author: Robertson, Oh. J.

text:
    Moritz Von Bruck et al. plaintiffs and respondents, vs. Frederick M. Peyser, et al. defendants and appellants.
    1. Where one defendant sold out his stock in trade to another, principally upon credit, and the vendee bad no other capital than the stock so purchased and the good will of the business, a letter written in the German language by such vendor to the plaintiffs, a foreign firm, (from whom he had been in the habit of buying merchandise on credit,) immediately after such sale, stating that he had made over his “ business, with debits and credits, to ” the vendee, who would “ continue the same, with updiminished weans,” under the title of his own name, as successor to the vendor; and, after thanking the plaintiffs “ for the confidence reposed” in him hitherto, requesting them “to extend the same to his successor,” is such a false representation of the credit and responsibility of the vendee as to make the vendor liable for goods subsequently sold to the former by the plaintiffs on credit.
    2. The whole contents of such letter, taken together, show an intention to Convey some idea of the responsibility of the person named in it. The word “ means,” in it, is not to be confined to stock in trade, but includes all resources necessary to continue the business to the same extent as before. The term qualifying it (ungeschwaehte) as undiminished, did not relate to the future, but to an existing state of things, and was intended as a comparison of the resources with which the vendee was able to conduct such business, with those with which the vendor had conducted it. It implied that the business to be conducted by the vendee, as to the means with which it was to be so conducted and its extent, were precisely the same as those of the vendor, embracing not only an ownership of the same amount of stock, but also enough money to keep up the assortment, by new purchases from time to time. Such letter was substantially a representation that the vendee’s pecuniary responsibility, for the purposes of the continued business, was as good as that of the vendor.
    3. Such interpretation of such letter was properly allowed to be corroborated by the admission in evidence of a subsequent verbal statement of the vendor to the plaintiffs that he meant to say by it that the concern remained the same, except a change of name,

    4. The testimony of the plaintiffs as to their understanding of the letter, although not admissible to vary its meaning and legal effect, was admissible| to show that they trusted the vendee on the faith of it, .

      6. Subsequent letters, written by the vendor tó the plaintiffs, and his subsequent intercourse with them, were properly admitted in evidence, in order to show ' his intent in sending such first letter.
    6. A person who has made himself liable for the contract of another by fraudu- ' lent representations of the credit of the latter, is not entitled to the benefit of the same rule of strict construction of those representations, as an honest guarantor, so as to confine his liability to the first act of deception. Nor does . the statute of frauds, as to paying the debt of another, extend to such a case.
    7. Where the falsehood of such representations, and the knowledge of it by the maker are established, he is presumed to have intended to produce thereby a permanent effect upon the mind and belief of the party to whom they were made, with the design of. affecting all future dealings between the latter and the person recommended.
    8. Any other rule would permit the instrument of fraud, after paying for his first purchase, to prey at will on the victim of it, and relieve the party committing it from all responsibility thereafter.
    9. No favor is to be shown to a falsehood, in the construction of its terms, although it may be possible to make a representation in such a form, or so limit it by accompanying circumstances, as to confine it to a single dealing.
    10. Even if representations could be so limited, the one in question, whereby the vendor of .the stock requested the plaintiffs to extend to the party recommended the same confidence they had reposed in him, with a verbal explanation thereof, as being intended to convey the idea that the concern was the same in all respects as before the sale, except as to the person and the name, where there was no extrinsic evidence offered to show it was intended to be confined to one dealing, were properly submitted to the juiy, as evidence that it was intended to cover all future dealings. The false impression of the purchaser’s responsibility, under which the last sale was made, is just as much attributable to the vendor’s fraudulent conduct, as that under which the first was made.
    11. In an action to recover the value of goods sold to a third person upon the false representations of the defendant as to such third person’s solvency, the damages must be estimated by the value of the goods when sold. If the price was payable in francs, at a period when gold was the only legal tender, the value of the franc in gold at that time is to be the measure of damages.
    (Before Bobertsob, Oh. J., and Barbour and Garvmí, JJ.)
    Heard January 7, 1867;
    decided January —; 1867.
    This was an action brought to recover in damages the price of certain merchandise sold by the plaintiffs to one Emil Kanter between February and October, in the year 1860, upon the faith of certain representations, made by the defendant to them, which they alleged were false and known to him to be so. The first was made in a letter in the German language signed by the defendant and directed to the plaintiffs, dated February 1, 1858, of which the following is a translation admitted on the trial to be correct:
    “I hereby respectfully advise you that I have this day made over my business, with debits and credits, to my brother-in-law, and assistant for many years, Mr. Emil Ranter, who will continue the same with undiminished means, under the firm of ‘Emil Ranter, successor to Fred. M. Peyser/ In giving you my best thanks for the confidence reposed in me hitherto,
    I beg that you will extend the same, also, to my successor.”
    In June following, the defendant being at the residence of the plaintiffs in Prussia, was asked by one of them (Seyffardt) as he testified, in the presence of another, (E. Yon Brack,) “ to interpret the meaning of the expression of his letter undiminished (literally unweakened) means.” He answered “that he himself being a man of property and- purposing to' live in Europe thenceforth, had given up Ms business to his brother-in-law (Ranter ;) that in fact the concern would remain altogether the same with an alteration of the firm.” During that (1858) and the following year, Ranter bought merchandise from the plaintiffs several times, generally selected by the defendant from- their stock, or ordered by him to be manufactured by them, which was paid for. In June, 1860, the defendant wrote to the plaintiffs asking in his own name for samples of goods of the kind in which both himself and Ranter had previously dealt. In July following he sent the plaintiffs a written order for such goods on behalf of Ranter ; stating therein that they would “ receive payments from Ranter” by certain drafts “punctually,” adding that he had “received the same conditions from all his European friends.”
    For gome years prior to February, 1858, the defendant had dealt with the plaintiffs, possessed considerable capital above all liabilities, and always paid promptly.
    The complaint in its final amended form, which is entitled supplemental, notwithstanding it does not contain any other. - allegations than those in the form first adopted, except as to the value of a franc and the plaintiffs’ damages, sets forth the sales of goods between February and October, 1860, by the plaintiffs to Kanter on the faith of the letter of the defendant, of February, 1858, and other false and fraudulent representations of the latter. It stated the value of such goods (fes. 11,982-^) and of the franc (50 cts.) and claimed certain damages (#5991.07.) It also alleged that Kanter, at the time of such purchase, as the defendant knew, was destitute of property and means, purchased such business on credit, and was then indebted to the defendant #7000 for the purchase of such business, and #2000 for borrowed money. That Kanter owed the defendant #27,711 on the 18th of May, 1861, and being then insolvent executed to him therefor a chattel mortgage. The answer, which was the same to both complaints, alleged, among other things, that the defendant besides selling his stock to Kanter gave him a large amount of stock and fixtures of the value of #18,000, and that the plaintiffs knew the property, means and credit of Kanter. It admitted that the latter purchased some goods of the plaintiffs in the year 1860, on a credit of six months, but put in issue most of the other material averments in the complaint.
    On the trial of the issues of fact in this case, in May, 1865, the defendant’s counsel excepted to the overruling of objections taken by him to an answer of one of the plaintiffs (M. Yon Brack) to an interrogatory put to him on a commission to examine him as a witness, wherein he stated the understanding of his firm of the words translated “ undiminished or unweakened means;” also to another answer given by the same witness to another Interrogatory under the same commission, declaring that his firm “had made sure of Ranter’s solvency” by the letters of February, 1858, and June and July, 1860 ; also to the introduction of such letters in evidence ; also to the answer of-another plaintiff (Seyffardt) to an interrogatory under the same commission, that the defendant, “before ordering the goods that were never paid for, asked for patterns in Ms own name and not in that of Kanter.”

