text:
    Luther Wilson, Plaintiff and Appellant, v. Henry Nason, Defendant and Respondent.
    1. H. M. was engaged in buying and selling wheat on his own account at Oswego, and also in receiving wheat and shipping it for other parties. In the summer and fall of 1851, the plaintiff bought and sent to him several thousand bushels of wheat which the plaintiff had as a commission merchant purchased for him, and the plaintiff also sent him a large quantity to be forwarded for himself. In October, 1851, the plaintiff being the owner of about 6,000 bushels, shipped it on Lake Ontario, by lake boats, consigned to M. T. & Go., Troy, New York, care of H. M. at Oswego, and so expressed in the bill of lading; the wheat to be forwarded by the latter by canal boats to Troy. H. M., at Oswego, received the wheat and forwarded all but about 730 bushels which he deposited in a bin to await a suitable opportunity for forwarding. He also deposited other wheat of the same description and quality, belonging to other parties, in the same bin. H. M. thereafter forwarded to New York, out of the said bin, the full quantity of wheat belonging to other parties, and finding a residue of about 722 bushels remaining in the bin, and believing at the time that it belonged to himself¡ he shipped that residue in bulk, and mixed with 984 bushels belonging to such other parties, to the defendant, a commission merchant, in New York, and drew bills of exchange on the defendant in the same manner as he had from time to time previously sent other wheat owned by himself. The defendant, acting in good faith and believing it to be the property of H. M., "received the wheat, accepted and paid the bills so drawn, and sold the wheat. On an examination of the account of wheat received by H. M. from the plaintiff, it was discovered that H. M. had not forwarded to M. T. & Go. so much as he had received by 730 bushels, and he thereupon gave to the plaintiff an order on the defendant for the proceeds of the 722 bushels. The plaintiff demanded from the defendant the 722 bushels, and also demanded the proceeds thereof, and the defendant refused to deliver the wheat or pay over the proceeds, claiming a right to retain such proceeds in reimbursement of Ms advances to H. M. Held, that the plaintiff was entitled to recover from the defendant the value of the wheat; that H. M. could give to the defendant no title; that the plaintiff having conferred upon H. M. no. authority to sell the wheat, his mere possession was no protection to the defendant; that inasmuch as the documentary evidence of title (to wit, the bill of lading,) which the plaintiff intrusted to H. M. showed on its face that the latter was not the owner, the statute relating to sales by factors furnished no protection to the defendant.
    2. Held, also, that the fact that H. M. had previously mixed the plaintiff’s wheat with the wheat of other parties placed in the same bin did not so destroy its identity that after the quantity owned by others had been removed, the plaintiff might not claim the residue and pursue it as his own.
    S. A sale of the owner’s wheat by one who has the possession thereof for the mere purpose of shipping it to the owner’s consignee is void as against the owner and passes no title, although the vendor sells it innocently, believing it to be his own and the purchaser receives it in good faith in the like belief and pays value therefor. A commission merchant receiving and making advances on the wheat stands in no better position.
    4. Where one who has possession of the owner’s wheat mixes it with other wheat of the same description and quality, (whether his own or belonging to third persons,) without the consent of the owner,- the latter does not lose the title to his wheat; he may call for a division, or when the other parties have received from the mass their -several quantities he may claim and recover the residue as Ms separate' parcel. Identification of the very grains of wheat is not necessary.
    (Before Bosworth, Ch. J., Hoffman and Moncrief, J. J.)
    Heard, January 12th;
    decided, February 12th, 1859.
    This case was heard at the General Term after a judgment-dismissing the complaint, and giving costs to the defendant, was ordered at the trial, the Court directing that the case be heard on the exceptions at a General Term of the Court, with a stay of proceedings to enforce such judgment, until the General Term * had passed upon the same.
    . The action was tried before Mr. Justide Pierrepont and a jury, on the 12th of October, 1858. No exception was taken on the part of the plaintiff to any ruling during the progress of the trial. When both parties had closed, a motion to dismiss the complaint was made, on the ground that upon the evidence the plaintiff was not entitled to recover; but the defendant was entitled, as matter of law, to judgment, (there being no question of fact in dispute.) The complaint was thereupon dismissed, and the plaintiff duly excepted to the decision.

      The action was to recover the value of 740 bushels of wheat. It was alleged that the defendant, sometime in October or November, 1851, became possessed of the same at the city of New York; that in January, 1852, the plaintiff demanded of the defendant to return said wheat, or that he pay him the value thereof, which the defendant refused to do. The defendant denied that he ever obtained possession of any wheat belonging to the plaintiff; and denied that the plaintiff ever demanded of him such wheat as is mentioned in the complaint.
    The plaintiff, in 1851, was a merchant and miller in Niagara county. He bought grain on his own account, and also on commission, and forwarded it in his own vessels to consignees at the east. He had dealings with one Mathews, a buyer, seller and shipper of produce, at Oswego. From September, 1850, on to the fall of 1851, the plaintiff, as a commission merchant and agent for Mathews, bought wheat to the extent of $40,000 or $50,000, and shipped it in his (plaintiff’s) own vessels, to Mathews, who paid his commissions. These transactions were for account of Mathews.-
    The plaintiff, in August, September, and October, 1851, shipped 12,395 bushels of wheat belonging to himself, to Moore, Tibbets & Co., Troy, via Oswego, in five separate shipments; and in the bills of lading on board the lake boats on which it was transported to Oswego, the shipment purported to be by the plaintiff, to Moore, Tibbets & Co., at Troy, and the ■ bills were underwritten to the “care of H. Mathews, Oswego,” and the bills were forwarded by the plaintiff to Mathews.
    As to these five shipments, Mathews acted as receiving and shipping agent for the plaintiff to tranship the wheat from lake boats to canal boats. His duty was to ship the wheat to Moore, Tibbets & Co. It was a part of his business to receive wheat and pay the lake freights, and forward the same to its destination, and he did so receive and forward large quantities, and for doing so he charged the owners half a cent per bushel.
    Mathews was a large buyer of wheat, both of plaintiff and others. He was not a warehouseman or carrier. He had no warehouse, but hired a bin in a warehouse owned by another man, in which he deposited, indiscriminately, Genesee and Niagara wheat belonging to himself, and also parts of shipments received by him from the plaintiff and three other parties, viz., Wright & Outwater, Doyle & Emerson, and Helson Cornell, for transhipment, while it awaited a suitable opportunity for forwarding the same.
    During October, 1851, Mathews had received wheat from the plaintiff and the other parties above named, and also for himself; part he transhipped immediately, part he mixed in the bin, and from the bin made shipments to suit his convenience for each of the parties, and for himself. He finally cleared out the bin about the 22d and 23d of October, by shipments to L. Bulkley & Co., of Hew York, on account of Cornell; to Jones, Himrod & Titus, of Hew York, on account of Doyle & Emerson; to the same, on account of Wright & Outwater; and to defendant, on his own (Mathews’) account. The quantity belonging to Wright & Out-;water was 984 bushels; this he shipped to Jones, Himrod & Titus, of Hew York, by the boat “Honest Farmer,” and sent to them the bill of lading. There then remained in the bin 722 bushels, and this he put on board the same boat in bulk, mixed with the 984 bushels, consigned it to the defendant and sent him the bill of lading, believing at the time that the 722 bushels belonged to himself, while in truth he had received, of the wheat of the plaintiff which it was his duty to forward, about 730 more bushels than he had forwarded for him to Moore, Tibbets & Co., and these 730 bushels he had placed in the bin. But through oversight, not discovering that any of the plaintiff’s wheat had not been forwarded, he supposed it to belong to himself, and he shipped it to the defendant for sale on commission, as had been his habit for several years. His transactions with the defendant of this nature, between April and Hovember, 1851, were $43,813. The defendant was in the habit of making advances on Mathews’ shipments on receipt of the bills of lading; sometimes Mathews would draw against particular shipments, sometimes generally. After this shipment he drew four drafts on the defendant, amounting to $5,060, all of which were accepted by the defendant, and paid before the latter had any notice of the plaintiff’s claims. These drafts were made on general account.
    These drafts were accepted and paid on the faith and on account of the bill of lading for the 722 bushels, as well as other shipments to the defendant.

