author: ■Moneli, J. Barbour, J.

text:
    Daniel G. Bradley et al. plaintiffs and respondents, vs. Bethuel C. Wheeler et al. defendants and appellants.
    1. In contracts for the sale of goods, which are capable of a partial physical performance, a delivery and acceptance of part renders the contract binding on both parties. Such a delivery and acceptance brings the case directly within one of the exceptions of the statute of frauds, in relation to such contracts, and it is not affected by such statutes,
    2. Where property agreed to be sold is destroyed by fire, before the completion of a change of possession of the whole, the loss must fall upon the party who had the title to it, as owner, at the time of its destruction.
    3. If nothing remains to be done, by the vendors, either to ascertain the identity of the property, its quantity or quality, or to put it in a condition to be delivered according to the terms of the sale, it is a complete sale, and both title and risk are transferred to the purchasers. A complete transfer of possession is not necessary. The title passes without it as well as-with it.

      4. In an action for the price of a cargo of hay, on board a vessel, boughjb by the .defendants of the plaintiffs by weight, where the marks on .the bales were agreed to be taken as such weight, making a fixed deduction therefrom, and the buyers had indicated how and where it was to be delivered by the vessel in which it was, being placed along side of another vessel, where they promised to take care of it, and a person on their behalf had superintended the transferring of the cargo from one vessel to the other, which was partially completed but both vessels and cargo were destroyed by an accidental fire before its completion. Held that the defendants were liable for the price of the whole cargo, where the jury, upon conflicting evidence, found that according to the terms of the contract, nothing remained to be done by the plaintiffs to perform it except placing one vessel along side of the other; that the subject of sale was the entire cargo, and the weight, was to be determined by the marks on the bales ; and that there was no agreeement for any inspection of the hay.
    5. Held, also, that this was a clear case of a completed sale, and the title to the property was in the defendants, at the time of its destruction. Barbour, J. dissented.
    (Before Barbour, Moneel and Garvín, JJ.)
    Heard January 11, 1866 ;
    decided March 12, 1866.
    This action was brought to recover the price of a quantity of hay sold by the plaintiffs to the defendants. The complaint alleged a sale and delivery of 1179 bales of good hay, and 30 bales of clover. The answer admitted the sale and delivery of 122 bales of hay, and 14 bales of clover, the price of which was admitted to be due to the plaintiffs. But denied every other allegation in the complaint.
    The action was tried before Justice Garvin and a jury. It was proved on the part of the plain tiffs-that on the 8 th or 9th of December, 1863, a cargo of hay, belonging to the plaintiffs arrived in the city of New York, at pier 43, North river, on board of a barge, (Norfolk.) That one of the plaintiffs met one of the defendants upon the pier, and told him they had a cargo of hay, and the defendant asked what he would take for it. That the hay was open on the deck of the barge and no covering upon it. That the defendant, upon being asked by the plaintiff what he would give for it, said he would give $1.30 a hundred weight for all the good shipping hay, and $1, for all the clover hay. The defendants to take the marks on the bales as their weight less five pounds per bale. The offer was accepted by the plaintiffs. A witness for the plaintiffs testified that he asked one of the defendants where he would have the hay. and that pointing to a schooner near by, he said “ put your hay along side that schooner, and we will take care of it; ” or, “ I will take care of it; ” or, “ I will send a man around to take care of it.” That the barge was thereupon placed along side of that schooner. That a man (named Rixford) came there on behalf of the defendants and commenced to keep an account of the hay as it was taken from the barge by the men on board of it and put upon the schooner. That Rixford directed what bales should go on the schooner, and what should remain for a short time. It was further proved that while Rixford and the laborers were engaged in transferring the hay to the schooner, a fire broke out at a place about 200 feet to the northward of where the barge lay, which spread and burned up the schooner, barge and hay. At the time of such destruction by fire, 122 bales of hay and 14 bales of clover had been transferred from the barge to the schooner. Eo memorandum of the agreement for the sale was ever put in writing.
    The defendants introduced much contradictory evidence as to the contract between the parties, and the manner of delivering the hay. The defendants themselves testified, substantially, that the plaintiffs were to deliver the hay on board the schooner. Some evidence was also admitted tending to show that the defendants intended that the hay should be inspected, but that was not found to have been a part of the bargain.
    The presiding justice charged the jury, (amongst other things) that if they found that the contract “ was to pay so much for the hay, and the defendants were to take the whole barge load, and it was to be delivered along side of the schooner in the barge, and that a part of it was delivered and accepted by the defendants, that was the fulfillment of a valid contract, for a breach of which the plaintiffs would be entitled to recover. The rule is that where something is to - be done by the seller, to ascertain the identity, quantity or quality of the article sold, or to put it in the condition which the terms of. the contract require, the title does not pass. But ifj on the contrary, there is nothing to be done on the part of the sellers to. ascertain its identity, its quantity or its quality, or to put it in the condition the contract requires before delivering, the title does pass, and the plaintiff’s would be entitled to recover.” And the court left it to the jury to determine, upon the evidence, what the contract was; whether any thing remained to be done by the plaintiffs to ascertain the identity, quantity or quality of the hay, or to put it in the condition the contract required, before delivery ; and whether it was agreed that the delivery should be by merely placing the barge along side the schooner, or, whether the plaintiffs were to put it on board the schooner. It was also left to the jury to say whether Rixford was' there simply to arrange and keep an account of the hay, or whether it was part of the bargain that he should inspect the hay.
    The defendants’ counsel requested the court to charge : First, that an action for goods sold and delivered could not be sustained, where there had not been an actual delivery. Second, that there was no delivery of the hay, except that which was placed upon the schooner. Third, that when goods are purchased for shipment, the place designated by the purchaser is the place of delivery, and no title passes until an actual delivery. And fourth, that the delivery of a portion of the property did not take the case out of the statute of frauds. The court refused so to charge, and the defendants excepted. No exception was taken to the charge actually given. The jury found for the plaintiffs $4380.76. A motion for a new trial was made upon the justice’s minutes and denied, and judgment entered upon the verdict.
    The defendants appealed from the judgment and order denying a new trial.

      G. Dean, for the appellants.
    I. The judge erred in his instructions to the jury in regard to the statute of frauds. As there was no written contract and no payment at the time the contract was made, and no delivery at the time of making the contract, there can be no pretense that the title passed before the barge got to the place where the hay was to be delivered. (2 N. Y. Stat. at Large, 140. 2 R. S. 136.)

      (a.) The rule is fully settled and invariablé, that where any thing remains to be done to ascertain quality, quantity or identity, the title does not pass. (19 Barb. 416, 427. 2 Kent’s Com. 495, 496. Terry v. Wheeler, 25 N. Y. Rep. 520.)

      (b.) In this case no-quantity had been fixed, and an examination of marks was necessary, and a calculation to fix the quantity and the amount to be paid for the hay included in this contract.
    (c.) The plaintiffs were bound to deliver' the hay on board the schooner designated by the defendants, and until such delivery no title- passed, provided a part delivery is not to be construed as passing the title tó the whole. •
    (d.) The plaintiffs have admitted, by taking the barge around to the schooner designated, and by being engaged at the time, at their own expense,_ in delivering the hay from the barge on board the schooner, that they were bound by the contract to make such delivery at their own expense on board the schooner.
    II. The judge erred in his> refusal to charge as requested. Second, third, fourth, fifth, sixth, seventh, eighth and ninth requests.
    III. The verdict was clearly against evidence, and against the charge of the court. There was something to be done by the vendors. They were to produce the hay to Eixford—have the weight examined, the two kinds of hay separated, and the bales counted, the deduction made, and the hay placed at the expense of the vendors from the barge to the schooner.

