author: By the Court—Woodruff, J.

text:
    The Mutual Benefit Life Insurance Company, Appellants, v. The Board of Supervisors et al., Respondents.
    The Court will not interfere by injunction to restrain the collection of a tax imposed upon an individual in respect of his personal property, upon allegations that it has been illegally imposed. An action will not lie for such a purpose.

    (Before Bosworth, Ch. J, and Hoffman and Woodruff, J. J.)
    Submitted, April 3;
    decided, June 1, 1861.
    Appeal from a judgment for the defendants on a demurrer to the complaint.
    This was an action brought by the plaintiffs against the Supervisors of the City and County of New York, and the Mayor, Aldermen and Commonalty of the City of New York, and James Nesbit, a constable of the city. The complaint alleged that the plaintiffs were an insurance Company incorporated by the Laws of New Jersey, and having their office and all their property and evidences of debt there. That they employed agents in the State of Hew York, but all their agents here were merely ministerial officers to receive applications and transmit them to the plaintiffs in Hew Jersey, where all policies were signed, and to deliver the policies, and receive and remit to the plaintiffs the premiums. That the plaintiffs had no office except in Hew Jersey, and no money or capital invested in any manner in Hew York, except some loaned on bond and mortgage, the securities for which they kept in Hew Jersey, and some invested in State stocks, which stocks were all lodged with the Comptroller of this State pursuant to law.
    It alleged further that the Supervisors had served upon them a bill for taxes on personal estate at Ho. 11 Wall street, valued at $100,000; that they had made application to the Supervisors, stating the foregoing facts, but the Supervisors had made no reply; and that they had received from the receiver of taxes a notice that a levy had been made on certain personal property belonging to them, to enforce the payment of the tax. It prayed an injunction restraining all the defendants from collecting the tax or selling plaintiffs’ property to pay it.
    The defendants jointly demurred to the complaint, assigning as the.ground that it did not state facts sufficient to constitute a cause of action.
    On argument at Special Term before Mr. Justice Dude, judgment was ordered for the defendants, and the plaintiffs appealed to the Court at General Term.

      A. C. Bradley, for appellants.

      A. R. Lawrence, for respondents.

       To the same effect is a decision in a similar case between the same parties, brought in the Supreme Court. (33 Barb., 322 ; S. C., 20 How. Pr. R., 416.)

   By the Court—Woodruff, J.

The question whether the Court will interfere by injunction to restrain the collection of a tax imposed upon an individual in respect of his personal property, upon allegations that it has been illegally imposed, was fully considered by me in the case of Wilson v. The Mayor, &c., of New York, (4 E. D. Smith, 675,) and the conclusion was adverse to the plaintiff. The same decision was made in this Court in The New York Life Insurance Company v. The Supervisors of New York, (4 Duer, 192,) and the views expressed by me in the former case were approved. I feel no disposition to open the discussion again; if I were to do so, I should content myself with citing Heywood v. The City of Buffalo, (14 N. Y. R., 534,) which is an express adjudication of the Court of Appeals to the same effect. An action will not lie for such a purpose.

The demurrer was properly sustained, and the judgment appealed from should be affirmed, with costs.


source: Caselaw Access Project

author: By the Court—Moncrief, J.

license: Public Domain

text:
    Cyrus W. Field et al., Appellants, v. Daniel H. Sands, Aaron V. Paradise, Henry Brower and John Dean.
    1. Where a judgment creditor commences an action against his debtors and their assignees, and obtains a judgment declaring the assignment void, and that the assets be applied in payment of his claim, and appointing a receiver, he has an equitable lien upon the assets which dates from the commencement of the action: So held, even where no injunction was issued.
    2. The commencement of supplementary proceedings against judgment debtors alone, and the appointment of a receiver therein, creates no lien upon assets which the debtors have previously assigned.
    3. Several' creditors’ actions were brought against debtors and their assignee, and the assignment was set aside and a receiver appointed, who duly qualified. After the commencement of these actions, and after a receiver was appointed and judgment was recovered in one of them, but before judgment in the others, 0. commenced supplementary proceedings against the same defendants, and had the same receiver appointed. Subsequent to the commencement of these supplementary proceedings, other creditors commenced creditors’ actions, in which they had similar judgments, which were recovered after the order appointing the receiver in the supplementary-proceedings. The receiver obtained possession of the assets without bringing any action therefor. Held, that 0. had not obtained any lien on the funds in the hands of the receiver appointed in the actions brought to set aside the assignment. The fact that the same receiver was appointed does not affect the question. The surplus held by the receiver enured wholly to the benefit of the plaintiffs in the creditor’s action.

    4. A judgment in a óreditor’s suit against a debtor and his assignee, declaring the assignment void, is not evidence that it is void, in supplementary proceedings by another creditor against the same debtor, to which the assignee is not a party.
    (Before Bosworth, Ch. J., Hoffman, Woodruff, Moncrief and White, J. J.)
    Heard, June 1;
    decided, June 15, 1861.
    Ah appeal from an order made by Mr. Justice Hottmau, upon a motion that the claim of the plaintiffs be paid out of the funds in the hands of L. E. Marsh, Beceiver.
    The facts, so far as material, are stated in the opinion of the Court, and in the head note above.
    The order appealed from was made on a petition of the Beceiver for instructions, and on a motion made at the same time by the Counsel of C. W. Field &• Co., that the Beceiver pay over to them the entire fund, less his fees.
    The motions were heard at Special Term, and the Court ordered the contesting claimants to be paid pro rata. From this order the plaintiffs, Field et al., appealed.

       A decision to the same effect, made at Special Term, in another proceeding between the same parties, is reported as Conger v. Sands, 19 How. Pr. R., 8,

   By the Court—Moncrief, J.

It will simplify proceedings to lay out of view the fact of suits having been brought by parties not now before the Court, whose claims have been satisfied. The plaintiffs (0. W. Field & Co.) commenced a creditor’s suit on the 3d of December, 1858, against Sands & Paradise, and their assignee, (John Dean,) to set aside the assignment, and compel an application of the assigned property to the payment of their judgment.

They have succeeded in their suit, and obtained a judgment granting the desired relief, and Mr. Marsh has been appointed a Beceiver in the action, and as such Beceiver is possessed of the proceeds of such assigned property. The commencement of this suit created a lien upon the assigned property, entitling the plaintiffs to priority of payment in preference to any creditor subsequently commencing a similar suit. (2 Paige, 567 ; 1 Clarke, 297 ; Id., 584.)

