author: Robertson, Ch. J. Barbour, J.

text:
    Clara W. Warner, plaintiff and respondent, vs. The Western Transportation Company, defendants and appellants.
    1. Although carriers, in the absence of any deceit practised upon them in regard to the contents of packages transported by them, are responsible for their full value, when they do not limit their liability by agreement or notice, yet in determining that liability, it is to be presumed that they assumed that the contents of a package so transported Was of no greater value than its external appearance warranted. Such an appearance is as strong a representation as words.
    2. A common carrier is relieved from liability for the loss of goods undertaken by him to be transported, by any fraud or imposition practiced upon him by the owner of such goods, in respect to their value or nature. So that where a case containing very valuable articles, is prepared so as to resemble those, in which articles of little value are usually carried, so that the carrier is thereby imposed upon as to such value; he is not liable for the loss of its contents,’ even though he has not limited his liability by any notice.
    3. Even though fraud in all cases be a question of intent, an acknowledgment by a plaintiff that cases of hers containing valuables, before being placed in. the hands of a common carrier to be transported by him, were disguised with the intent that no one should suspect they contained any thing valuable, embraced such carriers, and if unexplained was conclusive evidence of such a legal fraud as to exempt him from liability.

      i. Where, without the plaintiff’s own testimony, the other evidence in a cause is insufficient to sustain his or her case, it is part of the office of the jury to determine, whether that testimony, even if uncontradicted, is entitled to credit as probable. If they arrive at the conclusion that it is not, they are bound to find a verdict for the defendant. Ter Babboub, J.
    6. The verdict of a jury founded entirely upon a material statement made by a party to an action, when examined as a witness, not merely of doubtful credibility, but contrary to reason and incredible, ought to be set aside. Jurors will not be permitted thus to say that they believe in facts wholly inconsistent with well known laws of nature; when such inconsistency can be made apparent by the exercise of reason, and the application of the result of the common experience which every juror is supposed to have had. Ter Babboub, J.
    6. In such a case the unexceptionability Of the manner of a witness, the credibility of his or her testimony in other respects, the absence of all contradiction of it, or even its corroboration in other matters, are of no avail to authorize a verdict founded upon a patent impossibility. Ter Babboub, J. ,
    7. A new trial will not be granted on the ground of newly discovered evidence, where such evidence only tends to contradict the testimony given by one of the parties on her cross-examination as a witness, in regard to facts collateral to the main issues, whose disproof did not have any effect upon the case to be established, and whose proof tended only to impeach the credibility of the party so examined as to other matters testified to by her.
    8. Evidence merely impeaching the veracity of a witness, is not of that kind, which alone authorizes the granting of a new trial, upon the ground of its recent discovery since the former trial.
    9. A motion tor a new trial on the ground of newly discovered evidence is so far an enumerated motion as to entitle the successful party upon its determination to costs as on the argument of a case.
    (Before Bobebtsob, Oh. J., and Babboub and Moneel, JJ.)
    Heard April 10, 1867;
    decided March —, 1868.
    Appeal by the defendants from a judgment rendered on the. verdict of a jury; also from an order denying a motion for a new trial, made on the judge’s minutes; and from an order refusing to grant a new trial, upon the ground of newly discovered evidence, also from an adjustment of costs.
    The action was tried before Justice Garvin and a jury, in June, 1866, and the motion for a new trial for newly-discovered evidence was decided by Justice Jones, in February, 1867.
    The action was against the defendants, a corporation, as common carriérs of goods, &c. by canal, between Buffalo and New York, to recover the value of certain goods, &c. alleged to have been delivered to the defendants on the-7th day of July, 1864, at Buffalo, on board their canal boat to be transported and delivered at the port of New York, and there to be shipped on.board a certain boat plying between New York and Stamford, Connecticut, and at the last named place to be delivered to the plaintiff, the plaintiff' averring that certain of the goods, &c. were “ stolen, abstracted, carried away, lost or destroyed, and other parts thereof injured,” in transit between Buffalo and New York, and while in the possession of the defendants.
    A schedule of the property alleged to have been lost, destroyed, or damaged, with the value thereof, amounting to |3411.55, was annexed to the complaint, for which sum with interest, the plaintiff therein demanded judgment. She had soon after the alleged loss presented to the defendants’ agent, a list and valuation of the property claimed to have been lost, amounting to $754.50. The plaintiff was the principal witness upon the trial, and testified to the loss and valuation as alleged in the complaint.
    The jury rendered a verdict for the plaintiff for $1600.
    The facts are fully stated in the opinions of the court.

      W. F. Allen, for the defendants, appellants.

      O. N. Black, for the plaintiffs, respondents.
   Robertson, Ch. J.

Upon the trial in this case, the counsel for the defendants, at the close of the testimony on the-part of the plaintiff, moved to dismiss the complaint upon several grounds; one of them being that there was fraud on the plaintiff’s part in concealing from the defendants the value of the property in controversy, alleged to have been carried by them, which motion was refused. After the testimony upon both sides had been concluded, the counsel for the defendants requested the court, among other things, to charge, “ That the plaintiff" was guilty of a fraud in so packing the goods, and in the preparation of the packages, as to conceal the nature and value of the contents intentionally, and concealed the character and value of the property from the defendants, and by such fraud induced them to receive the goods for transportation as ordinary merchandise, and that by reason of such fraud she cannot recover in this action.” Or if the court refused such requests, then to charge the jury, among other things, “ That, if the plaintiff intentionally disguised the packages, making them to appear as of less value than they in truth were, and concealed from the defendants the true nature and value of the contents, and the defendants received the packages ignorant of their true character and value, they ” could “ not be held liable as common carriers in this action.” The court did not so charge; but, on the contrary, instructed the jury that “ as matter of law the defendants were liable for all the property put in the plaintiff’s boxes, whatever it might have been, if lost between Buffalo and New York.” To that charge the counsel for the defendants excepted, as well as - to the omission or refusal of the court to charge as previously requested.

The articles claimed to have been missing or injured were in two or more of certain trunks, chests and dry goods boxes, (for the testimony is, a little uncertain or confused as to which they were in,) undertaken to be transported by the defendants for the plaintiff from Buffalo to New York. The distinctive appellations of those different kinds of receptacles or cases were only sometimes adhered to by the counsel and witnesses, on the trial, and even by the court when speaking of their contents or condition, but were often times confounded andused indiscriminately, creating thereby considerable embarrassment in the application or reconciliation of the testimony. Thus the plaintiff, in giving her testimony on her.own behalf, upon cross-examination, after acknowledging that she had no memorandum of the contents of the trunks at the time she received them at the end of their route, upon being asked how many articles she could remember were in those trunks at that time, first stated in answer, “ a lox almost full of books.” After enumerating other articles as being in the trunks, upon being asked “ what other articles were in the boxes when they came to hand,” she continued her enumeration, but finally said, “the greatest value lay in the books.” She was then asked, “ In what chest or box were they packed;” to which she replied, “They were in the regular book box,” and then added, “I endeavored to have the cases look as much like emigrants’ luggage as possible, so that nobody would suspect that any thing of value was in them. The boxes were bound with willow strips.” It (i. e. the book box) was not one of the chests she had previously named. “ It resembled an ordinary dry goods box,”