      L. B. Woodruff, for the respondents.
    The exceptions taken at the trial were of two classes ; first, to the ruling of the court in rejecting evidence offered by the defense ; and, secondly, in refusing to instruct the jury in accordance with specific requests made by the defendant’s counsel.
    I. The first exception in the case occurs at folio 74. The defendant there offered to show a custom in the port of Hew York that hay should be inspected before delivery. The evidence was properly rejected.
    1. The existence of a custom that hay should be inspected was wholly immaterial and irrelevant. The.terms of the contract were specific, definite and precise, and must operate according to their legal signification and effect, irrespective of any custom, or even in opposition thereto. The contract was not to deliver hay of a particular description and quality, nor was it in any sense an executory contract. The hay was “ in plain sight,” and “ the whole cargo ” was taken “ at the weight marked on the bales, deducting five pounds for each bale.” “ He said he would give $1.30 for the good and shipping hay, and $1 for the black clover hay ; that he would take the whole cargo ; and I told him it was a bargain.” “ I asked him if he would not go round and see it, and he said no.”
    2. The offer was not to show the existence of a custom which required any thing to be done by the vendor in ascertaining or determining the quality, quanity, or identity of the article sold. A customary inspection by vendees, before delivery, cannot be material. The rule of law, caveat emptor, requires inspection by the vendee, and custom cannot add to or vary that rule. His omission to inspect will not enable him to avoid or rescind his purchase in case of a patent defect.
    3. The offer was unaccompanied by any proposal to show that the plaintiffs had notice or knowledge of the alleged custom.
    II. The request for a peremptory instruction to the jury to “ find a verdict for the amount that was put on board the sloop, as stated in the defendants’ answer, and that the plaintiffs could recover no more,” was properly denied.
    1. The defendant’s answer contained no statement of any such amount, nor any reference thereto.
    2. There was no evidence confining or tending to confine the . quantity of hay actually delivered on board the defendant’s schooner within the limits specified by the admission in the answer.
    3. The only appropriate instruction, at this stage of the case, would have been that the plaintiffs were entitled to a verdict for the full amount of their claim. But the defendants had not rested their case, and no instruction' was in order.
    III. The charge of the judge fairly submitted to the jury every question of fact in the case, and their verdict is conclusive. No appeal from the order denying the defendants’ motion for a new trial has been taken, and exceptions only can be reviewed on this appeal. The charge was in accordance with the law, and no exception was taken to any of its propositions. The principles governing the case were fully and correctly stated. The -several propositions involved in the defendants’ requests are either in conflict with these principles or inapplicable to the case, and each of them is untenable.
    .1. The removal of the barge from its anchorage in the stream to a berth alongside the schooner, pursuant to the defendants’ request, placed the entire property at their disposal, and operated as an actual delivery of the entire cargo. • (Stanton v. Small, 3 Sandf. 230.)
    2. The manual delivery of a portion of the cargo was tantamount to delivery of the whole. (Blakey v. Dinsdale, Cowp. 661. Slubey v. Heyward, 2 H. Bl. 504. Hammond v. Anderson, 4 Bos. & Pul. 69.)

      3. Such delivery of part of the cargo (not subsequently to the contract, as suggested by defendants’ counsel, but immediately and as part of the transaction,) took the case out of the statute of frauds. (Hinde v. Whitehouse, 7 East, 558. Sprague v. Blake, 20 Wend. 61. McKnight v. Dunlop, 1 Seld. 537.) But part delivery, though it be subsequent to the making of the contract, has the same effect. (Id.) Indeed, by the statute itself the contract is valid and effectual wherever “the buyer shall accept and receive part of the goods.” (2 R. S. 136.)
    4. Save for its effect upon the validity of the contract with reference to the statute of frauds, the question of delivery is wholly immaterial. Title, not possession, determines the risk. “ Perieulum rei venditce, nondum traditce, est emptoris.” (2 Kent’s Com. 498, and cases cited.) This doctrine has been so long settled as to have passed into the elementary maxims of the law. It is found in Noy’s Maxims, page 88, in these terms : “If I sell my horse for money, I may keep him until I am paid ; but I cannot have an action of debt until he be delivered ; yet the property of the horse is by the bargain in the bargainor or buyer. But if he do presently tender me my money, and I do refuse it, he may take the horse, or may have an action of detinue.”
    “ And if the horse die in my stable between the bargain and delivery, I may have an action of debt for. my money, because by the bargain the property was in the buyer.”

    5. The question of title has been distinctly and conclusively passed upon by the jury, under the true test submitted to them by the court. “ The only question here is, who had the title to the property at the time it was burned up—not who had possession, but who had title.” And “ the rule is that where something is to be done by the seller to ascertain the identity, quantity and quality of the article sold, or to put it in the condition which the terms of the contract require, the title does not pass. But ifj on the contrary, there is nothing to be done on the part of the sellers to ascertain it, identify its quantity or quality, or to put it in the condition the contract requires before delivery, the title does pass.” This is the true rule, and the defendants’ requests are in conflict with it. (Terry v. Wheeler, 25 N. Y. Rep. 520, and cases cited.)

    6. As regards the sixth request submitted by the defendants’ counsel, it may well be insisted, as above, that the proposition is untenable in the terms used, because, under the rule just stated, it was immaterial whether the defendants, by the contract, were to inspect the hay before delivery.” But this request was renewed, under a somewhat different form, and the court charged substantially as was requested.
    7. Upon the instruction of the court, with regard to the reservation of a right to sell the clover at retail, the jury found that there ivas no such reservation, and the refusal to charge in the terms of the seventh request is therefore immaterial. The judge charged that “ the title to the good shipping hay would pass independent of the clover,” which is correct. The defendants’ proposition is erroneous. The title to the whole would pass, subject to the exercise of the reserved right, which would operate as a defeasance pro tanto. It was at best a mere privilege or option, not exercised. In any event, the terms of the request were untenable, and the jury have found in effect that such reservation was not in the contract of sale.
   ■Moneli, J.

'It is conceded that the contract was a sale and purchase of all the hay and clover on board of the barge, and that a portion of it was put on board the schooner, which, it is claimed by the defendants, was the place designated by them for the delivery, and was there accepted by the defendants.

In contracts for the sale of goods, which are divisible and capable of a separate physical performance, the clear weight of authority is, that a delivery and acceptance of part, renders the contract valid. (Seymour v. Davis, 2 Sandf. S. C. 239. Deming v. Kemp, 4 id. 147. McKnight v. Dunlop, 5 N. 7. Rep. 537. Catlin v. Tobias, 26 id. 217.) Such, indeed, is the exception, by the express terms of the statute. (2 R. S. 136, § 3, sub. 2.) The delivery and acceptance of a part of the hay brought the case directly within the exception, and the contract was not, therefore, affected by the statute of frauds.

Upon which of these parties the loss of the property destroyed by fire should fall, depends upon who had the title to it at the time of its destruction. If nothing remained to be done by the sellers, either to- ascertain the identity of the property, or its quantity, or quality, or to put it in a condition for sale, then it, was a complete sale, and the title and risk then resided in the purchasers. A delivery was not essential; and the title passed as well without as with the possession, or the right to the possession. (Olyphant v. Baker, 5 Denio, 379 Crofoot v. Bennett, 2 Comst. 258. Joyce v. Adams, 8 N. 7. Rep. 291. Wooster v. Sherwood, 25 id. 278. Terry v. Wheeler, Id. 520.)

So far as there were any disputed questions of fact necessary" to be determined in order to ascertain whether the sale was completed, such questions were submitted to the jury, under the instruction to find for the plaintiffs, if they believed the sale was completed, and the jury have found in favor of the plaintiffs on all such questions. Thus they have found that by the terms of the contract, nothing remained to be done by the plaintiffs, except to put the barge alongside the schooner, which was done. They found the goods were sufficiently identified, and that the. defendants were to accept the weight marked on the bales, less five pounds each. And they have also found,'that it was no part of the contract that the hay was to be inspected, And the jury thus found, upon conflicting evidence.

This, then, was a clear case of a completed sale, and the title to the property was in the defendants at the time of its destruction. In Olyphant v. Baker, (sup.) the contract was for the sale of a quantity of barley, at a certain price per bushel, and it was to be weighed or taken at the iveight stated on the plaintiff’s hooks, and it was held that the quantity being thus ascertained, nothing further remained to be done, and the title passed to the purchaser. But Strong, Justice, in Crofoot v. Bennett, (supra,) goes much farther, and says : If the goods sold are clearly identified, then, although it may be necessary to number, weigh or measure them, in order to ascertain what would be the price of the whole, at a rate agreed upon between the parties, the title will pass.

The agreement here was that the purchasers were to take the hay at the weight marked upon the bales, less five pounds on each bale. The hay was not to be weighed. It consisted of an entire cargo, and was, therefore, plainly identified. There was no separating of a part from a bulk. (Field v. Moore, Lalor’s Sup. 418.) In short, there was nothing for the plaintiffs to do, except to put the barge alongside the defendants' schooner.