Assuming Conger’s proceedings to be regular, and the appointment of a Beceiver in them to be valid, the commencement of the proceedings did not create any lien upon the assigned estate. The assignee was not a party to them. The Beceiver in those proceedings could not recover the assigned property or its proceeds, except by a suit against Dean, in which he would be at liberty to assert, and establish if he could, the validity of the assignment. Such proceedings, commenced against the debtor alone, no more create a lien upon the assigned property, than would a judgment creditor’s suit against the debtor only. (Code, § 299 ; Rodman v. Henry, 17 N. Y. R., 484 ; 1 Paige, 637.)

In the plaintiffs’- (Field’s) suit, by force of the decree in it, the property is subjected to the payment of the judgment against the assignors, the judgment debtors. The decree operates directly upon the property itself, and prescribes the disposition to be made of it. The Beceiver executes the order of the Court in that behalf.

The proceedings of Conger do not affect property vested in a third person. There is no decision made in them which questions the validity of the assignment; certainly none which adjudicates upon it. The Beceiver in it merely obtains authority, by virtue of his appointment, to litigate the validity of the transfer, by a suit against the assignee. (Code, § 299, and 17 N. Y. R., 484.)

The result of these views is, that as between the plaintiffs and Mr. Conger, the former are entitled to the net proceeds held by the Beceiver.

The fact, that Mr. Marsh was appointed Beceiver in a suit against the assignors and assignee in which the assignment was held invalid, does not affect the present question.

If Field’s and Conger’s suits had not been brought, the surplus held by the Beceiver would be returned to Dean.

As a judgment in the suits brought prior to Field’s, that the assignment was valid, would not be evidence of that fact in Field’s suit, so the judgment actually rendered, would not be evidence in Field’s suit that it was invalid.

The order appealed from, should be so far modified as to direct the payment of the whole net proceeds in the Beceiver’s hands to the plaintiffs, to the extent sufficient to satisfy the judgment in favor of said plaintiffs. (0. W. Field & Co.) Ho costs of appeal to either party.


author: Opinion of the Court by Hoffman, J.

text:
    The New York Ice Company, Respondent, v. Ransom Parker, Appellant.
    That an admission of th§ correctness of an account for goods sold, admits the sale and delivery of the goods.
    That a demand against the members of a corporation, cannot be set off against an action by the corporation.
    That under an agreement to supply ice, upon conditions restricting the buyers from selling again, the seller may refuse to supply them, after their breach of the condition.
    (Before Bosworth, Ch. J., and Hoffman and Woodruff, J. J.)
    Heard at General Term, April 12;
    decided, June 29, 1861.
   Opinion of the Court by Hoffman, J.

See the points decided, in the index to this volume, under the titles “Pleadings—Counterclaim—Evidence.”

And see the appeal reported at length, with the opinion of the Court, in 21 How. Pr. R., 302.


text:
    Clark v. Meigs.
    It was decided in this case that in an action against brokers having purchased stock for plaintiff to be delivered at his option, to recover damages for sell- ■ ing it against his instructions, the complaint need not allege that the plaintiff made a demand, and tender of the price.
    It is the broker’s duty to keep the stock on hand.
    Alleging that defendants sold the stock imports that they delivered it

    (Before Hoffman, Woodruff and White, JJ.)
    Heard at General Term;
    July, 1861.
   See the points decided in the index to this volume, under the title “Pleadings—Complaint.”

See the appeal reported at length with the opinion of the Court in 13 Abb. Pr. R., 467 ; also in 22 How. Pr. R., 340 ; reversing the decision at Special Term, which is reported in 12 Abb. Pr. R., 267 ; and in 21 How. Pr., 187.


author: Robertson, J.

text:
    Claflin et al. v. Griffin.
    1. In an action against the acceptor of a draft, a variance in stating the initial of the first name of the drawer is immaterial, and will not sustain a general denial of the complaint.
    2. The acceptor cannot defend on the ground that the drawer’s signature was not his true name.
    3. Where this is the only defense, the answer, though verified and confined to a denial of the allegations of the complaint, may be struck out as sham.
    (Before Robertson, J.)
    Special Term;
    August 8, 1861.
    Motiox to strike out an answer as sham, and for judgment.
    The defendants were sued upon their acceptance of a draft. The facts material to the motion appear in the opinion.

      C. B. Smith, for plaintiff.

      E. Harris, for defendant.
   Robertson, J.

It appears from the affidavits that the initial of the first name of the drawer of the draft sued upon was W., and not R. W., as stated in the complaint; and this appears to be the only ground of defense, as the answer contains only a general denial. This variance I consider immaterial, under the 169th section of the Code. It could not have misled the defendant, who knew well enough on what the action was brought. The plaintiffs would have been entitled to judgment on the trial, upon production of the original draft, if there were no other defense.

But the drafts appear to be actually signed R. W. Newman, whatever the drawer’s real name was, and the defendant accepted the drafts so signed. He is, therefore, thereby estopped from denying the name, even if fictitious or forged.

The only question is, whether the answer, when verified, and confined to a denial of the allegations in the complaint, can be struck out as sham. The following cases disregard the verification: (Manuf. Bank of Rochester v. Hitchcock, 14 How, 406 ; People v. McCumber, 18 N. Y. R., 315 ; S. C., 15 How., 186 ; Walker v. Hewett, 11 Id., 399.) The following permit a denial to be disproved: (Seeley. v. Engell, 17 Barb., 530 ; White v. Bennett, 7 How., 59 ; Manuf. Bank of Rochester v. Hitchcock, ubi. sup.) In the case of Miln v. Vose, et al., (4 Sandf, 660,) the answer set up a new defense, which was sworn to, and the contradictory affidavit was only on information and belief.

The motion to strike out the answer as sham, and for judgment, must be granted with ten dollars costs.


text:
    Jacques L. Boucher, Plaintiff and Appellant, v. Peter Pia, Defendant and Respondent.
    1. It was decided, in this case, that a motion for security for costs, made by the defendant three days after he first ascertained that plaintiff was a nonresident, is made in season, though after trial.
    2. In an action brought by a non-resident to recover possession of specific personal property, the giving of an undertaking, under § 209 of the Code, which is not under seal, and is not shown to be for the amount of §250 or upwards, does not supersede the liability of the plaintiff to be required to give security for costs on account of his being a non-resident.
    (Before Bosworth, Ch. J., and Woodruff, Robertson and White, J. J.,)
    Heard at General Term, October 5;
    decided, October 12,1861.
   See the points decided, in the index to this volume, under the title, “Practice—Motion—Security for Costs.” And see the appeal from an order reported, at length, with the opinion of the Court at General Term, in 14 Abb. Pr. R., 1.