All, therefore, or some of the cases containing the plaintiff’s property, presented an external appearance, not only not indicating the value of their contents, such as costly silk dresses and materials therefor, lace, plate, jewelry, valuable curiosities and ornaments, but were actually so disguised externally as to impose upon one who merely looiked at the outside. If the plaintiff intended by “ cases” only the boxes, what goods were not in them for which the defendants would be liable might have been ascertained. But part, at least, of the very goods which formed the subject of the claim, such as an ice pitcher, butter knife, pie knife and card case of silver, a thimble of gold, two toilet sets of Bohemian ware, and these valuable books were in one of those boxes, packed under the direction of the plaintiff’s mother, the valise in it containing silver ware and other >y^luables. So that the court cannot apportion the damages awarded, and give the plaintiff an opportunity to correct the verdict by remitting part of the damages, if she was not entitled to recover for goods contained in such disguised packages. It is true that where no artifice is used, carriers may be bound for the contents of all packages carried' by them, where they do not limit their liability by a notice, since it is their own fault, if they do not inquire respecting their value. But they are entitled to assume that no greater value is contained in a package than its outside appearance warrants, which is as strong a representation as words. Jewelry, gems, plate, lace and costly silks and velvets, would hardly be suspected to be packed in cases outwardly resembling those in which emigrants bring over their household goods. Chancellor Kent, in his Commentaries, [vol. 2, p. 603,) lays it down as a general rule, that<c if the owner be guilty of any fraud or imposition in respect to the carrier, as by concealing the value or nature of the article, or deludes him by his own carelessness in treating the parcel as a thing' of no value, he cannot hold him liable for the loss of the goods.” That doctrine is fully sustained by the authorities cited in the notes, (Gibbon v. Paynton, 4 Burr. 2298; Batson v. Donovan, 4 B. & Ald. 21; Phillips v. Earle, 8 Pick. 182; Baldwin v. Collins, 9 Rob. Louis, 468,) and is similarly stated by Justice Story in his work on Bailments. (565.) In other cases, (Edwards v. Sherratt, 1 East, 604; Titchburne v. White, 1 Str. R. 145; Relf v. Ralph, 3 Watts § S. 21,) courts appear to have gone the length of even holding that in any case, in order to make the carrier liable, some notice1 of the value of the article must be given to him. That, however, seems to be qualified by the carrier’s having previously limited his liability by requiring notice. Where, however, a box containing valuables is so disguised as to resemble those which generally contain only articles of little value, and the carrier is thereby imposed upon, it is well settled that he is not liable for its loss. [Bradley v. Waterhouse, 1 Mood. & M. 154. Story on Bailm. 77. Relf v. Ralph, 3 Watts & S. 21. Orange County Bank v. Brown 9 Wend. 116.) In the case last cited, (Orange County Bank v. Brown, where the action was for money contained in a traveling trunk,, and not disclosed to the carrier, Justice Nelson, in delivering the opinion of the court, says: “In the absence of notice, if any means are used to conceal the value of the article, and thereby the owner avoids paying a reasonable compensation for the risk this unfairness, and its consequences to the ” carriers '“ upon the principles of common justice, as well as those peculiar to this action, will exempt them from the responsibility.” But he seems subsequently to imply that the effect of'such fraud is limited to the carrier’s contract of absolute insurance against any thing but unavoidable accident, still leaving him liable as f a.bailee without hire; for, he adds, referring to the case of l Gibbon v. Paynton, (ubi supra,) and a note in Selwyn’s Nisi i Prius, (p. 305,) “ the rigor of the common law is not applied ¡ to him, and he is only held liable for gross negligence . which is the standard of liability of a mere bailee without. ! hire. If, however, the rule in question rests upon the ground of fraud, it would seem difficult to save out of its ¡operation any contract or duty by the carrier to exercise any care of the fraudulent package, so as to create a liability for its loss or injury. He might not have been willing to have assumed the transportation or custody of it at all, if it had not been what it appeared to be. Nor am I aware that a bailee without hire can be held responsible for even gross negligence, as to articles committed to his care, where he is deceived as to their value. Such a qualification of the' general rule could, therefore, only be sustained by assuming that disregarding all considerations of fraud-, the owner, by withholding or disguising the value of the goods, agrees thereby to limit the responsibility of the carriers to goods of that value which appears to be theirs. This, however, would be difficult to be determined, in most cases, if not impracticable, except where a receipt was given for a package, as containing a smaller sum of money than it really contained. In the present case it would have been impossible to have formed any estimate of what would be the probable value of the unknown contents of emigrants’ chests, of the kind and size of those of the plaintiff.

The question of intent, of course, enters into every question of fraud, but in this case the plaintiff, acknowledged that she meant that all of her cases which were disguised should be so disguised that no one would suspect they contained any thing valuable. This, of course, included the defendants, and, unexplained, is conclusive evidence of fraud.

There is other evidence in the case tending to render ambiguous what cases the plaintiff meant in speaking of their disguise, rendering it proper to have had the question suggested by the defendants’ counsel, as to a fraudulent disguise or concealment, submitted to the jury. Some of the articles claimed, and probably recovered for, as we have seen, were contained in the box packed under the direction of the plaintiff’s mother, after she had left. For them, if the box was disguised so as to deceive the defendants, as well as others, the defendants were not responsible.

The exposure of a common carrier to increased liability by the admissibility of the testimony of the owner of a lost package, as to its contents, is sufficiently great, without depriving him of the benefit of setting up any deception, practiced upon him as to the contents of such package, by. its external appearance. It is hardly to be supposed that the defendants, the owners of a niere line of canal boats, would have undertaken for a month, on their way to Hew York, the care of the valuable articles alleged by the plaintiffs to have been in her cases, had they known their character' and value, for the small freight paid, ($6.25.) '

Although I regret the necessity for it, I think the rules of law require that the judgment should be reversed, and a new trial had, with costs to abide the event.

The motion for a new trial was made, principally on the ground of discovering new evidence to contradict the testimony of the plaintiff, given on the trial of the issues in this action, in regard to certain facts. These were the gift to her of certain drinking, glasses, (cordial and wine,) by a glass importer in. Buffalo, (W. H. Glenny,) also the gift to her of a berry spoon and berry dish, and a fish knife by a Mr. or Mrs. Stephen H. Austin,' and that she had paid an assessment of five thousand dollars. The action was for the loss or non-delivery of such glass ware and berry spoon, and other articles delivered to the defendants as common carriers, to be transported from Buffalo to New York. Such facts evidently formed no part of any matter to be proved on the trial, and were rather collateral to the main issue. It of course would be entirely immaterial, from whom or how the plaintiff obtained the articles in question, or what assessments she paid, provided she owned them, and delivered them to the defendants to be carried. Had she" given no answers respecting the source of her ownership, the evidence now offered would have ,beén wholly irrelevant. It at the most is an impeachment of the plaintiff’s veracity, which is not the kind of evidence authorizing a new trial when newly discovered. (Powell v. Jones, 42 Barb. 24. Platt v. Munroe, 34 id. 295.) The facts which it tended to disprove, were also not so vital in their character, as that their, disproof would .have a serious effect upon the verdict. In regard to the glassware, the plaintiff' now "swears it came from the store of Mr. Glenny, and not from him, and that she so stated on the trial. It is not very difficult to imagine that she might accidentally have made such a slip, or have been _ misunderstood in her statement. The plaintiffs’ attorney swears that in acceding to the case ■as settled, he was not aware it was intended to be used for such a motion, and was therefore taken by surprise in allowing the statement to remain as it is, as to the glassware. The berry spoon was presented to the plaintiff by Mrs! Austin, and the dish and knife were not claimed by her, making that part of the evidence wholly immaterial. As to the assessment, the plaintiff says she stated that she paid one on” not “ of” $5000, a very slight error, if any. It is evident from the whole evidence, that she did not assume to be worth as much as $5000 would be an ordinary-tax upon. The statement itself is very vague—that she “paid an assessment,” where, on what property, or for what purpose, does not appear. An assessment is usually distinguishable from a tax. She does not say she paid it in Bufialo, which is all the evidence for the defendants disproves, and she swears she was so informed' by her father’s executor, which might have been the succession tax of the general government, ‘or any other burden imposed upon her. None of such contradictions are very material.

No reason is given by the defendants for not obtaining their affidavits in question at an earlier date. The affiants were not witnesses accidentally discovered; two were the persons by whom the plaintiff testified that the articles in question were given, and the third was a Buffalo city assessor. They surely could have been reached before, or the reason assigned why they were not, and for such a motion diligence- is necessary. (Sheldon v. Stryker, 42 Barb. 284.) I think, therefore, the order denying the motion for a new trial should be affirmed, with costs.

