author: Mullett, J.,

text:
    Seymour and another against Wyckoff and another.
    Where pork, packed in barrels, is consigned to a commission merchant for sale, it does not, by being stowed in a warehouse with a large quantity of pork of the same quality and brand, lose its identity as the particular property of the consignor, and the commission merchant will not be entitled to dispose of it as his own, and to apply the ownership of his principal to other pork of the same quality.
    The consignor of pork as above gave special instructions to the commission merchant with regard to the care of his property, “ in case there should appear to be any danger of its depreciating in quality, or if it should have need of being rebrined,” so that the consignor “ should not hold injured or spoiled pork when he should select a market,” and directed that the consignee, “ to that end, must do with the same in like manner as if it were his ownHeld, no authority to the consignee to sell the pork and substitute other pork of the same quality as the property of the consignor.
    The ratification of an unauthorized act of an agent, in order to bind the principal, must be with a full knowledge on his part of all material facts in the case.
    Appeal by the defendants, Henry Wyckoff and Charles Burkhalter, from a judgment of the supreme court in the seventh district, rendered the 27th of March, 1849, affirming a decree of the vice-chancellor of - the seventh circuit, made the 24th of December, 1844.
    The bill was filed before the vice-chancellor, on the 9th day of August, 1843, by Silas Wood, Alonzo Seymour and George Merrill, against John S. Prouty,'of Geneva, Ontario' county, and Henry Wyckoff, Charles H. Howell and Charles Burkhalter, commission merchants of the city of Néw-York, under the firm of Henry Wyckoff & Co. It was brought, as against Prouty, to set aside a bond and mortgage for 81500 in his hands, and which he was in the process of collecting, which had been obtained from the complainants, by Wyckoff and Co., under the pretence that the complainants were indebted to them for advances which they had made upon certain property which they had received from the plaintiffs to sell, over and above what they had received, and over and above what could be realized from the property remaining on hand unsold, as the market then stood, and to secure such balance as might be found due on selling the property on hand and closing the transaction; which bond and mortgage, it was alleged, were obtained by false statements and representations of the defendants, Wyckoff & Co., in reference to the amount of the proceeds of the property sold by them.
    As against Wyckoff & Co., the bill. claimed a particular discovery and account of the property and the proceeds of the property left by the complainants with them to sell, being a quantity of pork, hams, shoulders, lard, &c., among which were four hundred barrels of mess pork and one hundred and thirty barrels of prime pork. The bill called upon Wyckoff & Co. to answer under oath. Upon the hearing of the cause upon pleadings and proofs, the vice-chancellor dismissed the bill as to Prouty, with costs, and made a decree against Wyckoff & Co., ordering them to pay a balance of $680.53, found to be due from them to the complainants, with the costs as against them. This decree was affirmed by the supreme court, which judgment of affirmance was brought here by Wyckoff & Co. for review. Wood, one of the complainants, and Howell, one of the defendants, died during the pendency of the suit, which, under the order of the court, was subsequently prosecuted in the names of the survivors. Other material facts of the case appear in the opinion of the court.
    The case was submitted here, on printed arguments, by

      E. L. Fancher and Edward Sandford, for the appellants, and

      John Gamón, for the respondents.
   Mullett, J.,

delivered the opinion of the court.

The main facts on the part of the respondents are few, simple, and were clearly established before the vice-chancellor, and most of them admitted by the defendants, Wyckoff & Co. From Wyckoff & Co.’s receipts, and from their admissions, it appeared that on the 24th day of November, 1840, they received from the complainants, at New-York, to sell on commission, and as the agents and factors of the complainants, one hundred and four barrels of mess pork, one hundred and thirty barrels of prime pork, a quantity of other pork, a quantity of hams, shoulders, heads, and a quantity of lard, specified in the receipt, all subject to canal charges of $7.69, and the pork subject to inspection charges of $194.03. The controversy between the parties is principally confined to the disposition and account of the one hundred and thirty barrels of prime pork; the examination will, therefore, be limited to that item. It appears that the pork was left in the inspector’s hands, subject to the orders of Wyckoff & Co.; that on the 25th day of March, 1841, Wyckoff & Co. sold the one hundred and thirty barrels of the complainants’ prime pork for $10 a barrel, and received the money for it, and gave their order on Thompson, the inspector, for the pork, who delivered it on the order to the purchasers, Wilson, Donnelly & Co.; that the proceeds of the one hundred and thirty barrels of pork were not credited to the complainants, but that Wyckoff & Co. afterwards, in their correspondence with the complainants, represented their one hundred and thirty barrels of prime pork as being on hand, unsold, until March, 1842, at which date they rendered an account to the complainants of the sales of their pork, lard, &c., crediting them with the proceeds of one hundred and thirty barrels of prime pork, sold to a Mr. J. Folger, at $5.38 a barrel. These facts are admitted by Wyckoff & Co., but they attempt to explain them by saying that the one hundred and thirty barrels of the complainants’ prime pork were not sold on their account, but on account of some other person; and that they, Wyckoff & Co., substituted for the complainants’ one hundred and thirty barrels of prime pork, other one hundred and thirty barrels of pork of the same quality, and in better condition for keeping, and held the substituted pork for the complainants until March, 1842, when it was sold for $5.38 a barrel, and the complainants credited for that amount; that being the best price that could be obtained at that time. It is not claimed, and cannot be pretendéd, that a right to dispose of the com-' plainants’ property on the account of another, and substitute other property for it, and to hold the substituted property for a future sale, at the complainants’ risk, is derived from their general powers, as commission merchants, agents or factors, to sell on commission; but the defendants insist that the pork sold to Wilson, Donnelly & Co., although the identical property left by the complainants, was not practically and in business contemplation their property; that their pork, by being stored in the inspector’s store-house or yard, with a large quantity of other pork of a similar inspection brand, and all consigned to- the defendants for sale, lost its identity, like wheat mixed in a bin with other wheat; and that so long as the defendants had on hand one hundred and thirty barrels of prime pork, they might apply the complainants’ ownership to that pork, and sell it on their account. The rule referred to by the defendants’ counsel applies only to cases where the property by the mixture does in fact lose its identity, and becomes incapable of specific designation; or where, by the terms of the the owner parts with his property, and takes a promise of substitution. In such a case thé owner parts with his property as he parts with the means of identifying or controlling it; and the person to whom it is delivered, instead of being a bailee, becomes a debtor. (Norton v. Woodruff, 2 Comst., 153, and the cases there referred to.) In the case under consideration, the property was delivered to the defendants as commission merchants, agents and factors, to be sold for the complainants, which is a bailment. The property was packed in barrels, which were marked so as to identify it as the complainants’ property. The defendants had agreed to take particular care of this identical pork, and, if necessary, to rebrine and repack it; and finally, when they sold it, drew their order on the inspector for the identical one hundred and thirty barrels of pork bearing the complainants’ mark, and now claim that they sold it because it was the plaintiffs’ pork. There is certainly no reason for pretending that there was a confusion or mixture of the property. The ground taken by the defendants’ counsel falls nothing short of claiming for every commission merchant, agent or factor, with whom property is deposited to be sold, the right of converting the property to his own use, and, instead of bailee, to assume the character of debtor to the owner for his property, without his consent. Such an assumption is not tolerated by law, nor can the fair business transactions of the country endure it. The owner may trust the integrity and fidelity of a bailee to sell and account for his property, when he would not be willing to involve it in the pecuniary embarrassments of a speculating, and perhaps insolvent agent. The owner of property, by depositing it with a bailee for sale, does not lose the ownership and control of his property. He may reclaim it from the bailee by paying his lien upon it before it is disposed of. He may secure himself against the casual loss of the property by a particular insurance on it. He may follow it into the hands of a person who has unlawfully obtained the possession of the property, or assumed a control over it inconsistent with his rights, or he may sell it himself; all of which are valuable rights, which he does not surrender by leaving the property with an agent to sell, and of which he cannot be deprived without his consent.