But it was said, that as the purchase was of good shipping hay, the defendants had a right to have it inspected, or examined, for the purpose of seeing that the hay was of the required quality. It is enough, perhaps, to say that such inspection formed no part of the contract. The defendants, doubtless, had the right to examine the hay, and were not bound to receive any not of the quality represented. With that, however, the plaintiffs had nothing to do. It was not a condition of the sale, and imposed no duty or obligation on them. If this hay was not good, it might be rejected, but in ascertaining whether it was good, the defendants were the actors, and the plaintiffs had nothing to do with it. So, again, it was the right of the defendants to keep the tally of the weight, for their own information and satisfaction. The plaintiffs had already done that, and were informed and satisfied, and there was, therefore, nothing for the plaintiffs to do in ascertaining the weight.

Under the evidence, therefore, and the finding of the jury upon it, this seems to me a clear case of a completed sale, and, hence, the requests to charge were properly refused.

The evidence upon which the jury found the facts against the defendants, was conflicting, and their verdict cannot be disturbed.

I am in favor of affirming the judgment, and order.

Barbour, J.

(dissenting.) This action was brought to recover the price of 1227 bales of hay, alleged in the complaint to have been sold and delivered by the plaintiffs to the defendants. The answer admitted the sale and delivery of 122 bales, and •contained an offer to pay therefor, with interest and costs to that time, but denied as to the remainder.

Upon the trial, the testimony showed that the plaintiffs had a cargo of hay, consisting, in fact, of 1227 bales, in the barge Norfolk, lying off the' Charles street pier, a portion of which was piled upon deck, and the remainder, some 500 bales, was in the barge’s hold, the hold being full, and each bale being marked, upon one of the slats, with its weight; and that a bargain was then made between the plaintiffs and the defendants for the sale and delivery of the hay to the latter.

The case shows that the witnesses differed somewhat, in regard to the terms of that bargain. All agree, however, in stating that the price fixed was $1.30 per hundred pounds for good shipping hay, and one dollar a hundred for the clover ; the weight to be ascertained by deducting five pounds from the weight marked upon each bale.

■ One of the plaintiff's, of record, being the one who made the bargain on their behalf, testified that, after the price had been agreed upon, he asked the negotiating defendant “ where he would have the hay ?” and that he replied, pointing to" a schooner, “ put your hay alongside that schooner, and we will take care of it,” or, “ I will take care of it,” or, “ I will send a man around to take care of it.” The witness subsequently stated, “ I am certain he said he” (the defendant) “ would send a man around ;” and he was further examined and testified as follows :

Ques. “ Who was to take the barge to the schooner ?”
Ans. “ We were to do that.”
Ques. “ That was in the contract ?”
Ans. “Tes, sir; he told us to take the barge to the schooner, and we did so.”
Ques. “ Who was to take the hay off your barge and put it on the schooner ?” .
Ans. “ The men that worked for us on the barge.”
Ques. “ I understand that the men in your employ were to put it on board the schooner, and they did so, all that was put on board ?”
Ans. “ Tes, sir; I think they did so ; they did.”

The other plaintiff, substantially, corroborated the evidence of his partner in regard to the terms of the bargain, and also testified with the aid of his own memorandum, that he tallied the hay when put on board the barge at Albany, from the marks upon the' bales, and proved the quantity of each kind, as stated in the complaint.

Hone of those facts were controverted by any other witness, except that the defendant who made the bargain, on behalf of his firm, with another witness, testified that the sale of the clover hay was not absolute, but that the plaintiffs reserved to themselves the right to retail the same or any part of it, at a price exceeding a dollar per hundred, and that it was agreed that the defendants should take .what should remain unsold by the plaintiffs.

■ It was also proved, without contradiction, that, immediately upon the closing of the bargain, the defendants directed a man, (Mr. Rixford,) in the presence and hearing of the plaintiffs, to go" and “ inspect the hay,” or, “ to attend to it,” that Mr. Rixford, accordingly, went on board, and “tallied” the hay by taking the weights marked upon the bales as they were rolled from the barge to the deck of the schooner; that, after 122 bales of shipping hay had thus been transferred to the schooner, a fire, breaking out in the vicinity, swept over both vessels, and entirely consumed them, with their contents.

That evidence, thus uncontradicted, established the fact, I think, beyond controversy, that it was understood and agreed by the parties to the bargain, and as a part thereof, first, that the barge should be placed alongside the schooner by the plaintiffs ; second, that the hay should be put on board the schooner from the barge by them ; third, that, as the hay was thus placed on the schooner by the plaintiffs, the defendants’ man, (Mr. Rixford,) was to take care of it for them, by taking a tally of the hay, from the marks upon the bales, as it was put on board ; involving, of course, the making of such a list or tally as would distinguish the good shipping hay from the clover.

I have been thus particular in stating the evidence and my conclusions thereupon, for the reason, first, that the judge charged the jury, in effect, that if there was anything, under the contract, remaining to be done by the vendors when the fire occurred, the title did not pass ; and secondly, no exceptions were taken to the charge of the court; and because the only exception to a refusal to charge as requested; that requires more than a passing consideration here, was an exception to the refusal of the court to charge the jury “ that the plaintiffs can only recover for the hay actually delivered on board the schooner ; ” a request that covered the entire controversy between the parties, and which would have been, if complied with, equivalent to a direction to find a verdict according to the theory of the defendants’ answer. The question, then, so far as concerns that exception, is, whether the defendants were entitled, upon the uncontroverted evidence, to such a verdict.

A rule of the civil law, which has been incorporated in the French Code, is thus stated ; Where goods are sold, not being the whole of an entire lot or parcel, (ne sont pas vendues ’ era bloc,) hut by weight, count, or measure, the sale is perfect only in the sense that the things sold are at the risk of the vendor until they are weighed, counted, or measured; but if an entire lot or parcel has been sold, (marchandises vendues era bloc,) the sale is perfect, although the goods have not yet been weighed, counted, or measured.” ' (Code civ. de Fr., liv. 3, tit. 6, c. 1, art. 1585, 6.) But that arbitrary distinction, although it would, doubtless, have prevented an enormous amount of litigation, has never been recognized either in England, or with us ; the common law rule being that although a contract for the sale of goods be complete and binding in other respects, the property in them remains in the vendor, and they are at his risk, so long as any thing remains to be done under the contract of sale, as between him and the buyer. It is the delivery of the goods, with us, that completes the contract of sale, and vests the title thereto in the purchaser ;• until which event, if postponed, the contract to sell and buy is but a mere executory agreement. If, therefore, (without enumerating other instances not directly pertinent to this case,) the vendor is, by the agreement of sale, to remove the goods to a certain place, where the purchaser is to receive them, the title does not pass at the time of the making of such agreement, nor until the goods are so transferred. So, too, if goods are sold by weight, number, or measure, so that the aggregate price to be paid therefor cannot he ascertained until they are counted, weighed or measured, it is held, as a general rule, that the delivery is not made, nor the title passed, before the quantity of the goods sold, and the aggregate price to be paid therefor, shall have been ascertained and determined ; and that, in the meantime, for the purposes of such weight, count, or measure, the right of possession and the ownership remain in the vendor. (Story on Cont. § 503 et seq. Chitty on Cont. 375 a. Ross on Vendor and Purch. 28. Long on. Sales, 154. Outwater v. Dodge, 7 Cowen, 85. Rapelye v. Mackie, 6 id. 250. Russell v. Nicoll, 3 Wend. 112, Ward v. Shaw, 7 id. 406. Sumner v. Hamlet, 12 Pick. 82. Macomber v. Parker, 13 id. 175. Zaguny v. Furrell, 2 Camp. 240, n. Rugg v. Minett, 11 East, 210. Wallace v. Breeds, 13 id. 522. Simmons v. Swift, 5 5. (6 Cress. 857. 2 Kent’s Com. 495, 6. Joyce v. Adams, 8 N. Y. Rep. 291. Terry v. Wheeler, 24 id. 520.)

The rule that no title is vested in the buyer, before the goods are removed by the vendor, or, until they are weighed, &c. where they are sold by weight, measure, or count, is however, applicable and conclusive only in cases in which the evidence to be found in the contract, considering the condition of the goods and the acts remaining to be done, is insufficient to show that it was 7/ie intention of the parties that the right of possession and ownership of the goods should be vested in the purchaser immediately upon and by the making of the agreement of sale. Where that fact clearly appears, the rule in question is inapplicable. (Riddle v. Varnum, 20 Pick. 280. Kelley v. Upton, 5 Duer, 336.)