As to the costs taxed, from which an appeal has been taken, I think the plaintiff was entitled to those which accrue on an argument of a case. (Mechanics’ Banking Association v. Kiersted, 10 How. Pr. 400.) It was an enumerated motion, (General Court Rules, 40, 42; 1 Burrill’s Pr. 469; 2 Caines, 94;) andmust'be heard on a case. (7 Wend. 331.) The order denying the retaxation of the costs should be affirmed, with costs.

Monell, J. concurred.

Barbour, J.

This action was brought to recover damages because of the failure of the defendants to deliver certain goods at their place of destination, in accordance with their duty as common carriers. The case comes before us now on an appeal from the judgment, an appeal from an order denying a motion for a new trial upon the judge’s minutes, and, third, an appeal from an order refusing a new trial upon the ground of newly discovered evidence.

It may be assumed, at the outset, that six packages, alleged tó contain the goods in question, were received by the defendants in Buffalo, to be delivered in Hew York, and that upon the arrival of such boxes there, they were not in good'order, but had the appearance of having been broken open and that some of the goods were finally found to be missing. The question is, whether the goods mentioned in the complaint were really contained in those boxes an d delivered to the defendants for transportation and eventu- ' ally lost, or enough of them to justify the verdict.

The evidence upon that point is wholly insufficient, unless the testimony of the plaintiff herself is to be credited. She testified that when the goods were shipped' she was about twenty-seven years of age, had been married and . separated from her husband, had resided in Buffalo .for the la$t three years, where her father, (then dead,) and her mother, had' formerly been engaged in the business of teaching a school; and that she had then just been married to a clerk, immediately previous to which she had purchased in Hew York and Buffalo $2000 worth of the goods in question. She says that on the day of her marriage, as well as the day before and the next day, she was herself engaged in packing the goods into two trunks, two chests, and two boxes, that she completed the packing of four of the cases, and then left upon her bridal tour, taking with her three trunks containing such articles as she supposed she might need; that one of the boxes was filled with books, (and which, I think, arrived safe,) and the other three with clothing, glass and silver ware, jewelry, coin, &c. some of which were her bridal presents.

The character of the goods thus shipped by the plaintiff, independent of those contained in the three trunks required for her immediate necessities, may be inferred, perhaps, from the description she gives of them; that is to say: Oíie box containing 1000 books, one silk dress of the value of $100, ditto, $250, a full set of glass ware $300, ditto Bohemian $80, linen sheets $50, blankets $100, pearl shells $14, one parasol $200, gold and silver coin $7, bonnet strings $6, Valenciennes laces $300, point d’ Alencon laces $450, three French cambric dresses $40, two books $28, one gold thimble • in pearl box $25 one handkerchief $30, three do. $30, undersleeves $40, scissors $15, ten yards elegant blue fringe $90, velvet for a cloak $200, several pairs of kid gloves at $3 and. $4 per pair, one watch-chain- and charms $200, one diamond ring $100, a great deal of other wearing apparel, 12 dozen towels, some of them worth $3 a piece, blue cloth for a cloak $100, one Chantilly lace shawl $200, one ditto veil $120, six or eight white drésses, one ditto trimmed with embroidery $40, one silver pitcher $40, embroidered flannel skirt $10, silver pie and fruit knives $50, twelve table and damask spreads $120, mosaic pin and ear rings $40, three sun shades $15, one purple merino dress pattern, one bloodstone carved with an Arabic inscription, lot of ribbons $20, one skirt $20, three white muslin waists $54, two portfolios $80, one silk shawl $25, embroidery $30, twelve pillow cases $150, &c.

In, speaking of the set of glass ware, (valued at $300,) she says: “ These were sets of glass goblets, chamber glasses, water glasses, cordial glasses, tumblers, preserve dishes, butter dishes, cream pitcher and water pitcher. There was a full set. I believe there were three hundred pieces. I believe there was not one left whole. No, I am mistaken ; those that I got to replace them were three hundred in number. I could not tell you how many of each there were. I do not think there were as many as three hundred in each.. I could not tell, because I did not buy them. I have been to the china store, since, where they were purchased, and bought them at different times to' make up the full set. Those that I bought since are not so handsome, and they cost me $300. They are y,ot cut glass, those I bought to replace them. The others were. Those I bought since are not worth half as much as those I lost, for those I lost were cut glass and given to me, and were more valuable than the Mown glass was.” She says that she, herself, packed all that glass in one of the chests, which she describes as being about four and a half feet long and eighteen inches in height and width, and that she also put into the same chest some strips of black silk, handkerchiefs, pillowcases, a skirt’ a brocatelle lounge cove, some paper and paste board, lady’s under-clothing and some saw dust or shavings. •

The testimony of the plaintiff in regard to all these matters was wholly uncontradicted. Indeed, to some extent, it may, perhaps, be said that it was corroborated by the statement of her mother.'

In examining the.question as to whether the goods mentioned in the complaint were received by the defendants, it was the duty of the jury to determine whether that evidence of the plaintiff, wholly uncontradicted as it was, was entitled to credit; and, if they arrived at the conclusion that it was not, they were bound to say so by a verdict for the defendants. In considering the matter, it was not only their right, but their duty, not merely to take into view the statement itself, with the appearance and manner o£ the witness, but all the surrounding circumstances detailed by her, and therefrom to determine, in their own minds, whether this party, giving her evidence, as she did, in a case in the result of which she had a direct pecuniary interest, had or had not -told the truth, and that only. It was their duty to see whether a woman of full age and good sense, such as the answers of this witness clearly show her to have been, and occupying the social position which the plaintiff then held, or was about to enter, as a married woman, could reasonably be supposed to" have owned all those articles of dress, finery and jewelry of which she had spoken, or whether, being the owner, such a woman would have packed all those goods into the boxes which she describes, and sent them as freight, instead of taking the most valuable portion thereof in her three trunks. In a word, the jury should have tested the credibility of the plaintiff’s statement, precisely as sensible men would test that of a person whose veracity they had no reason to doubt outside of the statement itself, but who had a direct pecuniary interest in inducing them to believe the same. Eor, in such a case, the hearer, after carefully considering all the probabilities, in view of the facts and circumstances detailed to him, including the personal interest of the narr rat or, either believes such statement to be true, or he finds in the tale itself, with its surroundings, sufficient reason, to doubt its truth, and, therefore, cannot be said to believe it. Minds, however, are differently constituted, and frequently arrive at opposite conclusions upon the same presentation of facts. One juror in this case, for instance, who was innately honest and upright himself, but of reckless and extravagant habits in regard to money matters, might see no reason to doubt the testimony of the plaintiff, either because of her pecuniary interest in deceiving him, or in the character and value of the articles alleged to have been owned by her, and confided to the care of the defendants, while another would discredit the entire tale, and, so far as his judgment was concerned, with equal reason. Indeed, the determination of such a question is within the peculiar and exclusive province of a jury, and a matter .for the exercise of the sound judgment of each one of them; and who shall say they err, let them find as they may ?

But, where a party, who is directly interested in the result of the suit, and, therefore, has a motive for deceiving the jury, makes a material statement upon the witness stand, which is not only doubtful, but, from its nature, entirely contrary'to reason and incredible, no juror can truly say, by his verdict, that he believes it; and if such a verdict is rendered, it will, for that reason, be set aside by the court.' Jurors will not thus be permitted to say they believe facts that are wholly inconsistent with well known physical and mathematical laws, and which inconsistency can be made patent by the exercise of a little reason, coupled "with that common knowledge which every juror’ must be supposed to possess. It is not enough, in such a case, that the manner of the witness is unexceptionable; that her evidence in other respects-is credible, and that she is wholly uncontradicted, or even, as to other portions of her testimony, corroborated. In a word, -a verdict predicated upon belief in a patent impossibility, cannot be permitted to stand.

In the case before us, the plaintiff stated upon the trial, as. we have seen,.that she packed all1 the glass Ware, other than the Bohemianj herself; that there were, at least, three , hundred pieces of it; that she put it all, with the other - articles I have mentioned, into a chest or box, which was only three feet long by eighteen inches high and wide; and, ,in effect, that the three hundred pieces were so large, and of such a description, that it cost $300 to replace them in moulded glass, being an average price of $1 per piece.