      ■ The counsel for the defendant excepted also to the following portions^of the charge of the judge to the jury. That it was “ quite immaterial whether the German word in the letter signified undiminished or unweakened means, such words meaning substantially the same thing.” That the first question for them “ to determine was whether the plaintiffs put a similar construction upon the letter (of February, 1858,) to that which was put upon it by the general term of this court which was, that it was “ capable of being interpreted as meaning that the pecuniary means and facilities possessed by Kanter were equal to those possessed by the defendant, and that such means and facilities would be employed by Kanter in conducting his business as the defendant’s successor.” And if the jury did so, “ it was for them to say whether they (the plaintiffs) understood from it that Kanter’s pecuniary means and facilities were equal to those of the defendant.” That if they believed the testimony of the plaintiff Seyffardt, as to the alleged conversation between him and the defendant in June, 1858, before mentioned, they had “ the construction put upon the words undiminished means by the defendant himself.” That no general rule could be adopted as to the distance of time to which it could be presumed or claimed that the influences of representations continue their effect. That such extent of time “ must depend upon the facts and circumstances of each case,” and that “it is for the jury, not the court, to determine whether the parties continue to be operated upon by the representations previously made.” That - the defendant’s letters of June and July, 1858, “ might be considered in connection with the continuing influence of that of February, 1858.” All of which exceptions were overruled.
    The defendant’s counsel also excepted to the separate refusals of the court to charge as requested by him :
    1st. That the terms “ unweakened means ” mean that the capital of the concern was not less than it was before, and not that Kanter’s means were the same as the means of Peyser.
    2d. That the letters written subsequently to that of February 1, 1858, are not representations, and cannot be made the basis of any liability.
    3d. That the representations made must be understood in the sense in which the defendant intended the plaintiffs should understand them, and if the plaintiffs misconstrued those representations, the defendant cannot be liable for that.
    A witness (Ackerman) testified that the value of a franc in 1861, in gold, was 19^- cents, and in United States legal currency notes was 23 cents. No act was passed by the congress of the United States, making any notes issued under its authority, a legal tender in payment of debts, until July, 1862, (12 Stat. at Large, U. 8. 532, § 1. 2 Bright. Dig. 1165, § 1.) The value, according to the testimony of such witness, of the goods sold to Kanter with interest from April, 1861, amounted to $2998.03, calculated at 19J cents for the franc, or to $3551.12, calculated at 23 cents for the same. The court instructed the jury, that if they found for. the plaintiffs they should find for the latter sum, to which the defendant's counsel excepted.
    The jury found a verdict for the plaintiffs for such last named sum. A motion was made for a new trial, at special term and denied. From such denial and the judgment upon the verdict, the defendant appealed to the general term, and the two appeals were heard at the same time.

      W. H. Peclcham, for the appellant.
    I. The court erred in admitting the evidence of the witness and plaintiff Yon Bruck, as to what the plaintiffs understood by the expression “ unweakened means,” used in the letter of the defendant. The expression was part of a written letter. Neither plaintiffs nor defendant have a right to say what that writing meant. The interpretation is for the court. If the letter itself does not mean what the witness assumes to say he understood it to mean, then his misunderstanding is his own fault and loss. He cannot make us liable, upon what he understood our letter to mean.
    II. The court erred in admitting the evidence of the same witness. The first part of his answer is of the same character as that objected to in the first point, but more gross. He testifies he has been made sure of Ranter’s solvency, by the defendant’s letter. He might as well have testified that he had been made sure by that letter, that if Ranter did not pay his debts, Peyser would. The letters of July 26, and August 29, 1860, have not the slightest relevancy to any issue in this case. The letters are those of a man assuming to act as agent for Ranter, and the order is given for Ranter. Hot a single word is said in them as to Ranter’s solvency or condition ; but the witness says he is made sure of Ranter’s solvency by Peyser’s continuing to buy goods for him. It was suggested, when this, case was before the bar of this court, that these letters might be admissible, as tending to show that the plaintiffs at the time of the last sales still relied on the representations of the defendant. But the difficulty is, that the plaintiffs offered them for no such purpose. They were admitted in connection with the last interrogatory, and the witness states that he had been made sure of Ranter’s solvency, by the defendant continuing to buy goods for him, and by these two letters. The witness (one of the plaintiffs) treats these letters and accompanying acts as representations—as matters upon which in themselves the plaintiffs affirmatively relied. He does not say in the least that he was by them reminded of the letter of February, 1858. How, if they are inadmissible as the foundation of a distinct claim, or as constituting in themselves any cause of action, why should they be presented to a jury' by the court, for a purpose for which the plaintiffs did not .offer them, and to show a consequence which the plaintiffs did not claim.
    III. The court erred in allowing that part of the answer of the witness Seyffardt objected to by the defendant. The whole testimony of all these witnesses, is one continued effort to create the impression that Peyser was a kind of guarantor of any credits they might make to Ranter, or that in reality he, Peyser, was still dealing with them. This evidence was for that purpose, or it was for ’nothing. It was relevant to that purpose, but it was not to the issues in this case. When that issue is offered, the defendant will be ready to meet it. Upon this issue the court clearly erred in admitting it.
    IY. The court erred in not granting the defendant’s motion for a new trial. The verdict is against evidence. Peyser says he detailed the whole facts. There is nothing in. the case to contradict him. Seyffardt is the only living person whom he saw, and Seyffardt does not pretend to remember the conversation. Peyser is further conclusively corroborated as follows: The plaintiffs themselves regarded Kanter as a man without means,- except as given him by Peyser. Moritz Yon Brack says, “ we continued our transactions with'Kanter, after having had unsatisfactory accounts of him, because we had by Peyser’s letter, and by his verbal representations, the impression that he had left to his brother-in-law the sufficient capital to continue honorably his concern.” Now, does not that language clearly import that the speaker supposed that Kanter derived whatever capital he had from Peyser ; that except what Peyser left him Kanter had none ? That although their information as to Kanter himself and his own means was unsatisfactory, they continued to deal because of the impression that Peyser had left him sufficient capital to continue honorably the concern. Or if not, what does it mean ? Again, the same witness, “We considered that by the expression ‘unweakened means’Peyser’s object was to make his connections sure of Kanter’s solvency and respectability, and to make them understand that Peyser, who was known to be a man of property, left his money in the concern of Kanter, who was not known in Europe at all.” But how left his money in the concern of Kanter; not as a partner, certainly ? They did not. understand that, or they would have sued him as such, and he would, of course, have been estopped by any statements. Moreover, the letter expressly says he has made over his business with debits and credits. So that he, Peyser, was out of the concern. If, then, they understood that Peyser was not a partner, and yet that he left his money in the concern, they must have understood that Peyser loaned his money to the concern. Mr. Emil Yon Brack testifies in the very same words. Mr. Seyffardt varies the story slightly. He says that in Orefeldt, Peyser repeated the statement of his letter of February, 1858, and in addition said “ that he himself being a man of property,
      and purposing to live in Europe henceforth, had given up his business to his brother-in-law, Kanter; that in fact the concern would remain altogether the same, with an alteration of the firm.” This last language is somewhat vague, and it is worthy of remark that when on cross-examination we ask this witness to state exactly what was said and what representations were made, we can get nothing from him but an exact repetition of these words, and which he does not pretend were the words of Peyser. Again, this same witness says he was warned by Ackerman against trusting Kanter, as he, Ackerman, “ did not understand for what reason Peyser made this arrangement with his brother-in-law,” and repeats the same, except to say for what lawful reason, on cross-examination. How, does not this language clearly show that Kanter was not represented by Peyser as a man of property or of capital, and on the contrary that it was clearly understood by the plaintiffs that the “ concern ” was to be run on the capital of Peyser, or such capital as Peyser had left in the concern, and that for such capital Kanter owed Peyser. Again, the witness speaks of the “ arrangement,” and that Ackerman did not understand for what honest reason the arrangement had been made. How to what arrangement do they refer. It cannot be to the mere sale mentioned in the letter of February, 1858, for certainly, if a mere sale to a man of means and capital, there is no difficulty in giving an honest reason for it. It must then be to some other arrangement than such a sale that Ackerman and the plaintiff Seyffardt referred. Whatever arrangement there was had evidently been told by Peyser to Seyffardt, and by Seyffardt to Ackerman. There was an arrangement then communicated to Seyffardt other than the mere general sale stated in the circular letter. How what was that arrangement ? The defendant and witness Peyser states what it was, and that he told the plaintiffs what it was ; and the plaintiffs, as witnesses, all refer to some arrangement, the reason for which they do not understand, and the terms of which they do not, and, when asked on cross-examination, tuill not state. It is thus sufficiently evident that the terms of that arrangement were stated. And as Peyser states what those terms were, and as, from the testimony of the plaintiff's themselves, we know that, after their conversations with Peyser, they did not look upon Kanter as a man of capital, and that their trust in him was not on account of his capital, but because Peyser trusted him and loaned to him. Seyffardt says that “ Peyser' always tried to create with them the impression that he himself was responsible for his brother-in-law.” But if he gave them the statement or impression that Kanter was himself a man of capital, why should he have tried to create this last impression ? It is sufficiently apparent that one or the other must be untrue. Now, taking this whole testimony together, what existing fact was represented as existing which turned out not to exist ? Was it that Kanter had unweakened means ? It is beyond contradiction apparent that the plaintiffs never regarded Kanter as a man of capital, or that he was equally responsible with Peyser, and there is nothing to contradict Peyser’s statement of what did occur. And if unweakened means meant that capital should not be withdrawn from the business, it was not. And if there is any other representation comprehended in the term “unweakened means,” it has not been suggested. Was it, then, that Peyser suppressed the fact that Kanter still owed him, or that Peyser had sold the goods on credit ? Peyser says he told them of it, and the plaintiffs say that they supposed Peyser “ had left to his brother-in-law the sufficient capital to continue honorably the concern,” and if he had left it, it could be only as a loan. We assert, without fear of contradiction, that there is not proved a single representation of the existence of any fact which is shown not to have existed. If there be, we would like the court or counsel to refer us to the fact. We are aware of the extent to which this court has gone in its refusal to interfere with the verdicts of juries, but we submit that the courts have gone too far in this direction. In their effort to escape labor and responsibility, they are in great danger of omitting their duty. The law, in plain terms, gives a party an appeal to this court on questions of fact. It does not limit the right to such cases as show prejudice, passion or perversity on the part of a jury. It makes this court a court of review for errors of fact. Whenever this court is satisfied that the jury erred, it fails to perform its duty if it does not set aside the verdict. But taking the case of Lewis v. Blake, (10 Bosw. 200,) as the rule, the verdict should be set aside.
    Y. The court erred in refusing the defendant’s motion for a nonsuit. On this point we will present only matters not presented to, or passed upon by this court at the former hearing of this case. There was no evidence that the defendant at the time of writing the letter of February, 1858, or of the conversation at Crefeldt, shortly thereafter, had in his mind, or intended to induce the credit for the loss of which this action is brought. In order to sustain this action, a mere naked false statement is insufficient. It must be a falsehood, “ and told with the intention that it should be acted on by the party injured, and that act must produce damage to him.” (2 Smith’s L. Cases, 168.) In other words, the very act sought to be produced by the defendant, must be the act causing injury. Now in the case at bar, it is most apparent that the defendant, when he wrote the letter of February 1,1858, did not write it with the intention that it should be acted on by the plaintiffs in the summer and fall of 1860. The defendant, in 1858, did not intend to influence sales in 1860, nor did the plaintiffs understand him as so intending. The case of Rogers v. Warner, (8 John. 119,) is analogous. That was a letter of credit in these words : “ If D. wishes to take goods of you on credit, we are willing to lend our name as security for any amount he may wish; May 3,1804. D. took several amounts of goods for which he paid,-and in December, 1805, took another parcel of goods, for which be did not pay. It was held that the letter did not extend beyond the first parcel of goods. So take Whitney v. Groot, (24 Wend. 81.) “ We consider Mr. J. E. V. good for all he may want of you, and we will indemnify the same,” was held to make the writers liable only on the first sale. It is no answer to this point to suggest, as is done in the opinion of the court at general term, and in the charge on the trial, that owing to the subsequent letters of the defendant, the plaintiffs at the time of the late sales, might have remembered this first letter, and have relied on it. All the plaintiffs were examined and not a single one says he or they did. Seyffardt indeed is the only one who says they ever relied on it. The sales on which this action is brought, were made more than two years after the writing of the letter, and long after all the sales that followed the reception .of that letter had been made and paid for. To say that notwithstanding this lapse of time, and these circumstances, the plaintiffs might have relied on the representations of 1858, as to his then condition, is not enough. It must further appear that these representations of February 1, 1858, were “ made with the intention of influencing the sales of I860.” Now where is the evidence of any such intention on the part of the defendant ? How can such an intention be implied from such a ridiculous non-sequitur as that Kantér should have credit in the fall of 1860, because he was represented good in February, 1858. It is the more necessary to regard this element in actions of this kind, because no actual intent to defraud is necessary to sustain it. The court so charged, and such undoubtedly is the law. All that is necessary is a false statement made with a view to induce credit, and known to he false. The action in Massachusetts is regarded as so analogous to contract, that the statutes of frauds have been extended to it, and representations must now be in writing in order to .avail. (McKinney v. Whiting, 8 Allen, 207.) Such a statement may often be made with the best of motives, in order to aid a struggling friend, .and with the intention to respond if the friend is unable. It is made and understood on both sides as a kind of guaranty. Why should the liability be extended further than on a guaranty ? If to this letter of February, 1858, Mr. Peyser had added the words, “ Sell him goods, and if he does not pay for them, I will,” he would confessedly have been liable only for sales then proximately made. Is it not singular justice that he should extend his liability by failing to guaranty.