The defendants next claim that they had instructions from the complainants to make such a disposition of the pork as they did make; and also that the complainants, after the transaction, approved and ratified it. These present questions of fact, the affirmative of which is with the defendants, and the burden of proving which rests on them. These facts have all been submitted to the vice-chancellor, who, upon proof upon both sides, found them in favor of the complainants. The counsel for the defendants complains that the vice-chancellor did not give the answer of the defendants under oath upon this subject due weight and consideration. The answer was called for by the complainants, and is, therefore, to be regarded as testimony of their witness. The interrogatories in the bill, calling for an answer on the subject of instructions and authority, are as follows: “ If they shall set up and pretend that they, the said Henry Wyckoff & Co., exchanged the said, one hundred and. thirty barrels of pork, so sold to the said Wilson, Donnelly & Co., for other pork, by or under the authority of your orators, that then they may set forth such authority 5 and if they shall pretend that such authority is contained in any letter or letters from your orators, then that they may set forth such letters.” To this interrogatory as to the authority to make the exchange and substitution: “The defendants, Henry Wyckoff and Charles Burkhalter, answering say, that when the said pork mentioned in the complainants’ bill was consigned and delivered to the said Henry Wyckoff & Co., as commission merchants aforesaid, Alonzo Seymour, one of the complainants, had an interview with these defendants, Wyckoff and Burkhalter, and gave them personal and particular instructions to keep a good watch upon said pork that it did not spoil, and then stated that a part of it was still-fed pork, and that he was fearful that the same would not keep, and if there should appear to be any danger of its depreciating in quality, or if the same should have need of being rebrined, that the said firm of Henry Wyckoff & Co. must attend to it, and have it overhauled and rebrined, or have some arrangement made with it so that the complainants should not hold injured or spoiled pork, when they should select-a market; and that the said Henry Wyckoff & Co., to that end, must do with the same in like manner as if it were their own. And these .defendants further say that the same directions and instructions of the complainants have been repeated in substance, verbally and by letter, and at frequent times subsequent to the consignment of said pork, as in part appears by two certain letters of the complainants now in possession of these defendants, ready to be produced and proved, as this honorable court shall direct, and to which, when produced and proved, these defendants crave leave to refer; a copy of which letters is as follows:

“ ‘ Messrs. H. Wyckoff & Co.:
“ ‘ Gents: We send you the above draft according to arrangement, which -you will please to accept, with our thanks, &c.
“ ‘ G. Merrill & Co.
“‘P. S.—If you think it any speculation to sell our prime pork at the price you can now get, and buy again after navigation opens, and hold on to that instead of this, we wish you to do it for us, as we want to get out of it without a loss, &c.
“ ‘ Yours, &c.,
“ ‘ G. M. & Co.’
“‘Geneva, May 3, 1841. “‘Messrs. H. Wyckoff & Co.,
“ ‘ Gents: We wish our pork to be all overhauled and thoroughly examined, and see that every barrel is full of good strong brine, &c. You will please to attend to it and oblige
“ ‘ G. Merrill & Co.’ ”

This is all the authority which the defendants are able, by their' own statement, to show for the exchange of the complainants’ pork and the substitution of other pork. It seems to me quite clear that all this conversation and these communications, except the “P. S.” to the letter without date, relate to the keeping, watching and preserving the complainants’ own pork, and that in.the doing of which the complainants wished the defendants to do as they would with their own. The “ P. S.” to the letter without a date, it is true, as it appears here, seems to give the defendants a discretion to sell the complainants’ pork and to purchase again after navigation should open f and if the defendants acted under this instruction there would be some pretence for claiming that they supposed themselves authorized to make the exchange and substitution. But the complainants show that, in a letter from Wyckoff & Co. of the date of the 16th of February, 3843, more than a month before they sold the one hundred and thirty barrels of pork to Wilson, Donnelly & Co., in answer to a letter received from the complainants of the twelfth instant, Wyckoff & Co. say: “ We do not feel competent to advise you in the disposition of your pork. ■ We are desirous that you should have the benefit of the highest price of the coming season, but you can judge of the best-time to sell as well as ourselves, and we will do as you wish in regard to the sale of it. In regard to advancing money until next fall, in case you conclude to hold oh to that time, you can draw on us for the amount of your draft (due the 30th March) about the time it becomes due, for 90 days or 4 months, and remit us the proceeds of the same, and we will then hold on to the pork until next September or October if you wish us to do so.” As to the “ P. S.” to the letter which appears in the defendants’ answer to be without date, the defendants, in their letter of April 15th, 1841, addressed to the complainants, say : “ Tour letter of the 16th inst., inclosing a draft for $2908, was received the 8th inst., and credited to your account;” and in a postscript to this letter they say: “ We would not advise selling now with the view of buying again, the market being fluctuating and uncertain.” This letter is also in substance admitted to be dated the fore part of April, by the defendants, in their answer, in several instances. So that the defendants’ authority for selling and exchanging the complainants’ prime pork is reduced to this: They received it, for sale on commission, on the 24th day of November, 1840. On the 16th day of February, 1841, they decline taking a discretionary power over the sale of the pork, but refer the disposition of it to the complainants, promising to do as the complainants wished in regard to the sale of it, and promising, on certain conditions, to keep the pork until the next September or October. On the 25th day of March, 1841, without any further communication with the complainants, they sold the one hundred and thirty barrels, to Wilson, Donnelly & Co., for $10 a barrel, and took the money for it, and on the 8th of April, 1841, when conditionally authorized by the complainants to sell their pork and purchase again when navigation should be opened, if they thought it any speculation to do so, advised them not to do so, and yet they claim that what they had done in March preceding was done by virtue of the plaintiffs’ permission of the 8th of April, which they declined to act under, but advised the defendants not to sell. The defendants had therefore no discretionary authority in the matter. Nor does the defendants’ pretence of the substitution in fact of other pork for the complainants’ pork appear much better sustained by the defendants’ answer. The special interrogatories on this part of the case require the defendants, “ if they shall set up that any such exchange was made, that they shall set forth and discover whose pork or what pork they set apart, designated and identified as the property of the complainants, in the place of the 130 barrels of their pork delivered to the said Wilson, Donnelly & Co., and that they describe and set forth the brands or other distinguishing marks of th,e 130 barrels so kept in place of the .130 barrels delivered, to Wilson, Donnelly & Co., and the place where the same was kept; how and in what way the same was known or distinguished as the property of the complainants." The defendants in their answer do set up that such .exchange was made; but in their answer to these special interrogatories they say that they “ did, when said 130 barrels of prime pork, originally consigned by the complainants, were delivered to the said Wilson, Donnelly & Co., as aforesaid, distinguish as the property of the complainants other 130 barrels of like pork, and that Henry Wyckoff & Co. always had said quantity of pork ready for sale and delivery, as the property of the complainants, from the time of said sale to Wilson, Donnelly & Co. down to the time of the sale mentioned in the said account of sales; although the defendants admit the same was not separated from other quantities Of pork held by the defendants, they having kept all consignments stored together.” And they further say “ that,, from the fall of 1840 to the spring of 1842, they had on hand large quantities of pork from a great number of consignors, part of which was stored with Thompson & Seguin and part with Martin & Waters, of New-York city; and the pork substituted and replaced, as the property of the complainants aforesaid, was an equal number of barrels of this large quantity, so held as aforesaid ; and it was well understood by all the members of the said firm of Henry Wyckoff & Co. that the complainants had on consignment in said quantity 130 barrels of prime pork and 104 barrels of mess pork, but at this distance of time it is impossible for the defendants to set forth the brands or other distinguishing marks thereof, but the same was known and distinguished, by the defendants, as the property of the complainants, by books of the defendants, which credited them with said quantity of pork, and by the knowledge of the defendants, Henry Wyckoff and Charles Burkhalter, of the delivery of that originally consigned by the complainants to supply a sale made on behalf of another consignment, as aforesaid.”

The substance of all the defendants’ answer, as well to the general statement of the bill as to the particular interrogatories in reference to the substitution of other pork for the one hundred and thirty barrels of the complainants’ pork, sold and delivered to Wilson, Donnelly & Co., is, that when they delivered the complainants’ prime pork to W., D. & Co., the defendants had a large quantity of like pork on hand from other consignors, some of which was stored with Thompson & Seguin and some with Martin & Waters, and they gave the complainants credit on their books for one hundred and thirty barrels of like pork, of this large quantity, without separating it from the large quantity so on hand, or identifying it by any brands or other distinguishing marks, but that the same was known and distinguished by the defendants as the complainants’ pork by their books, which credited the complainants with said quantity of pork, and by the defendants’ knowledge that they had delivered the complainants’ pork to supply a sale made on behalf of another consignment; and that they, during all the time, had on hand a sufficient quantity of like pork, belonging to other persons, ready for sale or delivery as the property of the complainants. Such kind of substitution, even if the defendants had power to make an exchange, did not give the complainants any property in any particular pork, nor vest in them any of the rights of ownership. It was a mere substitution of the defendants’ responsibility for the complainants’ property, and was altogether inconsistent with the relation which existed between the parties, and with the duties of the defendants as commission merchants, agents or factors. In the case under consideration the defendants may have been governed by fair and honest motives, but such transactions will fit other motives equally well. The assumption of such a power by commission merchants, agents or factors, is not warranted by law. It was nothing less than an illegal conversion of the complainants’ property by the defendants to their own use.