There is also another rule to be considered in this case; which is, that where, the seller has done everything that is required of him as to a portion of the goods, but something still remains to be done before delivery, as to the rest, the goods which have been separated and designated by the performance of the required acts, become the property of 'the buyer, and are at his risk ; but the part in respect to which something remains to be done, is at the risk of the seller, and, as to them, the sale is incomplete.

In Crawford v. Smith, (7 Dana, 59,) where a country merchant sold his whole stock at cost and carriage, and seven and one half per cent advance, and he and the purchaser commenced measuring and invoicing the goods, laying them by as they progressed, but, before they had finished, a thief broke into the store and stole some that were invoiced and laid away, and some that were' not, it was held that such of the stolen goods as were not measured and invoiced, remained the property of the seller ; but that those which had been measured, invoiced, and laid aside, had become the property of the purchaser, unless it was the intention of the parties that the goods should be weighed to ascertain the carriage. (See also, Hanson v. Meyer, 6 East, 614; Rugg v. Minett, 11 id. 210; Simmons v. Swift, 5 Barn. & Cress. 857.)

There is no difficulty in this case, arising from the fact that the number of the bales of hay, of each quality, and the weight thereof, as marked upon each bale, had not been ascertained by both parties, by actual examination, before the fire occurred. For, the vendors had taken a correct account, and knew how many bales there were, and their weight and description, and informed the buyers of all that at the time of the making of the contract. The sellers, therefore, did not need to take another account of those matters ; and, for that reason, the jury might well have arrived at the conclusions, upon the evidence, that there was nothing, in that regard, remaining to be done, as between the parties, after the contract of sale and before, delivery. The buyers, certainly, had a right, for their own satisfaction, to examine the hay, bale by bale, to ascertain whether the statement touching the number, weight, and quality, which had been made to them by the sellers, was correct or not, and to take a tally and account. But the vendors, although they were entitled to • be present and to participate in the taking of such account, were not bound, as between seller and purchaser, to do so; but might, at their option, waive the exercise of such right; and they not only did so by omitting to appear and take a part in such examination, but the buyers seem to have acquiesced therein by taking the account in their absence.

But the question as to where and how the hay was to be delivered to the purchasers under the contract, as it was understood by both parties, is of quite a different nature. Even if no express provision had been made in the contract itself in that regard, the facts that five hundred bales of the hay were stowed away in the barge’s hold, where it must have been impossible for the' buyers to reach and examine every bale, with the marks thereon, for the purpose of ascertaining the quality and quantity of the hay, even if they might have examined and taken an account of the seven hundred bales which were piled upon her deck, and that it was well understood between the parties that the hay was to be transferred, from the barge to the schooner, bale by bale, coupled with the further fact that the vendors, through their employees, actually transferred all that was placed upon the schooner, were, certainly, sufficient, in the absence of any evidence leading to a different conclusion, to justify the jury in finding that the vendors were, under the contract, as it was understood and acted upon by both parties, to make such transfer ; even if a finding to the contrary, if it had been made, ought not to have been set aside as against the evidence. Let that be as it may, however, the clear, positive, and uncontradicted evidence of the plaintiff Sutherland, himself, shows, not only that the vendors were, by the contract of sale, to remove the hay from the barge to the schooner, but that they, through their employees, were actually engaged in doing so when the fire occurred. This, taken in connection with the further facts in the case, above adverted to, conclusively proved that the plaintiffs were to deliver the hay by transferring it, bale by bale, from their barge to the. schooner of the defendant, and that they did so transfer and deliver 122 bales and only that number. The jury, therefore, were required by the direction which was given to them by the court, touching the question of delivery, to find a verdict for the plaintiff's for the value of the 122 bales, and no more; and their verdict having been rendered in favor of the plaintiffs for the entire amount claimed by them, the judgment thereupon entered must be set aside, because such verdict was contrary to the charge of the court.

It follows, of course, that the court erred in refusing to charge that the plaintiffs were only entitled to recover for the hay actually delivered on board 'the schooner.

Except for the question of .costs, it would be quite immaterial whether the error for which "the judgment is reversed, was that of the court, or of the jury. But where the judgment appealed from is reversed, for the reason that the verdict is contrary to the charge, the costs of the appeal are charged to the appellant, while the costs of appeal on reversal because of an error of the court, are awarded in his favor. In this case, neither of those" rules can, properly, prevail.

The judgment should be reversed, and a new trial directed, with costs of appeal to the party who shall eventually succeed upon the issues; unless the plaintiffs shall, within ten days from the service of the order to be entered hereupon, elect to reduce the damages in the judgment to the value of the 122 bales of hay which were delivered, with interest, to be ascertained and fixed by the contract, and the testimony of Mr. Rixford, at fol. 114 of the case ; in which event, the judgment should be amended accordingly ; but no costs on appeal ought to be given to either party.

Judgment and order affirmed.


source: Caselaw Access Project

author: Monell, J.

license: Public Domain

text:
    Katharine C. Anderson, plaintiff, vs. Sarah James defendant.
    1. A sheriff’s certificate of sale of real estate is by statute made presumptive evidence “ of the facts therein contained,” but it is not evidence, presumptive or otherwise, of any other fact.
    2. The mere recital, in a sheriff’s certificate, of an execution, is not evidence of its existence, because such recital is not a necessary part of. the certificate, which is made evidence of those facts, only, which the statute requires should be stated in it.
    3. Where, from the description of the premises, in a deed, it is manifest that the parties intended to limit and restrict their boundary to the line of the side of a highway or street, no part of the highway or street passes.
    4. A deed which conveyed a plot of ground lying on the Southerly side of Stewart street, described its boundaries as running along a certain road “ to Stewart street, and thence atony the southerly side of Stewart street,” in a certain direction; Seld that this description did not carry the right of the grantee, under it, to the centre of Stewart street, but only to the line of the southerly side of that street.
    (Before Monelu, Garvin and Jones, JJ.)
    Heard February 5,1866;
    decided March 12,1866.

      This action was brought to recover the possession of a plot of ground in the city of Hew York.
    The plaintiff proved a judgment recovered in the mayor’s court of said city, in. favor of one Moóre, against William J. Stewart, docketed April 16, 1821. She also read in evidence a certificate of the sheriff of Hew York of the sale of the right, title and interest of Stewart in certain premises therein described. The certificate recited that' by a writof/?er¿ facias, upon the said judgment he sold, &c.
    The execution was not produced, or otherwise proved than by the recital in the sheriff’s certificate. The plaintiff also proved a deed from the sheriff of Hew York to Abel T. Anderson, dated March 6, 1823, reciting the aforesaid writ of fieri facias, and conveying the premises. The only part of the description in the deed which is material is as follows: “ Thence northerly along the said road 144 feet to Stewart street; thence along the southerly side of Stewart street westterly 260 feet.” The plaintiff claimed under this deed.
    The action was tried before Mr. Justice Monell and a jury. It was proved that, Stewart street or lane was on the north side of Stewart’s property, commencing at the Bloomingdale road,- and running westerly past the Chatham property. It was partly fenced and was sometimes closed with gates or bars, but at the Sixth avenue Avas always open. It was from fifty to sixty feet wide. The plaintiff claimed title to half of Stewart street, under the description in the sheriff’.s deed.
    At the close of the plaintiff’s evidence the defendant moved for a dismissal of the complaint on the grounds : first, that there was no proof of any execution upon the judgment; and second, that the plaintiff had failed to show title to the premises in question. The motion was granted, and the plaintiff excepted.
    Judgment was suspended, and the exceptions directed to be heard in the first instance at the general term.

      G. W. Stevens and A. It. Dyett, for the plaintiff.

      L. S. Ghatfield, for the defendant.
   By the Cotjet,

Monell, J.

A party claiming title to real property under a sheriff’s deed must show a judgment and an execution issued thereon authorizing the sale. (4 Cowen & Hill’s notes to Phil. Ev. 1078, note 738, and cases there cited.)

The corticate of sale which the statute directs the sheriff to make (2 R. S. 270, § 42,) must contain a description of the premises sold, the price bid, the consideration paid, and the time when the purchaser will be entitled to a conveyance. It need contain nothing more. Such certificate is made presumptive evidence “ of the facts therein contained.” (§ 44.) But it is not evidence, presumptive or otherwise, of any other fact. (Williams v. Merle, 11 Wend. 80. Browning v. Hanford, 5 Denio, 586.) The mere recital in the certificate of an execution, was not evidence of an execution, inasmuch as such recital was no necessary part of the certificate, and the certificate is made evidence of such facts only as the statute requires should be stated in it. There was, therefore, a failure to prove a valid sale, as no execution authorizing it was shown.