      VI. The court erred in charging the jury that there was no difference between the terms undiminished, and unweakened means. The term unweakened, has a much more natural reference to the amount of capital employed in the business, than to the general means of the party—“ undiminished” less so.
    VII. The court erred in holding and charging the jury that it was for them to say what construction was put on the term “ unweakened means,” by the plaintiffs. It is the province of the court, and not the jury, to construe written documents, and the question is what the document means, and not what the plaintiffs understood it to mean. Moreover, if the court should leave questions of construction to the jury, the rule of construction is not, as charged by the court, what the plaintiffs understood the statement to mean. The true rule in such cases is that the statements must be interpreted in that sense in which the maker had good reason to believe the other party understood it. (Hoffman v. Ætna Ins. Co., 32 N. Y. Rep. 405.) The learned court below charged the jury that the question for them was how did the plaintiffs interpret and understand the contract.
    VIII. The court erred in charging the jury that they must find a verdict for the larger of the two calculations of the witness Ackerman, i. e. 'the one based on the franc at 23 cts. instead of 19J. The verdict is based on the value of a franc, in April, 1861, and. interest from that time. The witness says it was worth 19J cents in gold, 23 cents in paper. How the paper then referred to was not legal tender notes, because the legal tender law was not' passed till the 11th of July, 1862. (12 U. S. Stat. at large, 532, § 1. 2 Brightly’s Dig. 1165, § 1.) Inasmuch as at that time Ranter was bound to pay in gold, and could not pay in the paper currency, it is clear that the amount then due must be fixed by the value of the franc in the only recognized currency. (See Commonwealth v. Haupt, 10 Allen, 38.).
    IX. The judgment should be set- aside and a new trial granted, with costs to abide the event, pr the verdict must be set aside and a new trial granted, unless the plaintiffs agree to reduce their verdict to $2998.03, in which case the defendant must have the costs of this appeal—for non constat that if the verdict had been for that amount he ever would have appealed.