text:
    Smith Davis et al., Plaintiffs, v. Cornelius R. Duffie et al., Defendants.
    1. An appeal to the General Term, from a judgment at the Special Term, under section 348 of the Code, may be taken without giving any undertaking. The undertaking is only necessary except for the purpose of staying proceedings.
    2. A motion to modify a judgment of the Special Term, or to excuse the literal performance of its requirement, must be made at the Special Term, and not at the General Term.
    3. Under a decree that the plaintiff is entitled to redeem lands from a mortgage, and to have a conveyance thereof with covenants against the grant- or’s acts, upon payment of a specified sum, the plaintiff is not bound to pay the redemption money unless the defendant complies with the directions of the decree respecting a conveyance. Hence the inability of the defendant to convey, or to give a covenant against his own acts which will not be broken in its inception, is not a ground for granting plaintiff leave to pay the money into Oourt instead of tendering it to defendant.
    (Before Bosworth, Ch. J., and Hoffman, Woodruff, Moncrief, Robertson and White, J. J.)
    Heard, October 12;
    decided, October 19, 1861.
    Motioh to quash an appeal, and for leave to pay into Court, money, which a judgment allowing the redemption of real property directed plaintiffs to pay to one of the defendants.
    This action was brought by Smith Davis and Oliver Davis, against Cornelius R. Duffie, Gerardus A. 0. Van Beuren, Jonas Conklin and Thaddeus Sherman, Jr., seeking to redeem certain real estate in the City of Hew York, from a mortgage. Judgment was entered at Special Term, allowing plaintiffs to redeem certain lots from the defendant Duffie, by paying him a specified sum; and directing Duffie to convey the premises to the plaintiffs. The terms of the judgment in this respect were, “that the plaintiffs are entitled to redeem, from the mortgage mentioned and described in the complaint in this action, all and singular the lands and premises hereinafter mentioned and described, and are entitled to have and receive from the defendants, Cornelius R. Duffie” (and others named,) “a good and valid deed of conveyance, with covenants by them respectively, against their own acts, of the mortgaged premises now possessed by them respectively; upon payment to them, in the proportions hereinafter mentioned, of the amount due for principal and interest upon the said bond and mortgage mentioned in the complaint; and also all sums paid by them respectively for taxes- and assessments, (with interest thereon,) upon the said premises.”
    The defendants desiring to appeal from the judgment, moved for time to make a case, and for a stay of proceedings pending the appeal, and obtained an order that if the defendants or either of them should appeal in due season, proceedings against the defendants so appealing should be stayed, upon their severally executing undertakings to the effect prescribed by the order, and, also, upon their respectively executing and delivering to the Clerk of the Court, the instruments required of them by the judgment appealed from.
    The plaintiffs, on affidavits alleging that the defendant Duffie, had not complied with the conditions of the order,
    ' and that he had given no undertaking upon serving his notice of appeal; and further alleging that he was irresponsible, and that he had suffered the premises to be sold for taxes and assessments, and the time to redeem therefrom to expire, and that he no longer had possession or control of the premises and could not convey them, now moved the Court at General Term, upon notice to the defendant Duffie, for an order:
    1. To dismiss the appeal by defendant Duffie, because no undertaking was filed or served with the notice of appeal.
    2. For an order to permit the plaintiffs to bring into Court the money (which, by the decree in the action, they were directed to pay or tender to Duffie, in redemption of the mortgaged premises), to be held until Duffie should, on his part, comply with the decree, by conveying the premises to the plaintiffs by an effectual deed.

      Solomon B. Noble, for the motion.
    I. Section 334 of the Code states the prerequisites of an appeal, and an appeal taken without giving the undertakings and complying therewith, is ineffectual for any purpose. (Langley, &c., v. Warner, 3 How. Pr. R., 363 ; 1 Coms., 606.)
    TT. This is not alone applicable to the Court of Appeals, for section 348 applies these prerequisites to the present appeal, at least so far as the execution of the judgment is concerned; and the order in this case makes it applicable.
    III. The judgment itself directs the conveyance of these lots by good warrantee deed, with covenants against grantor, and the order indicates the directions of the Court. The defendant Duffie has not complied with the one or the other.
    IV. If the Court will allow the appeal to stand, it is only on such terms as may be just. (Sec. 327.) In this case the covenant would be broken as soon as the defendant Duffie signed the deed.

      E. B. Hensdale, opposed.
   By the Court—Woodruff, J.

First. So far as the application seeks a dismissal of the appeal, it is founded upon a misapprehension. It is urged in reliance upon the 334th and 340th sections of the Code, which provide that to render an appeal effectual for any purpose, a written undertaking must be executed by at least two sureties, and that the undertaking shall be served with the notice of appeal.

The 334th section relates exclusively to appeals to the Court of Appeals.

The present appeal is from the Special to the General Term, under section 348. Such an appeal may be taken without giving any undertaking, and it will be so far effectual as to bring the judgment of the Special Term under review.

To render the appeal a stay of proceedings, the appellant must either give such an undertaking as is required to stay the proceedings in case of an appeal to the Court of Appeals, or he must obtain an order that such appeal shall stay the proceedings, on such terms as to security as the Court may direct; but the appeal may be taken without security, and it will be regular, and will entitle the appellant to review the judgment in the General Term.

The respondent is, therefore, not entitled to an order dismissing the appeal. •

Second. The second branch of the motion is liable to various objections:

1st. The General Term has no jurisdiction to grant it; it is an original motion and must be first made at Special Term; it seeks in effect to modify the judgment. This can only be done at General Term on the hearing and decision of the appeal from the judgment, and cannot be done on motion. If it be regarded as asking that the plaintiffs be excused from the performance of the judgment according to its literal requirement, or until the defendant performs on his part, that relief, if it were necessary to the plaintiffs’ protection, should be sought at Special Term and not here.

But there appears to us to be no just occasion for making the motion anywhere.

The plaintiffs appear to have acted on the idea that they are bound to part with their money before the defendant complies with the judgment on his part. We think this is not so. All the plaintiffs are bound to do is to tender performance and demand performance by the defendant. Such performance on both sides must be cotemporaneous. The plaintiffs, therefore, run no hazard. If the defendant do not perform he is not entitled to take the money.

Whether, therefore, the defendant has it in his power to give an effectual deed;

Whether he is bound to give a deed conveying anything but such title or interest as is now vested in him;

Whether, as mortgagee in possession, he was bound to pay the taxes and assessments which have not been paid ; or,

Whether the plaintiffs, (mortgagors,) if they have suffered the property to be sold for taxes or assessments, do not bear the loss;

And whether the judgment below does, in fact, require the defendant Duffle, to do more than execute a deed with covenants against his own acts ;

It is not necessary to discuss or decide here.

