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    Lowber v. Le Roy.
    The terms of a written contract which are free from, ambiguity, cannot be varied or impaired by parol evidence, nor by proof of the subsequent acts of the parties.
    Such acts are, in general, not admissible, except in cases of latent ambiguity in the written contract.
    The admission of extrinsic evidence to show the condition of the subjects of the contract, and the circumstances under which it was made, rests on a different principle.
    The folly or the wisdom of the contract, as one or another construction might be placed upon its terms, is a dangerous element to introduce into the interpretation of agreements.
    In applying a contract to its subject matter, the popular meaning of the descriptive terms used must govern, where it is not inferrible from the contract or the subject, that such terms were used in some technical or other sense.
    The word “ assets,” in its common acceptation, means “ property.”
    The word “machinery,” though more appropriate to a steam engine and its fixtures, than to a lead pipe machine or a rolling mill, is sufficiently extensive in its meaning to embrace both of the latter; and it was held to include them on the terms of the contract, and the existing facts to which the contract was applicable.
    Where by a written agreement for a dissolution of a partnership, which, among other property, owned a steam engine, a rolling mill, and a pipe machine ; one of the partners was to take all the machinery, and it was clear upon the terms of the writing and the existing circumstances, that this included the steam engine and rolling mill, as well as the pipe machine; the court excluded parol evidence which was offered to prove, that the two former were not included in the machinery, but were to belong to another party; and as a part of the parol testimony excluded a written list of assets, subsequently made by a clerk in the presence of the first named partner, and at his request, to show the other party what property he was receiving, in which list (not signed) the two disputed machines were enumerated.
    The court also excluded parol evidence of acts of the parties subsequent to the dissolution, offered with a view to show that the two machines belonged by the agreement for dissolution, to the other party.
    Sept. 19, 20 ;
    Nov. 11, 1848.
    This was an action of assumpsit for money paid, which was tried before Oaklet, Ch. J., in February, 1848.
    The plaintiff read in evidence articles of copartnership, dated July 1st, 1845, made between the defendant, Jacob Le Roy, of the first part, and the plaintiff and Thomas Otis Le Roy of the second part; by which the two latter became general partners under the name of Lowber & Le Roy, and the former, as special partner, contributed $25,000 as capital. The plaintiff was to contribute as capital $23,032 50, consisting of his stock and assets in the previous business; among which was included “machinery and fixtures, $12,250,” consisting of a lead pipe machine hereafter mentioned. The business of the firm was purchasing and selling pig, sheet and bar lead, and manufacturing and selling the plaintiff’s patent tin plated lead pipes, in the city of New York. The partnership was to continue five years. The general partners were to devote their whole time and attention to the business; the profits were to be equally divided between the plaintiff and the defendant. Out of the share of the latter, T. O. Le Roy was at liberty to draw out $2500 annually. The plaintiff was restricted from selling or disposing of the right to vend or use his patent for tinning lead pipe, without the defendant’s consent. At the close of the concern, the plaintiff was to assume $6000 of the liabilities, in place of the like amount due from him at the outset, which the firm agreed to pay.
    The partnership commenced and continued until on or about the 4th of April, 1846. The business had proved to be a losing one, the defendant was not satisfied to proceed with it, and the copartnership was thereupon dissolved. To show-the terms of this dissolution, the plaintiff read in evidence the following correspondence:
    “ New York, April 4th, 1846.
    “ Jacob Le Roy, Esq.—Dear Sir : I have just been informed by Mr. David Smith, of the conversations had with yourself, and in accordance therewith, would propose a dissolution of the partnership existing between us on the following terms :
    “1st. You are to assume and pay all outstanding notes against Lowber & Le Roy, (a schedule of which is hereunto annexed,) and all claims by James Yandenburgh, yet unpaid, on the building.
    “ 2d. The current expenses of Lowber & Le Roy, due this day to hands for labor, to be paid out of funds on hand.
    “3d. You to take all notes and accounts standing on the books,, and due Lowber & Le Roy, and all pig lead, pipe, sheet lead and assets, not appertaining to or belonging to the ma- . chinery.
    “ 4th. You are to lease to me the building now occupied by Lowber & Le Roy, for the term of five years, with right of renewal.
    “ 5th. I am to take all machinery, and such things belonging thereto now on hand, and to pay all claims yet due thereon, except such as are mentioned in the schedule of bills payable, such articles of office furniture or stock not yet paid for, or charged in the account of indebtedness, to be assumed by me.
    “ 6th. For the security of Lowber & Le Roy, that such debts as I am to assume shall be punctually paid, I am to give you security upon the machinery I take.
    “ 7th. This arrangement to take effect on Monday, the 6th inst., when all books and assets will be given into your hands.
    “ Schedule of bills fay able.

    “ Note Sun Mutual Insurance Co., due April 26, $301 25
    “ “ “ “ July 25, 55 61
    “ Stillman, Allen & Co., due May 20, 3000 00
    “ James McCullough, due April 20, 5767 64
    “ Wm. Kemble, due June 13, 2300 00
    “ American Exchange Bank, due May 18, 4000 00

      Note American Exchange Bank, due May 22, 5000 00
    it Ü i( ii (i June 21, 5000 00
    if ii Ü ii Ü May 29, 4500 00
    ii Ü ii Ü ii June 18, 2000 00

      “ Lowber & Le Roy have also borrowed of Strachan & Scott, eight thousand dollars, to be repaid out of sales of pig lead, a part of which has now been made.
    “ I am very truly, your obd’t.
    “ Robert W. Lowber.”
    “ P. S. This arrangement is upon the express condition, that all amounts over and above twenty thousand dollars, which may be realized out of the assets given you by Lowber & Le Roy, after paying the notes enumerated in the schedule, shall be paid to me.
    Yours, &c.,
    “ R. W Lowber.”
    “New York, April 4th, 1846.

      “ R. W. Lowber, Esq.—Sir: The proposition for the dissolution of the partnership of Lowber & Le Roy, submitted by you to me under date of 4th April, 1846, I will accept, provided you accede to the following modification of your proposition. In lieu of the 4th article of your proposition, I propose the following. I agree to lease to you the building now occupied by Lowber & Le Roy, for five years, with the right of renewal for another term of five years, at the yearly rent of three thousand dollars, payable quarterly, provided you give to me David Smith and Edward J. Lowber as security for the due and punctual payment of the rent. The proposition submitted by you to me, is in all other particulars, except the said fourth article above mentioned, to take effect on Monday next, the 6th instant; and the article substituted by me for the said fourth article, shall be complied with on your part on or before the 1st day of May next, otherwise it shall not be binding or obligatory upon me.
    Very truly, your ob’t. serv’t.,
    “ Jacob Le Roy.”
    “New York, April 4tk, 1846.