Can that statement have been true ? From my own knowledge of the goods known as “blown or moulded glass ware,” and of their prices, I find no difficulty in arriving at the conclusion that $300 worth of such goods, of the, average value of $1 each, could not, by any possibility, be packed whole in the box described by the witness. The question is whether the information which leads to that result in my mind, is that kind, of common knowledge and •information which every man fit for a juror must be presumed to possess. Can it be said, then, that these jurors must have known that the glass in. question could not have been so packed in the 'box ? If it can, their verdict must be set aside because of that physical impossibility. If necessary, I will return to the subject.

The proof of the loss also depends entirely upon the testimony of the plaintiff. She says that when the boxes arrived; they were- much dilapidated, having, apparently, been opened; that, upon opening them, she found a shawl very much mussed, and that more than half the articles packed in Buffalo were missing and lost, to wit, all the bed clothes, all the glassware, (this was not missing, but broken,) several pearl shells, some blue fringe, velvet for a cloak, a lace shawl, some white dresses, a pie knife and fruit knife, table spreads, two portfolios, two pounds of worsted, two work baskets, and some silk lacings. I find no other articles to the loss of which she testifies, although she describes many others as having been owned or packed by her. The value of the goods so lost she fixes, in detail, at about $1415, although, elsewhere, she states that the goods contained in the boxes were wo^th between $4000 and $5000, and those left, from $1000 to $1500. She says that some of the silverware arrived safe, and directly contradicted herself, inadvertently perhaps, in stating, in the first place, that all of the bed clothing was lost, and subsequently admitting that portions of it were delivered; and it may be added that her testimony throughout, and especially in regard to quality and values, was exceedingly loose and indefinite.

The first question for consideration, because the simplest, is whether the motion for a new trial, upon the ground of newly discovered evidence, ought to have been granted.

At the time the trial closed, the right of the plaintiff to recover rested, as has already been said, upon her own testimony. Considering her interest in the result, her self-contradictions, and the inherent improbability of her story, whether more or less, it cannot be doubted that the jury .would then have been fully justified in giving a verdict in favor of the defendants. A very slight additional circumstance, tending still further to disprove her statement, would probably have turned the scale -in their minds against her; and evidence of such circumstance, and, far more than that, it would have been in the power of the defendants to give if they had then been- informed of the real facts, which subsequently came to their knowledge, and -their witnesses had then been present. Those facts were important, and probably might—I may say, as my opinion, they certainly must—have turned such scale. Those facts were as follows:

The plaintiff had sworn, upon the trial, that certain wine and cordial glasses, portion of the goods in question, were a present to her from W. H. Glenny, of Buffalo; that Stephen G. Austin also gave her a handsome berry spoon and dish, and a fish knife; and that she paid an assessment the year she left Buffalo (1864) of $5000 for personal property. The importance of those statements will r.eadily be appreciated. Upon the motion for a new trial, Glenny testified that her evidence in regard to his alleged present, was wholly' untrue; Austin stated that his wife made the plaintiff a present of a berry spoon, but that neither he nor any member of his family gave her a berry dish or a fish knife; and John McManus, one of the city assessors of Buffalo, swore that upon making a complete search of the rolls for the years 1861, ’62, ’63, ’64 and ’65, he found that there was no assessment in any of such rolls against her for personal estate, and that she did not pay any tax on personal property in either of those years.

Can it be doubted that if those contradictions had been presented to the jury, their verdict must have been for the defendants ? I think not; and that, so far as concerns me, disposes of the case. A new trial should have been granted upon that motion.

The judgment and orders in question should be set aside, and a new trial directed; the costs in all, including the costs of appeal in each, to abide the final result.


source: Caselaw Access Project

author: By the Court, Garvin, J. McCunn, J.

license: Public Domain

text:
    John M. Taylor, plaintiff, vs. Morris Ketchum et al. defendants.
    1. Stocks bought by a broker for his principal, after a deposit by the latter of . a sum of money with the former, to be applied to the payment of the purchase money thereof, become the property of the principal, although the broker advances the residue of the purchase money, and takes a transfer of the stock to himself, and the principal agrees to repay him, from time to time, enough of such advances to bring the amount- due therefor within a certain per centage of the market value as it may fluctuate. And a sale of such stocks by the broker, before the time when the whole of such advances becomes payable, according to his agreement with the principal, is a conversion thereof, whether notice of such sale is given to the latter or not.
    2. Under such a purchase and agreement, evidence is inadmissible to prove a usage among brokers, in such a case, not to retain the identical shares of stock bought; but in case of a failure of the principal to repay the advances and commissions within the time fixed, to sell at the end of that period a like amount of the same stock without notice of the time and place of sale,to the principal. Such a usage conflicts with the terms of the contract as interpreted by the law.-
    3. A sale of stocks by a broker, to reimburse his advances for their purchase money, without notice to his principal of the time and place of sale is not binding upon the latter.
    4. An agent is responsible for the sale of gold coin deposited with him for-the purpose, at less than the price for which he is instructed by his principal to sell them. «
    6. The fact that such gold coin are part of the currency of the country, will not prevent the principal from recovering the value of such gold Coin, as an article of merchandise, in other kinds of currency which are a legal tender.
    6. In an action for the conversion of gold coin, the measure of damages is the highest price, or value of such coin in other kinds of currency which are a legal tender, and evidence of that value is proper to be admitted and should be submitted to the jury.
    7, The submission of special questions of fact in writing to a jury,- in addition to the issues generally, being purely a matter of discretion with the court, they may be withdrawn by it at anytime from then consideration, before they give their finding thereon.
    (Before Robertson, Oh. J., and Monele and Garvin, JJ.)
    Heard October 11, 1867;
    decided April —, 1868.
    This action was brought to recover damages for the conversion by the defendants of United States bonds, placed in their hands by the plaintiff to be taken care of; and also for selling gold coin placed in their hands to be sold, when it reached a certain price, upon the ground that the defendants sold the gold for less than they were instructed to receive therefor in currency, thereby violating the plaintiff’s directions.
    The plaintiff’s causes of action were set forth in his complaint, separately, as being four, of which the second was dismissed upon the trial.
    1st. Was that, in April, 1864, through C. 1. Saulsbury, the plaintiff' deposited with the defendants a' certain sum, ($10,000,) and directed the purchase of United States stocks to a certain amount, ($100,000,) upon the defendants’ agreement to hold or carry such stock upon a margin or advance by the plaintiff of ten per cent, so long as the plaintiff should desire; then alleges the purchase by the defendants of government securities, to wit, $114,000 of United States six per cent bonds of 1881, and $50,000 of United States 7.30 notes; alleges sales in violation of an agreement to carry the bonds and notes indefinitely, and particularly beyond January, 1865; that United States 6’s of 1881, were sold by the defendants to the par amount of $51,000, at the rate, of 106J, On the 27th of September, 1864; and on the 18th of November, 1864, the defendants sold the par amount of $50,000 of United States 6’s of 1881 at. 110, and $1300 of said bonds at 110J; and on the 22d of November, 1864, sold the said $50,000 of United States 7.30 notes at the rate of 116J; that the market rate of' the United States 7.30 notes on the day of the alleged sale of said $50,000 of said notes, was 118; that the stocks of 1881 were on 7th of December and 1st of January, 1865, worth at the rate of 118, and the 7.30’s during the time the defendants agreed to hold the same, worth at the rate of $126.65; .and that such sales were not for the fair market price, and in violation of the agreement to hold the said stocks after January 1, 1865, without notice, right, or •lawful authority on the part of .the defendants.

