence, must be set forth at least with so much certainty as to enable the court to say that, if true, the action is barred.
    The Code has abolished technical rules of pleading, but has not abolished those ■which good sense prescribes, and are necessary to carry into effect its own provisions.
    Hence, when an award is pleaded, that the court may judge of its validity as a bar, its substance, if not its terms, must be set forth.
    Whether the section in the E. S., which relates to a revocation of the powers oí arbitrators, is not confined to those arbitrations which the statute regulates ? (2 R. S. p 544, § 23.)
    When neither a ■ warranty nor a fraud in a sale is alleged, it is no defence that the goods were unsound and unmerchantable at the time of the sale.
    Order allowing demurrer to answer, affirmed with costs.
    Appeal from an order, made by Mr. J. Boswobth, at special term, allowing a demurrer to the answer.
    The action was brought by the plaintiffs as payees against the defendant as the maker of a promissory note for $2,782.88. The complaint was in the usual form, and demanded judgment for the amount of the note with interest.
    The answer was in the following words:—

      “ City and Comity of Nevo York /—Jonas S. Levy for answer says, that it was agreed between the plaintiffs and defendant, by their mutual bonds, made and delivered on the twenty-fifth of July, eighteen hundred and fifty-one, to submit all matters in controversy, relative to said note, to E. H. Gillilan and A. Wellington Hart, as arbitrators : that said matters were fully and finally submitted to said arbitrators (upon a hearing of both said parties) for their decision, and an award was made and published, and the same was given to this defendant on or about the — day of January, eighteen hundred and fifty-two, signed by each of said arbitrators, and by Joseph Stuart, as umpire, on the twenty-eighth day of August, eighteen hundred and fifty-one.
    “ And defendant further says: that the power of said arbitrators was not revoked prior to said final submission to them on the hearing.
    “And for further answer said defendant says: That said note was given by the defendant for five hundred and thirty-six pieces of. imitation sheetings, purchased by said defendant of said plaintiffs, at a full price, as sound and undamaged sheetings, and that said sheetings were sold to this defendant per sample, and for the purpose of being shipped to Mexico. And this defendant avers, that said goods went from the store and premises of the plaintiffs, and were shipped by them in Mew York, and the bills of lading therefor taken in their own names, and endorsed over to this defendant, said goods never having been, in the possession of, or received or examined by said defendant previous to said shipment.
    “And defendant avers, that upon the arriving of said goods in Vera Cruz, in said Mexico, said goods were found to be damaged and unsalable, and were not in the state represented by said plaintiffs.
    “ And this defendant avers, according to his information and belief, that said goods were unsound and unmerchantable at the time of sale, and while in the possession and ownership of said plaintiffs, and were not injured by damage of the sea, or in any way or manner, after they were sold to said defendant by said plaintiffs.
    “And this defendant avers, that immediately upon ascertaining the state in which said goods were in Vera Cruz, this defendant gave immediate notice thereof to said plaintiffs; to which notice no answer was received from said plaintiffs; whoreson said defendant, for the benefit of all parties, had said goods valued by the proper officers in Mexico, and thereupon, for the benefit of all concerned, sold.
    “ And defendant says, that said goods brought the net price of 'fourteen hundred and six 31-100 dollars.
    “ And defendant thereupon avers, that he is not liable to pay said note, and that he is entitled to receive from said plaintiffs his costs and charges (for attending to and selling said goods), amounting to three hundred dollars.”