      Notice was given by the defendant to Mathews, that the wheat was sold and the proceeds passed to his credit.
    This shipment was taken into account by the defendant in accepting Mathews’ drafts, and in ascertaining the state of Mathews’ account, and it appeared that upon giving credit to Mathews for the proceeds of that shipment, and charging the drafts paid, the defendant did not owe him anything.
    The defendant had no notice, at any time during the transaction, that Mathews was not the actual owner of the wheat. The plaintiff subsequently called on Mathews, and on examination it was discovered that about 730 bushels of the plaintiff’s wheat, (which had been placed in the bin,) had not been forwarded to Moore, Tibbets & Co., and that this deficiency in the plaintiff’s wheat, therefore, constituted the residue which was in the bin after the requisite quantity had been removed belonging to others, and which Mathews, under the mistaken belief that it was his own, had shipped to the defendant.
    Mathews, therefore, gave the plaintiff an order on the defendant for the proceeds of the 722 bushels, and accompanied it with a note explaining the circumstances. The plaintiff presented the order and demanded the proceeds, but the defendant refused to pay them. The plaintiff also demanded the 722 bushels of wheat, but the defendant refused to recognize the plaintiff as having any interest therein. The defendant having in good faith accepted and paid on the faith of the consignment by Mathews to himself; believing that the wheat belonged to Mathews, retained and claimed to hold the proceeds of the 722 bushels in reimbursement of his advances.
    It further appeared on the trial that on the arrival of the boat “Honest Farmer” in New York, the whole of the wheat, (i. e., the 984 bushels consigned to Jones, Himrod & Titus, for account of Wright & Cutwater; and the 722 consigned to the defendant) was sold in bulk by Jones, Himrod & Titus, they acting in behalf of the defendant in respect to the 722 bushels, and paying over to the defendant the proceeds thereof.
    [Upon a former trial of the action before a referee, he ordered judgment for the plaintiff; but on appeal to the General Term the judgment was reversed and a new trial ordered, as stated in the opinion of the Court.]

      Homer H. Stuart, for the plaintiff,
    insisted that the plaintiff owned the 722 bushels of wheat in controversy, so long as it remained in the possession of Mathews; and that the defendant did not acquire the title as against the plaintiff.
    That the mixing of the plaintiff’s wheat by Mathews, for a temporary purpose, with other wheat of,a like description and quality did not affect the plaintiff’s title.
    That the plaintiff was still entitled to his specific quantity from the bin.
    That the subsequent withdrawal from the bin of the quantity due to others was an actual separation, and the residue belonged to the plaintiff.
    On the day of sending this wheat, Mathews had in his possession, as warehouseman, forwarder or bailee, 984 bushels belonging to Wright, and 722 belonging to plaintiff. He had no authority from either to intermix or do any act, except to forward. He could not transfer title in either parcel 'from one owner to the other, or to himself, or to a stranger. If, from carelessness in the management of his business, he coul<J not readily ascertain who owned the 722 bushels, and assumed that he owned it himself, because it remained in his possession after each of his bailors had, as he supposed, received all the wheat belonging to him, this mistake could not divest the owner of his title, and transfer it to Mathews. While the'wheát remained in Mathews’ hands, no act of Mathews, not authorized by the plaintiff, could transfer the plaintiff’s title. The 722 bushels were part of the 12,395. Mathews could not sell part to defendant, unless he could sell the whole.
    But the law is well settled, that mixing wheat of the same kind, belonging to different owners, does not affect their individual rights.
    Story on Bailments, section 40, states the law thus:
    “It the goods are of the same nature and value, and although not capable of an actual separation by identifying each particle,' yet if a division can be made of equal value, (as in the case of a mixture of corn, or coffee, or tea, or wine of the same kind and quality,) then each may claim his aliquot part.”
    The cases embrace nearly every variety of transactions. The mixing was made with consent and .without consent of owners; was done for the purpose of storage, of carriage, and of manufacture. The common question in all the cases, was, whether the transaction amounted to a change of title, or was a simple bailment, and the inquiry related entirely to the agreement of the parties on the subject, irrespective of the fact whether the wheat was mixed with other wheat. The Courts have uniformly held that each owner’s wheat remains the identical thing deposited by him, notwithstanding its mixture. That the doctrine governing cases of confusion of goods, does not apply. (Nowlen v. Colt, 6 Hill R., 461; Goodyear v. Ogden, 4 id., 104; Dawson v. Kittle, id., 107; Mallory v. Willis, 4 Comst., 76.)
    Whether a particular transaction amounts to a confusion of goods, and involves the consequences resulting from such cause, depends entirely upon the fact that a separation is impossible. Mixing the wine of A. with the vinegar or salt of B., undoubtedly makes a case of confusion of goods, and the wrongdoer, if he was the owner of one of the things thus mixed, loses his title.
    If Mathews wrongfully mixed plaintiff’s wheat with Mathews’ wheat, and it paused a confusion of goods, the loss falls on Mathews. H the separate parcels could not be taken from the mass, then the whole would belong to plaintiff.
    The remaining question is, did the defendant obtain a title to this wheat as against the plaintiff ?
    If it be conceded that Mathews was not the owner of the wheat, then he could not give title by a sale, unless he had authority express or implied, from the owner.
    The defense interposed under the factor act cannot be sustained. The 6th section of the factor act especially excepts such a case as this from the statute, viz.:
    “ Nothing contained in this act shall authorize a common carrier, warehouseman, or other person to whom merchandise or other property may be committed for transportation or storage only, to sell or hypothecate the same.”'
    Mathews was such person, and acted as such, not only for plaintiff, but various other parties whom he names.
    It is not necessary that the sole or even the greater part of a person’s occupation should be that of such designated kind to bring him within the scope of that section. It is not alone a common carrier or warehouseman, but any person who has possession of property for transportation or storage.

      The only ground on which defendant could claim that this statute applied, must be that plaintiff gave Mathews some bill of lading or other indicia of title, which on its face imported ownership in Mathews.
    In the bill of lading which plaintiff sent to Mathews, plaintiff appeared to be the owner, and Moore, Tibbetts & Co., the consignees.
    Mathews appeared, as he was in fact, a mere intermediary to effect the passage of the property from the consignor to the consignees.
    Besides, the bills of lading which plaintiff gave Mathews were not shown to defendant, and he could not have acted “ on the faith thereof."
    The bill of lading sent by Mathews to the defendant, did not bring the case within the statute.
    The statute never intended to authorize a mere possessor of personal property, not intrusted with it by the owner for the purpose of sale, to give a better title than he had, by making his transfer in the form of a bill of lading instead of a bill of sale. A thief who consigns stolen property, by giving a'bill of lading of it to his consignees, does not change the owner’s title. (Stevens v. Wilson, 3 Denio, 472; see same case in 6 Hill R., 512; Covell v. Hill, 2 Seld. R., 374; see reasoning of Judge Bbonson on the 1st section of factor act, in Covill v. Hill, 4 Denio, 329— foot of that page.)
    The factor act excludes this case, and it must stand on the old common law ground. (Saltus v. Everett, 20 Wend. R., 267, 279.)
    “ The doctrine that possession is the evidence of property, so as to protect a person acquiring the property in the usual course of trade, is limited" to cash, bank bills, and bills payable to bearer.” (Id., 279; Covill v. Hill, 4 Denio R., 323.)

      Wm. Allen Butler, for the defendant.
    I. There was no evidence in the case to sustain the allegation of the complaint that defendant obtained possession of wheat which belonged to the plaintiff.

    1. There was no attempt to identify the 722 bushels claimed, as wheat originally shipped by plaintiff.

      2. The evidence showed that portions of all the wheat received by Mathews, as owner or agent, were intermixed in one bin, and that out of this bin he made shipments to suit his convenience. There was thus a total confusion of the property of different owners, and it is impossible to say what became of the 730 bushels, which, on the final settlement between Mathews and plaintiff, was found to be deficient.
    3. On this state of facts, supposing that Mathews was liable to the plaintiff for the unauthorized mixture to the extent of the value of the deficiency, there could be no liability on the part of the defendant in this action of trover. By the mixture, as proved, the means of identification were destroyed, and plaintiff’s wheat could not be distinguished. (See Goodyear v. Ogden, 4 Hill, 104.)
    He has failed to show any title in the wheat. (Jackson v. Hale, 14 How. S. C. R., 515; Cobb v. Dows, 9 Barb., 230; see pp. 242, 244.)
    There was no conversion by defendant any more than by any other recipient (except Moore, Tibbets & Go.) of wheat taken from that bin. .
    Conceding the rule to be that in some cases of unauthorized confusion of property the party injured by the intermixture may pursue the whole mass, if not broken, (see Nowlen v. Colt, 6 Hill, 461,) it does not follow that he could pursue separate poi-tions of it, unless identified as his. own. The reason of the rule excludes any such conclusion; for it proceeds upon the assumption that- the whole must include the part to which the original owner was entitled, but this cannot be predicated of any separate portion.
    There was no more reason for selecting the last shipment than the first; nor any more reason for his selecting the 722 bushels claimed of Nason, than a like quantity out of the 984 bushels shipped by the same boat to Jones, Himrod & Titus; or a like quantity out of previous shipments to other parties.
    The evidence shows that there never was, in fact, any delivery of 722 bushels to defendant. And the action must fail for want of proof that he became possessed of the property. The mere receipt by him of .the proceeds of 722 bushels put of the 1,706 shipped by the “ Honest Farmer,” does not establish any liability on his part.