      3d. That in September, and before the 20th of October, 1864, the plaintiff deposited with the defendants a certain sum, ($77,565,) in gold coin, in the city of New York, with instructions to hold, and not to sell for less than a certain price, ($250 in currency for $100 in coin,) to which the defendants agreed; that in violation of such instructions and agreement, without notice, they sold $67,000 of the coin at less than $250, (to wit, on the 21st of October, $40,000 at 208|, and $7000 at 208^; on the 22d, $10,000 at 210|-, and $10,000 at 210£,) and on the 9th of .November, the residue for $250; that in the month of November, said coin was worth $2.64 in currency, by which wrongful sales the plaintiff lost $45,000.
    4th. This count alleged a fraudulent conversion of the securities and coin to the use of the defendants. The answer of the defendants admitted the copartnership of the defendants doing business, in the city of New York, under the firm name of Ketchum, 'Sons & Co., but denied the causes of action set up in. the complaint; it set out an account stated, accord and satisfaction, and ratification of all the acts of the defendants by the plaintiff; also a counterclaim for money paid, amounting to $6,722.96, with interest from February 1, 1865. A reply put the counter-claim in issue by a denial. The United States stocks and securities in the hands of the defendants were purchased for the plaintiff’s benefit in the first place, upon a ten per cent margin. A new arrangement was talked of between the parties, after the 10th of April, 1864. On the 15th of April, the purchase amounted to $164,000, instead of the $100,000. Finally, about the 12th of July, an arrangement was made by the defendants to hold the securities till after the 1st of January, 1865. The securities were sold in June, without notice to the plaintiff; no mention was made of such sale, when the agreement to hold was made, in July. - Evidence was given on the trial, of the price of the securities in January, 1865. It appeared that the defendants received $67,000 gold coin, with instructions to hold the same for 250, but sold it for less than that amount, contrary to instructions. The sum sold at 250, was not in controversy, nor was any claim made by the plaintiff for damages on account of that sale. Accounts of the transactions sent to the plaintiff by the defendants, telegrams and letters passing between the parties directly,' and through Saulsbury, their agent, containing instructions, directions, reports of transactions and remittances, were given in evidence on the trial, from which the defendants claimed that the plaintiff acquiesced in the disposition 'made of the coin and securities by the defendants, with full knowledge of all the facts; that question was submitted specially -to the jury, and who found upon it against the defendants. The jury also found a general verdict for the plaintiff for $45,901.63, and the court directed the exceptions to be heard in the first instance at the general term. Most of the exceptions taken upon the trial, arose upon the exclusion of evidence and objections taken to the charge of the court, which sufficiently appear in the opinion.

      F. JF. Bangs, for the defendants. ■

      B. Pierrepont, for the plaintiff*.
   By the Court, Garvin, J.

To sustain this action the plaintiff was bound to show title in himself to the securities and coin for the conversion of which it is brought. There was abundant evidence to sustain the verdict,' provided that question is to turn simply upon the issues found by the jury. Upon the'first question, that of title, the property either belonged to the plaintiff or the defendants, .and it will hardly be contended that the defendants were the owners of the coin or securities. Irrespective of the defendants’ lien thereon, there can be no doubt that the plaintiff was the owner, and had the right to call upon the defendants at any time to deliver him the securities and coin upon payment of their commissions. They doubtless had a lien thereon for their advances, but beyond this they had no rights in the property of the plaintiff, except such as they possessed by virtue of any contract and arrangement between the partios. The defendants’ letters, telegrams, notices, reports of sales, and demands for further margins, all proceed upon the theory that the coin and bonds belonged to the plaintiff, and were his property. We must therefore assume that the title to .both coin and securities was in the plaintiff, held by the defendants for him. Of this there was abundant evidence; in fact, it was not disputed, either as 'to the $67,000'' in coin, or the $114,000 United States bonds. There is evidence that the gold was to be held for 250 in currency, and there is also evidence of an agreement to .carry the bonds until after the 1st of January, 1865, and there is no evidence in the case contradicting it; if there had been, that question is settled by the verdict. It is not disputed that the bonds were sold by the defendants in September and November, 1864, for prices ranging from 106 J- to 110-110|-, and that on the 7th of December, United States bonds were worth 118. Thus there is pro'of tending to show the title to the property in the plaintiff, both as to the coin and bonds. 2. Sale of the property—of the coin for less than 250, and of the bonds before the 1st of January, 1865. Upon this evidence aloné, without any thing else, it would present a clear case of title in the plaintiff, and conversion by the defendants, for which he would be entitled to damages, provided the sales were made without authority from the plaintiff. Of this authority there is no evidence in the case. As to the bonds, the question of notice to the plaintiff of time and place of sale has nothing to do with the case, if the defendants agreed to hold the bonds till after the 1st of January, 1865: Nor as to the coin, if the instructions to hold the coin for 250 were binding upon the defendants. In such case whether there was a notice of time and place of sale or not is of no importance, unless the plaintiff authorized it before the sale or ratified it afterwards. Of authority to sell there is no proof, and the jury have expressly found the plaintiff did not acquiesce in the disposition made by the defendants- of the coin or securities, with full knowledge of all the facts relating thereto.

This brings us tp the objections and exceptions taken by the defendants: (1.) To the rulings of the court in receiving and excluding "evidence. (2.) Denying the motion to dismiss the complaint;'and (3.) Exceptions to the rulings of the ' court in connection with the charge to the jury. Without going over in detail, each particular exception taken by the defendants to the exclusion of evidence offered, and to the admission of that received, it is apparent that the same questions of law are presented, substantially, by the exceptions taken to the charge of the court, with one qualification, and that pertains to the evidence of custom and usage, which was offered and rejected. It will, therefore, .only be necessary to pass upon the exceptions taken to the charge, tó determine all the questions presented for review, holding, as we do, that the motion to dismiss the complaint was properly overruled, and that the several motions to compel the plaintiff to elect upon which count, transaction, or cause of action he would proceed, were rightly disposed of. (Lansing v. Wiswall, 5 Denio, 213.)

Upon the exclusion by the court of the evidence of custom and usage, the courts have held that usage is not admissible to contradict the contract, and that no usage is admissible to-control, the rules of law. (34 N. Y. Rep. 417. 16 id. 393.). The admission of the evidence would have been a violation of both these principles. ' The contract proved, was to carry the bonds which the defendants held for the plaintiff, and as the defendants’ security for their advances and commissions until after the first of January, 1865. The defendants sold before that period, without notice of the time or place of sale.

The offer was to prove a usage that a broker buying stocks for his principal, need not preserve for delivery the identical stocks purchased, but it is sufficient to deliver or sell an equal quantity in value and. amount of stocks of the same character; and that on failure of the principal to re- , imhurse his broker, the latter might sell the stocks without notice of the time and place of sale. If the transaction had been a mere loan of securities for the defendants’ use a return of other .stocks of like nature, kind and amount would be sufficient. But where stocks or securities are held as security for advances, the rule is different; in such case the title to the security remains unchanged; that is the rule as established by the courts. (Dykers v. Allen, 7 Hill, 497.) The proof offered of custom and usage, authorizing a sale of stocks on failure to repay advances, without notice of time or place of sale, was properly excluded. This has been so often held that it hadly needs the citation of authorities to sustain it. If the broker desires to possess himself of this power he must make an agreement that shall permit him to do so. Upon both these propositions we think the rulings of the court should be sustained. (Dykers v. Allen, Nourse v. Prime, 4 John. Ch. 490. Wheeler v. Newbould, 16 N. Y. Rep. 392.) The proposed proof of . .usage was in contradiction of the contract, and clearly against the rules of law. (Bowen v. Newell, 4 Selden, 190. Merchants’ Bank v. Woodruff, 6 Hill, 176, and cases cited by Mr. Hill. Higgins v. Moore, 34 N. Y. Rep. 417.)

It is also quite plain that if there was an agreement to carry the bonds till after January, 1865, their 'sale was unauthorized ; and whether there was such an agreement or not, a sale without notice of time or place was unauthorized either by the terms of the contract as proved, or by the rules of law. All the questions of fact were put to the jury after stating the theory of the plaintiff’s case. Upon the facts,- the court say, if you find the facts to be in both cases, (meaning coin and securities,) as the plaintiff claims, he is entitled to such damages. It is true the court instructed . the jury that the plaintiff put the securities into the hands of the defendants to be held for their advances,, but this was upon the uncontradicted evidence of the case, and was perfectly proper, (20 N. Y. Rep. 126;) but upon the question of what the contract was as to instructions in regard to holding the coin and appropriating the securities, the question of fact was expressly submitted to them. Upon the other exceptions taken to the rejection and admission of evidence, we think the rulings of the court should be .sustained.