      A. S. Levy, for the defendant, the appellant.
    I. It is only necessary that our answer should be in accordance with the intention and spirit of the Code, and its sufficiency is to be determined only by that Code. (Voorhies’ Ed., Code, p. 135, sec. 140; Demurrer, Code, p. 152.) And we must forget all old rules with regard to demurrer. (3 Howard’s Spe. Tr. Rep. p. 410; 3 Howard’s Spe. Tr. Rep. p. 280.)
    H. Our answer sets up not only as a fact, the agreement to submit all matters in controversy to Gillilan and Hart, but also the final submission, and an award under it, signed by both said arbitrators, and also by one Joseph Stuart. 1. It was too late to revoke and sue after final submission by statute. (2 R. S. p. 631, sec. 23; 5 Paige, 575; 11 Paige, 529.) 2. It is no -objection to the award, that it was signed by Joseph Stuart, as well as by the two arbitrators. (1 Hill, p. 489 ; 1 Barbour, 325.)
    III. It is not necessary to set out the terms of the award. (Watson on Arbt., Law Library, vol. 43, p. 89, fol. 134; 6 John 14 ; 1 Hill, 32; 3 Barbour, 565; 7 Barbour, 431.) 1. Or that plaintiff had any knowledge or notice of award. 2. Or that the award was in pursuance of the terms of submission. (1 Cowen, ,117.) 3. Or that defendant have complied with said award. (Law Lib., vol. 43, p. 152, fol. 259.) 4. Or that the arbitration was conducted according to the terms of the bonds, &c. 5. Or was setting out the bonds necessary in our answer.
    IV. Because, on demurrer, all intendments are in favor of the awards being in pursuance of the submission. (1 Cowen, 117; 11 Illinois Rep. p. 565.)
    V. And even if the arbitration had proved ineffectual, it would seem that suit could not be brought on the original cause of action until and unless defendant refused to join the plaintiffs in submitting the case under the agreement. (Mayor of New York v. Butler, 1 Barbour, p. 325; 1 Hill, 409.)
    VI. Our amended answer avers fully sufficient to meet the whole of the second ground of plaintiffs’ demurrer.
    Can demur to answer only for insufficiency of a counter claim. (See Code, Reply, p. 169; Smith v. Greening, 2 Sand. S. C., p. 702; 3 Code Rep. 206.)

      M. S. Burlock, for plaintiffs, the respondents.
    I. As to the first branch of the answer: 1. The terms of the bonds should be set out so that the court can see whether their terms have been complied with. (Russell on Arbitrators (Law Library, vol. 47), 492, and cases cited.) 2. It does not in any way appear, that the parties agreed to submit the matters in controversy to Joseph Stuart, as umpire. 3. The answer should set out the terms of the award, so that the court can judge whether it is made in accordance with the submission, and whether it is such an award as would be a bar to the action, and whether the parties are equally bound by it; as an award is not a good plea unless it appear that the parties are equally bound by it. (Kyd on Awards, 389. Russell on Arbitrators (Law Library, vol. 47), 492, and cases cited.) All the forms of pleas of award to be found in the books, set put the award in full: (Kyd on Awards, 465; Chitty’s Pleadings, vol. 3, p. 927; Tillinghast’s Forms, 474; Chitty’s Precedents, vol. 1, p. 220; Burrill’s Appendix, 3533; Sandford’s S. C. Rep., 405.) 4. The answer should allege that the award was delivered to the parties. It is not sufficient to allege that it was delivered to the defendant. Each party is entitled to the award. (Pratt v. Hackett, 6 John. 14; Buck v. Wadsworth, 1 Hill, 321.) 5. It should appear that the award was made within the time required by the bonds. (Russell on Arbitrators (Law Library, vol. 47), 493, and the cases there cited.) 6. It should appear that the arbitration was conducted and submission had pursuant to the terms of the bond. It is not sufficient to aver that it was duly made. (Russell on Arbitrators, 492, and cases cited.) 7. It should appear that the award extends to the whole cause of action, otherwise it is not a good plea to the action. (Kyd on Awards, 384; Clapcott v. Davy, 1 Ld. Raym. 612; Jackson v. Ambler, 14 John. 96; Russell on Arbitrators, 503.) 8. It should appear that the defendant has performed the award. (Russell on Arbitrators, 503; Allen v. Milner, 2 Tyrwhitt, 113; Brazil v. Isham, N. Y. Common Pleas, Nov., 1852.)
    H. As to the second branch of the answer: 1. It should appear to what amount the goods mentioned in the answer were damaged, and what amount the defendant seeks to have deducted on account of such damage. 2. It should appear by what officers the goods were valued in Mexico, and by whose direction they were so valued, and whether the plaintiffs consented to, or had any notice of such valuation. 3. It should appear in what manner the goods were sold, and that the sum the goods brought at the alleged sale was their full value at the time of their purchase from the plaintiffs, and that the plaintiffs consented to, and had due notice of the time and place of sale.
   By the Court. Duer, J.