      “Jacob Le Roy, Esq.—Dear Sir: I am in receipt of yours of 4th instant, and accept the modification of the fourth article, and engage to take a lease upon the terms proposed, to commence on the 1st day of April, and will, by the 1st day of May, execute a lease with the security you name.
    “Yours respectfully,
    “ Robert W. Lowber.”
    It appeared in evidence, that at this time, as well as during the partnership, the machine mentioned in the copartnership articles, which was a lead pipe machine, was mortgaged by the plaintiff to his father-in-law, for its full value. This pipe machine- was the only machinery which was in existence when the firm commenced. During the continuance of the firm, the partners had procured what was called a rolling mill for rolling sheet lead, and a steam engine; both of which had been erected in the basement of the building where their business was conducted, and where the pipe machine was situated. The steam engine had been connected with the pipe machine, so as to work it; but the connection with the rolling mill was not fully completed.
    The rolling mill had been procured from the West Point Foundry Association, of which William Kemble was the agent. The contract price for it was §2300, and for this was given the note of §2300, mentioned in the schedule in the plaintiff’s letter of April 4th. In addition to this, the firm at that time owed to Mr. Kemble, agent, for extra work to the rolling mill, about §1700, which was standing in an open account.
    The steam engine had been procured from Stillman, Allen & Co., and the contract price for it was §3400. The note of §3000 to Stillman, Allen & Co., mentioned in the same schedule of April 4th, was given towards the debt for the steam engine. At the dissolution, the firm of Lowber &. Le Roy owed in account to Stillman, Allen & Co., about §2000; of which about §1200 was for work done on the pipe machine and a hoisting apparatus, §400 was the balance of the contract price of the steam engine, and several hundred dollars was for extra work on the steam engine.
    The firm was at that time indebted the sum of §883 58, to James Yandenburgh, for building the foundation, the flue, and the other mason work for the steam engine.
    The plaintiff claimed to recover for the amount of the two notes to W. Kemble and Stillman, Allen <fc Co., and the debt to Yandenburgh, mentioned in his letter of April 4th, which the defendant had agreed to pay in the dissolution, and which the plaintiff insisted he had paid. To prove such payment, he gave evidence tending to show that the week after the dssolution, the defendant declared that he would not pay the same. He then read in evidence an agreement under seal, dated April 6th, but executed April 13th, 1846, between himself of the one part, and T. O. Le Roy and David Smith of the other part. By this instrument, the plaintiff agreed to manufacture for the other parties, (whose firm was T. O. Le Roy & Co.,) patent tin plated lead pipe and other lead pipe, and sheet lead, with all the expedition the machinery and one set of hands would allow, at prices stipulated, delivered on the first floor of the stores where the previous business had been conducted ; the manufacturing to be done in the basement. He was to pay $500 a year rent, and was to allow the use of his steam engine when running, to elevate goods. He was not to manufacture for any one else, while the agreement continued. T. O. Le Roy & Co. agreed to assume the payment of the notes and accounts due to Kemble, and to Stillman, Allen & Co., and the account due to Yandenburgh from Lowber & Le Roy; to secure them in which the plaintiff agreed to mortgage to them the engine, boiler, rolling mill and fixtures, for the sum of $6000, and that they might retain out of the sums coming to him for pipe and sheet lead, all the surplus, after paying the expenses of running the works, and an annual allowance to the plaintiff for his personal expenses.
    The plaintiff then read in evidence another agreement executed between the same parties, dated Hay 13th, 1846, and substituted for the former. It did not differ from the one dated April 6th, in respect of the mode of payment therein provided for the debts of Lowber & Le Roy, to Stillman, Allen & Co., W. Kemble, and J.Yandenburgh, by T. O. Le Roy & Co.; and it recited that the plaintiff had executed to the parties of the second part, T. O. Le Roy & Co., the mortgage for $6000, on the steam engine and boiler, and rolling mill and fixtures, dated May 6th, 1846. By this agreement, certain other payments were provided for out of the sums becoming payable to the plaintiff for manufacturing.
    The defendant, on being called upon, produced the notes to Stillman, Allen & Co., and W. Kpmble, mentioned in the schedule and letter of April 4th, which appeared to have been paid. The plaintiff proved that those notes and the account of Vandenburgh, were paid by T. O. Le Roy &. Co.
    It was proved that T. O. Le Roy and David Smith formed a connection, on or about the 6th of April, 1846, and carried on the lead pipe, sheet lead, and general business in lead, in the same stores which Lowber & Le Roy had occupied. Their business continued to the time of the trial.
    The plaintiff next read in evidence, a bill of sale, under seal, executed by him to T. O. Le Roy <fc D. Smith, dated February 23d, 1847, by which for $10,143 43, he sold to them the steam engine and boiler, and the rolling mill in question, with all the fixtures and appurtenances. He also read in evidence a release of the same date, executed to him by T. O. Le Roy &. D. Smith, discharging him from all demands; also another release, dated February 24th, 1847, discharging him from the above mortgage of the 6th of May, 1846, in consideration of the sale of the machinery, &c., to them. The plaintiff also read in evidence, that mortgage; by which he mortgaged to T. O. Le Roy & D. Smith the steam engine, rolling mill, and all their fixtures, &c., conditioned to pay $6000, with interest, in one year from date.
    The plaintiff then rested his cause.
    The defendant called as a witness, David Smith, who testified that he was a clerk of Lowber & Le Roy, and afterwards a partner of T. O. Le Roy. He produced a paper, which he testified was made out on the 5th of April, 3 846, by E. J. Lowber, plaintiffs brother, under the direction of the plaintiff, for the purpose of showing to the defendant, what or how much of the assets of Lowber & Le Roy, he would get on the dissolution. It was made at the defendant’s request, by the plaintiff, E. J. Lowber and the witness; and was delivered to the defendant on the 6th or 7th of April. It is in E. J. Lowber’s handwriting.
    T. O. Le Roy, for the defendant, also testified that the paper was made out to show his father what the assets were, and it was made under the direction of the plaintiff. Both of these witnesses testified to the effect, that on the dissolution of Lowber & Le Roy, the steam engine and rolling mill, with all their fixtures and appurtenances, went to the defendant; that he took possession of the same with the other assets, on Monday, the 6th of April; that within four or five days after, -he sold to T. O. Le Roy & Smith all the assets of the late firm, including the engine, mill and fixtures for $10,000, for which they gave their note to the defendant, and agreed to pay all the liabilities he had assumed; that they thereupon continued the lead business as partners ; that soon after they bought the engine, rolling mill, &c., of the defendant, they sold the same to the plaintiff for $6000, to secure which he gave them the mortgage thereon. And that they paid the notes to W. Kemble and Stillman, Allen & Co., and the account to Vandenburgh, in consequence and by reason of their assumption thereof with the defendant. T. O. Le Roy stated that the losses of Lowber & Le Roy, were about $>18,000.
    The paper called the list of assets, so produced and proved, was read as follows ; (the plaintiff’s objection to the testimony being reserved:)
    “ Assets.
    “ We have on hand account on book amounting to $>22,818 81
    5750 48 bills receivable,
    4 20 1432 70 sheet lead, 34 112
    4 50 1687 14 lead pipe, 37 492
    3 50 281 96 old lead, 8 056
    23 411 47 block tin, 1789
    3 75 1634 6 lead at Cornell’s, 43 655
    150 00 1 safe.
    ;,166 52

      Brought forward, $34,166 52
    We have on hand 1 stove, 36 80
    « “ 5658 pigs lead, 374 424 12,945 90
    “ “ machinery, (mill and engine,) 5300 00
    “ “ cash, 1754 00
    $44,203 32 bills payable,
    $301 25 Due April 26, Sun Mutual Ins. Co.,
    55 61 “ July 25, “ “

    3000 00 May 20, Stillman, Allen & Co,,
    5767 64 “ Jas. McCullough,
    2300 00 “ June 13, William Kemble, agent,
    4000 00 “ May 18, American Exchange Bank,
    5000 00 “ “ 22, “ “
    5000 00 “ June 21, “ “
    4500 00 “ May 29, “ “
    2000 00 “ June 18, “ “
    4000 00 “ April 10, 11 “
    4000 00 39,924 52 “ June 6, “ “
    $14,278 82
    Deduct item below, (sundry small bills which we have not been able to get in, estimate at) 500 00
    $13,778 82
    It was testified by Smith in his further and cross examination, that the note of $10,000, given to the defendant, was subject to adjustment, according as the affairs of Lowber &■ Le Roy should wind up. T. O. Le Roy & Co. were to allow him in such adjustment, $5300 for the engine, rolling tiiill and fixtures, They had paid him one year’s interest on the $10,000. There was no written evidence of the sale of these articles to them, or of the sale by them to the plaintiff. On the 5th of April, an agreement was drawn up by Smith, (the terms having been directed by the defendant,) to be signed by the plaintiff and T. O. Le Roy. The plaintiff was present when it was drawn. It was afterwards rejected by the defendant, and was never executed. The prices for manufacturing were objected to. This paper was produced, and was in its scope similar to the one executed April 13th, as before stated, except that there is no provision for paying the debts of Lowber & Le Roy, which are specified in the latter.
    An account rendered by T. O. Le Roy &■ Co. to the plaintiff, under the date of January 19, 1847, was produced. The first charges in it are the notes to W. Kemble and Stillman, Allen & Co, under date of April 6th, 1846. The accounts paid to them respectively and to Vandenburgh, were charged under subsequent dates. There was no charge in the account for the machinery alleged to have been sold to him, but in their ledger, it was charged to the plaintiff at $5300, under date of April 6th, 1846. Those notes were not charged to the defendant in T. O. Le Roy & Co.’s books, nor was the payment to Vandenburgh.
    Edward J. Lowber, for the plaintiff, testified, that the paper called the list of assets, was not made up under the plaintiff’s direction; that it was made out by Smith and the witness, that Smith might see whether it was safe to give the defendant $10,000. There was much additional testimony on both sides, but it is believed enough has been stated, to render intelligible the points of law discussed before the court.
    The defendant’s counsel requested the judge to charge the jury upon certain propositions, substantially as they are contained in the points on the argument. .
    The judge then charged the jury, that at the time of the dissolution of the firm of Lowber & Le Roy, that firm owed to Stillman, Allen & Co., $3000, to William Kemble $2300, and to Vandenburgh $883 58. The plaintiff contends, that by the agreement of dissolution, the defendant was bound to pay these debts, but failed to do so, and that he, the plaintiff, has been obliged to pay them.
    The agreement is in writing, and it is not denied that by its true construction, the defendant was bound to pay these debts. It is contended, however, on the part of the defendant, that these debts were paid by the new firm of T. O. Le Roy & Co., under a contract between him and T. O. Le Roy & Co., by which, in consideration of his transferring to them certain assets, including the engine and rolling mill, they assumed his obligation and undertook to pay those debts.
    The plaintiff contends, that the mill and engine became his sole property by the terms of the agreement of dissolution, and that the debts in question were paid by the firm of T. O. Le Roy & Co., out of the property of the plaintiff, to wit.: the engine and rolling mill, and such payment charged by them to the plaintiff; and the case turns upon the truth of the one or other of these propositions.
    And in reference to the law bearing on the ¡questions thus stated, the judge gave the jury the following instructions :

      First. That by the terms of the contract, the property in the engine and mill vested in the plaintiff, and those terms being clear and free from any ambiguity, no parol evidence is competent to vary it.

      Second. That the statement of assets cannot affect the contract, unless it had been annexed to or made a part of it, by being communicated to the defendant at or before the final making of the contract.

      Third. That a payment of the debts in question by T. O. Le Roy & Co., out of the property of the plaintiff, if it was so made, was as effectual to authorize the plaintiff to recover as a direct payment by himself; and with these instructions, left the case to the jury on the evidence. To which charge of the judge, the counsel for the defendant excepted, and also excepted, because the judge refused to charge the jury as requested.
    The jury found a verdict for the plaintiff for $6920 32, and the defendant moves for a new trial.