Second. Several exceptions were taken to the charge, some of which are already disposed of by the views thus far taken of the case; those remaining to be considered are: (1.) It is claimed the court erred in withdrawing from the jury the first question in writing submitted to their consideration. ■ The submission of the question in this form was purely discretionary. The language of the Code is “the court may direct the jury to find a special verdict.” (§ 261.) It was of no importance whether done or not, and its withdrawal from their consideration furnishes no ground of exception. Both questions might have been withdrawn without harm to either party before the jury had agreed upon their verdict.

It is not like the case of issues, framed by the court, sent down to the circuit for trial, upon which special findings are required upon specified issues. The court withdrew the first question in waiting from the consideration of the jury, and instructed them they need not answer it. This we think the court had the right and power to do, and was purely a matter of discretion over which we have no control. Thus far this is a case of a breach of both contracts by the defendants, in regard to the coin and the securities, and therefore a breach of duty in violating the agreements, and a conversion of the property to the defendants’ use, resulting in loss, by the plaintiff, of large gains and profits in the sale thereof, had the coin and securities been held as directed by the plaintiff, and agreed to by the defendants. The only remaining question is one of damages. The court adopted the rule laid down in Scott v. Rogers, (31 N. Y. Rep. 676,) which was more favorable to the defendant's than that afterwards promulgated by the same court in Burt v. Dutcher, (34 N. Y. Rep. 493.) Certainly, whatever the rule is, if there is any difference in the two cases, the defendants have no cause to complain, as the rule laid down on the trial is most favorable to them. This disposes of the question of damages in regard to the conversion of the bonds.

But other objections and exceptions are presented regarding the transactions in gold. (1.) To the admission of the evidence fixing the value of coin in currency, and adopting that price as the measure of damages in the charge of the court to the jury. We think the rulings of the court were right.

The Court of Appeals simply holds that treasury notes are a legal tender in payment of debts between private persons (27 N. Y. Rep. 400;) and that a mortgage, which by its terms is payable in gold or silver coin-, may be paid in United States legal tender notes, and that such notes are the lawful money of the United States. (Rodes v. Bronson, 34 N. Y. Rep. 649.)

This action is not brought to enforce the payment of a debt, but to recover damages for the conversion of the plaintiff’s property.

A judgment may be paid in treasury notes, and the plaintiff cannot demand gold or silver therefor. How is the plaintiff to obtain indemnity for his loss unless the value of the coin, in currency, is made the measure of damages ? There never may be a time after the trial when coin would bring the same price it would before; any other rule would work great injustice.

The rule of damages is the highest market price of the property converted, between the time of the taking and that of the trial. (34 N. Y. Rep. 493.) This market price, recovered and put in judgment, becomes a debt. The defendants may pay and satisfy it by the tender and payment of treasury notes. The plaintiff cannot demand gold or silver coin in payment of his judgment, but must take the treasury notes. We must, therefore, in view of the case of the Metropolitan Bank v. Van Dyck, (27 N. Y. Rep. 400,) hold that the rulings of the court were right in receiving the evidence and submitting the question of the value of the coin to the jury. There were some other exceptions, none of which were well taken.

Entertaining these views, the exceptions taken by the defendants should be overruled, and judgment entered for the plaintiff with costs, and the order denying a new trial should be affirmed, with costs.

Monell, J. concurred.

McCunn, J.

The principal questions in this case to be disposed of by the court, are: First, was there an agreement on the part of the defendants to 'carry the securities placed in their hands by the plaintiff until the 1st of January, 1865 ? Second, did the defendants render to the plaintiff accounts of the disposition of such securities and gold,which accounts showed a balance in the defendants’ favor, and in which the plaintiff acquiesced, after the accounts were rendered with a full knowledge of all the facts relating thereto ? and did the rendering amount to an account stated between the parties so as to bind the plaintiff? The rulings of the court, and the points raised by the parties to the action during the progress of the trial, being of secondary importance, I shall hastily touch thereon.

In considering the first question, the only doubt presented is whether the learned chief justice was justified in withdrawing that question from the jury. I think he was, for the facts as to that question were so clear and uncontradicted, that it did not require the action of the jury to pass upon them so as to enable the court to apply the law. The witness, Saulsbury, testifies that the defendants were to purchase and carry stocks for the plaintiff, and he says the agreement was to carry them to the 1st of January, and the clear instructions to be found in the letter of the plaintiff to the defendants of the 17th of October, 1865, were to the effect that all the gold bought for the plaintiff, and that sent by the plaintiff to the defendants, should be held until it reached 250. And it will be observed that these instructions were reiterated from time to time, until all the gold was placed in the hands of the defendants to be carried by them for the plaintiff. I cannot find a tittle of proof in the case to the contrary of this. It is true, the counsel for the defendants claim that out of .the lengthy correspondence by letters and telegraph there is evidence going to show that no agreement was made to carry the gold and securities until January, 1865, but that we must impliedly take it, no such understanding, as to carrying into January, existed. I can see no implied agreement'in such .letters and telegrams, to vary the former express contract on the part of the defendants to carry the United States bonds and the gold. The parties had a long running account between each other, on the one side, as bankers here, on the other, as bankers in St. Louis, dating long before this special agreement and continuing to the time when the dispute about the sales arose. And it was concerning this account that the letters and telegrams were sent and received, and, whenever the letters, or telegrams, or accounts related to the gold and bonds in dispute, they simply related to them as they were held as collateral securities, or as pledges given by the plaintiff to the defendants, to secure other banking transactions. Those letters and telegrams were never intended as authority from the plaintiff to the defendants to sell the bonds and gold without the proper notice and demand required in all cases where pledges of the like kind are made. Indeed, the learned chief justice, in his charge, said that the defendants had no other rights than those of ordinary pledgees, without any speccial rights, and in that instruction he is justified in a series of decisions, which must be recognized as the law on the subject, (Willard’s Eq. Jur. 456, and cases cited)

In all pledges, before a sále takes place, there must be a demand, and that demand must be seasonable in time, and there must be a notice of the sale. Now, in this case, it is conceded, there was no notice or demand, neither was there waiver of such notice or demand; yet, without the one or the other, the defendants had no right to sell the securities. In Wilson v. Little, (2 N. Y. Rep. 443,) it was held that a waiver of notice was not a waiver of demand; and in the case of Genet v. Howland, (45 Barb. 560,) it was held that notice was not equivalent to a demand. In Milliken v. Dehow, (27 N. Y. Rep. 364,) there was a consignment of cotton, and the consignee was to keep the margin good; and it was held that the consignor could not sell in that case; that he must demand the margin before selling. He had leave by contract to sell without notice; but that was not enough. Demand was not waived. The question in that ease was whether a demand was necessary, and the necessity was declared by the court. In Andrews v. Clerke, (3 Bosw. 585,) it was held that the plaintiff was not in default, so that the defendants had a right to sell, though they had given him notice that they anticipated a fall bn a certain day; that the pledgee could not sell without the fall first occurring, and then giving him notice, so as to cut off his equity of redemption. And in Merwin v. Hamilton, (6 Duer, 244, 251,) the pledgees were held liable because they did not make demand of judgment and give notice of sale. In the case of Durant v. Einstein, heard in August last, at special term, in an opinion of this court, where all the foregoing authorities are discussed, the court held that a party’s property could not be sold at will, without first making a demand upon him, and giving him notice of the sale, to enable him to prevent its being sacrificed.