' But the plaintiff failed to show title for another, and perhaps a more substantial reason. The sheriff’s deed conveyed to the plaintiff’s testator a plot of ground on the southerly side of Stewart street, and which is described as running along a certain road, “ to Stewart street, and thence along the southerly side of Stewart street westerly,” &c. And it is claimed that such description carried the grantee to the centre of such street. The rule is, that general words of description bounding lands along a highway, or upon a highway, or as running to a highway, are expressive of an intention to convey to the middle of the highway. (Jackson v. Hathaway, 15 John. 454.) But when, from the description, it is manifest that the parties intended to limit and restrict the conveyance to the lines of the highway or street, no part of the highway or street passes.

It is claimed however, in the case before us, that the words “ to Stewart street,” carried the grantee to the centre of that street, and that these words are not limited in their effect, by the subsequent words “ thence along the southerly side” of such street. This is a question of intention, which is to be determined by the language used. To my mind they plainly indicate an intention to limit the grant to the southerly side of Stewart street. Any other effect which could be given to the words “to Stewart street,” if they stood alone, is destroyed by the immediately following and restrictive words “ thence along the southerly side,” &c. .

But the question is disposed of upon authority. In Child v. Starr, (4 Hill, 369,) the description was (S. C. 20 Wend. 149,) “ thence easterly forty-five feet to the Genesee river; thence northwardly along the shore of ..said river,” &c. And it was held by the court for the correction of errors, that no part of the bed of the river passed, under the conveyance, but that the grantee took only to low water mark; and the chancellor says that the same rule applies to highways, &c..

The analogy between that case and the one before us is perfect.

The exceptions should be overruled, and judgment ordered dismissing the complaint, with costs.


author: Jones, J.

text:
    Gertrude Crossman, plaintiff and respondent, vs. David Harrison, defendant and appellant.
    In an action for an assault and battery alleged to have been committed by the defendant upon the plaintiff, in the course of his assisting the infirm mother of the latter to remove from her (the plaintiff’s) house, which assistance was justified upon the ground of a request by such mother therefor, comments by the judge at the trial on the supposed contents of a will executed by such mother shortly after such removal, but not admitted in evidence, as being favorable to the defendant and evidence of improper motives on his part, in aiding such removal, accompanied by a direction to the jury to see whether the defendant from such motives designed, when the removal was effected,, to have that will executed, were held to be erroneous, as tending improperly to enhance the damages by the consideration of matters not in evidence; for which a judgment for the plaintiff should be reversed.
    (Before Mokeli., Gabvin and Jokes, JJ.)
    Heard February 8,1866;
    decided March 12, 1866.

      Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial, in an action for an assault and battery. The jury rendered a verdict in favor of the plaintiff, for $1500.
    This was an action for an- assault and battery. The defense consisted of a general denial; The evidence, on the trial, was conflicting, both as to the character and extent of the assault. The defendant’s counsel claimed for him, that at the request of the plaintiff’s mother he went to the house occupied by the plaintiff, her husband and her mother, for the purpose of removing the plaintiff’s mother, who was infirm, therefrom, at her request, and that the plaintiff resisting such removal, he used no more force than was sufficient to effect such removal. The plaintiff’s evidence shows two assaults, one down stairs and another up stairs, but both at the time of and connected with the removal of the mother. The evidence was conflicting also as to whether the amount of force used was more than sufficient to effect the removal or not. The plaintiff’s counsel claimed further, that her mother was imbecile, and incapable of any intelligent operation of mind, and, therefore, incapable of making any request, or giving any direction, that would justify the defendant in removing her from the care and custody of the plaintiff, without her assent, as she was the natural guardian of her mother. There was evidence to that effect. There was also evidence to the effect, that the plaintiff’s mother, at the time of the removal, showed no indications of imbecility; that the defendant undertook her removal at her request, believing her to be fully capable of making such request, and of forming a sound judgment as to its necessity; and that in undertaking her removal he acted from motives of humanity, and for the good and welfare of the plaintiff’s mother. The removal was effected. Shortly after the removal, the plaintiff’s mother executed to the defendant a deed of certain property, and also made a will. The contents of neither of which appeared in evidence, they not having been admitted on the trial. The will- was excluded by the presiding judge, and the deed was not offered. The consideration of such deed, however, appeared in an inquisition finding the plaintiff’s mother'to be of unsound mind, a part of which consideration' was, “ a decent support and maintenance during natural life."
    The presiding judge, after charging the jury substantially that if they found that the plaintiff’s mother was, at the time of the removal, of unsound mind so as to be incapable of taking care of herself and incapable of forming and expressing a wish, the defendant had shown no justification. But if they found that she was of sound mind, capable of forming and expressing a wish, and capable of taking care of herself, the defendant had a right, in a quiet, proper way, to assist her in removing, and in so doing to use such force as might be necessary to prevent any person who should seek to impede such removal from •effecting his or her object; but if he used more force than was necessary to overcome any obstacle to such removal, that would be an assault, for which he would be liable. He further charged that if the jury, under such instructions, should find a technical assault, they should, in estimating the damages, consider the hnimus, or motive, of the defendant. On the subject of such animus, he charged as follows: “If the defendant believed honestly that the old lady was treated badly; that she was starved and uncomfortable ; and that she desired to remove, that should go in mitigation of damages ; that is to say, if he acted honestly and properly, although from a mistaken motive, he ought not to be punished as he would be if he had willfully perpetrated the injury from wrong motives.’’ That the jury were to “ consider, also, whether he designed to remove her for improper motives. * * A short time after the removal he procured a deed to be executed to him by her, conveying to him certain property, and a short time thereafter a will, which * conveyed to him her property absolutely, without any trust, so that he might dispose of it as he saw fit, after deducting the payment of her funeral expenses and debts ; the balance she” gave '“to him absolutely,” ‘feeling,’ as she says, ‘ that he would’ make good and honorable use of the same for the benefit of ‘ her and her heirs after her frail body was ‘ mouldering in the earth.’ That is not a trust—it is simply an expression of confidence in him. That the jury were to see whether, when the removal was effected, he designed to have these papers executed, and from improper motives; whether his motives were good and charitable, would be for them to consider.”
    To as much of the charge as related to the will, the defendant excepted.
    The jury rendered a verdict of $1500 against the defendant, when judgment was entered, from which judgment the defendant appealed.

      Cyrus Lawton, for the defendant, appellant.

      SicJcles & Gushing, for the plaintiff, respondent.
   By the Court,

Jones, J.

As the will was not in evidence, the learned judge committed an error in adverting to, and giving a construction of it.

This error could not fail to be prejudicial to the defendant. The judge, in effect, told the jury that the animus of the defendant should have a great effect on the damages; that if he acted honestly, solely, with a view to the welfare of the plaintiffs’ mother, the damages should be less than if he acted from wrong motives. He then charged the jury that in this question of animus there was evidence that the defendant shortly after the removal, procured from the plaintiff’s mother a will giving him all the property absolutely, unconnected with any trust; and the judge left it to a jury to say whether the removal was made with a design to have the will executed, and from improper motives, or whether his motives were good and charitable.

The effect of this charge as to the will was necessarily to influence the jury to find, upon a matter not in evidence, that the removal was from improper motives ; and upon such a finding, to lead the jury to enhance the damáges under the charge that the damages should be greater if the animus was improper than if it were good and charitable.

It may be urged that the judge spoke of the deed made by the plaintiff’s mother to the defendant, in the same connection with the will, and that the damages would have been the same if he had said nothing about the will. That, however, we cannot determine. It is impossible to say what importance the jury attached to the deed, or what they attached to a will of the character which the judge told them the defendant had procured to be executed ; and it is equally impossible to say to what extent the jury, in finding the damages relied on the charged fact that a will of this character had been procured by the defendant.

But, again ; the judge did not assume to give a construction to the deed. It was before the jury that a part of the consideration of the deed was the support and maintenance of the plaintiff’s mother during her life. If the deed stood alone, the jury might have come to the conclusion that it was but a fair and proper provision for the charges and expenses the defendant might be put to in supporting the plaintiff’s mother during her life.