      J. W. Gerard, and H. Ketchum, for the defendant, made the following points.
    I. The list of assets, and the cotemporaneous and subsequent acts, declarations, and dealings of Lowber, and all the parties, show that on the dissolution, the steam engine, and rolling mill were .to pass to Jacob Le Roy.
    Every probability is in favor of the theory, that this engine and mill, as part of the assets of the firm of Lowber <fc Le Roy, Avere to pass to the defendant; from the large capital he put in, from the losses of the firm, $18,000, from the small value of the assets Avithout the engine and mill, and from the assumption of the debts of the firm by the defendant, including the three debts in question.
    II. The judge erred in excluding in his charge, the list of assets, and all the cotemporaneous acts and declarations of Lowber, from the consideration of the jury, and in deciding that the letter of dissolution of the 4th of April, was free from all ambiguity, and that by it, as a matter of fact, the engine and mill were to be the property of LoAvber.
    Under the evidence, that paper contained a latent ambiguity as to the term “assets" Avhich were to go to the defendant, and what was the “ machinery,” which was to pass to the plaintiff; and the list, and other cotemporaneous acts and declarations of the plaintiff, were admissible to apply the contract to the proper subject matter. (Chitty on Cont. 104 to 106.)
    The terms “ assets” and “ machinery,”' on the face of the letter of the 4th of April, are indefinite and uncertain as to the things that Avould pass ; and they are rendered more so by the evidence that there Avere two sets of machinery, the old pipe machinery repaired, which LoAvber had brought in, and the engine and mill which the firm had made. The term “ machinery” included the pipe machine, but not the mill or, engine.
    The two papers, dated the 4th and 6th of April, formed but one contract. The contract was not completed until the 6th of April, when the articles were delivered. The first was made out and rendered to Mr. Le Roy, to particularize, as by a partnership account of stock, what assets Avere to pass under and be delivered with the letter of dissolution. (1 Phill. Ev. 562; Cowen & Hill’s Notes, 1398, 1400, 1401, 1406, 1408, 1409, and 1367, 1368, 1387, 1392, 1395, 1399, 1411; 19 Johns. 313; 1 Stark. Rep. 210; 12 Wend. 573; 4 Hill, 104; Chapman v. Black, 4 Bing. N. C. R. 187, 193, 196.)
    III. The judge should have submitted the inquiry to the jury, whether the parties did not intend that the letter or agreement to dissolve and the list should form one contract.
    IY. The judge erred in not charging the jury as requested, that, if by virtue of a new contract of sale of the engine and mill by T. O. Le Roy & Co. to the plaintiff, he, the plaintiff, paid these notes himself, or through T. O. Le Roy & Co., as the consideration for the purchase of those articles, he'cannot recover.
    Y. The judge erred in not charging the jury as requested, that if they believed the testimony of Smith and T. O. Le Roy, that the firm of T. O. Le Roy & Co. took the mill and engine as the property of Jacob Le Roy, then the moneys paid by them in taking up the notes were not paid by the plaintiff.
    YI. The verdict is contrary to law and evidence.

      C.. O'Conor, for the plaintiff, made the following points.
    I. The agreement of dissolution, in plain and unambiguous language, made a division of the copartnership property, assigning to the plaintiff the engine and rolling mill as well as the other machinery.
    1. The contract was perfect on the 4th of April, 1846.
    2. The exception in clause fifth, coupled with the list of bills payable, and the fact that there were no other bills payable for machinery, except the two notes in question, precludes all doubt that the words “ all machinery” included the engine and rolling mill.
    II. The documentary evidence given by the plaintiff touching his transactions with T. O. Le Roy & Co., subsequent to the dissolution of Lowber & Le Roy, was not introduced by him to qualify or explain the agreement with Jacob Le Roy. It was necessarily given to establish the independent fact, that he, the plaintiff, had paid the notes in question. The necessity which compelled a resort to this evidence for such independent purpose, justified the resort; and consequently' the defendant did not acquire any greater right to invoke such testimony to explain the agreement, than he would have possessed in case the evidence was originally offered by himself.
    III. Under these circumstances, the paper called a schedule of assets was not admissible to contradict, vary, or explain the agreement.
    1. It was made after the written agreement was perfect and consummated.
    2. It was not signed by either party, and is not in the handwriting of either party.
    3. It is not authenticated in any way as the act of either party.
    4. It is not annexed to the agreement, and cannot be connected with it in any way, except by mere oral evidence of imputed intentions, not made apparent by any thing done, or any written memorial.
    5. It is so vague and indefinite in its import, that if actually annexed t® the written agreement, the legal construction would not be varied.
    IV. The whole case shows, that the defence attempted had no foundation in truth or justice.
    1. Smith and T. O. Le Roy swore, that the defendant did not know what he was to receive on the dissolution, and the rejected agreement of April 6th shows, that they understood the machinery, including the steam engine, to belong to Lowber.
    2. All the documentary evidence is consistent with itself, and supports the plaintiff’s theory of the case.
    3. None of the documentary evidence supports the defendant’s theory, and most of it conflicts therewith.
    V. it is perfectly manifest, that justice has been done according to law; and the verdict ought therefore to be sustained.
   By the Court. Sandford, J.

The agreement between the parties, for the dissolution of the firm of Lowber & Le Roy, the disposition of its property, and the payment of its debts, was in writing, and was signed and delivered on the 4th day of April, 1846. The effort on the part of the defendant at the trial, was to influence and control the effect of this agreement, by a writing or schedule without signature or authentication, made out on the 5th of April, together with parol evidence of what was subsequently agreed upon between these parties and T. O. Le Roy & Co. The judge, after receiving the testimony provisionally, instructed the jury that the terms of the agreement for dissolution, being clear and free from ambiguity, no parol evidence was competent to vary it; and that the list of assets could not affect it, unless it was annexed to the agreement, or was made a part of it by being communicated to the defendant before the final making of the agreement. The case turns upon the soundness of the judge’s construction of the terms of the contract executed by the parties ; for if those terms were free from ambiguity, clear and explicit; no one questions that it was incompetent to vary or impair them by parol evidence.

The proof of subsequent acts, falls equally within the well established rule excluding oral testimony. Where the contract has been carried into effect, the acts of the parties furnish more satisfactory evidence than their words, when the contract itself contains a latent ambiguity; but where its terms are clear-, such acts are inadmissible to vary or control its construction. The defendant relied much upon Chapman v. Black, (4 Bing. N. C. 187,) which was the case of a lease made out by letters, and there being great doubt on the language of the letters whether the parties had agreed for a present demise, or to draw up and execute a lease at a future time, evidence of possession and payment of rent was admitted in aid of the construction. Strong language was used by two or three of the judges, in respect of the competency of acts, as indicative of intention, but they were applied to the strong features of the case before them; while one judge, without referring to the acts at all, found sufficient in the letters to construe them into a present demise.

In this, and in several other reported cases in England, on the same question of a lease in presentí, or an agreement to lease ; there is no conflict with the rule of law to which we have alluded. The evidence was admitted on the express ground that the instruments in writing were ambiguous, in respect to the subjects to which they were applicable, or upon which the intention of the parties was brought to bear.

The admission of extrinsic evidence, to show the condition of the subjects of the contract, and the circumstances under which it was made, is a wholly different matter, and ope upon which there is no dispute here. Nor was it seriously contended, if there were no latent ambiguity as to the terms of the agreement for dissolution between these parties, that either the list of assets, or the subsequent acts, would be competent to influence its construction.

We must therefore ascertain whether there was any latent ambiguity in the agreement. The defendant insists that the term assets, and the term machinery, as used in the contract, were thus ambiguous, and require the aid of the acts and declarations of the parties, in order to give them a sensible construction.

First. As to the word “ assets.” This is equivalent in its common acceptation to the term “ property,” and as used in this instrument, embraced all the property of Lowber & Le Roy which was not excepted. The defendant needs no evidence to explain a word which plainly gives to him all that the firm had, save so far as it is controlled by a clear exception. The exception here is “ the machinery,” and whatever “ appertains to or belongs to the machinery.”

Second. This brings us to the real point in controversy, was there any latent ambiguity in this contract, in respect of what was intended by the word “ machinery ?”

In its primary signification, this word would rather include the steam engine and fixtures, than either the pipe machine or the rolling mill; the two latter being more properly machines, and the former the combination of powers to put them in motion. The defendant’s object, is however, to withdraw the steam engine, as well as the rolling mill, from the operation of the term used in the contract.

We do not think that we can assume that a word of such extensive application in common parlance, as is the word 11 machinery,” is to be construed and defined when used in a contract, with the nicety of the lexicographers. And we must have recourse to the facts and circumstances. upon which the contract was made, in order to apply its terms to the objects of the contract. In applying it to those circumstances, the popular meaning of the terms must govern, when it is not inferrible from, the contract or its subject matter, that they were used in some technical or other sense.

When Lowber & Le Roy dissolved, they had assets of all the kinds enumerated in this agreement, and they were indebted for the debts therein enumerated, besides the accounts for extra work on the engine and rolling mill. The assets, which one or the other of the parties insists constituted the machinery, were first, the pipe machine, second the steam engine, and third the rolling mill. The pipe machine was the plaintiff’s before the partnership. It was incumbered to its full value, so that it was of no particular advantage for any one to take, except for immediate use. There was no claim for or upon it, against the firm, by way of note or obligation; but there was an account against the firm for repairs done upon it by Stillman, Allen &. Co., to the amount of about $1200.

The steam engine was new, and so far as it appears, worth all it had cost. The firm owed its entire, cost, of which $3000 was in a note to Stillman, Allen & Co.; and $400 of the contract price, with about the same amount for extra work, was due to that firm in an open account. The rolling mill was also new, and had never been used. The firm owed its whole cost to Mr. Kemble as agent for the West Point Foundry, of which $2300 stood in their note to Mr. K., and the extra work, about $1700, in an open account.