The learned judge below was therefore justified in withholding from the jury the question of the agreement to carry the gold and bonds for the plaintiff, and that he was also justified in saying to the jury that “ these parties are entitled to have applied to. their dealings, neither more beneficial nor harsher principles of law than other members of the community, and that the dealings of brokers in stocks or securities are not by their necessities or the customs they adopt, taken out of the general rule. A party who has chattels, or securities' or property of • any kind, pledged to him for the payment of a debt, without some express agreement to that effect, has no other authority than what he acquires as pledgee or mortgagee of that stock or chattel, and has no right to sell it, without giving notice to the person who owns it of the time and place of sale, so that he may be enabled to raise the money by that time, to take up the loan.” There was no notice of time and place of sale, and therefore the sale was unwarranted.

The next question is, how far did the accounts rendered by the defendants to the plaintiff bind the latter, and did these accounts act as a bar to this action ? It is claimed by the defendants, that they rendered accounts to the plaintiff, in which they stated the sales of all the securities at certain prices and at certain times; that they also rendered an account of certain sums of money which they expended for him.; and' they claim that, taking into consideration all the circumstances, the relations in which the parties stood to each other, the communications by telegraph, by letter, and through Saulsbury, it is clear that the accounts were rendered to the plaintiff, with a full knowledge on his.part of all his rights and all their liabilities, and that he accepted the balance that was therein set forth against himself, and thereby ratified all their acts in the disposition of his property. The plaintiff denies all this, and says that he never accepted said accounts as binding on him; on the contrary, that he never gave the defendants color of authority that would lead them to suppose that he had, by receiving these accounts, ratified or sanctioned their acts in the premises. On this second question, there was testimony on both sides, and the court left it for the jury to say which side was correct in its assertions, and the jury found for the plaintiff. I) therefore, hold on this point that the jury’s- findings in this respect must be final and conclusive.

. The less difficult- and less important questions, sueh as the ruling on evidence, the charge of the learned judge, and the request to charge, I think, I can show to have no virtue in them. i

As to the motion on the part of the defendants’ counsel, asking the court to charge forty-two, separate and distinct propositions, a large number of them being mere repetitions of former requests; these requests were presented in a body, and I hold that it is not the duty of the court to undergo the labor of considering them together. On the contrary, the counsel slrould have submitted and read each proposition separately and in detail, so that the court would have been enabled to deliberate and pass upon each distinct proposition. I hold, therefore, the rule to be that each proposition, or request to- charge, should be distinctly and separately made., and a refusal on the part of the court to charge these forty-two propositions in bulk, other than as he had charged, is not error. If ext, as to the charge: A general exception to a charge, as in this case, taken after the charge was delivered, is not specific enough to raise or present any question for reversal. (Newell v. Doty, 33 N. Y. Rep. 85. Jones v. Osgood, 2 Seld. 233.)

“It is the duty of counsel to point out, at the time, in what respect the charge did not conform to the requests, and it is not the duty of the court, by comparing every portion, to see if there is a discrepancy. Perhaps, if attention had been called to the precise point of which complaint was to be made, it would have been corrected. The party complaining must put Ms finger on the point of which he complains.” (Jones v. Osgood, supra.)

Last. The court committed no error in ruling on the evidence. The objection to the letter of Saulsbury was not well taken, because the defendants had not first inquired about such communication. It was right, therefore, to have the subject matter exhausted.

The agreement was a positive undertaking on the part of the defendants to carry certain specific securities, and to cany gold until its price advanced to 250; and, as the custom of brokers, even if admitted, could not vary a positive agreement, the custom was properly ruled out. The custom of brokers, in not preserving the identity of stocks purchased hy brokers for parties, was immaterial, because even the substituted securities, which the defendants were said to have supplied for the plaintiff, were sold without demand or notice.

Judgment should be affirmed, with costs.


author: Robertson, Ch. J. Barbour, J. (dissenting.)

text:
    Betsey Kling, plaintiff and appellant vs. William Dress et al. defendants and respondents.
    1. In an action to recover demised premises for forfeiture of the term, by reason of non-performance by the lessee of a covenant contained in the lease therbof, “ to keep tibp premises in good repair, and do all necessary repairs upon the building, (upon such premises,) and the gas and Croton water pipes,” under a clause of'forfeiture for non-performance of covenants contained in such lease, if it be established that the building was allowed to be out of repair at any time, the' plaintiff is entitled to recover, from whatever cause, such defect may have arisen, notwithstanding such lease contains an additional covenant by the lessee to “ quit and surrender the premises in as good state and condition as reasonable use and wear thereof would permit, damages by the elements excepted.” Bakbour, J. dissented.
    •2. There is no rule of construction which would graft the exception contained in the last covenant upon the first, as they are entirely different in character, and entered into for different purposes. That to repair is accompanied by a clause creating a forfeiture in case of its non-performance. Under that to surrender, no better condition of the premises is required than that in which it was at the beginning of the lease, while under that to repair, improvements are included. The covenant to surrender in good repair is only the same obligation as that implied in every tenancy; it does not run with the land, which the other does, and it is strictly construed. Without such a covenant no action would lie until the end of the term, even if the buildings were pulled down. Even covenants to repair absolutely and on notice in the same instrument, are to be construed separately. A limitation of a covenant resting only in damages, is not to be construed to limit a condition which defeats an estate, unless by express words or plain implication.
    (Before Robeetsor, Ch. J., and Barbour and Morem., JJ.)
    Heard April 1, 1867;
    decided April —, 1868.
    This was an action brought by the plaintiff as assignee of the lessor of certain premises in the city of New York, against the lessees thereof, and their assignee or tenants,' to recover possession of them, because the buildings upon them were not kept in repair, according to a covenant and condition contained in the lease.
    The lessor, (Gildersleeve,) when owner of the premises, demised them to the defendants William and Ferdinand Dress, for four years from May 1st, 1864, by a lease dated in the previous month of March. - By it such lessees covenanted, that if default should be. made in any of the covenants therein contained, it should be lawful for the lessor to re-enter the demised premises, and remove all persons therefrom. They further covenanted therein and thereby to “ Iceep such premises in good repair, and do all necessary repairs on the buildings, * * at their, own expense, during the term,” which covenant was in writing. They also further covenanted thereby at the expiration of. such term, to “ quit and surrender the premises in as good state and condition as reasonable use and wear thereof” would “permit, dam-, ages by the elements excepted,” which covenant was printed.
    In July, 1864, such lessor, conveyed the premises to the plaintiff, and in July, 1866, this action was commenced. The issues made in it were referred to a referee to hear and determine.
    The referee found, among other facts : That the roof of the front building on such premises was a peaked shingled roof, composed of two parts, sloping from the peak both ways towards the front and rear. The shingles.were laid in three courses, overlapping each other. The upper course of the front division of the roof projected above the upper course of the rear one. From fifteen to twenty parts of shingles of such upper course of the rear roof were wanting, and five or six displaced, and there were wanting on both roofs from thirty to thirty-five entire shingles. Many of the nails fastening the shingles were nearly eaten through with rust. The missing shingles had been loosened by the decay of the roof, the rusting of the nails, and effects of the elements. Two pieces of thin board, like clapboards, had been inserted on the fropt roof to supply the places of the absent shingles. Roofs of buildings on the premises were in a state of decay from the effects of wind and weather. The leader to conduct the water from the gutter of the rear building was somewhat honeycombed. An iron pipe, connected with such gutter, (leading water from the building,) was considerably rusted. Perishable outside materials of the building showed, generally, the effect of time and the elements. The buildings were in good repair, except by reason of damages caused by the elements. The referee, therefore, found in favor of the defendants, and gave judgment dismissing the complaint; from which the plaintiff appealed.