      Thos. Darlington, for the repondents.
    I. As to the admission and exclusion of evidence there is no error in the ruling, as it lets in the understanding of the plaintiffs in regard to the defendant’s representation. The evidence is neither incompetent, irrelevant, or inmmaterial; but, assuming it to be so, the admission can do no harm to the defendant. The same remark applies to the next exception. The court in charging the jury explains fully the bearing of the two letters. The next exception is of the same character, and refers to the same subject.
    II. This being an action to recover damages for fraudulent concealment as well as for fraudulent representations, and the fraudulent concealment being apparent from the admissions of the defendant himself, the verdict might be sustained, even if every exception was well founded. This admission is made in the most solemn manner in open court, on the defendant’s examination as a witness in his own behalf.
    III. The only real question attempted to be raised on this appeal is contained in the exception at fol. 381, p. 78. It is the question whether a French franc ought to be calculated at 23 cents, or at 19J cents ; in the former case, the amount of the verdict would be entirely correct, in the latter case, it would have to be reduced to $2998.03. The undisputed evidence in the case, shows that a French franc was of the value of 23 cents, at the commencement of the action, in the year 1862, and also on the day of trial ; that in 1861, the value of a franc in paper currency, was also 23 cents, and at the same time in gold 19-|- cents. Taking into consideration the fact that the original contract between the plaintiffs and Kanter, was one of exchange, by which the plaintiffs delivered to him goods, for which he agreed to furnish francs, it is evident that the measure of damages is the value of francs, either at the commencement of the action, or on the day of trial, which, in either case, is twenty-three cents.
    IV. There is no law in existence by which the value of a franc is fixed, for commercial purposes. The statute does not provide for any par value of any foreign coin. The constitution of the'United States provides that congress shall have power “ to coin money, regulate the value thereof, and of foreign coin.” In accordance with this power, congress passed an act in 1792, which professed to fix the value of foreign coins, although it was decided that this act was passed for revenue purposes only. ’ (Phillips v. Ins. Co. of Pa. Hall’s Journ. of Juris. 250, 267.) But to remove all doubts, the act of May 22, 1846, fixed the value of foreign coins expressly in respect to computation of the custom house, and not for commercial purposes, and repeals all acts inconsistent therewith ; at that time foreign coins were still a legal tender within the United States. The act of February 21, 1857, (11 Slat. 163,) repealed all former acts which made foreign coins a legal tender in payment of debts ; and these two acts made or left foreign coins marketable articles, the value of which must be ascertained as matter of fact from the evidence. Section 3 of the act of 1857, reads thus :
    “ That all former acts authorizing the currency of foreign gold or silver coins, and declaring the same a legal tender in payment for debts, are hereby repealed ; but it shall be the duty of the director of the mint to cause assays to be made from time to time of such foreign coins as may be known to our commerce, to determine their average weight, fineness and value, and to embrace in his annual report a statement of the results thereof.”
    V. The legal tender act has no application to this case. It provides that the notes thereby created shall be lawful money and a legal tender in payment of all debts, public and private, within the United States. (12 Stat. 345.) Conceding the debt which underlies this case to be a “ debt within the United States ; ” the question would still remain to be solved, what the amount of that debt was. 'If Kanter had agreed to pay a certain and definite sum of dollars, he would have had a right of discharging that debt by paying the amount in legal tender notes. But the contract was one of exchange by which the defendants agreed to give the plaintiffs francs for silks, and as neither is money according to our law, the legal tender act does not profess to provide the price for either, and hence it is entirely inapplicable.
    VI. The debt on which this action is based being made payable in Europe, and afterwards sued for in this country, the creditor is entitled to receive the full sum necessary to replace the money in the country where it ought to have been paid, with interest for the delay ; for then, and then only, is he fully indemnified for the violation of the contract; and in such case, when money is payable in a foreign country and in a foreign currency, by the terms of the contract, its value is fixed according to the rate of exchange at the time of the trial. (Lee v. Wilcox, 5 Serg. & Rawle, 48. Smith v. Shaw, 2 Wash. Cr. 167. Grant v. Mealy, 3 Sum. 528.) In this last case, Judge Story, in delivering the opinion of the Supreme Court of the United States, reviews and disapproves the cases of Martin v. Franklin, (4 John. 125,) and Scofield v. Day, (20 id. 102,) and exposes the defect in the reasoning which induced these decisions. These two-New York cases were decided at a time when foreign coins were still a legal tender, and when an actual difference existed between the exchange value and the par value of these coins. (See also decisions of the N. Y. Common Pleas in Bergman v. Kanter, and Buckemeyer v. Gardly. Also, Story on Conflict of Laws, §§ 308 to 310.)
    VII. Aside from statute laws, it would be highly unjust, injurious, and inequitable to permit the contracting of debts in a foreign country at our specie standard, and the payment of the amount thus ascertained in our depreciated paper currency. Foreign transactions necessarily are made and expressed in foreign currency. ■ To apply to their enforcement by suit, the specie measure of equivalency in Federal currency, and then permit their discharge in the same sum of paper, would he introducing a monstrous inequality, to the prejudice of foreign creditors ; indeed our courts would thus he practically closed against the enforcement of foreign debts and of consequence commercial credit, without which foreign commerce cannot be carried on, will fail.
   By the Court,

Robertson, Oh. J.

There were substantially but two points at issue between the parties in this case : First. The truth of the defendant’s representations contained in his letter of February, 1858, either construed according to the natural and ordinary meaning of its language, or as interpreted by the defendant in June following, in his interview with two of the plaintiffs, (E. Von Bruck and Seyffardt;) and, Secondly. Their effect, in inducing the plaintiffs to sell to Kanter the goods in question in 1860, nearly two years after-wards.

Whatever the precise philological meaning of the terms used in the letter of February, 1868, was, they were plainly intended to procure credit for Kanter, by conveying some idea of his responsibility. = The defendant could not have intended by the word “ means ”. to embrace only “ stock in trade,” which he had already stated he had transferred to Kanter, because that would be diminished by expected sales. He must have intended all the resources necessary to continue the same business which he had carried on, and, of course, capital. But the epithet used by the defendant to qualify means, (whatever English word be employed as a translation,) does not relate to the future, but implies some existing state of things, and is also a comparison of the existing means of Kanter, with a standard which could only have been his own resources. The same business, in all respects, was to be continued by his successor, and the pecuniary means with which it was to be conducted were to remain unchanged; in other words, were to be as strong and reliable as those previously employed by the defendant; that is, he was not only to own the stock free from debt, but to have money enough to keep up the assortment of goods. No one, except by a random conjecture, could have arrived at the idea that the defendant only meant to say, either that he had given a long credit for his debt, or that he should not press Kanter to pay the debt due to him, so long as he owed others. He did not deprive himself of the power to do so. The language used was not confined to any action of his, and he did not even state that any thing was due. Considering its connection with the announcement of the transfer of his business to Kanter, and the request to continue the same commercial confidence in the latter which they had given to him, there can be but one interpretation of the meaning of that part of the letter, to wit, that Kanter’s responsibility was as good as his. This accords precisely with the explanation given by him in the interview of June following, that he meant to say the concern remained the same, except a change of name. That was entirely admissible as evidence, under the pleadings. The exceptions to the charge as to the meaning of the words were properly overruled.

There was, however, another somewhat novel point urged on the argument before us, affecting the extent of the defendant’s liability, of which it may be better now to dispose. The learned counsel for the defendant apparently sought to place every one who should obtain credit for a third person, by false representations of his solvency, upon the same footing with an honest guarantor of the liability of such third person, by claiming the same rule of strict construction, so as to make him liable for only the first act of deception. There may possibly be some reason for extending the operation of the statute of frauds to such representations, as has been done in Massachusetts, (McKinney v. Whiting, 8 Allen, 207;) but when once actually made, in writing, I am not aware that such a principle has ever been tolerated as that now presented. A person who makes such a representation'is not liable, until both its falsehood and knowledge of its falsity are shown. It is then to be presumed to have been intended to have its effect upon the victim’s mind and belief permanently, until dislodged by some other occurrence. To limit the influence of such a general statement, and confine the liability of its maker to a single, dealing, would allow the instrument of fraud to prey at will upon the sufferer, after paying for the first purchase, and enable the originator of it to escape liability and secure certain advantages for the future, at the risk of only a small sum. It is not impossible.that a representation may be made in such form, or limited by accompanying circumstances, as not to reach beyond a single dealing, but there is no favor to be shown to a falsehood, in the construction of its terms. In this case the defendant not only did not limit the use to be made of his statement, but even requested the plaintiffs broadly to give Kanter the same confidence they had shown him. Kor did any extrinsic evidence tend to show that its reliability was to terminaté after one dealing. It was, however, not thought worth while on the trial, even to claim the application of any such rule of law by instructions to the jury to that effect.

But the defendant removed any doubt there might or ought to have been on the minds of the plaintiffs, relative to the meaning of the letter of February, by his oral explanation in June following, that he intended to say the concern was the same, as regarded dealings with others, except in name. If Kanter had never bought any goods until 1860, or the February letter merely announced the defendant’s retiring from and transfer of his business to Kanter, who was to carry it on with the same stock, in trade which he had bought from him, and the defendant had never again intermeddled with any of the transactions between the parties, there might be some room for arguing that the plaintiffs did not trust, in 1860, to any statement of Kanter’s resources in 1858. But, considering the previous relations of the parties to this action and the defendant’s constant supervision of Kanter’s dealings with the plaintiffs, after the information given to them by him that the resources of Kanter were no less than his, after his purchase of the defendant’s stock, and that the concern remained the same in every thing but name, no time was afforded for the source of their confidence in Kanter to fade from their -memory. His intermediate purchases and payments may .have strengthened their faith, but would not be likely to diminish the impression under which the first dealing was had between the parties, or to obscure its origin. Commercial good faith requires that the defendant, if he was guilty of unfairness, in producing the first impression on the minds of the plaintiffs and it had never been entirely effaced, should be as responsible for the last as the first transaction. The defendant was interested in sustaining Kanter’s credit, at least until the first of the notes given by the latter on the. purchase became due, which was in 1861, when if unpaid, all would become due. It cannot be doubted that he was at least partly influenced in giving assistance to Kanter to enable him to meet that liability. Finally when Kanter’s credit broke down, he absorbed all his assets, although having in the meantime constantly facilitated him in making purchases. He certainly has no. right to urge, as against the plaintiffs, who on the strength of his representations were dealing with Kanter, unconscious of the load he had to carry from the outset, that the last dealings in which he selected the goods bought, should be to them a total loss. So long as the notes of Kanter to the defendant remained unpaid, the constant agency of the latter in the business of the former, the continuous dealings with the plaintiffs by both, linked the first and last representation by the defendant of Kanter’s responsibility so indissolubly together, that it became wholly immaterial, whether the jury should have found that the defendant merely availed himself in his letter of July, 1860, of the lingering recollections of that of February, 1858, or the impressions it had left, to procure new credit for Kanter, or he originally designed by the latter to continue to produce the same effect until the notes to him were paid, or even whether he had any specific purpose at all. The admission in evidence of the letters of the defendant in 1860, and all the circumstances of his intercourse with the plaintiffs, were proper evidence to make the defendant responsible for having procured the last sales to Kanter by fraud.