      II. The plaintiff", by the course of his dealings with Mathews, conferred upon him the apparent right of disposal of all wheat shipped to him by plaintiff. ’ Out of shipments made by plaintiff to amount of 50,000 or 60,000 bushels ($40,000 to $50,000 in value) only 12,000 or 13,000 bushels (about $9,000 in value) were shipped by plaintiff as owner. Mathews, not being known to plaintiff or defendant, or to the world, as a common carrier or warehouseman, the defendant should be protected, in the absence of any fraud or unfair dealing, or of any notice to defendant that this wheat was excepted from the ordinary course of dealing between plaintiff and Mathews.
    1st. A Iona fide purchaser, in the usual course of trade, is entitled to retain the goods, even as against the original owner, where such owner, by his own act, confers upon the intermediate vendor the possession with an apparent power of. disposition. (Saltus v. Everett, Opinion of Verplanck, Senator, 20 Wend., 279, 281.)
    2d. Even when the intermediate party is a wrongdoer, the loss is made to fall upon the original owner who enabled him to do the wrong rather than on the innocent purchaser, in cases where the vendee was misled by appearances created by the owner. (Haggerty v. Palmer, 6 John. Ch., 437; Root v. French, 13 Wend., 570; Covill v. Hill, Opinion of Bronson, 4 Denio, 328.)
    3d. In this case Mathews supposed the wheat to belong to himself, and there was no fraudulent intent in the shipment by him to defendant. The plaintiff knew that Mathews was a buyer and seller of grain, and that he was not known as carrier or warehouseman. He assumed the risk consequent on not transmitting his grain through a known carrier or warehouseman, but sending it, for convenience, to a person who was known to be a buyer on his own account. The defendant only knew Mathews as a buyer and seller, and had so known him for a long time. Erom the nature of his business he had a right to imply ■that Mathews owned the wheat. His advances were made in good faith without the slightest suspicion of' the plaintiff’s interest. The principle stated above should therefore be applied to this case. (Pickering v. Busk, 15 East., 44.)
    TTT- The defendant is protected under the statute relating to principals and factors. (Laws of 1830, ch. 179; 2 R. S., 4th ed., 184.)

      1. The wheat was shipped by Mathews to defendant in his own name, and he is to be deemed the true owner thereof, so far as to entitle defendant to a lien for his advances, the same having been made in good faith and without notice by the bill of lading, or otherwise, that any person had or claimed any interest therein. (Id., §§ 1 and 2.)
    2. The exceptions contained in section 6 do not apply.
    (1.) Mathews was not a common.carrier, warehouseman or forwarder, within the true meaning and construction of the 6th section.
    (2.) There is no evidence that the 722 bushels of wheat in question were committed to him for transportation or storage.
    (3.) Even if Mathews had no authority to do more than consign the 12,c>95 bushels received by him from plaintiff to Moore, Tibbets & Co., at Troy, yet, as between plaintiff and defendant, Mathews is to be deemed the owner, he having authority by the terms of the bill of lading and by the course of his business with plaintiff, to make new shipments in his own name.
    (4.) The case of Covill v. Hill, (4 Denio, 323; S. C., 2 Seld., 374,) is not in point. In that case, (a.) There was no bill of lading, (b.) The defendants had full notice of the ownership of the property: (c.) There was no evidence of any advances made by the purchaser.
   By the Court—Hoffman, J.

This cause was .heretofore before the General Term of the Court, in July, 1854, upon a report of a referee. Mr. Justice Campbell, who delivered the opinion of the Court, and the late Chief Justice Duer, concurred in holding that the defendants were protected under the provisions of the statute of 1830, relating to factors. Justice Duer expressed no other opinion.

Mr. Justice Bosworth, who also heard the case, stated, on the argument of this appeal, that he dissented from that conclusion, although he did not write a dissenting opinion, and that Mr. Justice Duer concluded not to report the case.

The ease, as affected by the factor’s act, appears to be this: The owner of wheat, living in Niagara county, New York, ships it to a house in Troy, by a bill of lading providing for a delivery to that house. But the transportation is to be effected, partly in lake vessels to Oswego, and from thence by canal boats to Troy. A transhipment at Oswego was therefore necessary, and Mathews was employed as the agent for a commission, to superintend and effect this. The course of business required that in some instances the wheat should be deposited at Oswego, until canal boats were ready to carry it forward. The bill of lading was therefore álso indorsed, “ care H. Mathews, Oswego.” In the present case, he did get possession of the wheat, so as to deposit it in his own bin, in common with his own, or the wheat of others. He was merely a shipping and receiving agent, his duty being to pay lake freights, &c., and forward the property.

Since this case was before the General Term, the factor’s act has received an elaborate consideration and analysis by the late Chief Justice Dues, and we apprehend that the principles he then declared, and which the Court sustained, would lead him to a different conclusion from the one he assented to in the present instance. (Bonito v. Mosquera, 2 Bosw., 401; see, also, Cook v. Adams, 1 Bosw., 497.)

Mathews was not a factor or agent entrusted with the possession of either one of the documents enumerated in the act “relative to principals, and factors or agents.” (1 R. S., 774.)

On the document he possessed, it would appear that he was not the owner; the document was not delivered to the defendant, nor exhibited to him. hi or was the possession given to Mathews for the' purpose of sale, or as security for advances to be made on the property. Besides, the 6th section appears to admit of a construction decisive against this position.

We do not think that if the plaintiff was the true owner of the wheat in question, the defendant can be protected by virtue of this statute. It becomes necessary, therefore, to consider the other grounds on which Mr. Justice Campbell rested the decision, and the other points relied upon by the plaintiff.

And in the first place, we think that the identity of the wheat which belonged to the plaintiff with that which came to the control, and its proceeds to the hands of the defendant, is sufficiently established. Wetrace3,200bushelsofwheatintothebin and there remaining on the 14th of October. On the 23d, all that remained was shipped; 984 bushels definitely belonging to Wright & Outwater, and 722 belonging to the plaintiff; so belonging because Mathews did not own them, and not a shadow of title appears in any one else.

Mathews was clearly responsible in an action of replevin for this wheat. So were Jones, Himrod & Titus, who sold it, in trover. If the wheat of two persons is mixed together, with their knowledge and consent, and either carries away and disposes of the whole, an action of trover may be maintained against him. (Nowlen v. Colt, 6 Hill, 461.)

The case of Mallory v. Willis, (4 Comst., 76,) shows, that where the arrangement between the parties amounts to a bailment of wheat, the plaintiff can sustain replevin for a portion of the wheat manufactured into flour.

And in Silsbury v. McCoon, (3 Comst., 379,) the law on the subject is fully examined. Corn was taken from the owner by a willful trespasser, and converted into whiskey. It was held, that the property was not changed, and the whiskey belonged to the owner of the corn, and trover was supported.

Through all the niceties of distinction which we find among the civilians, upon the subject of accession or commixion, we trace the principle almost invariably respected, that if the article retains substantially its original form and nature, the privilege of reclaiming it exists. Si mulatio perimit priorem speciem, et parit novara, is the inquiry. (Leges apud Troplong Droit Civile, tome 1, n., 111.)

M. Touillier, in treating of the “ mixture or confusion of things belonging to several owners,” states that if they can be separated, he who was ignorant of the mixture may demand a division, or he may demand the price. If they cannot be separated without inconvenience,, the ownership is in common, in the proportion of the quantity, quality and valué belonging to each. Wherever the right of reclaiming property exists, the owner may demand restitution of the article, in the same nature, weight, measure and goodness; or may have its value, at his election. (Le Droit Civile FrangaisB, tome 3, p. 64.)

Such is the law, as stated by Justice Story (on Bailments, § 40); and by Blackstone. (2 Com., note, 404, 405.) See, also, Ryder v. Hathaway, (21 Pick., 298;) and Pratt v. Bryant. (20 Vt. R., 333.)

It is therefore, I apprehend, sufficiently clear that the mixture of the wheat of the plaintiff with that of other parties in the bin of Mathews, in. no way affected the property of the plaintiff in 722 bushels of wheat, and that there is no difficulty in saying that the 722 bushels consigned to the defendant included the wheat of the plaintiff; that the identity is sufficiently traced and marked.

In this view, the property of the plaintiff, without his consent, contrary to the destination he had given it, without authority given by him to any one to alter that destination, came into the hands of the defendant. It came there through an act of an agent without power in this particular, and which act, in sending this wheat to Hew York, was in legal acceptation, tortious. The defendant is also to be considered as having accepted and paid drafts on the credit of this wheat, in common with other shipments.