The motion should be denied, with $10 costs.


text:
    William E. Dodge, Plaintiff and Respondent, v. James L. Porter et al., Defendants and Appellants.
    It was decided in this case that where a sheriff has seized property upon an attachment issued as a provisional remedy, the Court will not, unless he is irresponsible, order him to pay the proceeds into Court, at the instance of one of the defendants, who had a prior execution against the other, under which the sheriff had levied on the same property before the attachment.
    (Before Bosworth, Oh. J., and Hoffman, Woodruff, Monorief, Robertson and White, J. J.)
    Heard at General Term October 19;
    decided, October 26, 1861.
   See the points decided, in the index to this volume under the title “Practice—Attachment.”

And see the appeal from the order, reported at length, with the opinion at General Term, in 13 Abbotts’ Pr., 253.


text:
    The Continental Bank, Plaintiffs and Respondents, v. James S. De Mott, impleaded with William A. Timpson, Defendant and Appellant.
    An order of arrest, issued as a provisional remedy under the Code, may be made returnable within a specified period after the arrest of the defendant. It is not essential to name a day certain.
    (Before Bosworth, Ch. J., and Woodruff, Moncrief, Robertson and White, J. J.)
    Heard, November 23;
    decided, November 30, 1861.
    An appeal from an order made at Special Term, in June, 1861, denying the motion of the defendant De Mott, to discharge an order of arrest.
    This action was brought by the plaintiffs, a Bank in the Oity of Hew York, against James S. De Mott and William A. Timpson.
    The plaintiffs obtained from one of the Justices of the Court an order of arrest against the defendants.
    The order of arrest, after stating the matters usually recited in such order, required the Sheriff “ forthwith to arrest said defendants, James S. De Mott and William A. Timpson, and hold each of them to bail in the sum of seven thousand dollars, and return the order to Barney, Butler and Parsons, plaintiff’s attorneys, at their office, Ho. Ill Broadway, Hew York, within five days after the arrest of said defendants.’’
    The defendant De Mott having been arrested under this order, obtained an order to show cause why the order of arrest should not be vacated and set aside, or the bail be reduced.
    The matters of fact stated in the affidavits are omitted, as they do not affect the question touching the form of the order.
    The motion was heard at Special Term on the 20th of June, 1861, before Mr. Justice Woodruff, who denied it; and the defendant De Mott appealed to the Court at General Term.
    I. T. Williams, for defendant, (appellant,) insisted that the order of arrest was void in not naming a day certain as the return day thereof; and after argument thereupon, submitted the question upon the merits, without discussing the statements made in the several affidavits used upon the motion.

      G. W. Parsons, for plaintiffs, (respondents,) claimed that the order was in a form somewhat generally used, and in any event was amendable.
   By the Court—Moncrief, J.

An order of arrest which directs the Sheriff “forthwith to arrest the defendants (and hold them to bail in a specified sum,) and to return the order to Barney, Butler & Parsons, plaintiffs’ Attorneys, at then office, Ho. Ill Broadway, Hew York, within five days after the arrest of said defendants,’’ satisfies the requirements of section 183 of the Code.

Upon the merits, I think it is abundantly shown that the transaction in question was “the unlawful neglect and refusal of the defendants to pay over and account for moneys received by them in the course of their employment as brokers.

The order made at Special Term must be affirmed.


author: By the Court—Robertson, J.

text:
    Horace J. Fairchild et al., Plaintiffs and Respondents, v. Thomas L. Rushmore et al., Defendants and Appellants.
    1- Where the complaint on a bill or note alleges that the defendants were partners, and as such made it, an answer simply denying that they made the note admits the partnership.
    2. Such answer may be struck out as sham, on proof that one of the defendants made the note in the firm name.
    3. It is not an answer to such motion, to show that the note was made after the dissolution of the firm, if the plaintiffs show a previous course of dealing between them and the firm, and the defendants do not show that plaintiffs had any notice of the dissolution.
    (Before Bosworth, Ch. J., and Monomer and Robertson, J. J.)
    Heard, November 30;

    decided, December 7, 1861.
    An appeal from an order striking out an answer as sham. The action is brought on a promissory note made by the firm of Bushmore, Cone & Co., in favor of themselves, and by them indorsed in their firm name.
    The plaintiffs were Horace J. Fairchild and Henry A. Fanshawe; the defendants were Thomas L. Bushmore, John A. Cone, Pendleton G. De Craw, William A. Harding, James A. Timpson, William Johnson, George Corbin and Lyell T. Olmstead.
    The complaint alleges that the defendants, at the time set forth therein, were partners under such firm name. The answer simply denies that the defendants either made, indorsed or delivered the promissory note in question, and is sworn to by only the defendant, Cone. The affidavit of one of the plaintiffs, on which this motion is made, shows that them firm sold to the defendants merchandise at different times from the 1st to the 26th of Ebvember, 1860, on a credit of 8 months, upon some of which sales it was afterwards agreed a longer credit should be given; and the note in suit was brought by a clerk of the defendants, in settlement, and a receipt therefor given in their receipt book; and that both the signature and indorsement of such note is in the handwriting of Harding, one of the defendants. The affidavit of all the defendants except Harding, discloses that none of them ever made or indorsed the note in question, and that their firm was dissolved before the making and giving thereof, and the sale and delivery of all the merchandise mentioned in the plaintiffs’ affidavit. There was no evidence of notice of dissolution to the plaintiffs.

      William A. Coursen, for defendants, (appellants.)

      A. F. Smith, for plaintiffs, (respondents.)
   By the Court—Robertson, J.

The order appealed from should be affirmed upon two grounds:

Fvrst. The answer admits the partnership of the defendants at the time of making the note alleged in the complaint, by not controverting it.

Second. The defendants’ affidavit impliedly admits dealings between them as a partnership, and the plaintiffs, by sales of merchandise, and does not pretend any notice of dissolution before new dealings.

The allegation of partnership is an allegation of the authority of that defendant who signed and indorsed the note, to bind the others thereby. It is possible, under the answer, they might have been entitled to set up that such authority had ceased, if the allegations had not been express in the complaint that it continued until the making of the note; this reduces the denial of the answer to an allegation of a fact, to wit, that none of the defendants made the note, from an allegation of a conclusion of law, to wit, that they had not done any act by which in law they became makers of the note. The defendants’ affidavit does not deny the making of the note by one of the partners, and therefore the answer was sham.