Now by the first stipulation in the contract, the defendant was to pay all the outstanding notes against Lowber &. Le Roy. Of course he was to pay the note of $3000, given in part payment of the steam engine ; and the note of $2300, given for the rolling mill, exclusive of the extra work. By the third stipulation he was to have all the assets, “ not appertaining or belonging to the machinery.”

By the fifth stipulation, the plaintiff was to take “ all the machinery and such things belonging thereto” then on hand, and he was to pay all claims yet due thereon except such as were mentioned in the schedule of bills payable. The only claims of the kind mentioned in the schedule, were the notes to Kemble for $2300, and to Stillman, Allen & Co. for $3000. Finally, the plaintiff, for the security of the firm that he would pay the debts he assumed, was to give the defendant security upon-the machinery he was to take.

Now applying these terms to the actual condition of things, and is there any room for a doubt as to what was intended by the word “ machinery ?” Can it be answered by the pipe machine, excluding the other two ?

The plaintiff was to pay all claims due on the machinery, except the bills in the schedule. But there was no bill or demand in the schedule which had ever been a claim upon, or in any mode grew out of the pipe machine. So that this language could not be applied to the pipe machine at all. How does it apply to the two others ? It is obvious that the application is perfect. There was a claim due and mentioned in the schedule, on the steam engine; there was a like claim mentioned in the schedule and due on the rolling mill. Thus one of the most important clauses of the contract, is made senseless by restricting the word “ machinery” to the pipe machine, while it has full scope and bearing when extended to the other two articles in dispute.

Take the next provision. The plaintiff was to pay the claims due on the machinery he was to take, except the two notes. There were such claims due on all three of the machines, (if we may so class them,) and thus the stipulation has full effect to provide for nearly $4000 of accounts due for extra and other work on those machines. But if we exclude the steam engine and rolling mill, there remain more than $2500 of accounts for work done on them, for the payment of which there is no provision in the dissolution ; for the defendant bound himself to pay only the scheduled debts, and these are not scheduled; and the plaintiff was not to pay any claims except on the machinery that he took. Thus if “ machinery” included all the three machines, the fifth article is full of meaning and every word of it applies to an existing object; if it did not include all three, the article is senseless, and the whole agreement defective in omitting to provide for what it professed to embrace.

The sixth stipulation, it is urged, shows a different meaning, in the expression, “ machinery I am to takethat this shows there was machinery which the plaintiff was not to take. We do not think such an inference is legitimate from the language used; and when the stipulation is considered in the construction which the defendant desires to put upon the word “ machinery,” it leads to a very different conclusion. If that construction be correct, the plaintiff was liable to pay merely the $1200, due to Stillman, Allen & Co. for repairs &c., on the pipe machine ; and he was to make the defendant secure that he would pay it, by a mortgage on the pipe machine. In other-words, for the sake of obtaining a machine mortgaged for all it was worth, the plaintiff was to pay $1200; and the defendant was gravely to take security on the same incumbered machine that he would pay it punctually.

There is no such absurd consequence, if we consider the term machinery” as embracing all three of the articles in question. The sixth stipulation, as well as the others, then becomes sensible and operative upon existing things and circumstances.

Upon the whole, after a careful examination of this instrument, in connection with the state of things actually existing and upon which it professed to operate, we cannot find a shadow of ambiguity in its terms. The word “ machinery,” in its popular sense, would probably embrace engine and rolling mill, as well as the pipe machine ; and as used in this agreement, it cannot mean any less than the three.

We were much pressed with the extreme improbability of the defendant’s making such a contract, as he did make, upon this construction of the. agreement for dissolution. As to this, we cannot tell how anxious the defendant was to put an end to the partnership, nor what other motive may have influenced him. The folly or the wisdom of the contract, as one or another construction might be placed upon its terms, would be a dangerous element to introduce into the interpretation of agreements. It suffices for this case, that whatever were the views of the parties, they have expressed their agreement in terms too plain to be doubted or misunderstood.

As the list of assets was not made until the agreement for dissolution was complete and perfect, the judge was correct in excluding it from the consideration of the jury.

The conflicting testimony of the subsequent acts and parol agreements of the parties, had much less to recommend it than the list of assets; and its exclusion with the latter was a matter of course.

The defendant makes a further point, that if by virtue of a new contract of sale of the engine and rolling mill by T. O. Le Roy & Co. to the plaintiff, the latter paid the demands in question himself or through that firm, as the consideration for the purchase of those articles, he cannot recover.

This consequence would not necessarily follow from such a sale as was supposed, because the defendant is not connected with it; and if the plaintiff chose to pay these demands, and at the same time and in the same transaction buy his own property of T. O. Le Roy & Co., it would still be money paid for the defendant. But the conclusive answer to the point is, that the plaintiff having become the owner of the mill and engine by the dissolution agreement, must be assumed to have first sold them to Le Roy & Co., or to some person from whom they bought, before there could be a sale to him by that firm. Nor would it alter the case, if T. O. Le Roy & Co. took the mill and engine as the property of the defendant; so long as it was in fact the plaintiff’s property and was used to pay the defendant’s debt. The controlling feature in the cause, is the effect of the agreement for the dissolution ; and as we have been unable to go behind what we conceive to be its plain and explicit terms, awarding the engine and mill to the plaintiff; the defence is at an end.

Motion for new trial denied.


source: Caselaw Access Project

author: By the Court. Sandford, J.

license: Public Domain

text:
    Carter v. Dallimore and others.
    The marine court, although for some purposes a court of record, is not authorized to give a judgment upon a default, without proof of the plaintiff’s demand.
    Although the appellate court will not weigh tlie evidence below so as to reverse if it merely preponderates against the judgment; a material defect of proof is fatal to the judgment below.
    Nov. 18th;
    Dec. 9th, 1848.
    Appeal from a judgment rendered against the defendants in the marine court. The matters involved appear sufficiently in the opinion of the court.
    S. P. Nash, for the appellants.
    O. W. Sturtevant, for the respondent.
   By the Court. Sandford, J.

The evidence in the court below, was entirely insufficient to warrant a judgment against the defendants. It is however contended by the plaintiff, that the default of the defendants to appear, dispensed with full proof; and that this court will not weigh the evidence.

1. As to the latter point, we are required by the code, to give judgment according to the justice of the case. (Section 317.) The principle laid down in Stryker v. Bergen, (15 Wend. 490,) is therefore applicable ; and a material defect of proof is fatal to the judgment below.

2. The marine court, although for some purposes a court of record, is not authorized to give a judgment upon a default, without proof of the plaintiff’s demand. The statute creating the court provides, (2 R. L. 386, § 122,) that upon the return of a summons served, the court shall proceed to hear and examine the proofs and allegations of the parties. No distinction is made between cases in which the defendant appears, and those in which he makes default. The court, in all alike, is to hear and examine the proofs, and give judgment thereon agreeable to law and equity.

So in the statute relative to courts held by justices of the peace, (2 R. S, 242, § 92,) whenever the defendant neglects to appear, on personal service of the summons, the justice is to proceed and must hear the proofs and allegations of the plaintiff, and determine the same according to law and equity.

The same provision has been embraced in every act for the recovery of small debts from 1787 to the revised statutes, and in the same language, except that in the acts prior to the revised statutes, the justice was directed to hear the proofs, &c., of the parties. And under those statutes, while the supreme court exercised a direct appellate jurisdiction, it uniformly reversed, where there was a defect of proof, or where the recovery was for a different cause of action from that declared upon. Some of the prominent cases are cited by Bronson, J. in 15 Wend. 491, and they are very numerous.

It suffices to say that they establish most fully, that the default of the defendant to appear, concedes nothing in favor of the plaintiff’s demand, and that his claim must be sustained by proof.

Judgment set aside and new trial ordered in the court below.


author: By the Court. Vanderpoel, J.

text:
    Parker v. Ellis and others.
    Where a debt is contracted by several persons, for a common purpose, and one of them pays the whole debt, he may sue each of the others separately at law, for his aliquot .share of the debt; but he cannot single out a part of the number and maintain a joint action against them.
    In equity, however, if either of the joint debtors is insolvent, he who has paid the debt has likewise a claim against each of those who are solvent, to pay the proportion which they ought, respectively, to bear of the loss arising from such insolvency.
    Nov. 22 ;
    Dec. 9, 1848.

      This was an appeal by the plaintiff from a judgment rendered by an assistant justice of the city of New York. The action was brought by the plaintiff, who was the captain of the “ Union Rifle Company,” against the defendants, who were members of the company, to recover the sum of $24 32, being moneys paid by the plaintiff for the use of the company. The defendant Ellis, was lieutenant of the company; Gilhoolyi another defendant, was treasurer ; and Ballou, the third defendant, was a private therein. There were also some twenty other members. A bill was introduced in evidence, and proved, rendered by the New York Gas Light Company to the plaintiff, for gas furnished the drill room of the company. The bill was made out against the plaintiff} and was paid by him. The plaintiff proposed to prove by members of the company, that the defendants were also members of the company during the time the gas was furnished. The defendant’s counsel objected to their testimony, on the ground of their incompetency. The witnesses were then released, and testified that the defendants were members of the company. The defendants moved for a nonsuit on the grounds, that the payment of the bill was voluntary on the part of the plaintiff; that no joint liability by the defendants to the plaintiff was proved; that the parties, being all members of the same company, an action at law could not be maintained by one against the others, or any portion of the others; that the release to the plaintiff’s witnesses discharged the action; and that the plaintiff should have produced the Roll Book of the company, as the only proper evidence to show who were members. The justice rendered a judgment of non-suit.