I apprehend, however, that the law is settled in favor of the original owner, thus wrongfully deprived of his property, even against an innocent purchaser. (Silsbury v. McCoon, 3 Comst., 379; Saltus v. Everett, 20 Wend., 267; Covell v. Hill, 4 Denio, 323, and 2 Seld., 374; Cobb v. Dows, 9 Barb., 230; and Cook v. Adams, supra.)

These authorities, with those late cases relating to bills of .lading and certificates of stock, not only declare and renew the doctrine of the common law, that the title of an owner shall not be divested without his act or consent, but narrow and restrict those exceptions which the exigencies of a mercantile community have required, or its peculiar views have suggested.

The case seems merely this. The owner of goods has employed an intermediate agent only to forward them to their destination. Hecessity or convenience places the property temporarily in that agent’s possession; he has no authority to sell or pledge; he is not entrusted with any of the documents of apparent ownership. He wrongfully appropriates the goods, and an honest purchaser obtains them from him. The original property and right of the owner are not divested. His power to reclaim the goods or their avails is not lost.

I think there was error in dismissing the complaint, and that there must be a new trial, with costs to abide the event. .

Ordered accordingly.


source: Caselaw Access Project

author: By the Court—Woodruff, J.

license: Public Domain

text:
    William Rider and Jonathan Trotter, as Assignees of Goodyear and Ely, Plaintiffs and Respondents, v. The Union India Rubber Company, Defendants and Appellants.
    1. In an action against a corporation by R and T., to recover the value of tools and machinery belonging to themselves, and the value of the use thereof; which tools and machinery have by such use been worn out and rendered valueless, it is competent for the defendant to show as a defense, that the plaintiffs were officers of the defendants, and authorized by the defendants to purchase from a third party all his tools and machinery used by him in his manufactory for $30,000. That such purchase was made by the plaintiffs, the tools and machinery in question being then set up in the factory. That the defendants, with the concurrence of the plaintiffs, acting as defendants’ officers, paid the money, took possession of the factory and of all the tools and machinery therein, and used the same, believing the whole to be included in the said purchase.
    2. In such case the production of a judgment record in evidence which showed that the plaintiffs had once brought an action against the defendants, alleging a sale by themselves to the defendants of the same tools and machinery, and claiming the price; in which the defendants denied any purchase from the plaintiffs;and in which it was found as a fact that the defendants did not purchase the property from the plaintiffs, and judgment for the defendants was pronounced, does not preclude such defense, and it is error to exclude evidence of a purchase by the defendants from such third person.
    3. One who stands by and acquiesces in a sale of his own property by a third person claining to own it, and suffers the purchaser to pay the price, without notice, is estopped thereby to assert title in himself and claim the property or its value.
    4. One who uses the property of another with his assent, is liable for the fair value of such use; but the statute of- limitations is a bar to any recovery for that portion of the period of use which is more than six years before action brought.
    5. Where, by such use for eight years, the articles are worn out and rendered valueless, it is error to charge the jury that the plaintiff is entitled to recover what the articles were worth when they came to the defendants’ possession.
    6. It may be a just presumption that the use of articles voluntarily procured and used, and worn out, is worth at least the ordinary depreciation of such articles by the use thereof; but such presumption is not conclusive, and will not warrant a charge that as matter of law the plaintiff is entitled to the value of the articles as compensation for the use thereof.
    7. On the denial of a motion for a new trial at Special Term, if no appeal be taken from the order, the moving party will be deemed to acquiesce in the propriety of such denial, and to have waived all grounds for a new trial, except such questions of law as under exceptions taken at the trial may be reviewed on an appeal from the judgment itself; and on appeal from a judgment such exceptions will alone be considered.
    (Before Slosson, Woodruff and Pierrepont, J. J.)
    Heard, October 4th, 1858;
    decided, February 19, 1859.
    This action came before the Court in General Term on an appeal by the defendants from a judgment entered upon a verdict in favor of the plaintiffs for $866.75.
    The complaint herein alleges that the defendants had and used certain machinery, &c., belonging to the plaintiffs as assignees of Goodyear & Ely, from November 1st, 1848, to October 1st, 1855, which articles were worth $824.
    That the said property, or the largest part thereof, has been consumed or rendered worthless during the time the defendants had and used the same.
    That the use of the said property by the defendants was worth the sum of $1,000.
    That on or about the 1st of September, 1855, the plaintiffs demanded a return of the property, and the defendants neglected or were unable to return the same, or but a small part thereof, the same then being of the value of $200.
    That the defendants have purchased and paid for certain articles parcel of the said property, which, at the time of such demand, were of the value, of $30, for which the defendants are entitled to a credit.
    The answer, so far as it is material to state its contents, sets up a purchase of the property in question from the firm of William Rider & Brothers, in pursuance of a resolution of the Company of November 15th, 1848, by which the plaintiff Trotter, (then being the defendants’ President,) was directed to purchase all their machinery, tools, steam curers, boilers, engines, and other fixtures used by them * * for the sum of $30,000. That such purchase was made on the 4th day of December, 1848, and embraced the articles mentioned in the complaint. That the plaintiff Trotter was then President of the Company, and the plaintiff Rider was their Treasurer. That by the by-laws of the Company it was the duty of the President to make all purchases for the defendants, and it was required by such by-laws that all business done by any officer should be entered in the books of the Company. That the purchase so made by the plaintiff Trotter, in pursuance of such resolution was duly entered in the books of the Company, and that the defendants have never had nor used the property in any other manner than as the purchasers thereof. And .also, that at the time of such purchase the defendants took possession of all the personal property then used by the said Rider & Brothers, with the consent of the said Rider & Brothers, and of the said plaintiffs, as purchasers, and believing that they (the defendants) were such purchasers; and that the property continued to be used by the said plaintiffs while they were the acting officers of the Company and connected therewith; and that on or about the lst day of October, 1855, the plaintiffs first claimed the articles mentioned in the complaint as their property, and that the same had not been sold to the defendants; and that the defendants, after averring that all the property thus claimed had been purchased by them, permitted the plaintiffs to take whatever property they claimed and found in the defendants’ possession, and the plaintiffs claimed and took six tables only and disposed of the same.
    And finally the answer sets up the statute of limitations.
    The action was commenced on or about the 10th of October, 1856, and was tried before Mr. Justice Slossos, and a jury, on the 22d day of March, 1858.
    On the trial the plaintiffs gave evidence tending to show that before the incorporation of the defendants, William Rider & Brothers were carrying on the business of manufacturing india rubber goods, at a manufactory at Harlem, and had also a warehouse in this city. That in the same building at Harlem, a firm of Groodyear & Ely had also manufactured goods, but had failed and made an assignment to the plaintiffs. That the machinery, &c., mentioned in the complaint had belonged to Groodyear & Ely, and passed to the plaintiffs " under the assignment, but it remained in the manufactory at Harlem occupied by Rider & Brothers; and there was evidence that it was of the same description of machinery, &c., as the machinery, tools, &c., which confessedly belonged to Rider & Brothers, and that it was used by the last named firm, and was in such use when the defendants were incorporated.