It is not entirely clear that the answer is not also frivolous, becauses it only takes issue on the making and indorsing of the note by the defendants, personally and jointly, and not by any of them, or the authority of any of them; but the foregoing grounds are sufficient.


text:
    George McLean v. The East River Insurance Company.
    1. In an action on an insurance policy, where the defense involves a charge of fraud on the part of the insured, a compulsory reference of the issues cannot be ordered.
    (Before Robertson, J.)
    At Chambers,
    December, 1861.
    Motion to refer the cause to a Referee for trial.
    The nature of the case is stated in the opinion.

      Knox & Mason, for defendants.

      Dayton & Todd, for plaintiffs.
   Robertson, J.

This is a motion for a reference in an action on a policy of insurance on stock and machinery in a factory. It is founded upon an affidavit showing that there are over two hundred articles whose loss is set out in the plaintiff’s claim, whose value is contested by the defendants; that he was insured in seven different companies ; that the trial will require the attendance of many witnesses; and will take a long time and cannot be had with fairness before a Jury. Part of the defense is fraud on the part of the insured.

The right of referring a cause against the consent of both parties, depends entirely upon the statute, which was made solely for the convenience of the Court. The words of the Code (§ 271) are, “that the Court may,'” not that it shall, and for this reason an order for a reference is not appealable. (Gray v. Fox, 1 Code R., N. S., 334 ; Bryan v. Brennon, 7 How., 359 ; Dean v. Empire Mutual Insurance Company, 9 Id., 69 ; Ubsdell v. Root, 3 Abb., 142 ; Smith v. Dodd, 3 E. D. Smith, 348 ; Cram v. Bradford, 4 Id., 193.) It is to be allowed only in case of a long account; what is meant by those terms has never been clearly determined. Under the Revised Statutes, whose language is similar, (2 R. S., 384, § 39,) it was held, that they meant what is ordinarily understood by an account, and did not imply mere items of damage, (Van Rensselaer v. Jewett, 6 Hill, 373,) and this meaning has been followed in reference to the Code, in a case of false representations. (McCullough v. Bradie, 6 Duer, 659, S. C., 13 How., 346.) It was always regarded as only applicable to actions to recover the amount due on an account for goods sold, and the like, although an action of covenant embracing such an account, was also admitted to be referred, but not where it involved special items of damage. (Thomas v. Reab), 6 Wend., 503 ; Bloore v. Potter, 9 Wend., 480 ; Dederick v. Richley, 19 Wend., 108 ; Silmser v. Redfield, 19 Wend., 21.) An action for a tort could not be referred; (Dederick v. Richley, Silmser v. Redfield, ubi sup.,) or an action for carelessness or negligence, (McMaster v. Booth, 3 Code R., 111, 4 How., 427,) or to set aside a conveyance for fraud, (Draper v. Day, 11 How., 439,) or against a Sheriff for not satisfying an execution. (Dewey v. Field, 13 How., 438.) It was, however, held, in a case in this Court, that actions on policies of insurance could be referred, (Samble v. Mechanics' Fire Insurance Company, 1 Hall, 560 ;) if this be settled and undoubted law, it is somewhat singular that more applications upon the part of the defendants, have not been made to refer such actions. The experience of the Bar is, I think, that causes are tried within a much shorter period, and in far less time before a Jury than before a Referee; and in many cases where a plaintiff has lost Ms all by a fixe, the delay would amount to a denial of justice.

The law does, however, show a preference for a Jury trial, where, as in this case, there is a charge of fraud, and refuses a reference in such a ease, (Levy v. Brooklyn Fire Insurance Company, 25 Wend., 687,) and as the plaintiff resists the reference, it.must be denied, with ten dollars costs, to be costs in the cause.


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    Rufus K. Delafield and George Baxter, Plaintiffs and Respondents, v. Aaron DeGrauw, Defendant and Appellant.
    1. The plaintiffs agreed to deliver to the defendant a certain quantity of cement, to be packed in air tight oak barrels, and to be subject to inspection of the United States Government inspector, and to be delivered at New York or Rondout (on the Hudson) at specified prices, at a credit of thirty days from the time of delivery, plaintiffs reserving the right to pack it in hard wood barrels if the Government would receive it so; and the contract expressed that the cement was for the Pensacola Navy Yard.