Again ; it may be urged that the judge’s remarks as to the will were confined to the assault up stairs, and that the damages were given solely for the assault down stairs. There is, however, nothing to enable us to say that the jury made any such discrimination. For aught that appears, they may have given their verdict solely for the assault up stairs, or for both assaults,

, There must be a new trial, with costs of the appellant, to abide the event.

Judgment reversed, and a new trial granted, costs to abide the event.


author: Monell, J. Jones, J.

text:
    Henry A. Bellows, plaintiff and appellant, vs. Levi Folsom, defendant and respondent.
    1. A second report by a referee upon substantially the same evidence and containing the same findings as a former report which has been set aside as erroneous ; an appeal from the judgment entered thereon, when it is in favor of the same party, will be set aside summarily.
    2. In such case the prior decision is binding, unless the findings of the referee in his second report differ substantially from those contained in his former report.
    3. The possession of a negotiable promissory note is prima facie evidence of a delivery of it by the prior maker or holder to the possessor. Per Jones, J.
    4. A finding that a promissory note was placed in the possession of an attorney in an action, as such, is equivalent to a finding that it was delivered to his client, since a delivery to and possession by an agent is equivalent to one to or by his principal,
    6, In the absence of any qualification of a finding of the delivery of a note, such as that it was in escrow, or conditional, it will be deemed to have been absolute.
    (Before Moneli,, Gaevin and Jones, JJ.)
    Heard February 12, 1866;
    decided March 12, 1866.
    The action was to recover upon a promissory note made By one of the defendants, the payment of which was guarantied by the other defendants.
    The defense set up was that in October, 1860, the plaintiff recovered a judgment against the defendant Levi Folsom, from which he appealed to the general term, giving an undertaking to stay execution, signed by the other defendants, as sureties. Subsequently, Folsom having real estate upon which the judgment was a lien, which he had an opportunity to convey, and was desirous to convey, in order to discharge that lien, made an agreement with the plaintiff’s attorney to compromise the suit, by paying the costs, and giving the note of said Folsom for the balance of such judgment, payable in two years, indorsed or guarantied by the other defendants, upon the agreement of the plaintiff that the appeal should be dismissed, and that the plaintiff should execute and deliver to such defendant a satisfaction piece of said judgment, and discharge the same of record. That the defendant carried out the agreement, by paying the costs and delivering the note, bút the plaintiff did not execute the satisfaction piece, or discharge the judgment of record.
    Upon a former trial of the action, the referee found as facts; “ that the note was given and indorsed upon the consideration of the discontinuance of a former action by the plaintiff against the defendant Levi Eolsom, the payment of costs therein, and an agreement to execute and deliver a satifaction piece of a judgment obtained in such action ; that such satisfaction piece was never executed until the 29th of May, 1863, and that the present action was commenced on or about the 5th day of December, 1862.” The referee thereupon dismissed the complaint. Upon appeal to the general term, the judgment was reversed, and a new trial ordered. (See 2 Bob. 138.)
    The only witness examined on the second trial, not examined on the first trial, was T. B. Barnaby, whose testimony related only to the agreement for the settlement, and did not vary it. No other evidence was given on the second trial not given on the first trial.
    Upon the same evidence, therefore, the same referee found' the following facts :
    “ That a bargain and contract was made, by and between the defendant, Levi Folsom, and the plaintiff herein, through his attorney, for the settlement of such action, and the demand made herein, on the following terms : That the costs of the action should be paid by the said defendant, not comprising, however, the costs of the appeal. ■ That the defendant should give a promissory note, payable in two years, secured by the guaranty of two persons, the other defendants herein, for the sum of $ 197.40, the balance of such judgment. That the appeal taken should be dismissed, without costs. And that a satisfaction of such judgment should be executed, and delivered to the said defendant. That, in pursuance of such bargain and contract, the costs of the above action were paid to the plaintiff’s attorney, and the promissory note, sued upon in this action, was placed in his possession ; that the plaintiff’s attorney executed and delivered a consent for the dismissal of the action, or of the appeal, without costs ; that the said note has never been in the hands of the plaintiff, but has been retained by the said attorney, and that the satisfaction piece of such judgment was never, delivered, nor proffered for delivery, until after the commencement of this action, and was executed on the 29 th day of May, in the year 1863.”
    Upon these findings, the referee again dismissed the complaint.
    The plaintiff excepted to such report, and appealed from the judgment.

      A. Roe, for the appellant, (plaintiff.)

      J. Sessions, for the respondents, (defendants.)
   Monell, J.

The only fact found by the referee, not found on the first trial, is, “ that the note has never been in the hands of the plaintiff, but has been retained by the said attorney.” He finds the agreement, constituting the consideration of the note, in a slightly altered form, but essentially not differently from his first finding. He now finds that the costs of the action were to be paid ; the. note of the defendant to be given for the balance of the judgment; the appeal to be dismissed ; and a satisfaction of the judgment given.

The court in reversing the former judgment said: “ that the consideration for the agreement on the part of the defendants, when the note in question was given, consisted, therefore, not only in the giving of the satisfaction piece, but the discontinuance of the suit, which included proceedings on an appeal from the original judgment. That was done ; and the defendants had the benefit of it, one as principal and the others as sureties. The contract was entire on hoth sides, and the giving of the satisfaction piece could not be said to be the separate and only consideration for the note, any more than such note could be said to be the separate and only consideration for the satisfaction piece.” (2 Rob. 140.) And the court held that a partial failure of consideration was not a defense. , .

We are unable to perceive any difference, either in the evidence or the findings, of the referee, which changes the case, or takes it out of the principles announced in the former decision as controlling the case.

There was not a conditional delivery of the note to the plaintiff’s attorney. The fact that it had not been in the plaintiff’s hands, but had been retained by his attorney, falls far short of showing a conditional delivery. The consideration was an entire agreement to do three things; to pay the costs of the action ; to dismiss the appeal, and to satisfy the judgment. The failure to perform either of the three, would not be a defense. In other words, if all was done except the last, the non-execution of that, would not prevent a recovery on the note. This is abundantly established in the opinion before referred to.

We think the referee was mistaken in his' construction of his second finding and of the opinion of this court upon the former appeal, and therefore it was error to dismiss the complaint.

The judgment must be reversed, and a -new trial ordered, with costs to the appellant on the appeal, to abide the event. The order of the referee must also be vacated.

Jones, J.

On the first trial of this action the referee found in favor of the defendants ; on appeal the general term of this court reversed the judgment, and ordered a new trial before the same referee. The referee again found in favor of the defendants, and the present appeal is from the judgment entered on such finding.

On this first appeal, this court held that upon the facts found by the referee, his conclusion of law was erroneous, and that the plaintiff was entitled to recover. We are bound by this decision, unless the Court of Appeals, since its rendition, has established a principle adverse to it. We have not been referred to, nor are we aware of, any such decision of the Court of Appeals.

Unless then the present findings of the referee substantially differ from his former ones, we must, under the previous general term decision, reverse this judgment.

I can see no substantial difference between the two sets of findings.

In his first finding, he found as facts, that the note sued on was given on the consideration of the discontinuance of a former action, the payment of costs therein, and an agreement to execute and deliver a satisfaction of a judgment obtained therein, and that such satisfaction piece was not executed until after the commencement of this action.

The court, in deciding the case on the first appeal, viewed the case precisely as if the finding had been that the defendant agreed to give the note in suit, upon the plaintiff’s agreeing to discontinue the former action, to pay the costs therein, and to execute and deliver a satisfaction piece thereof.

This view of the finding must have been taken by the court; for it is evident that the consideration of a note'must be derived from a prior agreement relative to it, and must constitute the whole of such prior agreement, so far as it relates to the giving of the note and the purposes and objects for which it was given.

How the only differences between the first and second findings are, first, that in the second findings the referee finds in terms the very same agreement from which he, in his first findings, deduced the consideration of the note; second, instead.of finding that the note in question was given and indorsed, he now finds it was “ placed in the possession of the plaintiff’s attorney,” “and has never been in the hands of the plaintiff, but has been retained by said attorney."

As to the first difference, it is a mere change of phraseology. As shown above, the first set of findings involved a finding of the agreement between the parties, and did in fact find that agreement just as fully as the second set of findings. There is no matter found to have been agreed on by the second set of findings which was not found, to have been agreed on by the first set.