Without regard, however, to the proper legal interpretation of the language of the letter of February, 1858, and however much or little it may have been affected by the defendant’s explanation of it, four months afterwards, in establishing the reliance of the plaintiffs on the representation so made, which was essential, it became material to prove in what sense they understood it, so as to have justified confidence in Kanter’s resources, as being more than merely having the same stock of goods which the defendant had owned, and continuing his business. If the defendant apprehended any danger of the jury taking such evidence as proof of the actual legal meaning of the words used, he could have protected himself by requesting the court to instruct the jury that it was not. The questions therefore put to the plaintiffs, as to their understanding of the representations, were entirely legal and the objections to them were properly overruled. The answer of the plaintiff to the last general interrogatory put to him on the execution of the commission, that they were “ made sure of Kanter’s solvency ” by the defendant’s letter of February, 1858, and “ by his continuing to buy goods for him,” as shown by the two letters of June and July, 1860, expressed substantially the idea that they relied on Kanter’s responsibility, from the defendant’s letters, coupled with his conduct, which connected the whole series of dealings. It was therefore admissible on the same principle as the contents of the letters 'themselves. It was not essential, in order to make such testimony admissible, that the witness should have testified that he was “reminded” of the contents of the first letter by such subsequent acts, because the complaint charges that the sale-was made partially on the faith of the representations made in 1860. The reference made by another plaintiff (Seyffardt) on his examination, to the fact that the defendant before he ordered (in July, I860,) the goods, which never were paid for, asked (in the letter of June, I860,) for patterns in his own name and notin Kanter’s, tends to the same point, of showing the appearance always presented by the defendant of the most intimate knowledge and control of Kanter’s affairs. Whatever the defendant’s intention may have been, his- whole conduct was such as was .most likely to create a strong impression that he knew that Kanter -was perfectly able to pay for all he bought, and the plaintiffs were therefore entitled to prove that conduct, leaving him to explain it if he could. I cannot find, therefore, any reason for disturbing the judgment for any errors in the charge or in admitting or excluding evidence.

But it is claimed that a new trial should have been granted upon the motion for that purpose, because it is said the verdict was against evidence. This renders necessary some examination of the latter. It is confidently claimed for the defendant that every fact represented by him, (assuming, I presume, the interpretation by the plaintiff of his representations,) existed as represented and appeared in evidence on the trial. That Kanter was a man of unimpaired means, because the plaintiffs never looked upon him as a man of capital, and in fact no capital was ever withdrawn from the business. The representation as claimed by the plaintiffs was, that Kanter would continue the defendant’s business with unimpaired means, implying the same resources as those with which the defendant had carried it on. Although a mere promise to continue it with like means, would not be a statement of a fact, the assertion that the means remained the same, was, particularly as the defendant explained it, as being that the concern remained the same in all respects except the change of nanie. All doubt as to the inability of Kanter, in February, 1858, to carry on the business with the same resources as the defendant had, being laid aside, it is urged that the plaintiffs never regarded Kanter as a man of capital, knew that he had bought the defendant’s business on credit, and relied simply on the defendant’s leaving his capital with him. That theory is based .entirely upon the supposed testimony of the defendant, that he detailed to the plaintiffs the whole facts of the transfer to Kanter, and that they admitted in their testimony, that they knew that some arrangement had taken place between them. That, however, originates in an entire misrepresentation or misconstruction of the defendant’s testimony. In answer to a question put to him as to what was said either by himself or the two plaintiffs, (E. Von Bruch and Seyffardt,) present at the interview of June, 1858, he stated that his reply, when they both asked him upon what terms he had sold his business, was ufor thirty thousand dollars,” evidently assuming the inquiry to relate only to price, and he further stated in his cross-examination this to be all that he told him., and that he did not believe he had omitted any thing. The subsequent details given by him in the same answer, of his arrangement with Kanter, were evidently not pretended to have been then communicated. And he merely assented to the subsequent information given by him by his counsel, whether true or not, that he had stated that he “ told Seyffardt the fact in regard to the sale.” He nowhere undertakes to say that he disclosed the fact that Kanter had not paid for the property bought of him, which, from the letter of February, 1858, they had a right to infer he had done. The additional incidents of such interview, stated by the plaintiffs and not denied by him, fully establish the limited nature of his disclosures. The continuation by the plaintiffs of their dealings with Kanter, notwithstanding they had had “ unsatisfactory accounts” of him, when they were yet under the impression, from the defendant's previous statements, that he had left his successor sufficient capital to carry on the business, is not at all inconsistent with the belief that Kanter had paid for the stock in trade, and that the money furnished him by the defendant was to make new purchases. The warning of a third person (Ackerman) of his inability to understand what “lawful” reason there was for such an arrangement, does not imply knowledge by them, or even him, of any thing further than the fact of a transfer. The defendant, therefore, nowhere undertakes to testify that. he disclosed to the plaintiffs the whole arrangement with Kanter, or that the fact that he had the same goods to sell which the defendant previously had, without regard to the fact whether he had paid for them or not, satisfied them. Some stress is laid upon the circumstance that the defendant had not, to reimburse himself, withdrawn from Kanter any of his capital, consisting of his stock in trade and borrowed money, so that his means were, in fact, still unwealcened, but, as I have already stated, the true construction of the phrase implies a comparison with the defendant’s previous means, and not a mere promise.

In fine, it is somewhat difficult to imagine what purpose the defendant had in sending the letter of February, 1858, except to procure credit for Kanter by means of its contents. If the object had been to save unnecessary trouble in soliciting purchases, to a firm with whom the defendant had previously dealt, the mere announcement of his retiring from business would have been amply sufficient. The defendant was a buyer from his European correspondents, not a seller to them. A solicitation of a continuance of their confidence for his successor, could only have been, to enable the latter to buy. There was no end to be answered in describing the means of his successor as being unimpaired, except to increase confidence in his responsibility. But when the whole contents are taken together, first announcing the transfer of the defendant’s business, debits and credits to Kanter, next the relationship of the latter to the defendant, and then that Kanter would not carry on a new business, but continue “ the same,” (that is, the defendant’s) with wndiminished means, under a firm which designated him as the defendant’s successor, and finally asking for the same confidence in him as the defendant had enjoyed, it is hardly possible to conceive how the defendant could have used expressions better calculated to produce the belief that, so far as Kanter should need any credit from the plaintiffs in continuing such business, he was, in all respects, as worthy of it as the defendant. If the defendant intended the effect only for the first purchases, he should have disclosed Kanter’s true pecuniary condition, and left the facts of his having paid for them to have their effect, independent of such letter. I see no reason, therefore, for disturbing the verdict on the evidence, if the amount be proper.

But I think the verdict was for too much. Of course, the damages to the plaintiffs must be estimated by the value of the goods in question when sold ; that was estimated in francs. The value of the franc at that time, in the only currency which was then a legal tender, was nineteen and a half cents, and the two values on gold and paper had not been sanctioned by law. The verdict should, therefore, be reduced to the- amount due at that rate, (#2998.03.) The judgment should be affirmed upon making a rebate of the excess by the plaintiffs ; otherwise there must be a new trial, and the judgment must be reversed.


source: Caselaw Access Project

author: Robertson, Ch. J.