      That upon such incorporation, in September, 1848, the plaintiffs, (being then such assignees of Goodyear & Ely,) became President and Treasurer of the defendants. That the firm of Rider & Brothers, upon the organization of the defendants, sold out .to them, and in November, 1848, the defendants took possession of the manufactory, and of all the machinery, tools, fixtures, &c., there, and commenced manufacturing, and “ went on and used ” the articles which had belonged to Goodyear & Ely.
    The defendants in this stage of the trial, on the cross-examination of the plaintiffs’ witness, stated that they proposed to prove that the defendants had purchased the articles mentioned in the complaint, and thereupon the plaintiffs introduced in evidence a judgment record in an action commenced by the present plaintiffs against the present defendants on .or about the 2d day of October, 1854:, brought to recover upon an allegation of the sale and delivery of the same articles to which this, suit relates, by the plaintiffs as assignees of Goodyear & Ely, to the defendants. The answer, in which action, denied that the plaintiffs sold the goods, &c., to the defendants. The issue thus formed was referred, and the referee reported that the plaintiffs did not sell and deliver these goods to the defendants. .Judgment was entered on the report on the 2d of August, 1855, and it was thereby adjudged that the plaintiffs did not sell and deliver to the defendants the goods and property so mentioned.
    After the reading of the said judgment record, the Court (in reference to the defendants’ proposal to prove that they had purchased the articles in question), held that, as between the parties to this suit, the question of title to the said articles as purchasers, had been passed upon, and that the defendants could not now claim "as purchasers.
    To this ruling the defendants’ counsel excepted.
    A resolution of the defendants, ¡Dassed on the 15th of November, 1848, was given in evidence by them, directing the President, Mr. Trotter, (one of the present plaintiffs,) to purchase for the defendants, from William Rider & Brothers, “ all their machinery, tools, steam curers, boilers, engines, dry curer and other fixtures, used ly them in and about their rubber manufactory at Harlem, (except the moulds for curing balls,) together with their lease of the factory and houses, for the sum of $30,000.” .
    Evidence was given tending to show that it was the intention of the plaintiffs to sell these articles in question to the defendants, and that they were left in the defendants’ .possession; but Trotter & Rider, the plaintiffs, both testified that the articles were not in fact included in the sale made under that resolution, and they were corroborated by other witnesses, one of whom says that the “company were to buy them.” It was also testified that Trotter, before the incorporation of .the defendants, was at the manufactory, and the articles which had belonged to Goodyear & Ely were pointed out to him. But the articles in question remained in the same rooms with the other machinery, and they all went into the actual possession and use of the defendants when possession of the manufactory was delivered to them, and there was no evidence that any person connected with the company, except Trotter and the Messrs. Rider, had any knowledge that the whole of the machinery and property so delivered was not the property of Rider & Brothers, or that it was not purchased and paid for by the $30,000 appropriated by the said resolution.
    It was admitted that the defendants continued to use the articles down to the fall of 1855, after the determination of the former suit, when the plaintiff, Trotter, demanded the articles at the manufactory, and the defendants’ Secretary told him if he found any he could take them. He took certain tables, but the residue of the articles appear to have been either worn out or rendered worthless by long use.
    There was evidence that the value of the goods, when the plaintiff received the possession, was, as was alleged in the complaint, $824. That the wear and tear of the article of chief value, a heater, by use, was ten per cent a year; and again the same witness stated that it would naturally wear out in five or six years by constant use; and besides that evidence, there was nothing tó show what was the value of the use of the goods.
    The defendants offered the by-laws of the Company, enacted October 3d, 1848, in evidence. They purported to have been passed at a meeting of the Trustees of the Company, at which both of the present plaintiffs were present, acting as Trustees, and to have been unanimously adopted.
    The Court rejected the evidence, and the defendants’ counsel excepted.' The presiding justice charged the jury,
    1st. That “ if the articles in question were intended by Rider & Trotter, assignees, to pass under the purchase of the articles in use by Rider & Brothers, under the Company’s resolution of ¡November, 1848, and were received, and have been used by the defendants as purchasers, supposing that they were purchasers, there then being no dispute that the $30,000 appropriated by that resolution had been paid, the defendants have not been in fault, and are not liable in this action.”
    2d. “If, on the contrary, the articles pf Goodyear and Ely were at the time of the purchase discriminated from those of Rider & Brothers, and it was not the intention of the parties that they should pass under the general purchase, then the defendants have used them with the consent of the assignees, and not having the articles to respond to the demand for them, but having used them until they had become valueless, must answer for their value, or for the value of the use, in respect to which you will judge on the testimony.”
    3d. “ The statute of limitations applies to all the period anterior to six years before the beginning of this suit.”
    “ To which charge ” (as the Case states) “ the defendants’ counsel did then and there except.”
    The defendants’ counsel requested the judge to charge “that if the Company did, by their resolution, intend to and supposed they had bought all the property on the premises at Harlem, this action cannot be maintained.”
    The judge refused to charge otherwise than he had charged, and the defendants’ counsel excepted.
    The jury found a verdict for the plaintiff for $866.75.
    The defendants moved at the Special Term for a new. trial, which was refused.
    From the judgment entered upon the verdict, the defendants appealed.

      A. Thompson, for the appellants.

      John T. Hoffman, for the respondents.
   By the Court—Woodruff, J.

This case being now before us on appeal from the judgment only, we have only to consider the exceptions which were duly taken at the trial.

The counsel for the appellants have made and argued some points relating to the sufficiency of the proofs, which, however proper on the motion for a new trial, are not open to consideration here as a ground of reversal. The defendants not having appealed from the order denying a new trial, must be taken to have acquiesced in the propriety of such denial, and therefore to have waived all grounds for a new trial, except such questions of law as, under the exceptions taken, may be raised on an appeal from the judgment.

The answer of the defendants distinctly averred, as a defense, that the property for the use whereof the action is brought, was in the possession and use of Messrs. -Rider & Brothers, in October, November and December, 1848, when the defendants purchased from them all their machinery, tools, steam curers, &c., &c., used by them in their manufactory, for the sum of $30,000. That such purchase embraced all the articles in controversy here; that the plaintiff, Trotter, acted in such purchase as the defendants’ President, and that the defendants took possession as purchasers, with the consent of the plaintiffs and Rider & Brothers, and in the belief that all of such articles were included in such purchase, and that the plaintiffs themselves, while acting officers of the defendants, until after January, 1852, used the articles in question. And the defendants deny that they have had or used any property named in the complaint, except as purchasers as aforesaid, with the knowledge and consent of the plaintiffs.

These facts, in substance, the defendants offered to prove on the trial; and the Court held that, as between the parties to this suit, the question of title had been passed upon in the former suit, and that the defendants could not now claim as purchasers.

And yet, the Court charged the jury, that if the articles in question were intended by Rider and Trotter, (assignees,) to pass under the purchase of the articles in use by Rider & Brothers, and they were received and used by the defendants, as purchasers, supposing they were purchasers, the defendants are not liable.

We are of opinion, that the principle of this direction to the jury is correct, and if there was no error in that direction, and if the ruling of the Court, that “ the defendants could not now claim as purchasers,” is to be taken as an exclusion of evidence that the property was purchased by the defendants, from Rider & Brothers, and under circumstances which forbid these plaintiffs to set up title in. themselves, i. e., if it was an exclusion of evidence tending to'prove the facts alleged in the defendants’ answer, then it seems inevitable that the ruling that the defendants could not now claim as purchasers, was erroneous.

If Messrs. Trotter and Rider acted for the defendants, as their officers, in making a purchase of the property of Rider & Brothers, and included therein the articles in question; or, if they acquiesced in the payment of the $30,000 by the defendants, and consented to their taking possession and using the articles, under the belief that such articles were included in that purchase, then the plaintiffs, (Trotter and Rider,) are concluded. They are estopped to claim title in themselves, as assignees of Goodyear & Ely. To permit them to make such a claim would operate as a fraud upon the defendants, and this principle is substantially recognized in the charge. In this view of the transaction, the defendants acquired a title to the property which the plaintiffs cannot gainsay nor deny. The title was not, it is true, acquired by purchase from the plaintiffs, but it was acquired- by purchase from Rider & Brothers, under circumstances which forbid the plaintiffs to allege that Rider & Brothers were not the owners.

The judgment record given in evidence by the plaintiffs was conclusive as between the parties, upon the question determined thereby, to wit: that the defendants had not purchased these articles from the plaintiffs.

But it did not in anywise prove that the defendants had not title to the property acquired by the purchase from Messrs. Rider & Brothers, under the circumstances above suggested. The defendants did not, in this action, claim by purchase from the plaintiffs, but only that they acquired title, as purchasers, by virtue of the transaction with Rider & Brothers, and the acts and consent of the plaintiffs in relation thereto. Although the record of the former judgment was a bar to proof of title by purchase from the plaintiffs, it did not preclude proof of title-acquired in any other manner.

We think, therefore, that a rejection of evidence to prove that the defendants purchased the property, and a ruling that the question of title to the articles, as purchasers, had been passed upon so that the defendants coutd not now claim as purchasers, if understood to exclude proof of the facts set forth in the answer, was not only inconsistent with the charge, but was erroneous.

But on the other hand, it would seem, from some of the evidence which was afterwards given, that the ruling on the trial was understood at the time as merely excluding evidence of a purchase from the plaintiffs, and the Court did certainly submit to the jury the question whether the parties respectively did, at the time, intend that the articles should pass under the purchase from Rider & Brothers, and whether the defendants received the same as purchasers. As already observed, this is so inconsistent with the exclusion of any evidence of title in the defendants, as certainly to indicate that the judge himself did not intend any such exclusion, and to create great doubt whether he was so understood.

Counsel, on the argument of this appeal, differ entirely upon the construction of the ruling, and the points of the appellants assume that the defendants were not permitted to prove that they acquired a title which the plaintiffs were not at liberty to deny. We have no hesitation in saying that the ruling, as intended by the judge at the time, (as we gather that intention from the whole aspect of the case, and also from his recollection of the views by which he was governed,) was correct, and that the defendants could not defend by setting up a title acquired by purchase from the plaintiffs.

And yet, as the case is settled and laid before us on this appeal^ the offer and the ruling are susceptible of the construction first above considered, and we ought not, perhaps, to say that the defendants’ counsel may not have so understood it.