      Held, -1. That by the true construction of this contract, delivery, and acceptance by defendant, at New York or Rondout, entitled the plaintiffs to - payment thirty days thereafter, although the cement had not within that time been approved on inspection at Pensacola. Passing inspection was not a condition precedent to the right to demand payment. .
    2. That such right was, however, liable to be defeated by the rejection of the cement on inspection at Pensacola; and if so rejected before suit brought, the defendant might avail himself of it as a failure of the consideration of his contract, and would not be restricted to setting it up as a counterclaim.
    3. That by accepting cement packed in barrels, which were neither oak nor air tight, the defendant waived the provision of the contract which required such barrels, but might nevertheless rely on the provision that it should pass inspection.
    4. That to establish a defense as tó any part of the cement which was rejected upon inspection, defendant must have notified the plaintiffs, not only of its rejection, but also that it was at their disposal or was subject to their orders, and must, in some manner (adapted to its then situation), have furnished them with the means of controlling it. Merely informing the plaintiffs that a part of it had been “ rejected at Pensacola,” (without say- ' ing how much), “ and that it lay there,” is not enough.
    5. That to establish a counterclaim for damages for such breach, defendant must prove his damages. Proof of mere rejection on inspection would entitle him at most to nominal damages; and this alone is not ground for reversing a judgment against him for the price.
    6. In such an action, evidence tending to show that the cement was rejected because injured by careless handling on the part of the defendant is admissible.
    . 7. Evidence of a conversation between the parties at the time of delivery, as to the quality of the barrels, and evidence that the Government gave plaintiffs leave to use hard wood barrels instead of oak, may be competent; but evidence of the conversation of the parties at or before executing the contract, as to where they intended the inspection to be had, and what they meant by delivery, is not competent.
    8. Heldrfurtlier, that a general offer by defendant to give evidence of money paid by him to remove the worthless part of the rejected cement which was required by his contract with the Government before he could be paid for any of that which was received, when no proof had been given that it was worthless, nor any evidence as to how it was disposed of, nor any proof of an offer to return it, was properly refused. .
    9. An agreement by the plaintiffs with the master of a vessel which the defendant chartered, to pay demurrage for delay, cannot form the basis of a counterclaim by the defendant against the plaintiffs for such demurrage paid by him.
    10. Were it otherwise, it would not be admissible to inquire of a witness' what the master demanded; but the inquiry should be, how long was the vessel detained and what was the rate or amount of the demurrage ?
    2. At the close of the trial, it is in the discretion of a Referee, whether he will allow depositions to be read as to matters which should be proved by a plaintiff or defendant before he rests, and his refusal to allow it is not matter of exception.
    3. Moreover, where such depositions are not embodied in the case on appeal, the Court cannot review the Referee’s discretion in this respect.
    (Before Bosworth, Ch. J., and Woodruff and White, J. J.)
    Heard, November 11;
    decided, December 7, 1861.
    Appeal from- a judgment entered on the report of S. P. Hash, Esq., as Referee.
    Rufus K. Delafield and George Baxter sued Aaron A. DeGrauw, on a contract, by which Delafield and Baxter had agreed “to deliver to Aaron A. DeGrauw forty-two hundred barrels of hydraulic cement, to be equal in quality to the best Rosendale or Newark manufacture, to be packed in air-tight, oak barrels, well lined with paper, each barrel to contain not less than three hundred pounds of cement, and to be subject to the inspection of the United States Government inspector, and at said Aaron A. DeGrauw’s option as to the place of delivery, to be delivered at the following places at the option of said DeGrauw, viz.: Rondout, at the tackle of the vessel, ninety cents per barrel; New York City, at the tackle of the vessel, ninety-five cents per u barrel, at a credit of thirty days from the time of delivery, to be approved paper. Delafield & Baxter reserve the right, if the United States Government will receive the cement in hard wood barrels, to pack the same in such barrels; all the Cement to be received by Aaron A. DeGrauw within four months. The" above cement is for Pensacola Navy Yard.”
    The complaint alleged performance by plaintiffs, by delivering in various parcels, and admitted a part payment, and demanded judgment for the balance due.
    The answer, admitting the contract, denied performance, and alleged that, although the plaintiffs had placed on board certain vessels, bound to Pensacola, certain barrels of the cement, the said cement was not according to the contract, and did not bear the inspection of the United States Government inspector, as required by the contract; .but, on the contrary, a great part was rejected by the inspector and was not received by said Government; and further alleged that, upon plaintiffs’ assurance that the cement so delivered was in accordance with the contract, the defendant had paid the plaintiffs in part, but that the cement was never accepted by him.
    In a subsequent part of the answer the defendant alleged, for a counterclaim, that the plaintiffs failed to perform the contract, and did not furnish cement of the proper quality, nor was the same packed as by the contract they had agreed; and that by reason thereof the defendant was compelled to purchase other cement and other barrels at an advanced price, and to pay freight on the same, and commissions and expenses about the same, and about the cement furnished by the plaintiffs; all which sums of money he claimed to recover of the plaintiffs.
    The answer also contained another counterclaim for demurrage of a vessel chartered by the defendant, and which demurrage defendant alleged was incurred for the benefit and at the request of plaintiffs, and on their promise to pay therefor.
    On the trial, one of the plaintiffs, examined as a witness, was permitted, against defendant’s objection, to testify as to conversations with the defendant in respect to the cement, at or after the delivery, at which the defendant, or one of his clerks, expressed his satisfaction at the quality of the barrels.
    The plaintiffs offered in evidence their correspondence with officers of the Government, in which the latter gave their consent to have the cement delivered in hard wood barrels instead of oak. This evidence was admitted against the objection of defendant.
    The defendant offered evidence as to what was said by the parties to the contract, at the time of its execution, as • . to whether the inspection intended was to be in Pensacola or Hew York, and as to whether “ delivery ” in the contract meant delivery to defendant or to the vessel. This evidence was excluded and the defendant excepted.
    The grounds of the other exceptions sufficiently appear in the opinion of the Court.
    The Beferee found that plaintiffs delivered the number of barrels of cement agreed; and that the cement was in quality what was required by the-contract, and was packed in barrels well lined with paper, but that the barrels were not oak barrels nor air tight as required by the contract.
    That the cement was delivered at Hew York and Bondout, on board of vessels furnished by the defendant, and was by him received and carried to Pensacola.
    That of such cement some three hundred barrels did not pass the inspection of U. S.' Government inspectors at Pensacola, but defendant did not return said cement or notify plaintiffs to take it back, nor did he show what disposition was made of it, or what damages he sustained by reason of its defective packing, or its not passing inspection. That the cement was received by defendant at Hew York. and Rondout without being inspected there by any Government inspector, nor did defendant require it should be so inspected before such delivery.
    As matter of law the Referee found that plaintiffs were entitled to recover; and that defendant not having returned any of the cement, or notified plaintiffs to take it back, nor shown what damage he had sustained, he was not entitled to recover on the counterclaim therefor.

      E. C. Benedict, for the defendant, (appellant.)
    I. The Referee erred in his construction of the contract. ^The quality, packing and inspection, were conditions precedent.
    II. The word delivery has two senses. In the sense of placing under the control of defendant, the cement was to be delivered at Rondout or Hew York. In the sense of final transfer of the property, it was to be delivered at Pensacola, after inspection.
    It was competent to prove which of these was intended in this contract.
    III. The conduct of the parties, as proved, was a practical construction of the contract to the effect that passing inspection was a condition precedent.
    IV. It was not necessary to show any return of the rejected cement, or any disposition of it, in this action.
    H. G. De Forrest, for the plaintiffs, (respondents.)
    I. Upon the facts proved and found, the plaintiffs were clearly entitled to recover.
    They proved a substantial performance. Defendant waived defects, if any, by accepting the delivery.
    II. If inspection was to take place in Hew York, defendant should have procured it before the vessels sailed.
    If defendant had the right to insist upon inspection in Pensacola, lie waived that right, so far as visible, patent defects were concerned, by accepting the cement with the knowledge beforehand that it might be rejected.
    III. But so far as the demand for the price is concerned, it is immaterial whether the plaintiffs took the risk of inspection at Pensacola or not.
    The contract fixed the places of delivery and the time of payment. And the inspection of the cement was not* therefore, a condition precedent to payment.
    Both on principle and authority the rejection of the three hundred barrels was no bar to an action for the price, and the only remedy of the defendant would be a recoupment or counterclaim. (Pordage v. Cole, 1 Saund., 320, note; Tompkins v. Elliot, 5 Wend., 496; Grant v. Johnson, 6 Barb. S. C. R., 337, reversed in Court of Appeals ; 1 Seld., 247 ; McCullough v. Cox, 6 Barb. S. C. R., 386.)
    IV. The defendant might have recovered any loss suffered by him on account of the rejection of the three hundred barrels, but made no attempt to show that he did in fact lose anything.
    V. Eor the reasons stated in the third point it was wholly immaterial whether the Government modified the contract or not.
    VI. The, correspondence as to the modification was, hoAvever, properly admitted.
    VII. The unambiguous written contract cannot be explained by parol evidence, as defendant sought to do.
    VIII. The Referee was also right in excluding the contract between the Government and DeGrauw.
    To allow it to be incorporated into the defendant’s contract by any proof short of a written memorandum, would be violating the rule as to parol evidence. (Draper v. Snow, 20 N. Y. R., [6 Smith,] 331.)
    -IX. The existence, and the terms of the written contract between the Government and DeGrauw, were wholly immaterial as between him and the plaintiffs.