license: Public Domain

text:
    Edward Berrian et al. plaintiffs and respondents, vs. The Mayor, &c. of the City of New York, defendants and appellants.
    1. A payment, by a debtor, made and received by the express terms of the writ- , ten acknowledgement of it, “ in full of all demands,” operates as a direct repudiation and denial of any further liability, and cannot .operate to take the residue of a demand out of the statute of limitations.
    55. The failure of the creditor to observe the contents of a receipt signed by him, and his protest against receiving a payment in full of all demands, are immaterial, after he has been informed that such payment is upon that condition only, and the receipt in consequence is presented to him to sign. The agreement so entered into cannot be explained away by parol evidence, merely because it accompanies and is contained in an acknowledgment of the receipt of the money.
    3. The question of the operation of the acceptance of a payment of a less sum in satisfaction of a larger demand as a discharge, is entirely different from that of its effect in taking the residue of such demand out of the operation of the statute of limitations.
    4. Although the application of money paid generally may be made by the creditor, to which of several claims he pleases, when not made by the debtor, or, if not made by either, is made to those which first accrue, such application is not made upon the ground that it is most beneficial to the creditor. The application recognized by law, as made by the debtor, need not be made in express terms; it may be inferred from circumstances.
    5. No stronger case for the implication of a direction by a debtor first to apply money paid by him to that part of his indebtedness which accrued last, can well be imagined, than when his earlier indebtedness is barred, either by the statute of limitations or otherwise, and such payment is expressly made and received in full of all demands. IPer Robertson, Oh. J.
    6. Such application is most favorable to the debtor, and to suppose an intent by him to make a different one, would be to infer his voluntary retention of a liability, in the face of his making such payment solely on the faith of a waiver by the creditor, of any other claim. Per Robertson, Ch. J.
    7. A claim to apply the rule of law, which disregards a parol agreement to accept a sum less than what is due, in satisfaction of such greater demand, is-not so meritorious as to require the application, by presumption of law, of a general payment to be made in such a manner, as to enable the party making such agreement to escape its performance under that rule.
    8. A stale claim, revived nearly six years after an agreement to receive a certain sum in full of all demands, does not merit much favor, in regard to the claims to which a payment made on general account is to be applied; particularly against a municipal body, one of whose financial agents, who made such payment, is dead. Per Robertson, Ch. J.
    9. Neither the authority given by the legislature to a municipal corporation to raise a specified sum to pay the amount due to individual creditors, nor their actual collection of that sum by taxation, can convert them into private trustees or agents of such creditors, and make them liable for money had and received; since they collect and disburse it as public agents. Whatever remedy the creditors may .have, to obtain such sum, under such statute and collection, by mandamus or other process, it is not by an action.
    10. Neither the promises of the financial officer of a city to pay a demand, nor the report of the financial committee <jf the common council, in favor of payment, made preparatory to collecting* the tax levy, are such an admission in writing as to bind the city, so as to take the case out of the statute of limitations.
    (Before Robertson, Ch. J., and Barbour and Garvin, JJ.)
    Heard January 14, 1867;
    decided —--, 1867.
    Appeal from a judgment entered upon the report of a referee.
    The action was brought to recover a balance of $2242.67, with the interest claimed to be due the plaintiffs for work done and materials furnished. At various times between the 1st of September, 1857, and 1st of April, 1858, the plaintiffs furnished work and materials for repairing and fitting up engine houses and bell-towers in the city of New York. . The work was done without contract, in separate jobs or parcels, each less than $250 in amount, under the direction of the chief engineer of the fire department, and without any resolution or direction of the common council authorizing or directing the same. The amount of the work, &c. is alleged in the complaint, as amended,to be $14,900.
    The proof fixes the amount at $12,179.66. The defendants had paid to the plaintiffs for said work (as found by the referee,) as follows:
    In March, 1858, In June 21, 1858,
    $2610 94 10,046 39
    Making in all
    $12,657 33
    When the bills were presented the comptroller employed a person (Lewis) to examine and make a valuation of the work done. He recommended that a reduction should be made thereon. The defendants thereupon, on the 21st of June, 1858, paid to the plaintiffs the sum of $10,046.39, and received from them a receipt “in full of all demands against the city of Hew York,” which the defendants insisted was a bar to the plaintiffs’ claim. The plaintiffs alleged that said receipt was given “under protest.” That in the tax levy of 1858, (Laws of 1858, eh. 305,) enacted April 17, 1858, the sum of $14,900 was directed to be raised for payment of their claim ; that having been paid only $12,657.33, they are entitled to recover the balance—$2242.67 and interest—for which they brought this action (as the defendants alleged) on the 6th of May, 1864.'
    The defendants pleaded, 1st. Cfeneral denial. 2d. Payment in full as above stated, 3d. That the claims and demands of the plaintiffs did not accrue within six years before the commencement of the action.
    The referee gave judgment for the sum claimed, with interest, whereupon the defendants appealed.

      R. O’Gorman, for the appellants, defendants.
    I. There is no proof that an ajjpropriation covering the expense was made by the common council prior to the performance of the work and the furnishing of the materials. Without such appropriation such expenditure could not be legally made. Such proof, therefore, is absolutely essential to establish the plaintiffs’ right to recover. (See sec. 28, charter of 1857, p. 276, Valentine’s Laws.)

    II. It is admitted that the work was not done under or in pursuance of any contract; therefore, in order to render the defendants liable it must be established that the necessity of the work was certified by the head of the appropriate department, and that it was authorized or directed by the common council, pursuant to the provisions of section 38 of the charter. (See Valentine’s Laws relating to the city New York, p. 279.)
    The plaintiffs do not pretend that the common council authorized or directed the work, but rely upon the facts : (1st.) That it was done under the direction of the chief engineer of the fire department on and upon the property of the city. (2d.) That the comptroller promised that it should be paid for. (3d.) That the defendants have the use, enjoyment and benefit of it. The fallacy of the plaintiffs’ position consists in regarding the officers of the city as agents having general power to bind it and render it liable by their acts, when in truth these officers possess only the powers and duties prescribed in the statutes which define their functions, and the city cannot be made liable by any act of such officers which is not authorized by those statutes. (Bonesteel v. The Mayor, 22 N. Y. Rep. 162 Donovan v. The Mayor, 33 id 291. Brady v. The Mayor, 2 Bosw. 173. Smith v. The Mayor, 4 Sandf. 221 27 How. 44. 23 Barb. 349. 15 Now. 462. 24 Barb. 427.) The chief engineer had no power to employ the plaintiffs; without authority from the common council. The comptroller, by his promise, could not bind the defendants to pay a claim illegally contracted. Nor could the use and enjoyment of the work furnished ratify or create by implication a contract to pay therefor. (McSpedon v. The Mayor, 7 Bosw. 601. Peterson v. The Mayor, 17 N. Y. Rep. 449.)
    III. The plaintiffs have been paid in full for the work done.
    1. It is submitted that the plaintiffs are bound by their sworn bill of particulars and the testimony of Mr. Berrian that “ the items of the bill are true and correct,’’ which fixes the amount at $12,178.66 ; although he afterward says, that the amount of the bill in the tax levy was $14,900. The referee has found that the defendants have paid $12,657.33, which exceeds the amount of the bills established by the plaintiffs’ testimony.
    2. The payment of J une 21, 1858, was made after dispute concerning the value of the work done as payment in full by the defendants, and the receipt in full then given is a bar to the plaintiffs’ claim for further payment. The rule that payment of a less sum in satisfaction of the debt is not good, as an accord and satisfaction, applies only when there is no dispute as to the amount or existence of the debt. In this case there was a dispute as to the value of the work done, and after examination and controversy the defendants fixed upon an amount which the plaintiffs received, and for which they gave their receipt in full. Such receipt, given under such circumstances, is a bar to subsequent action. (Palmerton v. Huxford, 4 Denio, 166. Pierce v. Pierce, 25 Barb. 243.)
    IY. Hone of the items of indebtedness alleged in the bill of particulars accrued within six years before the commencement of this action ; and the plaintiffs rely upon the alleged partial payment on June 21, 1858, to take the demand out of the statute. It is a settled rule of law, that in order to take a demand out of the statute of limitations by part payment, it must appear that the payment was made on account as part payment' of a larger debt. (Arnold v. Downing, 11 Barb. 556.) Unless it amounts to an admission that more is due, it cannot be an admission of existing debt. (19 Wend. 401. 6 Eng. Law and Equity, 520.) And it must be an unqualified admission without any circumstance indicating an intention not to become liable. Whatever may have been the mind of the plaintiffs in receiving payment, the testimony of (Groesbeck, the fact that a receipt in full was exacted, and the circumstances surrounding the payment made of June 21, establish that such payment was made by the defendants and intended by them to be in full, not as part extinguisment of all the debt. There was no circumstance indicating an admission that more was due. Every circumstance indicates and manifests an intention not to become liable for any further sum. The payment, therefore, cannot be considered an admission that any larger sum was due, and is insufficient to take the case out of the statute.
    Y. The fact that $595,441 was raised in the tax levy of 1858 to pay “ arrearages of 1857,” and $14,900 was stated in the budget upon which that law was based, as the amount of the plaintiffs’ claims in arrear, does not, ex próprio vigore, entitle them to demand and receive that sum from the defendants. The tax levy only places the money in the hands of the defendants to pay the plaintiffs’ claim when he shall have established it pursuant to law, if disputed.
    YI. The exceptions are well taken. The promises or declarations of the comptroller testified to were no part of his official duty, and the defendants are not bound by them. (See cases cited under Point II.)