We hesitate the more in overruling the exceptions taken, because we find that in another particular the defendants have been plainly prejudiced.

The jury were charged that if the property in question did not pass under the purchase from Rider & Brothers, and if the defendants had used the articles until they had become valueless, they must answer for their value, or for the value of their use.

Taking the case most favorably for the plaintiffs, they had permitted the defendants to use the articles until a portion of them had been rendered of no value. In this there was, therefore, no ground for charging the defendants with the value of the articles as for a tortious conversion. And when at length the plaintiffs demanded the goods, the defendants permitted them to take all that were of any value. So that the defendants were not chargeable at all as tort feasors, and the plaintiffs were not liable for the value of the articles as such.

Under the proofs, all that the plaintiffs had a right to claim was the value of the use for six years next before the action-was brought.

The jury were told, in another clause of the charge, that the statute of limitations applies to all the period anterior to six years before the beginning of the suit. And yet, under the direction which permitted the jury to give the plaintiffs the value of the articles, the statute of limitations could not be applied to the case, and accordingly the jury appear to have given to the plaintiffs the full value of the articles at the time they came into the possession of the defendants.

The articles came to the defendants’ possession about eight years before this action was commenced. Ho evidence was given of the value of their use, unless such value could be inferred from the testimony showing the probable annual depreciation in value from the use, and the fact that during the period of use some of the articles had been worn out and become valueless. It may, perhaps, be a just presumption, that in the.ordinary course of business, the use of an article voluntarily procured and used for the. purposes of a manufacture, is worth at least its ordinary deterioration by such use. But such a presumption is by no means conclusive, and would not warrant a charge that, as matter of law, the plaintiffs were entitled to recover the value of the articles.

By whatever testimony the jury were to arrive at the fair value of the use, finding the value of the articles themselves, as and. for the value of the use, precluded the application of the statute, which only allowed a recovery for the use for six years.

We allude to this branch of the case not for the purpose of recognizing the exception taken to the charge in this respect as a sufficient exception—the exception was too general; it was in terms to the whole charge—but because it may be useful on another trial,"which, in view of the other exception before noticed, we think should be had. (4 Seld., 37; 4 Kern., 315.)

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


author: By the Court—Slosson, J. Woodruff, J.

text:
    Richard Liddle, Plaintiff and Respondent, v. The Market Fire Insurance Company of the City of New York, Defendants and Appellants.
    Although a poliey'of insurance for one year upon goods in one part of a building provides that if any person insuring shall make any misrepresentation or concealment, or if the budding' be occupied in any way so as to render the risk more hazardous than at the time of insuring, the insurance shall be void; and also that the insurance may be renewed for a further term, the risk not being changed, if the premium be paid and indorsed; and then declares that “ all insurances, original or renewed, shall be considered as made under the original representation in so far as it may not be varied by a new representation in writing, which in all cases it shall be incumbent on the insured to make, where the risk has been changed either within itself or by surrounding and adjacent buildings.”
    1. Held, nevertheless, in an action on the policy, (the same having been renewed after a portion of the building had been appropriated to a specially hazardous use,) that parol evidence was competent to show that at the time of the application for renewal the insured verbally communicated to the Secretary of the Insurance Company that such change in the risk had taken place. And also held, that the renewal after such verbal communication was a waiver of the provisions above recited. (Woodruff, J., dissented.)
    2. Where after a communication had been opened between the store, which contained the insured goods, and an adjoining store, then hired by the insured for the purposes of his business, the following indorsement was made on the policy: “ October 3d, 1855. The communication made with adjoining stores does not prejudice this insurance.” Held, that such indorsement did not operate to extend the insurance so as to cover or protect any goods in such adjoining store; and also that parol evidence to show that the parties intended by such indorsement to extend the insurance to such goods was inadmissible.
    (Before Slosson, Woodruff and Pierrepont, J. J.).
    Heard, October 7th, 1858;
    decided, February 19th, 1859.

      This action came before the Court by appeal from the judgment rendered for the plaintiff on a verdict in his favor for $2,112. The action was tried on the 21st day of April, 1858, before Mr. Justice Slossou and a jury.
    The complaint of the plaintiff prays judgment .for $2,000 and interest, being the amount insured by the defendants by policy, dated December 28th, 1856, on the plaintiff’s “stock, as a house and kitchen furnisher and dealer in stoves, manufacturer of tin and sheet iron ware; on his store fixtures, furniture and signs; on his tools appertaining to his business as manufacturer aforesaid; all contained in the premises occupied by him in the westerly end of the brick building known as City Central Hall, situate on the corner of Fulton avenue and Elm place, city of Brooklyn,’’ averring a loss by fire during the period of insurance exceeding that sum, proofs of loss, &c., &c.
    The answer averred that the insurance was made by a policy dated December 28th, 1854, which was renewed for one year December 28th, 1855, and again for one year December 28th, 1856, by certificates of renewal. It denied that the plaintiff had lost by the fire the alleged amount of goods in the premises covered by the policy, and averred that the goods being at the time of the fire in that particular store were of small amount; and it further averred that when the policy was executed the building described therein was not in any part of it occupied for extra hazardous or specially hazardous purposes, but before the last renewal the building was put to a 'specially hazardous purpose, and the risk greatly increased by the use thereof for a bakery, of which, at the time of the last renewal, the defendants were ignorant ; and that the plaintiff, in violation of the conditions annexed to the policy, failed to give notice of such increase of the risk, and the alleged fire in fact originated in the said bakery. The other grounds of defense are not material to the case as considered on the appeal.
    On the trial the plaintiff read the policy and certificates of renewal in evidence, bearing the dates alleged in the answer. It was part of the terms of the policy that “if the premises mentioned in the policy shall at any time after making, and during the time this policy would otherwise continue in force, be appropriated, applied, or used, to or for the purpose of carrying on or exercising therein any trade, business or vocation denominated hazardous or extra hazardous, or specified in the. memorandum of special rates, in the terms and conditions annexed to this policy; or for the purpose of storing therein any of the articles, goods or merchandise in the same terms and conditions denominated hazardous or extra hazardous, or included in the memorandum of special rates, except as herein specially provided for, or hereafter agreed to by this corporation, in writing, to be added to or indorsed upon this policy, then and from thenceforth, so long as the same shall be so appropriated, applied or used these presents shall cease, and be of no force or effect.” “And that this policy is made and accepted in reference to the proposals and conditions hereto annexed, which are to be used and resorted to, in order to explain the rights and obligations of the parties hereto, in all cases not herein specially provided for.”
    “ This insurance (the risk not being changed) may be continued for such further term as shall be agreed on, provided the premium therefor is paid, and indorsed on this policy, or a receipt given for the same.”
    Bakeries are mentioned in the policy as specially hazardous.
    By the conditions annexed to the policy “applications for insurance must be in writing, and must specify the construction and materials of the building containing the property to be insured; by whom occupied; whether as a private dwelling or otherwise; whether any manufactory is carried on within it;” and “ if any person, insuring any building or goods in this office, shall make any misrepresentation or concealment; or if, after the expiration of a policy of insurance, and before renewal thereof, the risk of the building shall be increased by any means whatsoever within the control of the assured; or if such building or premises shall be occupied in any way so as to render the risk more hazardous than at the time of insuring, such insurance shall be void and of no effect.”
    And the twelfth condition was as follows, viz.:

      ‘ ‘ XII. Insurances, once made, may be continued for such further time as may be agreed on; the premium required therefor being' paid and indorsed on the policy, or a receipt given for the same; and all insurances, original or renewed, shall be considered as made under the original representation, in so far as it may not be varied by a new representation, in writing, which, in all cases, it shall be incumbent on the party insured to make, where the risk has been changed, either within itself, or by the surrounding or adjacent buildings. And if, at or before the time of renewing any policy of insurance on property where the risk has been increased by the erection of buildings, or by the use or occupation of the premises insured, or of the neighboring premises, the assured shall fail to give information thereof, said policy and renewal shall be void and of no effect.”
    In December, 1854, when the original insurance was effected, the plaintiff occupied but one store. The entire building was 120 feet long, and was a large hall divided into five stores, the ■plaintiff occupying the store at the corner. In October, 1855, the plaintiff took also the store next adjoining, and opened a communication between the two, and on application by him the defendants made a re-survey of the premises, which appeared to have been done in accordance with a memorandum on the policy in pencil marks, proved to be the handwriting of Mr. Birdsall, who was President of the defendants in 1855, in these words, “ connection with apartments next adjoining on Fulton avenue; re-survey.” After this re-survey, the following indorsement on the policy was made, “ October 3d, 1855. The communication made with adjoining stores does not prejudice this insurance.”
    In the summer of 1856, one of the divisions of the building was taken for a steam bakery, and the oven and machinery con nected therewith were introduced and the business was carrier i on, which was proved to bring the building and goods insured therein within the denomination of specially hazardous risks, only insured at higher rates of premium than the plaintiff paid, and the fire in question was in fact caused thereby.
    • The plaintiff in his testimony respecting the renewal of the policy stated that when he applied in December, 1856, for the last renewal, he informed the Secretary of the defendants that the bakery had been introduced into the building, and asked him “ whether he had not better send over some of his folks to see the building,” and that the Secretary said, “ yes, we’ll let our surveyor go over and see it, or re-survey it, of words to that effect.” The Secretary of the defendants being examined unqualifiedly denied that any such statements were made to him or that he ever had any conversation with the plaintiff on the subject of the bakery, or that he knew, when the policy was renewed, of the existence of a bakery in the premises, or of an oven or machinery of any kind, or that any resurvey was made in reference to the bakery, or to the said renewal.
    The defendant moved for a nonsuit, on the ground that no statement in writing was made at the time of the last renewal, disclosing the increase of the risk.
    The motion was denied, and the defendants excepted.
    It appeared that about $5,000 worth of goods were'destroyed by the fire. These goods were at the time in both of the stores occupied by the plaintiff, and there was other insurance on the goods to the amount of $2,000. On the question, what proportion of the goods lost were in the corner store at the time of the fire, the evidence was conflicting.
    During the examination of the plaintiff as a witness in his own behalf, his counsel inquired as follows :
    “ Q. State what was said by you to the officers of the Company, at the time memorandum of Communication was indorsed, as to your intention thereafter to occupy both the stores ?
    “ (Defendants’ counsel objects that the question asks for parol evidence to enlarge the construction of policy. Objection overruled and exception noted.)
    ' “ A. To the best of my knowledge, I stated I was going to separate my stock and keep a portion of it in the new store, and occupy both stores.”
    At the close of the testimony the defendant renewed his motion for a nonsuit, on the ground of the non-compliance by the plaintiff with the twelfth condition of the policy, claiming that the conflict in the oral testimony presented a case which made that condition controlling. • The motion was denied, and the defendants excepted.
    The Court thereupon charged the jury,- that the privilege inserted in the policy, October 3d, 1855, of connecting with the adjoining store, did not of itself extend the insurance over that store, nor by the language and terms of the policy, and of the renewal certificates, is the insurance necessarily extended to the stock in such adjoining store, but that the insurance was so extended, if the jury should find that such was the intention of the parties when the privilege was given, and the renewals made; and that in determining that intention, the jury might consider the verbal communication made by the plaintiff when he applied for the privilege of making the connection, the pencil indorsement on the policy, and the fact of the resurvey made by the defendants at the plaintiff’s request.
    That if the jury should find, that the policy was intended by the parties to cover the goods in both stores, they would find for the plaintiff the amount of the actual loss he had sustained, but if they found that the policy covered only the corner store, they would find for the plaintiff no greater sum than the value of the goods lost in that store; in no event in either case exceeding the sum insured, and the interest thereon.
    The Court further charged.the jury, that if they found that the risk to the premises had been increased by the erection in them of the steam bakery and machinery spoken of, they should find for the defendants, unless they found that at the time of obtaining the last renewal the plaintiff made a full and fair communication to the defendants of the facts so increasing the risk, so that the Company had full notice of that fact, and had.a full opportunity of re-surveying the premises before renewing the policy; that if they should find this to have been so, then he charged them for the purposes of this trial, that the policy was not rendered void by the plaintiff not having literally complied with the twelfth condition in the policy, in not making his representation or communicating his information in respect to the bakery in writing.
    The defendants’ counsel duly and separately excepted to the portions of the charge, which allowed the jury, in determining the intention of the parties when the connection with the adjacent store was permitted, to take into consideration the verbal statements made at the time by the plaintiff. Also, to that portion in which the Court instructed the jury that if the plaintiff, on obtaining his last renewal, made a verbal statement of the facts which had increased the risk to the premises, the absence of a statement in writing did not rendet the policy void. And said exceptions were severally duly noted.
    The jury having retired, returned into court with a verdict for the plaintiff of $2,112.

      Stephen P. Nash, for the defendants, (appellants.)
    I. The extent of the risk covered by the defendants was to be ascertained from the policy, which originally embraced only the single store occupied by plaintiff, “in the west end of the City Central Hall.” Testimony was admissible to locate that store, but, clearly, evidence of verbal statements between the parties at the time the policy was written, would not be admissible to enlarge the meaning of its language. When plaintiff took an additional store, it was optional with the parties to include both stores in the insurance or not, as they might agree, but having put in writing what they did agree to, parol evidence to enlarge the terms of the writing was inadmissible. The writing was simply a permission to make a communication with the next store, an alteration in the premises, which, but for the permission, ‘might have avoided the policy. To make of this, by parol evidence, an extension of the risk so as to embrace both stores, was clearly a variation of the contract. (N. Y. Gas Light Co. v. Mech. F. Ins. Co., 2 Hall, 108; Angell on Fire Ins., 56, § 21.)
    II. The twelfth condition of the policy made it incumbent on plaintiff, when he procured the last renewal, to make a representation in writing as to the increased risk caused by the steam bakery. He succeeded, however, in practically annulling this condition, by his own oath, unsupported by other evidence, that he had given verbal notice to "the defendants’ secretary of the facts which the contract required to be stated in writing.
    1. The original contract of insurance had expired. When the plaintiff came to renew it he was required by the conditions in reference to which the policy was originally “ made and accepted,” to make a representation in writing if the risk were changed; the body of the policy providing for the case of a renewal, “ the risk not being changed.” The case stands, therefore, in the same position as if the Company were then applied to for the first time for an insurance, and the conditions required the application to be in writing, and to contain certain statements material to the risk. In such a case, where the application omits material facts, verbal notice of such facts to the agent effecting the insurance, does not cure the omission. (Jennings v. The Chen. Co. Mut. Ins. Co., 2 Denio, 75; approved in Gates v. Mad. Co. Mut. Ins. Co., 2 Comst., 43; and Wilson v. Herk. Co. Mut. Ins. Co., 2 Seld., 53;
      Westfall v. The Hudson River Fire Ins. Co., 2 Duer, 490; S. C., Ct. of Appeals, MS.)
    2. The theory of the Court .upon the trial seems to have been that, assuming verbal notice of the increased risk to have been given to the Secretary, if he did not require a statement in writing he waived the condition.
    Without disputing that a party to a written agreement may, in many cases, dispense by parol with conditions in his favor, which he might by the terms of the agreement insist upon, it is submit-' ted that such dispensations, to amount to a waiver, should be express, the ground upon which the Courts sustain them being that a party shall not be heard to insist upon a performance which he has prevented. In this case, the alleged waiver is a mere inference from the agent’s silence, under a notice which he denies receiving, and so the very object of the condition, the securing, that is, of written evidence of the transaction is destroyed. It is not pretended ¡that there was anything said in reference to a waiver, but the argument is that the benefits of the twelfth condition, which was already a part of the agreement, were lost, unless its requirements were verbally imposed anew.
    3. But the defendants’ Secretary had no right to waive the requirements of the twelfth condition. His authority was to issue and renew policies in accordance with the terms and conditions expressed in them. The form of the policy, its clauses, provisoes and • conditions, expressed the terms upon which the corporation were willing to insure; its subordinate agents had no right to dispense with these.
    III. The evidence in reference to the alleged notice of the increased risk, was the testimony of the plaintiff only. Had the claim been almost any other than one against an insurance company, it would hardly have received credit fróm a jury, unsupported as it was by all Other proof. It is not credible that an insurance company, with full notice of facts entitling it to a higher rate of premium, should not have claimed it. But if all the conditions companies may impose as safeguards against fraud and false swearing may be broken down by the kind of evidence that the contract they enter into excludes, they have little security against the grossest impositions, no matter how weak the evidence against them. ■

      I. T. Williams, for the plaintiff (respondent).
    I. The renewal of the policy on the 28th day of December, 1856, was equivalent to the issuing of a new policy, as of that date, in the identical words of the old policy, save the dates.
    1. If we read the policy as bearing date the 28th day of December, 1856, it is broad enough to cover all the property in both stores.
    2. It is, then, immaterial whether the ruling of the Court upon the question, was correct or not.
    3. The testimony was competent to show, that prior to the last renewal, the defendant knew that the plaintiff was occupying both stores, and that his stock was partly in one and partly in the other.
    4. The ruling upon this point is immaterial, as it appears that the value of the property destroyed in the corner store amounted to more than the sum recovered.
    IT. The Company clearly had the power to waive, and in fact did waive, their own rule, and issued the .policy—i. e., the renewal— upon the verbal representations of the plaintiff, and received his money, thereby waiving any latent rule to the contrary, which it may have prescribed for its own convenience. (See Mechanics’ & Farmers’ Bank v. Smith, 19 Johns., 115; Green v. Bateman, 2 M. & W., 359; Tuttle v. Love, 7 Johns., 470; Hutchinson v. Brother, 5 M. & W., 535; Pitt v. Smith, 3 Camp., 33.)
   By the Court—Slosson, J.