With reference to the second difference, the using of the expression, “ placed in his possession,” etc. in the connection in which it is used, would seem singular, did we not bear in mind that the referee on the second trial, sought by mere changes in the phraseology of his findings, (for, since the evidence on the second trial was substantially the same as that in the first, he could not consistently change the substance of his former findings of fact,) to evade, without appearing to directly overrule, the former decision of this general term. He may have had a notion that by using these expressions, the general term would be led to the conclusion that he found either that the note had not been delivered, or that it had been placed in escrow, or at all events that the effect of a finding of delivery would be avoided. Whatever may have been his idea or object, it is sufficient to say that the effect of these expressions, is to find a delivery to the plaintiff. A note cannot be placed in the possession of any person without being handed to' him. A delivery consists in handing the article to ■the person to whom the delivery is to be made, and no words are necessary to be used.

Again, the possession of a note is prima facie evidence of a delivery to the possessor. In this case there was possession, and there is "no evidence to rebut that prima facie evidence.

As a delivery to, and possession by an agent, is a delivery to and possession by the principal, the effect of the finding in question is, that there was a delivery to the plaintiff. There. being no finding that the delivery was in escrow or conditional, it must be deemed to be absolute. It might perhaps, under the case of Worrall v. Munn, (5 N. Y. Rep. 229,) be absolute, even though the intention was to make it a delivery in escrow, or conditional.

The respondent claims that the.appellant cannot avail himself of any error in the conclusions of fact or law found by the referee, for none are stated in the case. There are, however, in the appeal hook the pleadings, the report of the referee, the judgment, and an exception to the only conclusion of law found by the referee. These papers are sufficient to authorize us to pass on the question, whether the findings of fact in the report are sufficient to uphold his conclusion of law.

In Ferguson v. Hamilton, (35 Barb. 427,) the defendants excepted to the referee’s findings of fact and law on the subject of the counter-claim, and appealed from, so much of the judgment as decreed that judgment be entered in favor of the plaintiff against the defendants, upon the counter-claim set up by defendants. This appeal of the defendants was abandoned on the argument.

For the above reasons I am of opinion that the judgment must be reversed, and a new trial ordered, with costs to abide the event, and the order of reference must be vacated.

Garvin, J. concurred.

Judgment reversed.


text:
    Angus Ross, plaintiff and appellant, vs. The Mayor, &c. of the City of New York, defendants and respondents.
    1. It is not necessary, in an action against one of the cities of this state, to recover damages for the destruction of property therein by fire, during the existence of a riot, in order to make such city liable therefor, to establish the absolute impossibility of the occurrence of the fire unless by the agency of the rioters. It is enough to establish, by circumstantial evidence, the probability of the origination of such fire by the rioters, so great as to render that of its having originated in any other way, on any ordinary principles of experience and reasoning, so remote and improbable as to make it morally, even if not physically, impossible.
    2. Where circumstantial evidence, however slight, so brings a case within such principle of law as to require its submission to a jury, a nonsuit should not be granted.
    3. Although, in such an action, there may be no direct evidence that the premises were set on fire by a mob, and the plaintiff seeks to maintain his action solely by force of circumstantial evidence, yet inasmuch as the tendency of the facts proved, to raise the presumption that the fire was the act of the rioters, depends entirely upon natural presumptions to be derived from the circumstances of the case, by the application of the common experience of mankind, based upon the natural capability of such facts to generate conviction in the mind, it is proper that the case should be submitted to the jury.
    4. The mere denial of a motion for a nonsnit does not necessarily imply that the plaintiff is entitled to a verdict, upon the proof as it stands; but may, and most frequently does, establish, simply, that the evidence adduced is of such character as to require the decision of the questions of fact involved by a jury. (Per Jones, J.) " .
    Before Monem, Gabvin and Jones, JJ.)
    Heard February 15,1860;
    decided March 12,1866.
    This action is brought by the plaintiffs to recover damages for the destruction, during the riot of July, 1863, of certain property belonging to him.
    The plaintiff alleges, that the destruction in question occurred in consequence of such riot. It appears that on the night of July 13,1863, a fire broke out in the premises adjoining the plaintiff’s, which spreading into the plaintiff’s premises occasioned the destruction complained of.
    There was no direct evidence that the premises were set on fire by any mob, or tumultuous or riotous assemblage. The plaintiff seeks to maintain his action by circumstantial evidence. After the plaintiff had rested, the defendants moved for a nonsuit, which was granted ; and exceptions taken. The court ordered the exceptions to be heard' at the general term, in the first instance.

      Geo. W. Parsons, for the plaintiff, appellant.
    I. It must be conceded that the plaintiff’s case rests mainly upon circumstantial evidence, as no witness swears that he saw the rioters actually apply the torch to the premises. But it is insisted that men have been justly hanged on circumstantial testimony less conclusive than that before the court.
    1. The error into which the learned judge who presided at the trial seems to have fallen, was in treating the case as if the .law required positive proof that the premises were fired by rioters engaged in a loud and boisterous assault. This seems the most favorable construction to be put upon his various rulings, and the language used in his final decision,

      2. This was an error in the construction of the law, which says : “ Whenever any building, or other real or personal property, shall be destroyed or injured in consequence of any mob or riot,” the party injured shall recover “ damages sustained by reason thereof.”

    3. The question was, would the jury have been warranted, by the evidence, in finding the fact that these premises were destroyed in consequence of the mobs or riots which prevailed so extensively in that immediate vicinity all night P
    4. If the court would not interfere to set aside such a verdict, then it was error not to submit the evidence to the jury.
    II. A riot is defined by one learned author (Spelman) to be “ the assembling of three or more persons against the public peace, and their unlawful áction thereupon.” An illustration is given in 7 Rich. (S. C.) R. p. 5, (The State v. Alexander:) “ Several persons acting in concert in the perpetration of an offense, such as going to the prosecutor’s stable and shaving his horse’s tail.” See also The State v. Straw, (33 Maine, 554,) “ Where only two persons were actually engaged in pulling down a house, and one other stood by looking on ; held a riot.” (1 Russell on Crimes, 266, Am. ed. 1850, and notes.)

    1. Now, here was a fire shown to have been committed by incendiaries, at a time of the night when, in that neighborhood, in ordinary times, no one was stirring ; and yet immediately on the breaking out of the fire a dozen people, composed of the class chiefly engaged in the riots, are found on the spot, not to assist in putting out the fire, not mere idle spectators, but threatening to cut the hose of the fire companies if they should serve to extinguish the fire, and only deterred from this act of mob violence by the superior numbers and resoluteness of the firemen.
    2. Surely here was a mob, and a riotous demonstration, and the circumstances would warrant a jury in finding'that this party fired the premises, and then waited to see their work completed.
    III. There was more than one mob and riotous assemblage that night. Different and numerous bands of rioters were at their work of destruction all over the upper part of the city especially; so much so, that, on the following day the governor proclaimed the city “ to he in a state of insurrection.’*
    1. It appears that members of the mobs instigated various assaults to wreak personal vengeance, and such may have been the fact in this case ; but it is submitted that, as to the latter, (a.) there is no evidence of it; on the contrary, the assault seems to have been caused by the fact of the employment by Baker, Wells & Co. of negroes, the common objects of mob vengeance at that time; and (b.) such a fact does not take from the acts their quality of riotous acts.
    2. But it is confidently urged that the proof connects the perpetrators of this incendiarism with a portion- at least of the party who were first engaged in the hanging of the negro in Clarkson street, and subsequently in the assault on negroes in premises adjoining Dale’s, and on Dale’s house.
    IV. It is an elementary principle of law, that “ if the circumstantial evidence be such ás to afford a fair and reasonable presumption of the fact to be tried, it is to be received and left to the consideration of the jury, to whom alone it belongs to determine npon the' precise force and effect of the circumstances proved, and whether they are sufficiently satisfactory and convincing to warrant them in finding the fact in issue.” (1 Phil, on Ev. 612, 4th ed.) ' And the same authority holds that “ in civil cases where civil rights are ascertained, a less degree of probability may be safely adopted as a ground of judgment, than in criminal cases, which affect life and liberty.” (Id. p, 614.)
    1. These rules have been illustrated in many cases.' (See Young v. Silkwood, 11 Ill. Rep. 36, and 3 Graham & Waterman on New Trials, 1840; State v. Scates, 3 Strobh. 106; Sheldon v. Hudson River R. R. Co., 14 N. Y. Rep. 218; Mondum v. The Commonwealth, 6 Rand. Va. Rep. 704, 713; State of Conn. v. Watkins, 9 Conn. Rep. 53; Wright v. Court and others, 2 Carr. & P. 232; Janvrin v. Scammore, 9 Foster, N, H., 280; Wilson v. Clark, 27 Miss. 270; Jones v.
      Letcher, 13 B. Monroe, 363; Fitzwater v. Stout, 16 Penn. 4 Harris, 22.)
    Y. Judged by the foregoing rules, the learned justice was not only in error in taking the case as it stood from the jury, but there was error in ruling out the testimony offered.
    1. Even if the evidence sought to be introduced did not specifically prove the point in issue, it tended towards it, and constituted connecting links, and its weight was for the jury to determine. (2 Graham & Waterman on New Trials, p. 665.)
    2. Says a learned authority, “ The force of circumstances of a conclusive nature may be greatly confirmed by a combination with other independent circumstances, though the latter be, in themselves, of an imperfect snd inconclusive character.” (1 Phil. Ev. 416, and note.) And Starkie holds that a combination of imperfect proofs may be introduced, even in criminal cases. (3 Starkie’s Ev. 495, 496.)
    3. At least, in the language of some of the authorities, if they do not amount to positive proof, they serve to illustrate the point proposed to be proved.
    4. The same kind of evidence was received in the case of Lord George Gordon. (21 Howell’s St. Trials, 542. See also 15 How. St. Trials, 552, Trial of Dammaree; Rex v. Hunt, 3 Barn. & Ald. 566; North v. Miles, 1 Camp. 389; Bowsher v. Callery, id. 391.) And in Wright v. Court, (2 Carr. & P., supra,) where three were jointly prosecuted for false imprisonment, and the declarations of one of them made weeks after the act in the absence of the other two, were received. (Powell v. Hodgetts, id. p. 432. State v. Simons, 4 Strobhart, S. C. Rep. 266. Glory v. The State, 8 Eng. 13. Ark. Rep. 236.)