      0. Bainbridge Smith, for the plaintiff, appellant.

      S. Sirsch, for the .defendants, respondents.
   Robertson, Ch. J.

The referee in this case has found in his report that the buildings upon the premises in question are in good repair, excepting such damages as have been caused by the reasonable use and wear thereof, and by the elements.” But he has omitted otherwise to find directly whether the lessees kept the demised premises “ in good repair,” and did “ all necessary repairs upon the buildings thereon,” as required to do by their covenant in such lease, upon the non-performance of which the plaintiff had a right to re-enter. The referee has, however, specified the defects in such buildings whi.ch "have arisen since the lessees went into possession of the demised premises. From these it can be seen that the premises are not in as good a condition as when the lessees so entered into possession, and that they needed repairs to make them so. The plaintiff, therefore, was entitled to recover, unless the defendants were excused from repairing, because such defects were produced by the elements and corrosion of time. No such exception is contained in the covenant to repair, and unless by some implication or construction of law it can be fastened upon it, the plaintiff’s right of recovery is not impaired by such an origin for the defects.

It is said that the exception, in the second covenant, to surrender the premises in as good state and condition as when entered upon, of wear and tear and damages by the elements, is to be considered as grafted upon the covenant and condition to repair during the term, because it is in the same instrument, refers to the same subject, and the covenant 'is intended to carry out a similar purpose: It will, however^ be found, that there is no rule of construction or ground to sustain such qualification of the covenant and condition to' repair. Besides the fact that the covenant to surrender is printed and the other written, the two covenants relate to entirely different periods. One continues during the whole term, and the other does not have any thing upon which to operate until the term has ended. One (that to repair) creates a forfeiture, by being converted expressly into a condition to defeat the estate. But, in the very act of yielding them up, a malicious or negligent tenant might injure the premises or suffer them to be injured, after forfeiture had ceased to furnish a remedy. Moreover, repairs done to the building, which might not be capable of being made- without greatly improving it, might be affected by time, and, in such case, the exception in the covenant to surrender, would be to prevent the necessity of renewing such repairs, of the same quality as before, provided the general condition of the building, at the end of the term was as good as it was at the beginning, although it might have been in better condition when the repairs were put upon it.

At common law, without any express covenant, the tenant is" bound to keep the premises in “ tenantable repair, and surrender them at the end of the term in as good condition as the ordinary and natural decay of the premises will permit.” (Platt on Covenants, 266.) This duty extends to preventing waste and decay of the premises, although not to permanent repairs. (Ferguson v. --, 2 Esp. N. P. C. 590.) The covenant to yield up, in the same condition, &c. assumes no more responsibility. It is, however, only a personal covenant, and does not run with the land; because the estate of the lessee in the demised premises has ended when it is called into operation. But a covenant to repair ex-' tends to the thing demised, and, being appurtenant to it, runs with the land, (Platt on Covenants, 466,) and binds an assignee. Under such a covenant, if general, the lessee’s liability is not confined to cases of ordinary and gradual decay, but extends to ” accidental injuries. (Id. 274, and cases cited in note y; also page 275, and cases cited in notes b and c.) So .that it has become customary to introduce an exception against accidents. (Id. p. 275.) Such covenant has been construed so strictly as to be held to require the covenantor to repair, and not allow him to rebuild, as a substitute. (Wood v. Avery, 2 Leon. 189. S. C. Sav. 96.) On such a covenant an action arises forthwith, in ease of an omission to repair, (Luxmore v. Robson, 1 Barn. & Ald. 584,) although on a covenant to leave in good condition, no action at law lies, even if the lessee pull down the buildings, (Shep. Touch. 173,) until after the end of the term.

It is to be borne in mind, also, that in this ease the obligation to repair by the lessee, is made a condition as well as a covenant. A mere covenant to repair does not furnish an adequate protection to a lessor, as upon breach of such a covenant, generally, only nominal damages are given when an. action is brought before the end of the term, (Moore v. Clark, 5 Taunt. 96; see 1 Salk. 141; 11 Mod. 45; Molt. 178 ; 2 Lord Raym. 798,) and it cannot be specifically enforced in equity. (Platt on Coven. 293, and cases cited.) The landlord, therefore, is to be presumed to have received the power of re-entry for neglect, as his only adequate protection. An ordinary covenant to leave buildings sufficiently repaired, when contained in the game instrument with a covenant to repair on notice, is considered entirely distinct therefrom. (Harflet v. Boucher, Cro. Jac. 644.) So, also, are covenants absolutely to repair and yield up the premises in repair, and to repair on notice, construed as distinct, (Wood v. Day, 1 J. B. Moore, 389. S. C. 7 Taunt. 646,) and the reasoning in the two cases last cited is eminently applicable to this. The two covenants differ entirely as to the time to which they are applicable, one being' continuous during a period, and the other ■ only capable of being broken at one point of time. The covenant to yield up in good order is, in fact, a covenant against waste, whether active or permissive, which, under the Code of Procedure, (§§ 450, 452,) could only create a forfeiture in certain cases. A lessor in a lease containing one, is entitled to an injunction against waste by lessees and their under tenants, by pulling down buildings and carrying away materials just before the end of the term, (Mayor of London v. Hedger, 18 Ves. 355,) although a covenant to repair cannot be specifically enforced. On the other hand a general covenant or condition to repair' extends as well to injuries done -by the act or omission of the lessee as to those arising from unavoidable accident. (Pyot v. Lady St. John, Cro. Jac. 239.) The two in this case are palpably, therefore, not only entirely distinct, but entered into for entirely different purposes, and to accomplish entirely different ends. A forfeiture for non-performance of the condition to repair would render the covenant to surrender useless,-while the performance of the covenant to repair during the whole term, would not prevent a violation, at the moment of departure, of- that to surrender. They are, therefore, not to be construed together.

The whole of an instrument is not, necessarily, to be taken together, in order to discover but one intent in every provision in it. On the contrary, each provision having a separate effect, is to be construed by itself; otherwise there would be no purpose answered in' having separate stipulations. There is no more unreliable mode of construing a contract and defeating the purposes of the parties to it, than attempting to confine them to one. It would be useless, in such a case, for a party to. an agreement to attempt to protect himself against a special evil by a particular stipulation, if another in the same instrument could be made to control it by implication. There is no irreconcilability in the two. in question in this case, because they do not clash. One begins to operate when the other ceaáes; and there is, therefore, nothing to be reconciled.

The referee having, therefore, found that the building was permitted to remain out of repair, from whatever cause the injury arose, should have found in favor of the plaintiff.

I am of opinion that the judgment should be reversed, and a new trial ordered, vacating the order of reference.

Monell, J. concurred.

Barbour, J. (dissenting.)

This was an action, as in ejectment, to recover from the lessees thereof possession of a house on an alleged forfeiture of the term by reason of a breach of covenant to keep the premises in repair. •

The lease contains two distinct covenants in regard to repairs. By the first, the lessees undertake that they “ will keep the premises in good repair, and do all necessary repairs upon the building, and .on the gas and Croton water pipes and by the other, “ that, at the expiration of the said term, they will quit and surrender the premises in as good a state and condition as. reasonable use and wear thereof will permit, damages by the elements excepted.”

The referee has found, as matter of fact, that the buildings “ have been, and are in good repair, excepting such damages as have been caused by the reasonable use and wear thereof, and by the elements.” Upon a careful examination of the evidence, his conclusion seems to be quite correct; 'and .that decides the case. For, if the premises have been kept in good repair, except in so far as they have deteriorated by the operation, of natural causes, the stipulations of the lessees in that regard have been complied with, as it, most clearly, was the leading design and intention of the parties that the premises, should be kept in repair and preserved, and returned in as good order as when received, save natural decay.' I may add that, even if that were otherwise, and the contract, taken as a whole, could well be so construed as to render it the duty of the lessees to make extraordinary repairs, beyond what might be necessary to enable the lessees to keep and return the house in as good a condition as when received, still the judgment must be upheld, inasmuch as it is impossible for the court in bank to determine from the evidence before it, whether, considering the character and condition of the house, as described in the papers, the loss of a few shingles from the roof, causing but little -or no leakage, rendered it necessary to cause any immediate repairs to be made. It is easy to see that, as to one class of buildings, such repairs would be essential, while with another, they might be almost or entirely unimportant. In this case the house was very old, and much decayed and dilapidated. Suffering a few shingles to fall from such a building, in a storm, and neglecting to replace them at once, might or might not work a breach of the covenant.

The judgment should be affirmed.

Judgment reversed.