      0. Fine, for the respondents, plaintiffs.
    The whole case shows that the plaintiffs’ claim is meritorious, and should he paid. The work and materials were all done and furnished by the plaintiffs to and for the defendants; were well done, at fair and reasonable prices; the city accepted it all, and are using it to this day. It is, therefore, the policy of the law, and it will he the pleasure of the court, to aid in legally establishing the plaintiffs’ claim. The defendants seek to avoid payment, for what they are now using and enjoying, on purely technical grounds. The defendants now say that they are not liable, because: 1. The plaintiffs have not proven affirmatively that there was an appropriation covering the expenses, made by the common council prior to the performance of the work, &c. and refer to section 28, charter of 1857, page 276, Yalentine’s Laws. 2. The plaintiffs, they say, have not proven affirmatively that the necessity of the work was certified by the head of the appropriate department; and that it was authorized or directed by the common council, and refer to section 38 of same charter. (See Valentine’s Laws, p. 279.) These positions taken by the defendants are not, nor is either of them, tenable, because:
    1. The defendants have not pleaded either of these things, nor any part of the statute, behind which they now seek to avoid liability, although there is nothing in the case to show that the statute was in any way violated. This plea was necessary to raise either of these questions. In the leading case of Donovan v. The Mayor, &c. (33 N. Y. Rep. 291,) this plea was interposed, and the questions there raised under the same- charter. The statute was pleaded. It is an elementary principle of pleading, that every thing in a pleading, in regard to fundamental requisites, will be construed most unfavorably to the pleader. (12 N. Y. Rep. 201. Beach v. Bay State Go., 30 Barb. 433; 18 Hoio. 335.) Again, when an answer is susceptible of being construed to contain either of two defenses, that most unfavorable to the pleader will be taken. (Bates v. Roselerans, 23 How. Pr. 98.) The charter of 1857, above referred to, does not declare contracts void, if not made in the way provided. It simply provides how they shall be made. This affects the question of pleading, and is, of itself, a reason why the statute must be pleaded by the defendants before they can have the benefit of it. They must, by plea, negative a compliance with the statute. Usury cannot be proven by the defendants, nor even, if shown by the plaintiffs, can it be available to the defendants, unless pleaded, although it is a violation of the statute, and against public policy. (Scott v. Johnson, 5 Bosio. 213. 16 N. Y. Rep. 297. 12 id. 9. The People v. Carpenter, 24 id. 86.) The Code, section 163, provides for, and thereby requires, the pleading of private statutes. An ordinance of the common council of the city of New York is not a public statute, and must be specially set forth in a pleading. (The People v. The Mayor, &c. 7 How. 81.) The charter of the city of New York is a private statute. It does not “ relate to the kingdom ” or state “ at large,” and as such it must be specially pleaded. (1 Kent’s Com. 506, 508, 7th ed. marg.pp. 459-461. Wright v. Patón, 10 John. 300.)
    II. The law will presume that public officers and officers of the law have done their duty, and filled their positions, as required by law, until the contrary is first alleged, and then proven affirmatively by those who seek to avoid liability in consequence of a supposed dereliction of duty, especially when on the part of their own agents. (Downing v. Rugar, 21 Wend. 178. Hilts v. Colvin, 14 John. 182. 2 Cowen’s Tr. 403.) All presumptions are to be indulged in favor of the regularity of all acts, &c. exercised under the legislative power, &c. Those who would impeach it have the burden of disproving a compliance with’ the conditions imposed by law as requisite to the exercise of the power, &c. (The People v. Carpenter, 24 N. Y. Rep. 86. Elwell v. Dodge, 33 Barb. 336. Hartwell v. Root, 19 John. 345. Jackson v. Belknap, 12 id. 96.)
    III. There is no evidence even that all the statutory requirements were not complied with. On the contrary, it is found as a matter of fact by the referee, and proven, that the plaintiffs were properly employed by the defendants, even if that subject could be gone into under the pleadings in this case, which cannot be done.
    IV. That portion of the charter of 1857, § 38, &c. relied upon by the defendants to defeat the plaintiffs* claim herein, but not pleaded, even if pleaded, and had been established, could have no application in this case, for its operation as to this claim, of these plaintiffs, has been repealed by the same authority creating it, the legislature, and also by the defendants themselves, by express authority, direction and appropriation of the exact amount of money to pay this claim.' The charter referred to took effect on the first day of May, 1857. The appropriation and direction to pay this claim was in 1858. There can be no doubt, that the body having authority to make a law,, has equal power to repeal it, or restrict or qualify its operations. (The People v. Haws, 36 Barb. 59. The People v. Flagg, 16 id. 503. The People ex rel McSpedon v. Haws, 21 How. Pr. 178.) Again, the referee has found as a matter of fact, that this appropriation, &c. was made to pay this bill of the plaintiff, and the whole of it, and that such was the intention of the common council and the legislature, and that the defendants received the money for that purpose, and in trust for the plaintiffs. This finding of fact, which is supported by all the testimony on the subject, relieves the case of any doubt for whom this money was intended ; and thus the plaintiffs are, by this appropriation, &c. ex propria vigore, entitled to receive the full amount of their bill so appropriated, for the balance of which this action is brought.
    Again : Contracts morally good, but which are made during the existence of a statute forbidding them, are made valid by the repeal of the statute. (Central Bank v. Empire Stone Dressing Co., 26 Barb. 23. Curtis v. Leavitt, 15 N. Y. Rep. 9.)
    V. The defendants pleaded that on the 23d day of June, 1858, they adjusted and settled the whole claim mentioned in the complaint ($14,900) with the plaintiffs, for and at the sum of $10,046.39, in full satisfaction, &o. and they rely upon the receipt for $10,046.39, of June 23, 1858. On this point they are met by the evidence of the case, and the finding of the referee thereon, as matter of fact. The plaintiffs never knew that they had given a receipt in full when they received the $10,046.39 ; never intended to give a receipt in full, or accept that amount in full; but expressly said they did not, and would not, receive that amount in full, and said they would sue for the balance, and the defendants never supposed that the plaintiffs received it in full. The plaintiffs even believed that the receipt was altered after they had signed it, by inserting “ in full,” &c. The law is well settled that payment of a less sum in satisfaction of a greater debt due, is not good as an accord and satisfaction, or otherwise. (Hunt v. Blomer, 5 Duer, 202. Hendrickson v. Beers, 6 Bosw. 639. Thomas v. McDaniel, 14 John. 185. Rourke v. Story, 4 E. D. Smith, 54. 17 John. 169.)
    VI. The defendants further pleaded the statute of limitation, but only as to those claims and demands alleged in the complaint and bill of particulars to have been for work and labor done, and materials furnished prior to the 8 th day of December, 18,57. Here, too, the defendants are met by the testimony ip. the case, and the finding of the referee.

      1. Only a comparatively small portion of the claim dates prior to the 8th day of December, 1857. It amounts to about $3482.66, leaving a balance of $11,417.34, to which the statute is not interposed. Thus on the case, as put, the balance of $2242.67, is all taken out of the operation of the statute, and the payments made were, as matter of law, applicable, and applied to, the liquidation of the earlier indebtedness. '
    A party paying money, who is liable on more accounts than one, may, at the time of the payment, apply the payment as he sees fit; if he does not, the party receiving the money may apply it as he pleases ; if neither party, at the time, makes the appropriation, the law applies the payment on the debts or items, which are first due in point of time. (9 Cowen, 747 17 Wend. 19. 3 Denio, 284.)
    2. The referee has found, (and that finding is supported by the evidence,) that $10,046.39 was paid by the defendants, and received by the plaintiffs, on the 24th day of June, 1858, on account of the total indebtedness, or claim of $14,900. This date (24th of June, 1858,) is within six years prior to the commencement of this action. This action was commenced on the 6th day of May, 1864. Part payment, of course, within six years, takes the case out of the statute.
    3. By the Laws of I860,, ch. 379, it is necessary, before a cause of action shall accrue against the city, and before the action can be brought, that two written demands must be made upon the comptroller of this city, that the first of such demands shall be more than twenty days before the second demand, and that the second demand shall be made after the expiration of twenty days next ensuing said first demand, both which demands must be refused before suit can be brought. The incapacity thus created, to sue on a claim due before the passage of the act, should, on principle, create a new period from which the statute runs, or at least extend the period in which an action may be brought, sufficiently to embrace the time necessary to comply with this new requirement, or element of a cause of action against the city of New York.