      X. The depositions offered are not annexed to the record; and as they were rejected because not rebutting evidence, which was matter of discretion with the Referee, his refusal to admit them will not be interfered with.
   By the Court—Woodruff, J.

In this view of the meaning and construction of the contract, if the cement did not pass inspection, by reason of any failure of the defendants to furnish the proper quantity in such packages as the contract called for, then the plaintiffs had not performed the contract on their'part.

The delivery and acceptance were conditional, and the rejection of the cement for just cause would defeat both.

But we concur in the opinion of the Referee, that the frame of the contract is such that the stipulations of the parties were independent. The time of payment being fixed with reference to the actual delivery, the plaintiffs were entitled to sue for and recover the stipulated price on the expiration of the stipulated credit, without waiting to learn whether the cement had arrived in Pensacola, or even though it had never arrived there, and, a fortiori, without waiting to learn whether the cement was approved on inspection.

The delivery of the cement, and its acceptance by the defendant or the agents whom he employed to receive it, and the expiration of .the term of credit, made the plaintiff’s cause of action complete. The condition upon which the delivery and acceptance might fail, should it after-wards happen, would entitle the defendant to reclamation, but the possibility that the cement might be rejected, would not be any defense.

In this sense, the agreement of the defendant to pay for the cement was independent; although it did depend upon the delivery of the cement, it did not depend upon its passing inspection as a condition precedent to his obligation to make payment.

These views, in their application to the case before us, do not very materially differ from the conclusions of the Referee, and do not necessarily lead to any different result. This consequence, however, seems to us to follow; the failure of the cement to pass inspection, if that happened before suit brought, might be used as a defense to the action. We think it would avail the defendant as a failure of the consideration of his contract to pay therefor ; and that the defendant would not be confined to a counterclaim, for his protection. To treat it as a strict counterclaim, is to limit the defendant to the use of this rejection of the cement as an independent cause of action in his own favor, to be governed alone by the rules applicable to it, if he sued the plaintiffs for a breach of their contract.

We think the defendant not so restricted. Eor example, suppose, by reason.of the failure of the plaintiffs properly to pack the cement, no part of it had been accepted, and the defendant had made a proper tender of redelivery thereof to them, as not satisfying the condition upon which it it was delivered and accepted, and the plaintiffs thereafter brought suit? The defense would have been perfect; not necessarily or solely on the ground that the defendant had sustained damages to the extent of the contract price—for if the cement was of any considerable value, that would not be true—but on the ground that the condition on which the delivery and acceptance were made had failed, and so the consideration for the defendant’s agreement to pay had failed, and he was therefore not bound to" pay anything. Indeed, in such case, he would not be bound to show that he had sustained any damage.- He was not bound to retain the cement if it did not satisfy the condition, and having returned that which was conditionally received, he was not liable at all. He, in such case, is in the position of one who, on the breach of the contract by the other party, rescinds and restores such party to the condition in which he was before the breach. This view of the rights of the parties is fully sustained we think, by Grant v, Johnson, (1 Seld., 247,) and does not conflict with Tompkins v. Elliot, (5 Wend., 496.)

In such case the party not in fault might, if he choose, set up the breach of contract by the other as a cause of action in his own behalf, and so make it the subject of counterclaim. What we mean is, that if the condition failed before action brought, he would not be confined to this, nor be bound to give proof of damages; he might, (if he had returned the goods or made a proper tender thereof,) use the failure of the condition as a defense to. the action. (Wiltsie v. Northam, 3 Bosw., 169 ; Gleason v. Moen, 2 Duer, 644.)

And, on the other hand, it is obvious that if he had in fact paid for the goods at the end of thirty days, and the cement was thereafter properly rejected on inspection, he would necessarily have been driven to an action. But the same distinction would have been applicable to that as is above suggested. . He might return or tender the goods, and sue for and recover back the consideration money ; or he might sue for damages. In the first case he would not be bound to prove damages; and in the second he must show what loss he sustained. *

The defendant, by his answer herein, has set up the facts upon which he relies, both as a defense and also as constituting an affirmative cause of action or' counterclaim. And the inquiry before the Referee was properly whether he had established his case in either aspect.

. Fiest. The Referee finds that the cement was not packed in the manner required by the contract. But, as the delivery was made and the cement accepted, subject to inspection, that fact bécomes of no materiality, provided it passed inspection. The provisions of the contract itself enabled the plaintiff to pack in other than the stipulated barrels,, if the United States would accept it. The Referee, therefore, properly held that the defendant, by accepting the cement, waived the provision prescribing oak barrels, resting, however, upon the other condition that the cement should pass the proper inspection. The result was that all of the cement, except three hundred barrels, did pass inspection, and as to the cement so approved, there is an end of all question.

Second. Three hundred barrels did not pass inspection. In respect to these, what were the rights of the defendant ? Clearly, either to returner tender them to the plaintiffs, or to rely on his claim for damages. He might do either. But the Referee finds that the defendants did not return the .three hundred barrels, nor notify the plaintiffs to take them ■back, and if not, the defendant cannot make use of this ¡breach of condition as a failure of the consideration of his .contract, or as any ground for refusing to pay therefor. And the Referee has also found that the defendant has not shown what disposition was made of them, or what damages .he sustained by reason of the defective packing, or,their not passing inspection. And if not, then the defendant wholly-failed to establish any affirmative cause of action entitling Mm to any abatement from the plaintiff’s recovery. In strictness- he was, perhaps, entitled to nominal damages, but to that only.

Unless, then, the findings of the Eeferee are contrary to the evidence, his conclusions of law are correct; for, although the view we have taken of the rights of the parties differs somewhat from that expressed by the Eeferee, the > effect of its application to this case, upon the facts found, is substantially the same.

The defendant, if he proposed to claim that the three hundred barrels of cement should not be allowed to the plaintiffs at all, should have proved that he returned them or offered to do so. By this we do not mean to say that he was bound to transport them back to New York and redeliver them there. Under the circumstances of this case, he was probably not bound to do so. The property was delivered by the plaintiffs with a view to, its being-carried to Pensacola, and it was their fault that it did not satisfy their contract. But the defendant should at least have notified them, not only that it did not pass -the: inspection, but that the cement was at their disposal, or was subject to their orders, and in some manner (adapted to its then situation) have furnished them with the means of controlling it, so that they might have caused it to be returned to New York, or have directed its disposal as they saw fit. Perhaps the language of the Eeferee, in his finding, sufficiently defines the defendant’s duty in this respect; he should have “notified the plaintiffs to take it back.”