\ The last branch of the defence was an alleged approbation and ratification by the complainants of the defendants’ transactions in reference to the sale and substitution set up by them. The principle relied upon to sustain this point is stated by Vbrplanck, senator, thus: “ When a principal, upon full knowledge of all the circumstances of the case, deliberately ratifies the acts or conduct of an agent who has exceeded his lawful authority, or assumed an unauthorized agency, the principal will be bound thereby as fully as if the agent had been expressly empowered for such purposes.” (Delafield v. The State of Illinois, 26 Wend., 192.) The language of Chief Justice Best, in the case of McLean v. Dunn (4 Bing., 722), is to the same effect. And the same principle is recognized by our supreme court, by Bronson, J. (2 Hill, 175), and by Beardsley, J. (7 Hill, 128). In the case of Owing v. Hull (9 Peters, 629), Mr. Justice Story states the principle upon which a ratification is founded as follows-; “No doctrine is better settled, both upon- principle and authority, than this; that the ratification of an act of an agent, previously unauthorized, must, in order to bind the principal, be with a full knowledge of all the material facts. If the material facts be either suppressed or unknown, the ratification is treated as invalid, because founded in mistake or fraud.” It is true this knowledge of the principal may be proved by any legal means of establishing a fact, but it must be proved in some way by the party insisting on the ratification. How did this fact stand proved in the case under consideration ?

There is no proof that the defendants informed the complainants of the sale of their one hundred and thirty barrels of pork to Wilson, Donnelly & Co., and the substitution of other pork in its place, at the time of the transaction, which they ought to have done, for the purpose of apprising them of their ownership and dominion over the substituted property. When, on the 16th day of February,. 1841, the defendants wrote to the complainants, declining to advise them in reference to the disposition of their pork, and promising to do as they wished in regard to the sale of it, they were silent on the subject of the sale and substitution. In their letter of April 15th, 1841,' in answer to the complainants’ letter of April sixth, which was received on the eighth, the defendants say: “Wé would not advise- selling now with a view of buying again, the market being fluctuating and uncertain but they give no information of the salé of the one hundred and thirty barrels and the substitution of other pork in the place of it. In their account of' sales of merchandise, by Henry Wyckoff & Co., tin account and risk of Messrs. G> Merrill &. Co., which they rendered to the complainants, dated July 15th, 1841, they represented the one hundred and thirty barrels-of prime pork as unsold, and in their letter accompanying the account*- and dated July 16th, 1841, they acknowledge the receipt of the complainants’ letter of, the fourth instant, and say that,, agreeably to the complainants’ request, they therewith, send them an account of sales of so much of their pork and lard, &c., together with a statement of the quantity remaining on hand unsold, and promised to write them as soon as any of their pork might be sold.. Although Wyckoff & Co. received, the complainants’ letter of the date of May 3d, 1841, saying: “ We wish our pork to be all overhauled and thoroughly examined, and see that ■ every barrel ■ is full of good strong- brine; you will please to' attend to it and you will oblige us;” it does, not appear that they informed the complainants of the transaction which they now pretend was adopted for the very purpose of saving the complainants from the necessity and expense of having the pork repacked.. In fact, it does not appear, from any evidence in the cause, that Wyckoff & Co. ever informed the complainants of the sale and substitution now set up by them until they made the disclosure in their answer. The only evidence given, on the part of the defendants, to contradict their clearly established suppression of the facts in reference to the sale of the one hundred and thirty barrels of the complainants’ pork to Wilson, Donnelly & Co., and the substitution of other pork in its place, is the testimony of Gr. W. Cromwell, by which it appears that, as he was about going to New-York, in April, 1841, the complainants requested him to call on Wyckoff and say to him that they wanted to have their pork reinspected, or to have it overhauled and rebrined, so that it would be in order for keeping; that he arrived in New-York in the latter part of April and stayed there three weeks; that soon after his arrival, and in the month of May, 1841, he did call on Wyckoff and deliver the verbal message which he had been requested to deliver to him; that Mr. Wyckoff replied that he had parted with the pork and had other pork in the place of it, and the complainants need not give themselves any uneasiness, or something to that effect; that on his return to Geneva, in the month of May, he communicated Mr. Wyckoff’s reply to one of the complainants and he did not express any dissatisfaction. Mr. Cromwell was not authorized to make any inquiries about the disposition of the pork, nor to do anything in the matter but to inform the defendants that the complainants wished to have their pork repacked and rebrined, which request they also communicated to the defendants, by letter, the third day of May, which must have been while Mr. Cromwell was in New-York,, if he is correct in his dates. The reply of Mr. Wyckoff did not state when, how, or in what manner he had disposed of a part of the complainants’pork, nor what part; and not being sent by Wyckoff as a message or information to the complainants, the communication of it by Cromwell, who was not employed to obtain any information on the subject, can hardly be considered as giving them such full knowledge of all the material facts of the defendants’ transaction as to be the foundation of a ratification, or even to justify a suspicion that confidential agents, who had declined taking any advisory control of the subject of the agency, but promised to do as their principals wished in relation thereto, and to inform them of their proceedings, were transcending their authority; and if the complainants had any suspicion of the improper conduct of the defendants in reference to the disposition of the one hundred and thirty barrels of prime pork, it must have been overcome by the account and letters of the defendants,' furnished, at request, the 15th and 16th of July, 1841, in which they represented the one hundred and thirty barrels of prime pork as unsold. It appears to me that the communications of Wyckoff & Co., in the case under consideration, were entirely destitute of the frankness and fairness which onght to characterize the communications of agents with their principals on the subject of their agency, and were calculated to suppress, rather than to convey to the complainants, a knowledge of the defendants’ acts as agents.

I am of opinion that the supreme court decided correctly in sustaining the decree of the vice-chancellor, and am therefore for affirming the judgment appealed from.

Judgment affirmed.


source: Caselaw Access Project

author: Gardiner, J.,

license: Public Domain

text:
    Carpenter and others against Roe and others.
    To invalidate a voluntary conveyance, as against creditors, it is not necessary that the debtor be or believe himself insolvent at the time of the grant; it is sufficient if his solvency is contingent upon the stability of the market in the business in which he is engaged.
    On the first of May, A., a com merchant, purchased certain real estate, taking a conveyance of it to his wife. On the fifteenth of June, he purchased of B. a lot of corn, giving therefor his check, post-dated the twenty-fourth. On the sixteenth, being largely indebted, but neither insolvent nor apprehending insolvency, he joined with his wife in conveying the real estate to their son-in-law, in trust for the wife of A., with remainder to, her heirs; and on the twenty-third, .in consequence of a sudden fall in the price of corn, occasioned hy the arrival of news from Europe, A. suspended payment; Held, that the trust for the benefit of A.’s wife, as well as the original conveyance to her, were fraudulent and void as against B. .
    This was a creditor’s bill, filed in March, 1848, in the supreme court, and afterwards transferred to the superior court of the city of New-York. The facts established by the pleadings and proofs were as follows:
    The defendant Roe was a produce merchant, doing business in the city of New-York. On the 3d day of February, 1847, being then in unembarrassed circumstances, and believing himself fully able to discharge all his- debts and liabilities at maturity, he purchased of one Laing the store and lot No. 263 Washington-street, in that city, and by the agreement then made with Laing a deed of conveyance to the wife of Roe was to be executed on the first of May following. After this contract of purchase, and before the time for the execution of the conveyance, Roe was advised by counsel that the proposed conveyance would probably be ineffectual in investing his wife, as was intended,- with the sole and exclusive title to the land; but Laing refused to give any other, and the original conveyance was therefore accepted. The price of the lot was $10,000, of which Roe paid out of his own funds $2,000, and he and his wife gave mortgages on the land for the remainder.
    Early in June, 1847, the plaintiffs, who were partners in trade at Newburgh, sold to Roe a quantity of Indian corn, which was delivered” on the fifteénth of that month. On delivery, Roe gave the plaintiffs, instead of cash, his check on the North River Bank for $875.99, the amount of the purchase money, the' check' being dated forward - to the twenty-fourth of the same month..
    On the sixteenth of June, being still, as he supposed, although lafgely indebted, "in solvent circumstatices, Roe joined.with his wife in executing, a conveyance of the store and lot in question to one Caswell, their son-in-law, in'trust for the use and benefit of the wife of Roe, with power to her to dispose of it by deed or will, and with remainder to her heirs; the deed being dated May first, and the intent being to carry out the purpose of the original agreement with Laing. This conveyance was confessedly voluntary and without consideration.
    On the twenty-third of June, in consequence of a considerable and sudden fall in the price of grain, which fall was occasioned by the news at that time brought from Europe by the Liverpool steamer, Roe suspended payment, and from that time to the date of this suit he continued insolvent. The check which he had given for the corn was presented at maturity and dishonored ; 'and judgment was soon after recovered against him for the amount of the debt.
    This action was then brought by the plaintiffs against Roe and his wife and Caswell, charging that Roe had caused the conveyance from Laing to be made to his wife for the purpose of defrauding his subsequent creditors, and that the conveyance in trust to Caswell was fraudulent as against the plaintiffs, who were his creditors at the time. The bill prayed for a decree setting aside the last mentioned conveyance, to the extent of Roe’s life-estate by the curtesy, and if such life-estate should be insufficient to satisfy the plaintiffs’ debt and' costs, that then the conveyance from Laing-to Mrs. Roe-might be adjudged fraudulent as against the plaintiffs, and Caswell a mere trustee of Roe to the extent of all beyond the life-estate of Roe in the premises.
    The supreme court dismissed the bill, without costs, declaring that the conveyances were not fraudulent as against the complainants, from which decree the complainants appealed to this court.