      P. J. Joachimssen, for the plaintiff in error.

      F. Byrne, for the defendants in error.
   By the Court. Vanderpoel, J.

It does not appear from the return, that the plaintiff contracted on his own behalf exclusively for the gas for which he paid, and on the strength of which payment he brought this action before the justice. The evidence is, that there were at least twenty members of the company, besides the three parties to the suit. The defendant Ellis was lieutenant, Gilhooly treasurer, and Ballou a private. Two questions arise:

1st. Can the plaintiff maintain any action against the defendants, or either of them ?

2d. Can he single out these three, and maintain a joint action against them; or must he sue each separately ?

It does not appear that the plaintiff, when he made the payment, required any subrogation; still he is not wholly remediless. I have not found in any common law compiler or commentator so clear, full and satisfactory an exposition of the rule which is to govern cases of this description, as is to be found in Pothier. (1 Poth. on Ob. 145, Phil. Ed. of 1824.) He says, that although a debtor in solido has omitted, at the time of payment, to require a subrogation, he is not, therefore, destitute of all redress, but has on his own account, an action against each of his co-debtors for the repetition of their several proportions ; that when the debt is contracted by several persons for a common affair, the debtor who has paid the whole has against each of the others, the action pro soeco. He has this action against each of them for the share which they respectively had in the common subject, which is the foundation of the debt. This is the rule of the common law also. In equity, however, if any one is insolvent, he who has paid the whole, has likewise a claim against each of those who are solvent, to pay the proportion which they ought, respectively, to bear of the loss arising from such insolvency; for, as Pothier justly remarks, insolvency of any One is a loss to the body at large, which ought consequently to fall upon each of the members in proportion to his share.

The case of Cowell, Adm'r. v. Edwards, (2 Bos. & Pul. 268,) has a direct bearing upon the present case. John Cowell, the plaintiff’s intestate, having entered into a joint and several bond with seven other persons, two of whom were principals, and five others, as well as himself, sureties, was, together with his co-sureties, called upon to pay the sum engaged for. The defendant and two of the other sureties, paid each a part of that sum, but the plaintiff’s intestate paid the residue. Upon this, the plaintiff, considering the defendant and one of the two sureties who had already contributed, as the only solvent sureties, called upon them to pay their proportion, and then brought his action to recover from the defendant such a sum of money as, when added to what had already been paid by him, would make up one third of the whole sum paid to the obligees, deducting only what had been contributed by the fourth surety, not called upon in that suit. Lord Eldon, Ch. J., said that he had conversed with Lord Kenyon on this subject, who was also of opinion that no more than an aliquot part of the whole, (one sixth,) regard being had to the number of co-sureties, could be recovered at law by the defendant, though if the insolvency of all the other parties were made out, a larger proportion might be recovered in a court of equity. In Child v. Mosely, (8 T. R. 614,) Lord Kenyon speaks approvingly of a case in Rolle’s Abridgment, where a party met to dine at a tavern, and after dinner, all but one of them went away without paying their quota of the reckoning, and that one paid for all the rest; and it was held, that he might recover from the others their aliquot proportions. If each party is liable for his aliquot proportion, no joint promise to the plaintiff here can be implied, so as to enable him to maintain a joint action against three of the twenty odd members of the company. Each is liable for his proportion. The plaintiff surely cannot on any principle, recover the whole from those three, with the exception of his own share. If he can recover the shares of three in a joint action, he may in other suits, join two, three, or four, at his option, a proceeding which would be wholly inconsistent with the most familiar principles of the common law. We are of opinion that the justice very properly gave judgment for the defendants.

Judgment affirmed.


text:
    Partridge and Goold v. Thayer and Truesdale.
    Where a summons in the marine court required the defendants to answer in a plea for goods sold to the defendants, damage fifty dollars, the plaintiffs cannot take judgment by default for more than fifty dollars. If they do, the judgment will be reversed.
    The code of procedure regulating appeals from the marine court, in effect requires the appellant to state the substance of the proceedings below, where the alleged error consists of those ; and the substance of the testimony when the latter bears upon the question sought to be reviewed. Where the whole reliance of the appellant is upon an error which canot be remedied or affected by the testimony, it is not necessary in his affidavit to set forth the evidence.
    Nov. 27;
    Dec. 9, 1848.
    The defendants appealed from a judgment of the marine court taken against them by default, they not having appeared before that court. The questions raised are stated in the opinion of the court.

      H. R. Pierson, for the appellants.

      G. Bradshaw, for the respondents.
   By the Court. Sandford, J.

In this case, the judgment upon a default of the defendants below, was taken for §91 50, damages, on a summons which required them to answer to the plaintiffs in a plea or complaint for goods sold and delivered and for rent, to their damage of fifty dollars.

The act creating the marine court, (2 R. L. 383, § 113,) prescribes the form of the summons to be issued out of that court; and among other things, it is to contain the nature or cause of action, and the sum demanded. The insertion of the amount of damages, therefore, was not a mere form, which might be observed or disregarded, without prejudice to the rights of the parties. As the statute required it, the defendants were at liberty to rely upon the statement as being truly made. If they had no defence to the claim thus made, it was unnecessary for them to attend the court, either to make a show of defence or to confess the action.

In courts of record, the plaintiff could not take judgment upon a verdict, much less upon a default, for a greater sum than that stated in his declaration. The reason is much stronger for restricting him to the damages claimed in this process, where the statute makes it incumbent on him to set forth the sum demanded.

it does not relieve the plaintiff, to show that the error arose from the inadvertence of the clerk of the court below. The defendants relied on the process, and it makes no difference how the mistake occurred, so long as it is not pretended that they knew it was a mistake.

The judgment below was, on this ground, clearly erroneous.

It is claimed nevertheless, that the merits being wholly with the plaintiffs, this court, in giving “ judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits,” (Code of Procedure, § 317;) should affirm the judgment.

, The difficulty is that we cannot know what are the merits of the case beyond the $50.

The defendants have had no opportunity to be heard in thendefence, as to the surplus beyond that sum. The testimony before the court below, was sufficient to establish the plaintiffs demand for the account recovered, unless it could be controverted ; but we cannot know, on this record, whether there was a defence or not. We can see "that there was none to the extent of fifty dollars; beyond that, we have no legal information on the subject.

An objection to the entire appeal, is taken on the ground that the affidavit on which it was founded, omits to set forth the substance of the testimony in the court below, as is required by section 303 of the code.

This objection should have been taken by a motion to dismiss the appeal; and not upon the argument of the cause. We think also, it is unfounded. Where the appellant relies upon any point arising upon the testimony below, he must undoubtedly set forth its substance. But where his whole reliance is upon an error which does not grow out of the testimony, and which no possible state of the evidence below could remedy, it cannot be necessary for him, in addition to such point, to set forth the evidence which was given. The statute, in its true construction, requires the appellant to state the substance of the proceedings, where the alleged error consists in them; and of the testimony, when the latter bears upon the question sought to be presented to the appellate court. It does not require both, when the error is founded solely upon the one or the other.

We were at first inclined to direct a new trial, on payment of costs'; but it would be necessary to amend the summons and allow the defendants to plead, before a trial could be had; and upon the whole, we think it better for the plaintiffs to begin anew.

Judgment reversed.


text:
    Williams and Ray v. Price.
    The summons in the marine and justice’s courts, is not in its form, governed by the provisions of the code of procedure.
    The pleadings in those courts may be oral, and therefore the provision of the code of procedure requiring pleadings to be verified does not apply to those courts.
    Nov. 18 ;
    Dec, 9, 1848.
    Appeal by the defendant from a judgment rendered against him in one of the assistant justice’s courts. The questions decided are stated in the opinion of the court.

      E. C. Gray, for the appellant.

      J. H. Applegate, for the respondents.
   By the Court. Sandford, J.

The appellant has made several points, which are wholly unfounded.

1. The summons, it is said, did not state the cause of action, as required by the code of procedure.

2. The complaint is defective for the want of a verification.

As to both of these points, the answer is, that the code of

procedure has no application to the summons, nor to the declaration in the matter alleged as error. The last eight titles of the second part of the code, do not relate to actions in the marine court or in the justice’s courts; except so far as certain sections and provisions are made applicable in express terms, in the other titles. (See Code, § 8.) Thus by § 61, the provisions of the sections from 48 to 57 inclusive, relating to forms of action, to pleadings, &c., are made to apply to the courts, embraced in title 7th of part first, which title includes the marine and justice’s courts. And section 57 extends the provisions of the whole act, respecting the forms of actions, pleadings, the rules of evidence, and the time of commencing actions, to courts of justices of the peace, except that the pleadings may be oral, and made at the same time as if the act had not been passed.

The effect of these provisions is, that the summons in the marine and justices courts is not governed by the code at all, in its form; and the pleadings may be as before, oral, and even more liberally construed. It was always requisite in the marine court to state in the summons, “ the nature or cause of action.” (2 R. L. 384, § 113.)

The provision in the code for verifying pleadings, is incapable' of being applied to oral pleadings. It is only those subscribed by the party, that are to be verified; and the oath of a party to his verbal declaration or answer, would be idle in the extreme.

We think there was no error in the summons or proceedings in the court below ; and it is unnecessary to inquire how far the defendant waived the supposed errors, by pleading and going to trial.