He did not do this; he, by his agent, the master of the vessel, caused one hundred and eighty-eight barrels of the rejected cement to be sold, and what disposition was made of the residue the Eeferee finds was not shown. On looking at the evidence we find it testified that after its rejection this residue of one hundred and twelve barrels was taken to a warehouse. How long it remained there is not stated. The defendant, therefore, did not return or offer to return the rejected cement, nor notify the plaintiffs to take it, nor place it in their power to do so.

The only testimony which in this respect is supposed to conflict with the finding of the Referee is that of the defendant himself, who" says that after he heard of the rejection of the cement, he told one of the plaintiffs “that the cement was rejected at Pensacola, a part of it;'that the Government wouldn’t receive it,. and that it lay there.” In relation to this testimony two observations are pertinent: Much of the testimony of the defendant, embracing some of the particulars of this alleged conversation, was directly contradicted by the. plaintiffs, and how far the Referee deemed the testimony entitled to credit, we cannot say. But second, this was no proper tender of the cement to the plaintiffs, and it did not furnish them the means of obtaining it. On the contrary, it gave them no information of the number of barrels; it was not acted upon by the defendant himself as an offer to give up the cement to the plaintiffs. He sold the larger portion thereof, and there has never been a moment when, by reason of anything said or done by the defendant, the -plaintiffs could have taken into their own possession one barrel of the cement. If the defendant had intended that they should do so, it was his duty to have done so much, as, by a clear election on his part to give up the possession, would have enabled them to procure it. We cannot say that the finding of the Referee is in this respect against the evidence.

; In regard to the finding that the defendant did not show that he had sustained any damage, we think the Referee was clearly right. The defendant did not prove for how much the one hundred and eighty-eight barrels were sold, nor what had been done with the residue, nor whether it was still on hand, nor what would be the cost of other suitable cement delivered at Pensacola, nor how in any manner he sustained damages, or to what extent; and his right to .nominal damages would not call for any interference With the judgment.

. Unless, then, some error was committed in receiving evidence objected to by the defendant, or in rejecting evidence offered by him, the judgment should be affirmed.

We have examined the numerous exceptions taken by the defendant, and are constrained to say, that we think that none of them require us to reverse the judgment. Most of his Exceptions are disposed of by the views already expressed, as the objections out of which they arose proceed upon the idea that the receipt on board the defendant’s vessels was not a delivery or an acceptance entitling the plaintiffs fo demand payment.

Other exceptions relate to proof tending to show that the rejection of the cement was caused by injury thereto, resulting from careless handling of the barrels on the part of the defendant. Such proof, we think clearly competent, and yet if it were not so, it wrought no prejudice, as the Referee imputes the rejection of the cement wholly to the plaintiffs’ neglect to pack it in. such barrels as the contract required.

The plaintiffs’ conversation with the defendant, was in its nature competent evidence, and it was not irrelevant to the controversy. We see no just ground for the defendant’s objection thereto, and Ms exception.

The correspondence with the officers of the Government does not appear to have had the slightest influence on the decision ..since the Referee found the plaintiffs in fault, and it couM not under Ms finding of the facts affect the view we have above taken of the rights of the parties. But it could not have been said in advance, that it was wholly irrelevant, when the contract itself was made subject to modification in respect to the kind of barrels to be used ‘ if the consent of the Government was obtained.

Other testimony was offered by the defendant to prove conversations antecedent to or contemporaneous with the making of the written contract. This evidence was, we think, within the rule that all such conversations and negotiations are to be deemed merged in the written instrument, and they could not be permitted to alter or enlarge or affect the obligations of'either party. The proof was, .therefore, properly rejected.

And this evidence was proposed to be given in connection with the contract of the government, as a means of showing that the plaintiffs in effect undertook to perform that contract. The answer to this, so far as not already last above given, is that the written contract confined no such assumption, and it is clear and intelligible, and could not be enlarged by parol.

There was an offer by the defendant, in very broad and comprehensive terms, to “ give evidence of money paid by him to remove the worthless part of .the rejected cement, which was required by his contract with the government, before he could be paid for any of that which was received.” The offer assumed that the cement was worthless, which ..the defendant had not proved nor attempted to prove: it also proposed to make the terms of his contract with the government a ground for imposing these expenses on the-plaintiffs. But besides these suggestions, if the defendant had offered the plaintiffs this portion of the cement, or required them to take it back, possibly the expense of removing and - taking care of the cement would have been chargeable to them. And had the defendant proved the disposition made of the cement, and showed himself entitled to damages, the expenses of making the removal and sale might have been taken into view; but keeping the cement and- not accounting for its disposal, the naked evidence- of the expense of removing it would furnish no ground to claim those expenses from the plaintiffs. • The claim to recover the freight of the rejected cement is liable to the same answer.

Another exception was taken by the defendant. It was to the rejection of this question put to the defendant: “How much demurrage was demanded of you by the captain of the Burrett for detention at Bondout^” .This vessel ■was one which went to Bondout to receive cement. It was claimed to have been proved, that the plaintiffs agreed with the captain of the vessel that if. they detained her over the time within which they agreed to load her, they would pay the demurrage, and the witness said he thought they agreed to load-her in two or three days.

If it be assumed that the agreement by the plaintiffs to this effect was sufficiently proved, and was sufficiently definite to be binding, still it was an agreement with the captain and not with the defendant, and so distinctly testified. And, again, what the captain demanded was not the inquiry, even if the agreement had been made with the defendant. The proper question was, how long was the vessel detained, and how much was the demurrage for that delay.

In regard to the only exception not covered by the observations already made, viz., the offer of the defendant at the close of the trial to read several depositions, two remarks must suffice.

First. They were offered to show matters which formed a part of the defendant’s case on his counterclaim in the first instance, and not to prove matters in rebuttal; they went to the whole ground of recovery. The opening of a case for the r.eception of such evidence, after the party has rested, lies in the discretion of the Court or Referee.

Second. The appellant has not seen fit to embody those depositions in the case, and the Court cannot, therefore, say that any injustice was done, nor whether, in any view, (if the discretion of the Referee is open to review here,) his ruling was an exercise of his discretion, in such a manner as should induce the Court to grant a new trial.

The judgment must be affirmed.