      M. S. Bidwell for the appellants.

      John N. Taylor for the respondents.
   Gardiner, J.,

delivered the opinion of the court.

The conveyance by Laing to Mrs. Roe of the lot and store in Washington-street was made at the request of herhusband, who paid and engaged to pay the whole purchase money to the vendor. As between husband and wife the deed was without consideration and wholly voluntary. The previous agreement between Roe and Laing, of the 3d of February, 1847, in relation to the premises, would not relieve the conveyance from this character, had the answer setting it up been "in this particular responsive to the bill, which is not the case, or had the "contract been put in evidence by the defendants under the issue formed by the pleadings. That agreement may therefore be laid out of consideration in the determination of the cause; and the question will be, was the deed above mentioned, or the trust created for the benefit of Mrs. Roe by the conveyance to Caswell, either or both of them, fraudulent as to the creditors of her husband?

The fourth section of the act (2 R. S., 127) declares that “any conveyance or charge shall not be adjudged fraudulent as against creditors or purchasers solely on the ground that it was not founded upon a valuable consideration.” This section was declaratory of the rule of law established in Seward v. Jackson (8 Cow., 422) and in Hinde's Lessee v. Longworth (11 Wheat., 199). In Reade v. Livingston (3 John. Ch. R., 481) it had been previously decided that if the party making the conveyance be indebted, at the time of the voluntary settlement, it should be presumed to be fraudulent in respect to such debts, and no circumstances would permit those debts .to be affected by the settlement, or repel the legal presumption of fraud.

In 11 Wheat, (supra) the court say that a voluntary deed is not absolutely fraudulent. If it can be shown that the grantor was in prosperous circumstances and unembarrassed, and that the gift was a reasonable provision according to his state and condition in life, and leaving enough for the payment of the debts of the grantor, the presumptive evidence of fraud would be met and repelled. Tested by these principles, I entertain no doubt that the trust and conveyance were both void as to creditors.

The deed from Laing to Mrs. Roe was dated on the 1st of May, 1847. Roe does not deny that he was deeply in debt at the time; he denies that he was insolvent. The extent of his obligations may be inferred from the fact that fifty days subsequent to that conveyance he was utterly insolvent, and has so continued to the commencement of this suit. He states that when the debt to the complainant was contracted he was solvent, and that his insolvency was owing to the sudden fall in the price of grain, &c. The result of his allegations is, that although he was largely in debt, yet if the article in which he traded had advanced in price, or if its value had continued as he had reason to suppose when his indebtedness accrued, he would have been solvent and would have had a surplus.

All this might be stated, and with truth, by the most reckless speculator that ever hazarded the property of others on the contingency of a fluctuating market. When the purchase was made of the plaintiff, Roe states that he believed he was solvent, and for some days subsequent, and fully able to discharge his debts and liabilities at maturity, but he does not allege that he had or believed that he had one dollar of capital or property for which he had paid, to which his creditors might resort in case his speculation should result, as it did, disastrously. In this situation, with poverty or riches depending upon the intelligence to be brought by the next steamer, he did not think it dishonest to make a provision for his family by conveying his life interest in the property to his son-in-law in trust for his wife.

He denies, therefore, that this trust was fraudulent, and of course that the previous deed from Laing to Mrs. Roe, of the first of May, was designed to defraud his creditors. He does not deny that at both periods his existing indebtedness'‘¿ailed for all tiis-property, or that if the conveyance or trust is upheld,' so much as is devoted to his wife will be withdrawn from those who were then his creditors.' If so, the transaction was fraudulent. '

To avoid the conveyance’and trust to and in favor of his wife, it was not necessary that the debtor should be insolvent, or believe himself to be-so, when they were executed or created. It was sufficient that he was indebted, and that insolvency would' be the inevitable or probable result of want of success in the business in which he was engaged. He could not, ‘ legally or honestly, in this manner provide for himself or family, and cast upon his creditors the hazard of his speculation..' ■

The_decree must be reversed, and the deed to Mrs. Roe, of the first óf May, and the trust for her benefit, declared void as against the complainants.

All the judges concurred.'

Judgment accordingly.


author: McCoun, J.,

text:
    Baldwin against Palmer.
    A party to a contract void by the statute of frauds, who has voluntarily performed -part, cannot therefore be compelled to peform the residue.
    This, even tlmugh he has performed all that part of the contract which is within the statute, and the residue, upon which the action was brought ’was void only from its connection with the part already performed.
    The cases where a recovery is permitted for money paid or services performed upon a void contract are those where the action is brought in disaffirmance of such contract, and not in affirmance and with a view of enforcing it.
    Baldwin brought assumpsit against Palmer in the superior court of the city1 of New-York, in March, 1847. The declaration was upon a special agreement between the parties, and contained; also the usual money counts; The defendant: pleaded non-assumpsit.
    Upon .the trial before Mr, Justice Oaklet and a jury, the plaintiff proved that on the 25th of January,. 1847, he entered into a- verbal agreehient with, the defendant for the purchase of certain - real estate in the city of New-York; that the defendant had at the time an agreement for the purchase of the premises from William B. Astor and others, who held the title as trustees, for the sum of $8000; that the defendant agreed to convey the premises, or cause them to be conveyed, free of incumbrances, for $8250. He stated at the time of making the bargain that the $250 would be required to pay taxes, assessments and expenses. On the twenty-ninth of January the sum of $8000 was paid to Astor and others, trustees, and $250 to the defendant, and a conveyance executed from Astor and others directly to the ■ plaintiff. After the deed was given, an assessment for a local improvement was discovered, for $152.24, which had been confirmed by the city authorities on the 23d of January, 1847. The plaintiff had paid this assessment, the amount of which he now sought to recover. An admission of the defendant was proved, that the plaintiff “ ought not to pay the assessment; that "he had bought the premises free and clear from the assessment, and that he (the' defendant) was going to try to get the trustees, to pay the whole or part of it;”
    The defendant moved for a nonsuit on the grounds: First. As to the special • count; that there' was a total variance between that count and the evidence; Second. As to the money-counts, that there was no evidence of any contract or promise whatever, either express or implied, on the part of the defendant,' to pay the assessment in question, which could properly be submitted-to a jury; Third. That all the promise on the part of the defendant which could he inferred from the testimony was void, as not being-in writing, by the statute of frauds; Fourth. That, as far as regards the money counts, the money received by the defendant of the plaintiff, to pay the assessment mentioned in the declaration, was so received under and by virtue of an agreement connected with and forming a part of the agreement for the-sale of real estate, and a part of the agreement being void, as not being in writing, the whole is void and the plaintiff cannot recover. Upon these grounds the court granted a nonsuit, judgment upon which was affirmed at general term. The plaintiff brought error to this court.

      Barnard for the plaintiff in error.

      A. Crist for the defendant in error.
   McCoun, J.,

delivered the opinion of the court.

The several objections taken on the trial below, and upon which the nonsuit was granted and afterwards sustained, are reducible to this one, viz., that the agreement on which the plaintiff relies for the reimbursement of the money expended by him in the payment of an assessment was a part of the agreement for the sale to him of the land, and was by parol, not reduced to writing, and therefore void by the statute. (2 R. S., 134, §8.)

Although the agreement has been executed between the parties, so far as to consummate the sale by a conveyance and the payment of the purchase money, yet a voluntary part performance of a contract originally void is not a ground for a compulsory peformance of the residue of the same contract. The party sought to be charged is still at liberty to raise the objection in a court of law. Part performance, without more, is not a waiver of the objection. There are cases where a part performance of a parol contract is allowed by a court of equity to dispense with the requirement of the statute. This, however, is upon the principle of preventing a fraud. A court of law has no such dispensing power.