On the merits, we must direct a new trial, without costs to either party, in this court.


author: Sandford, J.

text:
    Quick v. Keeler.

    A judgment creditor whose execution was issued and returned unsatisfied before the code of procedure, may, without first obtaining leave of the court in which the judgment was recovered, proceed against his debtor by a complaint in the nature of a creditor’s bill.
    The rules of court requiring certain allegations to be contained in a creditor’s bill, are superseded by the code which declares what shall be stated in the complaint. If the plaintiff comply therewith, and set forth the matters which by the revised statutes were a pre- requisite to the filing of the bill, it is sutficient.
    Dec. 4;
    Dec. 9, 1848.
    Demurrer to a complaint, in the nature of a bill under the former practice, by a judgment and execution creditor, to reach the debtor’s equitable interests, things in action, and effects. The defendant demurred to the complaint on the grounds, 1. That the court had no jurisdiction, it being an action on a judgment, brought without leave of the court. 2. The complaint does not state that the plaintiff knows or has reason to believe, the defendant has equitable interests, &c., of the value of $100 and more, exclusive of all prior just claims thereon, which the plaintiff has been unable to discover and reach by execution on such judgment. 3. The facts stated, are not sufficient to constitute a cause of action.

      F. Sayre, for the defendant,
    cited sections 64, 343, 388, of the Code of Procedure; Commissioners of Practice Report, 1848, page 201; Laws of 1848, p. 566, § 2, subd. 2; Supreme Court Equity Rules, 131; 3 Paige, 505.

      W. C. Betts, for the plaintiff.

       Before Sandfokd, X, at special term, decided after advisement with his associates.

   Sandford, J.

This demurrer presents the question whether since the code of procedure went into effect, a judgment creditor is at liberty to proceed by a complaint, in the nature of a creditor’s bill, where his execution was issued and returned unsatisfied, before the code. All the justices of this court have acted upon the assumption, that the creditor may thus proceed; but in consequence of the formal argument in this case, I have consulted with my associates, and will now announce the conclusion in which we all concur.

The sixty-fourth section of the code is relied upon as cutting-off the remedy sought by this suit. It provides that no action shall be brought upon a judgment rendered in any court of this state, between the same parties, without leave of the court, &c. The exceptions need not be noticed for my present purpose. This suit is undoubtedly an “ action,” within the definition of the code.

The substituted remedy for the former creditor’s suit, which is found in chapter 2 of title 9 of the second part, is made applicable to executions thereafter issued on judgments and decrees recovered prior to the code, by the “Act to facilitate the determination of existing suits in the courts of this state.” (Laws of 1848, ch. 380.) Whether the words “ hereafter issued,” in that act, mean after the first day of July, when the code took effect, or after the twelth day of April, on which day the act became a law, we will not decide in this place, for the execution in this case was returned before either of those dates.

It is clear, that the new remedy provided by the code, does not reach the case; and the plaintiff must proceed by a complaint similar to a creditor’s bill as formerly in vogue, or his remedy founded upon the return of his execution is gone.

We find that the 388th section, which repeals all statutory provisions inconsistent with the code, expressly enacts, that all rights of action given or secured by existing laws, may be prosecuted in the manner provided by the code. A right of action is to be enforced by an action; and this with the express application of the substituted remedy to executions issued after the act of April 12th, before referred to, became operative, satisfactorily shows, that the judgment creditor whose execution was issued and returned before that period, cannot avail himself of the summary proceeding so substituted.

By the law existing at the passage of the code, the plaintiff an this case had a perfect right of action against the defendant, founded upon his judgment, his execution, and the return of the latter unsatisfied. This right was conferred by statute, and was to be enforced by a bill in equity. (2 R. S. 173, § 38, &c.) It was preserved by section 388 of .the code, with the modification that it must be prosecuted in .the manner therein provided. That is, instead of a creditor’s bill, the plaintiff was required to proceed by a complaint, and tq conform his suit to the forms prescribed by the code. The section abolishing actions of discovery in aid of other .actions, (§ 343,) does not affect the point. A discovery was one of the features of a creditor’s suit, as it was of most suits in equity; but it was an incident and not the chief end of the suit.

The rules of court requiring certain allegations to be inserted in a creditor’s bill, are superseded by the code which declares what shall be stated in the complaint. It suffices, if the plaintiff comply with the code, and also set forth all that by the revised statutes was made requisite to the filing of a creditor’s bid.

As to the want of an allegation, that the defendant has equitable interests or property to the value of one hundred dollars and more; this was one of the requirements of the rules of the court of chancery and supreme court in equity. It is not necessary to be alleged. What may be the result, if the plaintiff fail to establish that the defendant has property to the amount of seventy-five dollars, (Laws of 1847, ch. 470, § 21, and ch. 280, § 31,) it will be time enough to consider when the question arises.

The statement of the execution is sufficient.

Judgment for plaintiff on the demurrer.


text:
    Jones v. Cowman.
    Where in a conveyance of city lots, the premises were described as being bounded by exact measurement of feet and inches, then on two sides by the side of two several streets laid out and opened, and then “ southerly by the northerly line or side of T. B.’s lane and the deed also described the premises as lot 21 on a map referred to, and as bounded by two other lots on that map, and the map contained those and a large number of city lots, exactly protracted by metes and bounds, excluding the streets and lane ; Held, that the description limited the grantee to the northerly side of the lane, and did not carry him to the centre thereof.
    In a deed, bounding the grantee by a lane, there was added in the description of the premises, “ Together with the use and privilege of the said lane, until the Mayor, Aldermen and Commonalty of the city of New York, shall cause streets to be opened running through or adjoining the said piece or parcel of land hereby grantedHeld, that the latter words were evidence of an intention on the part of the grantor, to exclude the lane from the principal grant. Per Vandebpoel, J.
    In an action of ejectment, the inquiry respecting the plaintiff’s title must be'confined to the question what was conveyed to him by his immediate grantor, not what ought to have been conveyed to a remote source of the plaintiff’s title.
    In ejectment, the plaintiff can only recover on the strength of his own legal title.
    Nov. 20;
    Dec. 23, 1848.
    ■ This was an action of ejectment brought to recover the possession of certain premises in the 16th ward of the city of New York, being the northerly part of a certain strip of land formerly known as Burling’s Lane. The cause was tried before Chief Justice Oakley,qn May, 1848.
    On the trial of the cause, it appeared in evidence that the defendant was in possession of the premises in question. The plaintiff’s counsel then read in evidence a conveyance from Thomas Burling and wife, and Samuel Burling and wife, to Benjamin F. Haskins, which deed was dated April 23d, 1806, and was duly acknowledged and recorded, and conveyed “all that certain piece or parcel of land, situate, lying and being in the 16th ward of the city of New York, bounded westerly by land late of John Thornton, northerly partly by land of James R. Smith, and partly by land belonging to Isaac Varían, easterly by land now in the possession of the said Benjamin F. Haskins,
      and southerly by a lane 20/eei in width, belonging to the said Thomas Burling and Samuel Burling, leading to the Bowery Road, containing twenty-nine lots of land of 25 feet by 100 each, be the same more or less; together with the use and privilege of the said lane, until the Mayor, Aldermen and Commonalty of the city of New York, shall cause streets to be opened,” &c. The plaintiff’s counsel then read in evidence, a mortgage executed by Haskin and wife to Thomas Burling and Samuel Burling, upon the same premises, to secure a part of the purchase money; also, an assignment of the said mortgage from the mortgagee to Thomas Nixon, dated June 23d, 1807, duly acknowledged and recorded. The plaintiff’s counsel then read in evidence a bill of foreclosure of the mortgage, filed by the executor of the assignee of the said mortgage, under which a decree was obtained May 21, 1842, and the premises sold under the direction of Thomas Addis Emmet, master in chancery. Upon the sale, the master conveyed by deed, dated July 9, 1832, to Alfred Lowe, “ all that certain lot, piece, or parcel of land, situate, lying, and being in the 12th ward of. the said city of New York, and known and distinguished on a map of land in the 12th ward of the city of New York, under mortgage to the estate of Thomas Nixon, deceased, dated.New York, February 1, 1831, drawn by Geo. B. Smith, city surveyor, as lot No. 21, bounded and contained as follows: northwesterly, in front by the southeasterly line or side of the Fifth Avenue, 23 feet. Northeasterly, by lot No. 22, on said map, 100 feet. Southeasterly, in the rear by lot No. 25, on said map, 14 feet, 3 inches. Southerly, by the northerly line or side of Thomas Burling'1 s lane, 36 feet, 9 inches. And southwesterly, by the northeásterly •line or side of Seventeenth street, 64 feet, 2 inches; as by said map will more fully appear.” Next, a deed from Alfred Lowe and Sarah his wife, to Henderson P. Lowe, dated March 27, 1834, duly acknowledged and recorded, and conveying the same premises by the same description. Next, a deed from Henderson P. Lowe and Mary his wife, to Benjamin F. Howe, dated Nov. 11, 1834, duly acknowledged and recorded, conveying the same premises by the same description. Next, a deed from Benjamin F. Howe and wife, to Robert Steele, dated June 29, 1835, conveying the same premises by the same description, Next, a deed from Robert Steele and wife, to Isaac Brown, dated October 20, 1845, duly acknowledged and recorded, conveying the same premises, and also lot No. 22, with a similar description, and in which the southerly bound is described as being by the northerly line or side of Thomas Burling’s lane, &c. Next, a deed from Isaac Brown and wife, to the plaintiff, dated May 5, 1836, conveying the same premises by the same description as in the deed to Isaac Brown, and in the deed of Thomas Addis Emmet to Alfred Lowe. The map of the premises, referred to in the master’s deed, was then produced in evidence. This map exhibited the premises, and lots Nos. 22 and 25 referred to in the deed, as laid out in precise measure of feet and inches, not including any part of Burling’s lane, nor any part of Fifth Avenue or Seventeenth street, which were proved to have been opened. The map contained a great number of lots', all protracted' and bounded in the same manner.
    The plaintiffs then called John Randall, who testified that he laid out and surveyed the streets and avenues as laid out by the commissioners, under the act of April, 1807. The counsel then offered to prove, that for more than twenty years previous to the opening of Seventeenth street, and the streets adjacent, Burling’s lane, as laid down on the map, was an open, public, and travelled road or highway j to which testimony the defendant’s counsel objected. The court excluded the testimony, and the plaintiff excepted.
    The court charged, that whether the road or lane called Bur-ling’s lane Was a public, travelled road, was immaterial under the construction wjiich should be given to the deed. That by those deeds, the' plaintiff was bounded by the northerly side or line of Burling’s lane, and therefore was not entitled to any of the land included within the boundaries of the lane. The plaintiff excepted to the charge. The jury found a verdict for the defendant.