      Richard O’ Gorman, for the defendants, (respondents.)
    I. The liability of the defendants is dependent, in the first instance, upon the fact of the loss or damage being occasioned' by a mob or riot. (3 R. S. 874, 5th ed.)

    1. A riot, as described in the boobs, is where three or more

      persons actually do an unlawful act of violence. (4 Black. Com. 146.) .
    2. A mob is the unlawful assemblage and violence of a number of persons. (Bouvier’s Laiv Dictionary.)
    3. To sustain his claim under the statute, the plaintiff must not only show the fact of a riot or mob, but that his loss was occasioned thereby; and this he entirely failed to establish on the trial.
    4. The riotous proceedings spoken of, and the disorderly persons seen, were a long distance from the plaintiff’s property,
    • and occurred and were seen many hours prior to the fire, by which the plaintiff suffered his loss.
    5. There is no certainty as to the origin of the fire; and, from all that can be gathered from the case, it may have been accidental.
    II. If the city is liable at all, it can only be for the actual loss which the plaintiff sustained. The amount of such loss, if any, is difficult to fix, inasmuch as the plaintiff himself testifies that “ he guessed out” the amount he supposed due him.
    III. The eourt properly dismissed the plaintiff’s complaint, he having not only failed to establish the actual value of his property, but that his loss, whatever it may have been, grew out of, or was occasioned by a mob or riot. The plaintiff’s counsel made no request of the court to submit the case to the jury. His opposition to the motion on the part of the defendants, that the complaint should be dismissed, did not amount to such a request. Without such request of the court, expressly and specifically made, there can be no available exception to the ruling of the court. (Bidwell v. Lament, 17 How. Pr. 357. Terry v. Bonesteel, 25 id. 422.)
    IY. The statute upon which this action is founded does not specifically fix the liability upon either the city or county of Hew York, but leaves it in the alternative, and, being a penal statute, is defective in that respect.
   By the Court,

Jones, J.

Circumstantial evidence is of two kinds, namely: certain, or that from which the conclusion in question necessarily follows ; and uncertain, or that from which the conclusion does not necessarily follow, but is probable only, and is obtained by a process of reasoning. (1 Greenl. Ev. § 13, a.) Again : when the known and ascertained facts and circumstances surrounding and accompanying the disputed fact so coincide and agree with the hypothesis that the disputed fact is true, as to render the truth of any other hypothesis, bn the principles of reasoning and exeperience, exceedingly remote and improbable and morally, though not absolutely and metaphysically, impossible, the hypothesis is established as morally true. ( 1 Stark. Ev. 561.) Again : presumptions of fact, usually treated as comprising the second general head of presumptive evidence, are to be judged.by the common and received tests of the truth of propositions and the validity of arguments. They depend on their own natural force and efficacy in generating belief or conviction in the mind as derived from their connection with the subject matter, which are shown by experience, irrespective of any legal relations. They are merely natural presumptions derived wholly and directly from the circumstances of the particular case by means of the common experience of mankind, without the aid or control of any rules of law whatever. (1 Greenl. Ev. § 44.)

Applying these general principles to the evidence, I think the plaintiff was improperly nonsuited.

It clearly appeared in the evidence that there was an extensive riot in the city, which the city authorities were for some days unable to cope with. It also appeared that the riot was rampant in the particular section of the city where this fire occurred, and acts of rioting occurred within a few blocks of where the fire took place. The evidence clearly showed that in this section of the city the chief demonstration of the rioters was upon negroes and their houses. The evidence also tended to show that the establishments of those employing negroes were especial objects of attack by rioters, although the evidence in this respect does not go so far as perhaps it might. There was also evidence of threats to burn this particular establishment where the fire occurred. Threats had been made in the afternoon and evening to burn the premises. About 11 o’clock of the evening a riotous demonstration was made on 613 Greenwich street, in the course of which one Tom Brennan said Baker had negroes, and proposed to go down there; then the mob moved off; they returned at 1 o’clock ; inquiry was made for matches, and shortly after the fire broke out.

When the first hose company reached the scene of the fire there were ten or twelve men standing near the fire, from some of whom came expressions indicative of a desire to cut the hose so as to prevent the extinction of the flames. One of the firemen testifies that it is an uncommon thing for such a crowd of men to be about at the breaking out of a fire in such a neighborhood, at that time of night. And another fireman testifies he apprehended no danger from the remarks about cutting the hose, judging from the party they had (25) and the small party of the others (12.) The evidence clearly tended to show that the premises had been set on fire by some party unknown.

Under the principles of law above laid down, it is not necessary that the facts and circumstances should go to the extent of showing it to be absolutely impossible for the fire to have occurred without the agency of rioters. If that was so, there could be no such distinction between the two classes of circumstantial evidence as is above set forth.

It is sufficient if the facts and circumstances so coincide with the hypothesis that the premises were fired by rioters, as to render the truth of an hypothesis that they were fired in any other way, on the principles of reasoning and experience, exceedingly remote and improbable, and morally though not absolutely impossible.

The facts and circumstances of this case as above stated tend to bring the case within this principle of law last laid down, sufficiently to require a submission of the case to the jury under the rule that where there is any evidence in support of the plaintiff’s case, however slight, a nonsuit should not be granted,

But again, as the force and effect of the facts above stated in raising and inducing the presumption that the fire was the act of rioters, depends entirely upon the natural presumptions to be derived wholly and directly from the circumstances of this case by means of the common experience of mankind, and upon the natural force and efficacy of the facts and circumstances generating belief or conviction-in the mind, it is eminently proper that this case should' have been submitted to the jury. Of course these remarks do not apply where the facts and circumstances fall far short of proving or tending to prove the fact in dispute; but when they do tend to prove such fact, although very slightly, it is advisable and expedient and I think necessary, that the case should go to the jury.

The denial of a motion for a nonsuit does not necessarily imply that the plaintiff is entitled to a verdict, upon the proof as it stands, but may, and often times does, assert simply that the evidence adduced is of such character as to cause the decision of the questions of fact involved to fall within the province of the jury.

Take, for instance, an action of assault and battery where one of the plaintiff's witnesses proves an unjustifiable assault, and the other proves the assault, but also proves that it was justifiable. Here the court would be obliged to refuse a non-suit, and yet the jury might well give credence to the witness who proved the assault to be justified, and return a verdict for the defendant. (Labar v. Koplin, 4 Comst. 547.)

It is intended here only to decide that the evidence was of such a character as to require its submission to the jury for its determination thereon, and not in any way to intimate what the verdict of the jury should be.

Exceptions sustained, and new trial granted ; costs to the plaintiff to abide the event.