The demand in question appears to be a very meritorious one, and such, according to the contract proved, as the defendant ought to pay; but it is founded upon or grows out of a contract so made as to be of no force or validity whatever in law. Van Alstine v. Wimple (5 Cow., 162) was quite as strong if not a stronger case for the plaintiff, and there it was held as settled law, upon the authority of Lexington v. Clarke (2 Ventris, 223), and Chater v. Beckett (7 Term R., 197), and Crawford v. Morrell (8 John., 253), that though a part of a* contract which was void by the statute of frauds had been actually performed, yet another part of the same contract, forming one entire agreement, could not be separated from the rest and be the subject of an action, either on the agreement or the money counts. I am unable to perceive any distinction in principle between those cases and the present. The cases to which we have been referred by the counsel for the plaintiff were cases of actions brought to recover back money paid or for services performed upon contracts which had been afterwards rescinded by consent of parties, or disavowed by the party sued because not binding in law. In all such cases the money is to be refunded, and the services rendered in part performance are to be paid for, because the contract is at an end, and the action brought for the purpose is in disaffirmance of the void contract, and not in affirmance and with a view of enforcing it as in the present case. Gillet v. Maynard (5 John., 85); Rice v. Peet (15 id., 503); Burlingame v. Burlingame (7 Cow., 92); King v. Brown (2 Hill, 485), and Lockwood v. Barnes (3 id., 128), are all to that effect.

The nonsuit was properly granted, and the judgment below must be affirmed.

Judgment affirmed.


author: Jewett, J.,

text:
    Besson against Southard, impleaded with Barnes.
    In an áctión.for a malicious prosecution, the plaintiff .must allege and prove malice, and a want of probable cause for the former suit.
    The .want of probable' Cause must be' shown" as an independent fact, and can- . not be inferred from any degree of malice.
    Where the facts are doubtful, or where they depend upon conflicting testimony, the question of probable cause is a mixed one, of law and fact, to be determined by the jury under the instructions of the court.
    If there-is no conflict in the evidence, and no¡ dispute about the facts, the judge will be justified in determining the legal effect of such facts, and directing a verdict accordingly.
    This was an action for a malicious prosecution. The complaint alleged: that the defendant advised, procured and caused to be issued out of the Superior Court, in and for the city and county of New-York, a capias ad respondendum, in the name of William D. -Benson against the plaintiff, Besson, in a plea of trespass on the case, for divers alleged false, deceitful and -fraudulent misrepresentations made-by Besson to Benson on the sale of a certain lease and certain goods-and chattels, and procured an order to be made, and indorsed thereon by one of the justices of that court, to . hold Besson to bail in the sum of $500, upon his arrest thereon; that- afterwards, Besson, by virtue of said capias and. order, was arrested by the sheriff of the city and county of New-York, and imprisoned in the custody of said sheriff for the. space of several hours, and until he procured satisfactory bail in said sum, and thereby was necessarily put. to the expense of $120 in procuring his discharge and in the defence of said suit. It is then averred that neither - the defendants nor Benson had any reasonable cause for believing that he had any right of action against Besson, or that he had made any false, deceitful or fraudulent misrepresentation to Benson on the sale of said lease and goods and chattels; that said action, afterwards, was voluntarily abandoned by Benson and the defendants, and judgment as in case of a nonsuit had been entered therein, and the suit thus term mated.
    The defendants severally answered the complaint. Barnes denied every material allegation in the complaint, and alleged that Southard acted in the premises as the attorney of Benson, and that he had a good cause of action against Besson, and had probable cause for commencing the. suit and procuring the order for bail. Southard answered, that he, as the attorney of Benson, and not otherwise, issued the capias and procured the order to: hold to bail, and in no other manner caused the arrest or imprisonment of Besson; that he acted upon the retainer of Benson, and at his request, and upon information which he believed to be true; that Benson had a good cause of action, as set forth in the capias, and good cause to hold Besson to bail thereon; that the facts upon which the order was obtained were detailed in an affidavit made by Benson, which was presented to the justice, and the order made thereon, and not at the instance of Southard, individually. He denied all malice and all conspiracy charged; and set up that he had reasonable and probable cause for issuing the capias and procuring the order, and that he believed that Benson had a good cause of action against Besson, and acted in good faith and without malice in the commencement of the suit and procuring the order.
    On the trial, before Mr. Justice Vanderpoel, of the superior court of New-York, it appeared in evidence substantially that the defendant Barnes, on the 1st of May, 1844, executed a lease to Besson of certain premises, being the basement of No. 410 Broadway, for the term of five years, at the yearly rent of $750, payable quarterly; that Besson also executed the lease, covenanting to pay the rent and providing for a reentry on breach of any of the covenants contained in it on his part; that Besson occupied the premises under the lease until about the 17th day of May, 1845; that the rent for the year ending on the first of May had been regularly paid, excepting for the last quarter, for which Besson had given Barnes his note, payable in "sixty days, and bearing date the first,of May, 1845. On the 17th day of May, 1845, Besson, with the consent of Barnes, sold and assigned his lease to Benson, together with several articles of personal property in and upon the demised premises, for the sum of $725, which he paid. Besson executed a bill of sale of the property to Benson, setting forth that the property was not incumbered, and that there' were no arrears of rent due upon the lease. In July, 1845, Barnes, by Southard, as his attorney, distrained on all the property of Benson on the demised premises for the quarter’s rent payable on the previous first of May. This property was sold and bi3 in by Benson, by arrangement with Barnes, for which he gave Barnes his note.
    In September, 1845, Barnes, and Southard as his attorney, commenced a suit in the name of Benson against Besson for falsely representing on the sale of the lease that the premises were free from any arrears of rent, in which suit Besson was arrested and held to bail as set forth in the complaint. Issue was joined therein, and in June, 1848, judgment as in case of a nonsuit was obtained. Preparatory to commencing the suit, with a view to procure an order to hold to bail, Benson made an affidavit showing a cause of action, as alleged, against Besson. It also appeared that there was an understanding or agreement between Barnes and Besson that his goods should be distrained and sold to satisfy the rent in arrear, and that Barnes should wait on him until Benson could collect the same from Besson by a suit against him, to be brought by Barnes in t.he name of Benson, by Southard as his attorney; and that efforts were made, after the sale on the distress warrant and before the suit was commenced, to induce Besson to pay.' the amount due to Barnes, but without success.

      Upon this evidence the court directed a verdict for the defendant Southard, from the judgment entered upon which the plaintiff appealed. -

      L. R. Marsh, for the appellant, insisted:
    First. That probable cause was a question for the jury; citing 7 Cow., 715; 1 Wend., 345; 2 id., 424; 14 id., 193; 2 Greenl. Ev., § 454; Second. That the want of probable cause was sufficiently made out by the"voluntary abandonment of the suit complained of (Burhans v. Sanford, 19 Wend., 417; Nicholson v. Coghill, 6 Dowl. & Ry., 12;. S. C., 4 Barn. & Cress., 21); and that it was almost made out by the judgment of nonsuit which was obtained. (Roberts v. Bayles, 1 Sandf. S. C. R., 47; 19 Wend., 418; Webb v. Hill, 3 Carr. & Payne, 485; S. C., 1 Mood. & Malk., 253; Sinclair v. Eldred, 4 Taunt., 7; Purcell v. Macnamara, 9 East, 361.)

      H. P. Hastings for the respondent.
   Jewett, J.,

delivered the opinion of the court.

To maintain this action it was incumbent on the plaintiff to prove that he had been sued by the defendant, as alleged, maliciously and without probable cause; for if there was probable cause for such suit, although it was maliciously commenced, the action could not be sustained. Want of probable cause and malice must concur. The question of malice in this action is for the jury. The want of probable cause is independent of malicious motive, and cannot be inferred, as a necessary consequence, from any degree of malice which may be shown.

In the case of a private suit, probable cause may consist pi such facts and circumstances as lead to the inference ■that the party was actuated by an honest and reasonable ^conviction of the justice of the suit. This question is composed of law and fact; it being the province of the jury to detenmne-whether.the circumstances alleged are true or.not, and of the court to determine whether they amount to probable cause. When the matter of fact and matter of law, of which the probable cause consists, are so intimately blended together. as not tobe easily susceptible of separate decision, the judge is warranted in leaving th.e question to the jury; instructing them in the principles and rules of law by Which they are to be governed in finding a verdict, and those instructions the jury are bound to follow. Whether the circumstances alleged to show probable cause, or the contrary, are true and existed, is a matter of fact; but whether, supposing them true, they amount to probable cause, is a question of law.