      H. E. Davies, and W. Kent, for the plaintiff.

      D. Lord, for the defendant.
   By the Court. Vanderpoel, J.

The only question is, whether the conveyances under which the plaintiff claims, carried the grantees in those deeds to the centre of Burling’s Lane. In the deed from Mr. Emmet, the master in chancery, to Alfred Lowe, of the 19 th of June, 1832, the premises are described as being bounded southerly by the northerly line or side of Thomas Burling’s lane. If these words in connection with the description, carry the grantee to the centre of the lane, the plaintiff is entitled to recover. If they confine him to the northerly side of the lane, he must fail in the suit. In Hammond v. McLachlan, (1 Sandf. Rep. 323,) and in Herring v. Fisher, (ibid. 344,) we took occasion very fully to consider the rule of construction, ns to the extent to which a grant of land bounded on a road or creek, carries the grantee, in respect to the adjacent ground within the road or creek. In the former case, we fully recognized the principle held in Jackson v. Hathaway, (15 John. 447,) that when land is bounded along a road, or upon a road, or running to á toad, the grantee takes to the middle of the road, but where the description is expressly limited to the hank of a river, or where it runs along the side of a road, the grant must be held to be restricted, and not to include the land to the centre of the road or of the stream. And see Child v. Starr, (4 Hill, 369.) We also held, that this rule of construction applies equally to city lots and to farms in the country. In some of the reported cases of applications to the supreme court to confirm assessments, it is intimated, that in respect to this rule of construction, there is or may be a difference between city lots and country farms; but we expressly repudiated such a distinction. According to the cases cited, the words in the master’s deed “ southerly by the northerly line or side of Thomas Bur-ling’s lane,” (taken in connection with the exact metes given in the deed, and the map under which the master sold, which excludes the lane,) must be deemed to be exclusive of that portion of the lane for which this suit is brought, and limited the grantee to the northerly side of the lane.

The plaintiff, however, contends, that the deed from the Burlings to Haskin, bearing date the 23d April, 1806, is full enough to convey half of the lane to the grantee, Haskin was the mortgagor in the mortgage which was foreclosed, and under which, after it was prosecuted to a decree of sale, the master made the sale. If this were so, it by no means follows, that the title of the plaintiff is commensurate with that of Haskin, the grantee in that deed, and who executed the mortgage. The plaintiff makes title under the master’s deed ; and if the master did not sell or convey to him all the premises described in the mortgage, it is not competent for the plaintiff to say that the grantee in the master’s deed took a title to all the-lands described in the mortgage on which the decree of sale was entered. If the description in the master’s deed is not full enough, or if the deed is erroneous in any other respect, this is not the place or the occasion to reform it. The plaintiff prosecutes in a court of law, on the strength of his more legal title, and if the conveyance under which he claims, excludes the premises in suit, this difficulty is not answered by the allegation, that it ought to have contained it. So also, the deed from Brown and wife to the plaintiff, of the 5th of May, 1836, follows the description in the master’s deed. It bounds the plaintiff “ southerly by the northerly side or line of Thomas Burling's lane,'' referring to the map, &c., and excludes the premises in question. All the conveyances from the date of the master’s deed to Lowe, in 1832, to the date of the deed from Brown to the plaintiff, (being four in number,) follow the description of the master’s deed, and according to our construction exclude the northerly half of the lane. The plaintiff cannot, we repeat, remedy the exclusion by the position, that the master’s deed ought to have included the premises. We must confine ourselves to the inquiry, - what was conveyed to the plaintiff by his immediate grantor, not what ought to have been conveyed to a remote source of the plaintiff’s title. The plaintiff can only recover on the strength of his own legal title.

But if the description in the deed to Haskin of the 23d of April, 1806, were available to the plaintiff, notwithstanding the excluding character of the subsequent conveyance, then another difficulty would spring up in the plaintiff’s way. This deed, to be sure, bounds1 southerly by the Burling lane,’ but those further words are added, “ together with the use and privilege of the said lane, until the mayor, aldermen, <m<Z commonalty of the city of New York, s/iató ctmse streets to be opened running through or adjoining the said piece or parcel of land hereby granted.” The latter words show pretty conclusively, that it was the intention of the grantor to exclude the lane from the principal grant. A party cannot convey land in fee, and the mere use of other land, without excluding the latter from the principal. grant. The contingency, too, contemplated by the grant has happened. Fifth avenue and seventeenth street have been opened.

We are of opinion that the plaintiff did not make out a good title to any part of the lane, and that the motion for a new trial must be denied.

We have treated the case as if the lane in question were a public road or highway, which was certainly a mode of considering it most favorable to the plaintilf. We think the case is against him, on the assumption that the lane was a highway, and have not therefore deemed it necessary to consider the point taken by the defendant, that this lane was a mere private finciple & tl>n of consfmcfionTcould i&ly&SjAi. \ . way,*and that, therefore, on^irop thermit be 'helcl to exten

Motion Dr new trial denied./


text:
    H. F. and L. Seymour v. Davis.

    A contract to sell and deliver elder at a future time, which the seller is to procure from farmers and refine to fit it for market, is a contract for the sale of goods; and if by parol, is within the statute of frauds.
    Where a parol contract was made for the delivery of five hundred barrels of cider, in parcels at future periods, each to be paid for in a note on delivery, and seve- - ral parcels were delivered from time to time, and all paid for except the last; in an action for the last, it was held,

    1. That the delivery and acceptance of each parcel, made a several and distinct contract of sale of such parcel; upon each of which successively, each party had all the actions and remedies incident to a sale. Each shipment must be regarded as a sale by itself of the quantity accepted, independent of the original void agreement.
    2. That the shipments and deliveries so made, though in consequence of the void agreement, cannot be regarded as one transaction, so as to entitle the buyer to recoup against the price of the parcel last received, his damages by reason of defects in the previous parcels.
    3. The part performance of a void contract for the sale of goods, does not take it out of the statute of frauds, even in respect of the portion performed. Acts of delivery and acceptance under such a contract, establish a new contract of sale, in which more or less of the terms of the void agreement may be expressly or impliedly embodied; but each delivery and acceptance make a distinct contract.
    Nov. 8, 9;
    Dec. 16, 1848.
    Assumpsit for the price of one hundred barrels of cider, delivered by the plaintiff to the defendant, on or about March 25th, 1847. At the trial before Sandford, J. in April last, the plaintiffs, who resided at Hartford, Connecticut, proved the delivery of the cider to the defendant in New York, and tmt*the latter was to pay four dollars per barrel, in a note at sixty days.***
    The "defendant then proved, -that in November, 1846, a verbal agreement was made between him and the plaintiffs, by which they agreed to deliver to him in New York from five to eight hundred barrels of cider, during the fall and spring following, of the best quality, in chestnut barrels, at such times, and in such quantities or shipments as the plaintiffs could make it convenient to send, for which the defendant agreed to pay four dollars per barrel, by remitting to the plaintiffs his indorsed note at sixty days for the amount of each shipment, as the same should be received by him. The business of the plaintiffs, at the time of these transactions, was buying cider of farmers who made it, and refining and selling it. They delivered several parcels of cider to the defendant, after making the agreement, and prior to the delivery of that in question, for each of which he gave the indorsed note stipulated in the agreement.
    The quantity of no one of these previous deliveries was shown, nor the aggregate quantity. The notice attached to the defendant’s plea, claimed that 280 barrels in all had been delivered under the contract.
    The defendant offered evidence to prove that part of the cider delivered before the receipt of the hundred barrels in question, turned out to be a bad article, becoming thick and milky, and having a bad smell; and that he could not sell a part of it by reason of such defect of quality, and lost the price of other-parts of it which he had sold. The defendant claimed to recoup his damages sustained by reason of the bad cider so delivered to him prior to March, by having the same deducted from or applied to extinguish the price of the one hundred barrels in question. The plaintiffs objected to the evidence, and the judge excluded it.
    The defendant then gave evidence to show that the hundred barrels was in part defective, and that he sustained damages thereby. The judge instructed the jury that the .plaintiffs were entitled to recover the actual value of the one hundred barrels of cider at the time it was delivered. The jury rendered a verdict ^"or the plaintiffs for $316 50—the defendant moves for a , new trial on a bill of exceptions.