The answer is manifestly bad in,, both its branches. The Code has, indeed, abolished all technical rules of pleading, but it has not abolished those which are dictated by good sense, and are necessary to be observed in order to carry into effect its own provisions. It requires that the answer shall set forth “the facts constituting a defence.” The facts, therefore, which are relied on must be set forth at least with so much certainty as to enable the court to say, that admitting them to be true, they constitute a bar to the plaintiffs’ recovery. All the facts set forth in this answer may be true exactly as they are alleged, and yet the plaintiffs »©4be entitled to recover.

The first branch of the answer avers that the parties submitted all matters in controversy relative to the note in suit to certain persons as arbitrators, that after the final submission of these matters upon a hearing of the parties, the arbitrators made and published an award, and that their power as arbitrators was not revoked prior to such final submission, all which may be true, and yet the award be on its face a nullity, or if valid on its face, the power of the arbitrators before it was made, may have ceased to exist.

It may not be necessary to set forth the terms of an award which is relied on as a defence, but it is necessary to set forth its substance, so that the court may be able to say that, if such an award was made, the action is barred. Here nothing is stated but the fact of an award which may not have followed the submission, or not have been made within the time limited by the submission, or may by its terms have directed or permitted the plaintiffs to prosecute this very action.

The averment that the power of the arbitrators was not revoked prior to the final submission admits by implicatioh that it was revoked before the award was made, and we incline to think is founded upon an erroneous interpretation of the Statute. The provision in the Revised Statutes, which declares that neither party shall have power to revoke the powers of the arbitrators after the cause shall have been finally submitted to them upon a hearing of the parties for their decision” (2 R. S., p. 544, § 23), has been held by Chancellor Walworth to be general, but we think it may be reasonably doubted whether it ought not to be construed as referring exclusively to those arbitrations, which the statute professes to regulate, leaving, in respect to other arbitrations, the rule of the common law unchanged, namely, that the powers of the arbitrators may be revoked at any time before they have made their award. It is not necessary, however, to decide this question, nor are we to be understood as deciding it. It is enough that the complaint does not show affirmatively that an award has been made which is a bar to the action.

It is not to be inferred from what we have said that either in a complaint, where the action is brought upon an award, or in an answer where an award; is set up as a defence, it is necessary to negative a revocation of the powers of the arbitrators. As the proof of such a revocation plainly rests upon the opposite party, so must also its averment.

Next, as to the second defence. The goods sold by the plaintiffs to the defendant and which it is alleged were the consideration for the note in suit, may have been unsound and unmerchantable at the time of the sale, but unless there was a warranty, or fraud in the sale, the' defendant is not, for that reason, entitled to any deduction from the price; and as we read the answer, neither a warranty, nor fraud is alleged. It is indeed averred that the goods were sold by sample, but according to the recent decisions in the Court of Appeals, a sale by sample is not a sale by warranty, unless there was a positive agreement that the bulk of the goods should correspond with the sample. As such an agreement is necessary to be proved, it is also necessary to be averred.

So the answer also alleges that the goods were not in the state represented by the plaintiffs, but it does not state what the representations made by the plaintiffs were, or that they knew them to he false; there is therefore no allegation of fraud.

There are other objections to the answer which were urged by the counsel for the plaintiffs, but, without expressing any opinion as to their sufficiency, we prefer to place our judgment upon those which we have stated.

The order allowing the demurrer is affirmed with costs, with the usual liberty to the defendant to amend.