What is meant by the expression, that probable cause is a mixed question of law and fact, and when it is proper to submit it to the jury to pass upon, is correctly explained in Masten v. Deyo (2 Wend., 424). If the facts which are adduced as proof of a want of probable cause are controverted, if conflicting testimony is to be weighed, or if the credibility of witnesses is to be passed upon, the question of probable cause should go to the jury, with proper instructions as to the law. But where there is no dispute about facts, it is the duty of the court, on the trial, to apply the law to them.

In this case there was no dispute about the material facts, no conflict in the evidence, no impeachment of witnesses. The judge was right, therefore, in assuming to himself to pronounce upon the legal effect of the evidence, and I think the conclusion to which he came was in accordance with the evidence. It clearly appeared that there was probable cause for bringing the suit by Benson against the plaintiff. (Hall v. Suydam, 6 Barb., 83.)

The judgment should be affirmed.

Judgment affirmed.


author: Paige, J.,

text:
    Dunlop and others against Gregory and others.
    A contracthot to exercise a trade or carry on business at a particular place, made upon good consideration, may be upheld if shown to be reasonable, and if the restraint upon the covenantor be not greater than is needed for the protection of the covenantee in the enjoyment of his trade or business.
    Parties owning passage boats running between New York and Albany on the Hudson river, sold one of their boats, and received back a covenant from the vendees that the boat sold should never, under any circumstances, be run as a passage boat north of Saugerties: Meld, a valid contract'.

      MM, further, that the obligation of such contract continued as long as any of the covenantees retained an interest in passage boats between New York and Albany, and were therefore in a condition to be injured by a breach.
    Although the interest of some of the covenantors had ceased prior to the breach, the action, before the adoption of the Code of Procedure, was necessarily brought in the name of all, for the benefit of those who tvere injured.
    It being provided in such covenant that the sum of $200 should be the liquidated damages for every trip of the steamboat above Saugerties: Meld, that that sum must be so regarded, and not as a penalty.
    In January, 1835, the plaintiffs, with several other individuals, all being interested in steamboats running as passage boats on the Hudson river, formed an association under the name of “The Hudson River Steamboat Association,” for the purpose of keeping up a regular line of boats in accordance with the partnership articles then entered into. This association was to continue until the 1st of January, 1843. On the 1st day of April, 1840, this association owned five boats, the Albany, Champlain, Erie, Swallow, and De Witt Clinton, and two-thirds of the steamboat Robert L. Stevens, all of which were running as passage boats between New York and Albany and T.oy. The other third of the Robert L. Stevens was owned by Samuel Rexford, one of the defendants in this suit. On the day last mentioned the several members of the association, being interested to this extent in the Robert L. Stevens, sold their interest to the defendants for $14,500, and executed bills of sale therefor. On the same day the defendants as parties of the first part, and the plaintiffs and R. P. Hart as parties of the second part, entered into an agreement under seal to the following effect:
    The agreement recites that “ the parties of the second part have this day executed and delivered to the said Uriah Gregory, Samuel Rexford and John Elting, Jr., their several bills of sale of the one equal undivided third part of the steamboat or vessel called the Robert L. Stevens, to each person of the first part aforesaid, in pursuance of an agreement heretofore made for the sale thereof, in which it was understood and agreed that the said steamboat or vessel should not be permitted to run on the Hudson river as a passage boat north of Saugertiesand proceeds that “in consideration of the premises, and of one dollar to them in hand paid,” the defendants covenant “ in manner and form following, that is to say: That whereas, it is the full understanding of all the parties to this agreement, that in no event whatever, nor under any circumstances whatever, shall the said steamboat Robert L. Stevens be run as a passage boat above the village of Saugerties on the North river, by any person or persons whatever: and that in the sale of said steamboat, or the sale of the different third parts of the.said steamboat, it is distinctly understood by all the parties to the agreement, that it is an essential and important consideration, that the said steamboat shall not be run above the village of Saugerties aforesaid as a passage boat, at any time hereafter, by any person or persons whatever. Now, therefore, for the different considerations above set forth, the said Uriah Gregory, Samuel Rexford, and John Elting, Junior, parties of the first part, do hereby agree to and with Robert Dunlop, Smith Cutter, James A. Stevens, Anthony N. Hoffman, Michael Van Burén, Richard P. Hart and Jonas C. Heartt, parties of the second part, to become responsible in damages, and which they hereby agree to pay to Robert Dunlop, Smith Cutter, James A. Stevens, Anthony N. Hoffman, Michael Van Burén, Richard P. Hart and Jonas C. Heartt, parties of the second part, if the said steamboat shall or may be run above the village of Saugerties aforesaid, as a passage boat, by any person or persons whatever. And it is agreed that the said damages shall be liquidated at two hundred dollars for each and every passage made by the said steamboat above the village of Saugerties. In witness whereof, the said parties of the first and second parts, have hereunto set their hands and seals.”
    The Hudson River Steamboat Association expired by its own limitation in 1843. Many of its members, before 1845, had sold out all their interest in any steamboats running upon the Hudson river, and in that year the only ones of the covenantees in the agreement who retained an interest in such property, were R. P. Hart and two of the plaintiffs. These individuals were still part owners of two of the five boats above named, and of other steamboats purchased since the date of the agreement, which were running as passage boats between New York and Albany and Troy. In the spring of 1845, and between February 27 and April 23, the Robert L. Stevens, then owned by vendees of the defendants, made nineteen passages between New York and Albany, carrying passengers and freight.
    R. P. Hart having died before the time of these passages, this action was brought in the name of all the other covenantees in the agreement, as his survivors, against the covenantors, to recover the damages therein liquidated for the breach of it. The cause was tried before Parkek, circuit judge, and a jury, in November, 1846, and a verdict given for the plaintiffs, under the direction of the judge, for $3800. Judgment on the verdict was affirmed by the supreme court, and the defendants appealed.

      John Thompson for the appellants.

      D. Bud, Jr., and J. Pierson, for the respondents.
   Paige, J.,

delivered the opinion of the court.

It is contended on the part of the appellants, that the agreement on which this suit is brought is in restraint of trade, prejudicial to the jiublic interests and against public policy; and that if valid at the time of its execution, it was invalid at the time of its breach, because the partnership for whose benefit it was made had expired without assigning it.

Contracts, upon whatever consideration made, which go to the total restraint of trade, such as obligate a mán not to pursue his occupation or exercise his trade, anywhere in the state, are void. Such contracts are injurious to the public, and operate oppressively upon one party without being beneficial to the other. But a contract not to exercise a trade or carry on business in a particular place, made upon good' consideration, may be upheld where sufficient reasons are shown for entering into it. The contract, to be upheld, must appear from special circumstances to be reasonable and useful, and the restraint of the covenantor must not be larger than is necessary for the protection of the covenantee ‘in the enjoyment of his trade or business. (Chappel v. Brockway, 21 Wend., 157; Nobles v. Bates, 7 Cow., 309; 2 Saund., 156, Note 1; Hitchcock v. Coker, 6 Ad. & Ellis, 438; Mitchel v. Reynolds, 1 P. Wm., 181.) Within the principles of these cases I think the agreement in question was valid and binding on the defendants.

Because a part of the covenantees sold out their interests in the steamboats running on the Hudson river, between the making of the agreement and its breach by the defendants, the remaining covenantees, who retained their interest in such boats, ought not to be deprived of their remedy on the agreement, to recover the damages sustained by them by means of such breach. The obligation of the defendants was an obligation to all the covenantees jointly. This suit having been commenced before the adoption of the Code, it was necessarily brought in the names of all the covenantees. The action can be sustained if any one of the plaintiffs has a beneficial interest in the suit. The covenant enured to the benefit of those covenantees who retained their interest in the steamboats running on the river. The other covenantees, who had sold out and therefore could not be injured by the breach of the agreement, are merely nominal parties to the suit.

The dissolution of the Hudson River Steamboat Association is no defence to the suit. The agreement was not made with the plaintiffs as members of that association or as co-partners, but as individuals;, and was intended to protect their interest, whatever that might be, in the steamboats running between New-York and Albany and Troy. The obligation of the agreement is not at an end because the steamboat association has become dissolved, or because the partnership, of which the plaintiffs were members at the time of the making of the agreement,' has expired by the efflux of time. The agreement makes no reference to the steamboat association, or to any copartnership. Its obligation continues as long as any one of the covenantees has an interest in the steamboats running on the Hudson river between New-York and Albany and Troy; especially in any of those of which they were owners, in whole or in part, when the agreement was made.

The sums agreed upon by the parties, as the measure of damages for the violation of the agreement, must be considered as liquidated damages. How these damages are to be apportioned among the plaintiffs is not a question which arises in this suit.

The judgment of the supreme court must be affirmed.