      C. D. and C. Lawton, for the defendant.

      J. H. Raymond, for the plaintiffs.

       The Chief Justice did not hear the argument in this case, but he was present at the deliberations of his associates, and fully concurred in the points decided.

   By the Court. Sandford, J.

The defendant makes a point that the cider contracted to be delivered, was not susceptible of delivery at the time the contract was made, but was to be bought of farmers by the plaintiffs, and prepared for market by refining it, <fcc., and therefore the agreement was one for work and labor, and not within the statute of frauds.

The law is perfectly well settled, both here and in England, that this was a contract for the sale of goods. (Downs v. Ross, 23 Wend. 270 ; Garbutt v. Watson, 5 B. & Ald. 613.) There is no doubt that the agreement in question was void by the statute.

It was proved that the plaintiffs proceeded to make deliveries of cider at several different times between November and April, all of which were paid for as delivered, except the hundred barrels for which this suit was brought, and which were delivered in March or early in April. There is no evidence showing what quantity was delivered on the several occasions prior to the last; but it was not pretended that the entire quantity received by the defendant was equal to the smallest quantity specified in the contract of sale. The notice attached to the defendant’s plea, states that 280 barrels were delivered in the whole, and the proof falling short of establishing that quantity, it is safe to assume that not more than half of the smallest quantity contracted for, was ever forwarded by the plaintiffs. On the proof given, the defendant contends, first, that the delivery and acceptance of these several lots or portions of the cider, took the contract out of the statute. Second, that whether originally void or not, it has been performed by both parties without objection, and neither party can now avail himself of the statute to avoid any liability he may have incurred in that performance. Third, that the whole should be regarded as one transaction, growing out of one contract, and any loss m damage the defendant may have sustained by defects in any part of the cider in any of the lots delivered, ought to be allowed to him by way of recoupment against the price of the same, or any other of the lots or parcels.

1. As to the defendant’s first proposition. It is true that where an order for goods, or a contract for the sale of goods, embraces several distinct lots or parcels, and a part of the goods is delivered and accepted at the time of the sale, the contract is not within the statute. What will be deemed a cotemporary delivery, it is foreign to our present purpose to inquire. Whenever the question has been presented on such a contract, the effort has been to establish that there were separate and distinct sales of the respective parcels. If the court ascertained that it was a single sale, though consisting of several articles, it has been uniformly held that the statute did not apply where a part had been received and accepted. This was the ground of the decision in the most recent, as well as the strqngest case we have seen. (Scott v. The Eastern Counties Railway Company 12 Mees. & W. 33.) There the contract was for lamps, one of which, a very large and peculiar lamp for a junction, was to be manufactured, and required a long time for its completion. All the others were delivered at or about the time of the contract. The acceptance of those, was held to satisfy the statute of frauds, as well as the statute 9 Geo. IV., c. 14, s. 7. extending its provisions to contracts for goods subsequently to be made, because the whole formed one entire contract.

The case of Vincent v. Germond, (11 Johns. 283,) cited by the defendant, does not decide that the acceptance of a part, after the making of the contract, will relieve it from the operation of the statute. It was decided, that there was a sufficient delivery to take the case out of the statute, meaning at the time of the sale. This is apparent from a careful examination of the case, which was submitted .without argument, and is very briefly stated by the reporter. When the sale was made, the four oxen were in the plaintiff’s clover field, and he said he had had one or two injured by feeding there. The defendant said he would take them at his own risk, and they must remain where they were till he completed his drove, when he would take fiiem away. A short time after, he came and took away three of them, without saying any thing to the plaintiff. The fourth had died in the mean time, from eating clover. The court said, the taking them in this mode, with what occurred at the sale, warranted the inference of a delivery. That the defendant dealt with the oxen as his own, and as if in his actual possession, in virtue of the original contract and transfer of the property.

We can find no authority for saying, that a parol agreement to deliver goods at a future time, becomes valid as to the whole by the delivery of a portion at, or subsequent to, such time. It is stated in one approved treatise, as the result of the decisions in England, that where the contract is to deliver goods in parts or parcels, at different intervals, at a certain price for each part; although the contract may be void for want of writing, as regards the executory part of it, yet the prices of the parts actually received, are recoverable under a count for goods sold. (Chitty on Cont. 396.) We will not stop to inquire how far this is correct as to the price, or whether the recovery must not be on a quantum meruit. We need only say, that no authority goes further than this, and this does not go far enough to sustain the defendant’s position.

In Mavor v. Pyne, (3 Bing. 285,) where the agreement was for an illustrated publication, to be issued in twenty-four monthly numbers, at a guinea a number, and was void by the statute ; it was held, the publisher could recover for the numbers actually delivered. The court said, he could not recover on the original contract, but he was entitled to be paid for the numbers received by the defendant. That the parties meant each number was to be paid for as it came out, and the subscription was to be considered as a divisible contract.

Chief Baron Hale, in 1662, held, that several deliveries, made under an entire agreement, if severally accepted, made so many several contracts. (Barker v. Sutton, 1 Campb. N. P. 55, note. And see to the samé effect, Banker v. Hoyt, 18 Pick. 555.)

Recurring to the agreement before us, it was for the delivery of from five to eight hundred barrels of cider, during the ensuing five or six months, in such quantities or shipments as the sellers might find convenient, at the price, of four dollars per barrel, to be paid for each shipment when received, in an indorsed note at sixty days. There was no written evidence of the contract, nor payment of any part of the price. There was no acceptance or receipt of the goods by the buyer; and by its stipulations, there was to be no delivery of any of them until an undefined future period.

Now the statute declares such a contract to be absolutely void. It was undeniably void when it was made, and for the month or two intervening between that time and the first delivery of the cider. Did the acceptance of that first parcel, breathe into this void contract the breath of life, and make it valid for the whole quantity of goods embraced in it ?

• We cannot so regard the effect of such a partial delivery. We think the contract, if void .when it is made, can never become a valid agreement. Subsequent acts may establish a new contract, of sale between the parties, either express or implied, and embodying more or less of the terms of the original arrangement; but they cannot re-animate the previous void agreement. For each delivery of cider, the sellers were entitled to be paid ; not by force of the void contract of sale, but by force of a new one, founded on the receipt and acceptance of the specific goods.

If the delivery of the first parcel of cider established the entire agreement, it would follow that if the sellers had declined to deliver any more, the buyer could have sued them and recovered damages for its breach; and if the buyer had refused to receive the residue of the five hundred barrels, the sellers could have enforced the sale by action against him. These are necessary and inevitable consequences, resulting from the effect claimed to be given to the acceptance of a part of the cider, under this once void agreement; for it cannot be revived partially by such an act. It is entire and valid, or it is all alike null and inoperative. The defendant’s counsel were unwilling to maintain, that such an acceptance of a part would enable either party to enforce the agreement as to the residue; but we think this position must be maintained, or the whole argument fails.

Our view of the law is, that the agreement made between the parties in November was void, and was never capable of being enforced by either party. That the delivery and acceptance of the several shipments of cider, forwarded under the agreement, or in consequence of it, made so many several and distinct contracts of sale ; upon each of which each party had all the actions and remedies incident to a sale. The plaintiffs could recover the value of each shipment upon its being accepted, and the defendant could reduce or defeat the recovery, by proving fraud or any other defect in the sale.

2. The defendant’s next ground was, that although the contract were void, it has been performed by both parties, without objection; and neither party can now set up the statute to avoid any liability he may have incurred in that performance.

As to this point, it is not correct to assume that the contract has been performed. It never was performed, to the extent of half of the stipulated quantity. We have already said, that in respect of each shipment accepted, each party had a perfect remedy as' upon a valid sale and purchase of the quantity contained in such shipment. Neither party could set up the statute of frauds to defeat or impair the remedy of the other for or upon such shipment, for the plain reason, that the statute had nothing to do with it. It was simply a sale of so much cider, delivered and accepted at the time. But we cannot assent to the proposition intended by the defendant in his point, that because the contract, though void, has been performed in part, to the extent of such performance, it is to be deemed an entire, single, and valid contract, upon the terms stipulated in November, for all the cider delivered between November and May. This would be doing violence to the statute of frauds, and the reasons we have given show, that it cannot be maintained as law. Each shipment must be regarded as a sale by itself of the quantity accepted, independent of the previous void contract.

3. The defendant’s third proposition, that the whole of the shipments should be regarded as one transaction, growing out of one contract, is inadmissible, upon the same grounds which we have stated in examining the previous points. The one contract relied upon to bring all these shipments together was void, and therefore was no contract, and each must stand or fall by itself. As they were distinct sales, they cannot be regarded as one transaction, so as to entitle the defendant, in a suit for the price of the last parcel delivered, to have allowed to him his damages growing out of any of the previous deliveries. The defendant does not ask to set off these damages ; and the doctrine of recoupment is limited to damages arising from, or growing out of, the contract upon which the action is brought. (Cram v. Dresser, Sept. 30th, 1848.)

This disposes of the principal questions raised at the trial. The objections to the judge’s charge are untenable. There was no disputed fact, in respect of the delivery of the cider; and whether the last was a separate transaction or not, was a question of law, and as such it has been argued and considered. As to the instruction relative to the offer to return the cider last delivered, it was entirely correct The offer referred to by the witnesses, was nearly a month after its receipt, and related to fifteen or twenty barrels only, out of one hundred delivered. In the view, we have taken of the law, the charge was decidedly favorable,.to the defendant.

Motion for new trial denied.

        Ante, page 120.