      4. The referee has found, as it was proven, that the defendants had received, within six years prior to the commencement of this action, to and for the plaintiff s’ use and benefit, the entire amount of the plaintiffs’ bill; that is in trust for the plaintiffs. The statute, in such a case, would not commence to run until a demand bn the defendants, in view of the trust; for no cause of action would accrue, on that ground, until a refusal after such a demand. This kind of a demand was made by Mr. Berrian, in 1862, and by Mr. Ryers, in 1863.
    VII. The defendants took certain exceptions on the trial, ' the consideration of which alone remains ; counsel ‘then on the trial, misapprehended the object for which the questions excepted to were asked, and the principle on which they were received. The defendants pleaded and contended on the trial, that Comptroller Flagg, and those acting under him, had taken the receipt for $10,046.39 from the plaintiff’s on the 23d of June, 1858, and that the plaintiff had given such receipt in full settlement and discharge of all their claims ¿gainst the city, (Mr. Flagg being comptroller at this time,) and that all subsequent comptrollers had made the same claim. These questions, and the answers thereto, were competent, not to create a liability, but to show, or as tending to show, that the defendants never received, and the plaintiffs never gave, the receipt of June 23 or 24,1858, for ($10,046.39,) in full settlement and discharge of their claim, but that such receipt was given and received simply on account of a larger indebtedness. They also tended to contradict the defendants’ witnesses. They might also have been competent, as evidence on the subject of the original employment of the plaintiffs, (especially as the same comptroller (Mr. Flagg) paid what was paid to the plaintiffs, and took the receipt above referred to,) and also on the value of the work, especially as the same comptroller (Mr. Flagg) had hired the inspector, (Isaac Lewis,) according to whose estimate the defendants themselves pleaded, and sought to prove that the payment to, and alleged settlement with, the plaintiff, by this very comptroller, was made.
   By the Court,

Robertson, Ch. J.

The only circumstances upon which the plaintiffs rely, to take so much of their demand as accrued before December 8,1857, out of the statute of limitations, are two payments alleged to have been made by the defendants on account of such demand, within six years before the commencement of this action. The date of such commencement is not contained in the case, as required by the 43d general court rule, but it was evidently not before the date of the summons, in May, 1864. The first of such payments found by the referee, of §2610.94, as having been made on the 3d of March, 1858, is not alleged in the complaint, nor is there any evidence in the case of any such sum having been paid. The only testimony relating to any other payment than that of §10,046.79, made in July, 1858, (to be presently noticed,) was that of one of the plaintiffs, (Berrian,) who testified that an appropriation was made by the city through the common council, of §14,900 to pay the plaintiffs, on the VJth of March, 1858, as he thought, and that the whole amount of their bills was §14,900. “Part of these bills,” as he stated, “were assigned, to the amount of about §2000. This assigned amount was paid by the city * * about the time of the appropriation.” That “appropriation,” another witness (Taylor) testified, was made by a report of a conference committee of both boards of the common council, adopted in January, 1858, and approved by the Mayor, on the 3d of March, 1858. Such payment of such assigned claims, even if then made, was, however, more than six years before the commencement of this action ; so that even if an unconditional payment on account of the whole demand, could be established by a general statement of such payment, (without specifying to whom, by whom, or under what circumstances it was made, or even stating that the witness saw it made,) unless a payment to assignees of some bills for services, rendered on separate occasions, and assigned separately, could operate in law as an admission to take the whole claim out of the statute, such a payment must be disregarded as having any effect to revive the residue of it.

The other payment, of upwards of ten thousand dollars, ($10,046.39,) in June, 1858, was made and received in full of all demands, expressly, by the agreement contained in the written acknowledgment of it. It, therefore, operated as a direct repudiation and denial of any further liability, and could not operate to take the residue of any demand out of the statute of limitations. (Arnold v. Downing, 11 Barb. 556, and cases cited. Deyo’s ex’rs v. Jones’ ex’rs, 19 Wend. 491. 6 Eng. L. & Eg. 520.) The question of the operation of the acceptanee of such payment in satisfaction of a larger demand ás a discharge, is entirely different from its effect in taking the residue of such demand out of the operation of such statute, and being, therefore, immaterial to the case, need not be discussed. The finding of the referee that the plaintiffs never agreed to accept such sum in full of all their claims, even if not' inconsistent with the fact most material on the question of the revival of the claim that the defendants only paid it upon condition that it was so accepted, and their agent so stated when he paid it, thereby denying any further liability, was directly in the face of the written agreement to that effect, contained in the acknowledgment of such payment, signed by one of the plaintiffs ; in which, of course, all prior negotiation and discussion was merged. The failure of such plaintiff to observe the contents of what he signed, and his protest against receiving such sum upon any such condition, as being in full of all demands, were immaterial, after he had been informed that such payment was upon such condition only, and such receipt, in consequence, was presented to him to sign. The agreement so entered into cannot be explained away by parol evidence, merely because it accompanies and is contained in an acknowledgment of the receipt of the money.

The defense of the statue of limitations being thus unaffected as to all claims prior to December, 1857, by any admission by payments, the sum paid in June, 1858, is to be first applied in payment of that part of the claims of the plaintiffs which accrued after that date. It is true, as a general rule, that the application of money paid generally, may be made by the creditor, to which of several claims he pleases, when not made by the debtor, or if not made by either, it is applied to those which first accrued, but not upon the ground that such application is most beneficial to the creditor. The debtor, however, need not make, on his part, an express direction for such application, but one may be inferred from circumstances. (Stone v. Seymour, 15 Wend. 19. S. C. 8 id. 403. Robert v. Garnie, 3 Caines, 14. Shaw v. Picton, 7 Dowl. & Ryl. 201. Taylor v. Kymer, 3 Barn. & Ad. 333. Lysaght v. Walker, 5 Bligh, N. S. 1.) No stronger case for the implication of a direction; by a debtor, first to apply money paid by him to that part of his indebtedness which accrued last, can well be imagined, than when his earlier indebtedness is barred either by the statute of limitations or otherwise, and such payment is expressly made and received in full of all demands. Such application is most favorable to the debtor, and to suppose an intent by him to make a different one would be to infer his voluntary retention of a liability, in the face of¡ his making such payment solely on the faith; of a waiver by the creditor of any other claim. A claim, to apply the rule of law which renders null a parol agreement to accept a sum less than what is due in satisfaction of such greater demand, is not so meritorious as to require the application of a general payment to be made in such a manner, as to enable the party making such agreement to escape its performance under such rule. The statute of limitations is sometimes considered an ungracious defense, but it can only answer the purpose of its passage, when it protects a party from the consequences of a loss of papers and evidence. In this case one at least of the two comptrollers, with whom the plaintiff's negotiated, died before the action was brought. A stale claim revived nearly six years after an agreement to receive a certain sum in full of all demands, does not merit much favor in regard to the claims to which a payment made on general account is to be applied, particularly against a municipal body, whose financial agent who, made such payment and his successor are dead. The application of such payment to the- claims of the plaintiffs in evidence which accrued after the 8th of December, 1857, would have fully satisfied them. It is true, the referee found the value of the work and services mentioned in the complaint and schedule annexed to have been $14,900, which appears to have been bas> :d upon the testimony of the plaintiff Berrian, as to the accuracy of a bill (marked A) exhibited by him on the trial. This seems to have been the bill of particulars, marked in the same way, which was after-wards introduced in evidence, and was apparently annexed to the complaint. But by such, bill of particulars the only amount claimed was in all but $12,178.66. The discrepancy may arise, from omitting from such bill the items said to be assigned and paid to the assignees in March, 1858, found by the referee to amount to $2610.94, the payment of which left only $12,657.33 due to the plaintiffs. Taking either that or the amount of the bill of particulars as the total of the claim of the plaintiffs unpaid in June, 1858, less than $9500 of it accrued after the 8 th of December, 1857. Over $3400 of the items mentioned in such bill appear by it to have accrued before that date. This would leave from $800 to $1000 of the sum paid and received in June, 1858, to be applied on account of the indebtedness of the defendants before the 8th of December, 1857, and enough to satisfy all due afterwards.

Neither the authority given by the legislature to the defendants to raise by taxation $14,900 to pay what was due the plaintiffs, or their actual collection of that sum by taxation could convert them into private trustees or agents of the plaintiffs ; and liable for money had and received, because they collect and disburse it as public agents. Whatever remedy the plaintiff's may have to obtain such sum under such statute and collection, by mandamus or other process, it is not by an action. Nor were the promises of comptrollers of the city, or the report of the finance committee of the common council, preparatory to collecting the tax levy, such an admission in writing as to bind the defendants, so as to take the case out of the statute of limitations.

The foregoing views render it unnecessary to consider whether the defendants escaped liability for the work done and materials furnished, in consequence of the want of a previous appropriation and authority from the common council of the city. The referee’s report cannot be sustained. The judgment upon it must be reversed and a new trial had, with costs to abide the event, and the order of reference must be vacated.