All the judges concurring,

Judgment affirmed.


author: Jewett, J. McCoun, J. (dissenting.)

text:
    Diefendorf against Spraker and Ehle, Executors, &c.
    N owning real estate, heavily encumbered by mortgages and judgment, conveyed it to V, upon the latter assuming to pay $2500 of such encumbrances. At the same time L, being defendant with N as surety and endorser in certain of the judgments, confessed a judgment by bond and warrant of attorney to V for $3000, conditioned for $1500; the condition being that L would indemnify V against all judgments beyond the $2500 which he had assumed to pay, which should be valid liens upon the premises. V then executed hack to L an instrument which, after reciting the above, promised “ that if, and whenever, I dispose of said real estate, I shall realize from such sale more than $2500 and interest thereon to the day of sale, I will pay to him such overplus to the extent (.and no further) that he shall have paid on the judgments aforesaid, for the benefit of the said N, as aforesaid, and interest thereonHeld, that this transaction created a trust in V to sell the property and apply the proceeds, above the amount of the encumbrances paid by him according to agreement, to reimburse L for such payments as he should have made upon the judgments.
    After holding the title for six weeks, V reconveyed to N, for a nominal consideration : Held, that he could not thus divest himself of his character as trustee, without the assent of L, the eestud que trust, although all parties were restored to the same condition as before the transaction.
    Afterward N sold the premises. V, having paid and become the owner of certain of the judgments above mentioned, joined in the conveyance in order to discharge his lien; and received afterward from N $1500 of the purchase money: Held, that this money, after deducting the amount of the judgments paid by him with interest, must be applied by V to reimburse L for payments made by him upon the judgments.
    Prior to the commencement of this suit one Lighthall had filed his bill in chancery against John Lintner, to obtain satisfaction of a judgment which he had recovered against him at law; and a receiver was appointed of the property and effects of Lintner. At the sale of the doubtful claims of Lintner, the complainant in this suit bought a claim against Robert Gf. Nellis, which he soon afterwards prosecuted and obtained judgment upon by default, to the amount of $1,668.12. He also purchased a claim of Lintner against the estate of R. R. Van Evera, deceased. These claims arose out of the transactions narrated below; and the plaintiff, on return of execution against Nellis unsatisfied, filed this bill, in 1845, against the defendants as executors of the will of Rynear R. Van Evera, father-in-law of Nellis, to enforce payment of the demand out of Van Evera’s estate. The facts relied upon by the complainant to charge the estate of Van Evera with the debt are, as stated by McComí, J., who dissented, as follows:
    Nellis was the owner of village property at Fort Plain, encumbered by mortgages to the amount of $3700. He owed other debts, and both he and his endorsers, Abraham and John Lintner, had been sued, and a number of judgments were obtained at different times against him, some of which included the Lintners as his endorsers; and further judgments against them all were expected. Van Evera (father-in-law of Nellis), with a view to his temporary relief and the relief of his endorsers, agreed to advance $2500, $270 of which to be applied to the redemption or purchase of Nellis’ personal property which had been sold under execution, and the residue ($2230) to be applied to the judgments then liens on his real estate, according to their priorities, beginning with the oldest. As an inducement for making this advance, Nellis was to convey to Van Evera the village property (being all the real estate which it appears he owned) subject of course to the mortgages; and as it was supposed that the $2230 might not be sufficient to pay all the debts then in judgment, something more was required for Van Evera’s protection and indemnity than the mere conveyance of the property; and as the Lintners would be relieved to a considerable extent by the advance of this money, they agreed to confess a judgment to Van Evera, which should be a security to him to the extent of $1500 for his indemnity against liens by judgment on the property to be conveyed, exceeding the $2230. This arrangement was carried into effect. Nellis and his wife executed, a deed of the property to Van Evera. The Lintners confessed the judgment. Van Evera advanced a portion of the money. On the 8th February, 1836, a writing was drawn up and signed by Van Evera, in which, after reciting that he had taken from Nellis a title to his tavern stand, and had agreed to pay the incumbrances thereon by judgment, to the amount of $2230, and that the Lintners had confessed a judgment as security to him that he should be indemnified against damage by reason of other judgment liens beyond the $2230, he undertook as follows: “Now I promise them and each of them that if and whenever I dispose of said tavern stand and appurtenances, or any part thereof, I shall realize from such sale more than $2500 and interest thereon to the day of sale, that I will pay to them such overplus to the extent (and no further) that they or either of them shall have paid on the judgments aforesaid for the benefit of the said Robert G-. Nellis as aforesaid, and interest thereon.” John Lintner paid judgments to the amount of $1293.25, which is the fund claimed by the appellant, with interest. Van Evera held the title to the property for about six weeks, and then, without the knowledge or consent of John Lintner, reconveyed to Nellis for the consideration of $1. Nellis occupied the property after the reconveyance to him for four years. The rent was worth from $500 to $600 per year. He then sold it for $3000 in cash over and above the mortgage encumbrances; paid Van Evera $1500 of the money and kept an equal amount himself, and Van Evera executed a quit claim or release of the property to the purchaser. In the meantime all the judgments which were encumbrances upon the property had been paid.
    The cause was heard on pleadings and proofs by Willard, vice-chancellor of the fourth circuit, who dismissed the bill with costs. This decree was affirmed by the supreme court; Mr. Justice Paige, however, dissenting from Willard and Hand in that judgment. The cause was argued here by

      H. P. Allen for the appellant, and M. T. Reynolds for the respondents.
   Jewett, J.

The evidence establishes the fact that all of the judgments mentioned, or so much as remained at that time unpaid upon them, have been fully paid, and the greater part thereof in the winter and spring of 1S36, of which the testator paid, on three of the judgments, in the aggregate, the sum of $503.26, and took an assignment of them to himself, to wit, on the 4th of April, 1S36, he paid $198.13, and on the fourteenth of April in the same year $305.13; that Abraham Lintner paid on said judgments $568.44, and John Liutner paid $1293.25; that the several defendants in said judgments, who were the real debtors, paid of the whole amount of said judgments, $1876.57, and as to the balance of the whole sum due and paid, being $741, the evidence does not show who paid it. But there is no presumption that the testator paid it.

By the agreement made between the testator, Nellis, and the two Lintners, and the conveyance by Nellis and wife to the testator of the real estate which he owned situate at Fort Plain, the relation of trustee and cestuis que trust was created between the testator and the Lintners. The premises were conveyed to the testator by Nellis and wife, for the express purpose of being converted into money by sale subject to said mortgages by the former; and so much of the proceeds thereof as should remain after applying such sum as the ■testator should have advanced of the $2500 with interest, the judgments being paid, to reimburse the two Lintners such sums as they should have jointly or severally paid of said judgments, with interest. The testator accepted the trust by accepting the conveyance, and taking the confession of the judgment, and entering into the agreement. He was therefore bound to execute it with fidelity and reasonable diligence, and he could only be discharged by administering the trust himself or putting the administration in the hands of the court of chancery. (2 Spence's Eq. Jur., 918, 920.) The reconveyance of the premises to Nellis by the testator in March, 1836, without any effort on his part to execute the trust, for the consideration of one dollar, was a palpable violation of his duty as such trustee. He could not divest himself of the character of trustee, till he had performed the trust, without communication to his cestuis que trust, not being authorized so to do by his appointment, although he may have been thus advised by his counsel.

It is said, however, that the reconveyance was made with the knowledge and assent of the Lintners, but of that there is no evidence. The witness, Wagner, does not prove it. He testified expressly, that he did not know that they knew it, and his testifying that he had no doubt but that they knew it, although objected to by thé complainant, is no evidence of the fact. It appears that Nellis continued in the possession of the premises, or in the receipt of the rents and profits thereof, until March, 1840, when Robert Crouse, in consideration of the release by Nellis and the testator, of their right, title and interest in said premises to him, executed to one or both of them his promissory notes for the payment of $3000, one-half of which Nellis took, and the other half the testator received to his own use. Crouse was abundantly responsible, and the notes have since been paid or might have been collected.

The case shows that Abraham Lintner, on the 30th of March, 1840, came to a settlement with Nellis in respect to the $568.44, which he had paid pursuant to the arrangement of the eighth of February, and released to him all his claims in consequence thereof. John Lintner having performed the agreement on his part, and having paid upon the judgments mentioned $1293.25, and the testator having received $1500 of the proceeds of the sale of the premises, and not having paid out beyond the sum of $503.26, was in justice and equity liable to pay over to John Lintner at least the surplus remaining in his hands, with interest. This claim of John Lintner against the testator belongs to the complainant. He became the purchaser of it at a sale made by the receiver in the suit in chancery brought by Lighthall against him.