Had it clearly appeared by uncontradicted evidence that the verdict was not larger than the defendants’ proportion of the loss on the goods, fixtures, &c., actually destroyed by the fire in the corner store, I should not be disposed to disturb it. The whole question would then have turned on the correctness of the second proposition of the judge’s charge; and in respect to that, a majority of the Court hold that it is perfectly competent for a party to an instrument to waive a strict compliance with a condition of the contract in his favor, which we hold this condition to be, and'that, assuming Liddle’s testimony to have been true, and that a verbal communication of the erection of the bakery was in fact made by him to the Secretary, on his application to the Company for the last renewal, and assuming that the notice thus given to that officer was notice to the Company itself, in respect to which no point was made at the trial, but it was rather conceded—the Company, by renewing the policy after such notice, waived a strict compliance with the twelfth condition of the policy, which required such information to have been made in writing, and that in any event the Company, under such circumstances, are estopped from setting-up the increased risk in bar of the action. (Ames v. The N. Y. Mer. Ins. Co., 4 Kern. R., 253; Smith v. Gugerty, 4 Barb. S. C. R., 614; McEwen v. The Montgomery Co. Mut. Ins. Co., 5 Hill R., 101; Wilson v. The Genesee Mut. Ins. Co., 4 Kern. R., 418.)

The proof, however, if not conclusive the other way, leaves it at least in doubt whether the defendants’ pro rata proportion of the loss on the goods actually destroyed in the corner store, including the cellar and loft, was not considerably less than the verdict. In other words, whether there was an amount of goods destroyed in the corner store, which, on a pro rata division of the loss between the defendants and the Hew World Insurance Company, would make the defendants’ proportion equal to the amount of the verdict.

It becomes necessary, therefore, to consider whether there was error in the first portion of the charge, which was as follows: “ That the privilege inserted in the policy, October the 3d, 1855, of connecting with the adjoining store, did not, of itself, extend the insurance over that store, nor, by the language and terms of the policy and of the renewal certificates, is the insurance necessarily extended to the stock in such adjoining store, but that the insurance was so extended, if the jury should find that such was the intention of the parties when the privilege was given and the renewals made, and that in determining that intention, the jury might consider the verbal communication made by the plaintiff, when he applied for the privilege of making the connection, the pencil indorsement-on the policy, and the fact of the resurvey made by the defendants at the plaintiff’s request.’’

The privilege of communication between the two stores, was inserted in the policy October the 3d, 1855, in these words: “The communication made with adjoining stores, does not prejudice this insurance.” The verbal communication made by the plaintiff at the time he applied for this privilege, was, that he was going to separate his stock, and keep a portion of it in the new store, and occupy both stores, and the pencil indorsement on the policy, made by the Company’s then President, was, “ Connection with apartments next adjoining Fulton avenue—■ re-survey.

If, as the judge charged, and correctly, the privilege, as inserted in the policy, did not of itself extend the insurance over the goods in the adjoining store, and there was nothing in the language of the policy itself which necessarily embraced the stock in such adjoining store, then the admission of evidence of. what was said at the time the plaintiff applied for the privilege, .was the admission of parol evidence to enlarge the terms, scope and force of the written contract, and, in effect, to incorporate a new provision into it.

It is urged that the language of the policy was broad enough, to embrace both stores, as both stores in fact constituted the “ comer of ” the two streets named in the policy. The answer is, that when the policy was first executed, there was a corner store distinct from that which was subsequently connected with it, and its language must always be read in the sense in which it was then used. To admit the evidence objected to, would be to enlarge the meaning of these words, and to give to them another and different signification than that in which they were understood when employed by the parties. (Jennings v. The Chenango Co. Mutual Ins. Co., 2 Denio R., 75; Lamotte v. The Hudson River Fire Ins. Co., 17 N. Y. Rep., 199.)

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

Pierbepont, J., concurred.

Woodruff, J.

I am not able to concur in the conclusion, that the policy in this case was valid if the jury found that at the time of obtaining the last renewal the plaintiff made a full and fair communication to the defendant of the facts increasing the risk, notwithstanding the communication was not in writing.

The twelfth condition annexed to the policy of insurance was a reasonable condition, and one to which both parties to the insurance must be deemed to have agreed, as a part of the express contract.

It was designed to protect the defendants against liability upon renewals after a change in the risk, unless they had clear information of such change, and the particulars thereof, in such a form as amounted to a warranty of the then actual condition of the insured premises.

It was a voluntary agreement of the parties also in relation to the nature of the evidence which alone should be competent to show that the application of the plaintiff for insurance was altered when he sought a renewal.

The defendants had insured the plaintiff, upon his written ap plication representing the condition of the premises, and it was a wise and reasonable precaution, to stipulate that any renewal, of that policy should be considered as made upon the same representation, unless varied by anew representation in iwiting ; and this being assented to, the plaintiff knew when he accepted the renewal, that according to the express terms of the contract, such renewal was to be deemed and construed as an insurance made upon his written representations made when the policy was first issued.

Unless this be so, the requirement that such new representation should, in order to vary the rights of the parties be in writing, was' wholly useless and nugatory. Ko case can be stated in which, if an oral communication is equally effective, this stipulation could have any operation, and for the obvious reason-that the assured may wholly disregard it, and nevertheless recover.

It was surely competent for the parties to agree by what means alone the representation first made should be altered. Had the condition read in terms, that no merely verbal communication made to the Secretary of the Company shall have that effect, it could not, I think, be claimed that the Company had not a perfect right so to define and limit the power of their officer to act, and yet the doctrine contended for binds the corporation in the face of. their express refusal to be bound.

These conditions are not technical merely. The Company may very properly be taken to have had in view, just what has happened in this case, viz.: a conflict of evidence upon the very question, whether when this renewal was made, the assured represented to them that the risk had been changed by the introduction of the bakery, oven, &c.

•Their Secretary testified positively that no such representation was made to him, and that he did not know of the existence of the bakery, nor of an oven, nor of machinery, on the premises.

Hot only so, both parties were interested to guard against the uncertainty of human life and memory, and. the danger of relying upon means of proof seldom very accurate, often and. easily rendered unavailable. The assured himself had protection in this condition as well as the Company.

The mutuality of benefit to the parties in confining them both to the terms of the stipulation will be apparent, if we suppose that the defendants were here claiming that at the time of the renewal, the assured made to their Secretary an oral representation amounting to a warranty in some particular not mentioned in his original written representation, and also claiming that such warranty was broken; the plaintiff would himself then appreciate the- -benefit of a stipulation forbidding any such proof, that his original representation had- been altered or changed.

There is nothing in this case to warrant, a charge of fraud on the part of the defendants; it stands upon the single question: When the parties have expressly agreed that any renewal of the policy shall be deemed made in reliance upon the original written representations unless a new representation is made by the assured in writing, will an oral representation have the effect to create the exception?

It is not denied that if the renewal is to be deemed made upon the original representations, the policy is void. I think the agreement of the parties is binding upon both of them, and that the Court is bound to" give it effect.

The case of Ames v. The New York Mutual Insurance Company, (4 Kern. R., 253,) does not appear to me to conflict with this view of the subject. There no representation whatever in writing was made by the assured. What the defendants relied upon as a representation was a mere memorandum made by their own agent. The agent was fully apprised of all the facts. There was nothing in the conditions of the insurance that directly or impliedly imported that no policy issued by the officers of the Company should be valid or binding, unless based upon a written application by the assured.

If the Company chose to insure without any application whatever, containing the particulars, which, if an application was made, must be inserted therein, they might well be held bound. But, if’in fact, an application was made, a stipulation that such application should be deemed a continuing representation, unaffected by merely verbal statements to one of the officers of the Company, may yet be binding upon both parties. •

In the case cited no application was made by the assured. The agent of the Company had actual knowledge of the incumbrances on the property. The policy itself contained express mention of the other insurances on the same property.

. It is impossible to say in that case, that the assured had violated any condition upon which the insurance was made. Some of the language of the opinion may seem to sustain the plaintiff’s claim in this action, but the case itself is not inconsistent with the views above expressed.

I think, therefore, that for this reason, as well as for the reason that testimony was received to oral representations made at the time of renewing the policy, to alter and enlarge the operation of the permission then given to open a communication with the adjoining store, the judgment should be reversed and a new trial ordered, costs to abide the event.

Judgment reversed and a new trial ordered.