I do not think that Nellis was a necessary party to this suit, and if he was that objection is not taken by the answer. ■ Whether he was a competent witness or not it is not necessary to decide, for the complainant’s claim is well sustained, laying his evidence entirely out of the case. I therefore think that the decrees of the courts below were erroneous, and should be reversed, and a decree made in favor of the complainant that he recover against the defendants, as executors of the testator, the sum of $1500 with interest from the 30th of March, 1840, deducting therefrom the sums of $198.13 with interest from the 4th of April, 1836, and $305.13 with interest from the 14th of April, 1846, with costs in the court below.

A majority of the judges concurred in the above opinion.

McCoun, J. (dissenting.)

I shall pass over several objections which have been taken preliminarily to the appellant’s title to the chose in action which forms the subject of this suit, and come directly to the question whether John Lintner, the original assignor of the claim, had such a claim as he could have enforced against Van Evera, the defendants’ testator. This depends upon the effect to be given to the agreement of the 8th February, 1836, signed by Van Evera, and the inquiry is, what liability did it create on the part of Van Evera, to the Lintners (Abraham and John), who are mentioned in it? It is necessary to look at the situation of the parties and of the property to which it relates at the time it was signed, in order to understand more readily the object or design of the instrument. It was so drawn as to express all that the parties intended, and all that was essential to secure to the Lintners their rights as between them and Van Evera.

[The learned judge here recited the facts and agreement as they are before stated.]

Two things are provided for in the agreement, and two only: 1. The conditional character of the judgment confessed by the Lintners; showing it was intended for an indemnity only, and was to be used for no other purpose; 2. In certain events or upon the happening of certain contingencies, the Lintners should be entitled to receive something out of the property on account of what they might pay on judgments against them as endorsers of Nellis. For the latter purpose it states, that they as endorsers have had and are having judgments against them in courts of record: “Now I (Van Evera), promise them and each of them, that if and whenever I dispose of said tavern stand and appurtenances, or any part thereof, I shall realize from such sale more than $2500, and interest thereon to the day of sale, that I will pay to them such overplus to the extent, and no further, that they or either of them shall have paid on the judgments aforesaid, for the benefit of Nellis, and interest thereon.”

It is claimed for this promise, in the first place, that it creates a trust, one of the class of express trusts allowed by statute, “ to sell lands for the benefit of creditors.” If such a trust was created, it was an imperative one which Van Evera was bound to perform, from the moment he accepted the conveyance. But where is the evidence of such a trust? It. is not to be found in the deed by which the property was conveyed to Van Evera, for that is absolute in its terms and expresses no such purpose.

There is no pretence of any separate deed or other instrument between Van Evera and Nellis, by which such a trust was declared or reserved; nor is there anything in the nature of the arrangement which was made for placing the property in the hands of Van Evera, which necessarily carries with it the idea of such a trust. If there is anything about the transaction at all, calculated to take from it the character of an absolute sale of the property, by Nellis to Van Evera, for the consideration of $2500, it is that as between them it was intended to be a security only in the nature of a mortgage for that amount of money advanced. I do not understand, however, that such a view of the transaction is contended for ; or, if it were, how it could help the appellant’s case.

Then what is there in the language of the instrument to show a trust of the character contended for? In terms it is a promise to pay them a surplus on three contingencies: 1. If he should sell the property; 2. If he should realize from a sale more than $2500, and the interest; 3. If the Lintners should have paid anything on judgments against them, as endorsers of Nellis. Whether he would sell the property or not, and when, and the manner of sale, is, according to the language of the instrument, left entirely at the option of Van Evera. This is very far from an assumption of a trust to sell at all events, or within a reasonable time, when no time is specified. Besides; if a trust of that sort attached to the property in the hands of Van Evera, why was not the instrument so drawn as to express it in terms? It was very easy to have done so, and yet the word “trust” isnotused. Again, if trust property, something in all probability would have been said about the rents, and how they were to be applied. It is in proof that the premises were worth an annual rent of from $500 to $600; yet no mention is made of his being bound to account for the application of the rents in any way. So far from it, the stipulation expressly is, that if he shall realize from the sale of the property—not from the sale and the income combined, but from the sale alone—more than $2500, and interest thereon to the day of sale, the surplus he will pay over.

In any view of the case arising from this agreement, and we have no other guide than what its language furnishes, it appears to me we are not at liberty to regard it as evidence of any trust which Van Evera was bound to execute for the benefit of Lintner. If we have the power to extend its meaning, so as to give it that effect by equitable construetion, I should not feel inclined to exercise it in a case got up under such circumstances as the present. But I apprehend we have no such power. The defendants have a right to demand clear and positive evidence of a trust expressly created with a view to a sale for the benefit of creditors. The creation of such a trust ought not to be left to inference. Our laws recognize no implied or resulting trusts in lands in favor of creditors, unless there has been a fraudulent conveyance by the debtor, or a fraudulent investment of his money in a purchase in the name of another person. Fraud is not alleged as any ingredient of the present case. Then if there was not a trust—if Van Evera did not take the property under a trust to sell for the benefit of the Lintners as creditors—the claim against him as trustee, founded upon a supposed breach of trust in not selling the property, fails; and the appellant must seek some other ground on which to establish a claim. What other ground has he to stand upon? Van Evera never sold the property. After holding the title about six weeks, he reconveyed it to Nellis, with his consent, but without the knowledge or consent, at the time, of the Lintners. He received no money back from Nellis on reconveying the property to him, but to secure himself for the money he had advanced, he obtained from the judgment creditors assignments of their judgments. Was this surrender of the property to the former owner, in the same condition in which he received it, any breach of his promise or agreement with the Lintners ?

The promise was to pay them the surplus. Its performance depended on two conditions: a sale, and a price obtained exceeding a certain amount. Assuming it to be a valid promise, and one which Van Evera could not refuse to perform, although the first condition was made to depend on his own will (1 Pothier, 28, 29, 114), yet the second, that the property must bring over and above a certain amount, was one not depending on his will, but on the minds of others, which he could not control; and before any liability could arise upon the promise, it must be made to appear, affirmatively, that this condition was practicable, that he could and might have made a sale, which would have produced a surplus. The evidence on this subject should be conclusive, not resting in mere opinion, or upon the estimate and calculation of witnesses in regard to value, but upon some fact, such as an offer actually made, or a readiness of some person to give the necessary price whenever the property should be put up for sale. Now, there is no evidence in the case of any fact showing that a sale which would have produced that result was practicable, even in 1836 when it is conceded that the property was at its highest point. We have opinions, and hearsay, and belief of witnesses, but nothing certain on the subject.

Mr. Darrow, the first witness examined by the appellant on this subject, states: “ I think those premises could have been sold in 1836, for $7000; .1 did believe at that time they could have been sold for a greater sum than $7000;” and he goes on to say, that he and one Lipe undertook to negotiate with Van Evera for the purchase ; came to terms with him ; had a contract drawn up which they were about to sign, when Nellis interfered, and had it postponed two weeks, and then the contract fell through. Under that contract the premises would have cost them about $6500, provided no difficulty had occurred with Nellis in securing a title and getting possession. They did apprehend some difficulty in that respect. They negotiated for the purchase with a view to a resale, on which they expected to make $1000, having been informed that Fox & Johnson desired the property, and would pay about $8000 for it. Afterwards he says he “ should think that $7000 was a fair estimated value of those premises in 1836, as real estate generally in Fort Plain was then estimated.” Other witnesses give it as their opinion that the property was worth $8000 and could have been sold for that price; at the same time not knowing any person who wished to purchase, or who had made any offer to purchase at any price.

Some witnesses concur with Mr. Darrow, in putting its fair market value, in 1836, at $7000. Mr. Gen ter, a witness for the defendants, says from $6000 to $7000 ; while Mr. Wagner, a resident of Fort Plain upwards of forty years, an intelligent witness, says that in 1836, real estate in that place was worth more than at any time before or since, and he should think this property might have been sold in the village, in 1836, for $6000. He considered that to be about the fair value of it. Afterwards, from 1837 onward, $5000 was, according to his judgment, about the fair average range of its value.

This sort of evidence falls short of the proof which is necessary in order to give the appellant any benefit of the conditional promise, or to fix a personal liability on Van Evera for not fulfilling it. I think I do not mistake the nature of his contract, when I hold it to be incumbent on those who would found any claim upon it, to show either an actual sale which has yielded a surplus, or that a sale might and could have been effected which would certainly have done so.

The promise or obligation to pay was suspended by the condition. (1 Pothier, 112.) No right of action could arise or accrue until the event, which was in the future, had happened. On the happening of the event the promise was to be performed; and he who claims the performance must show affirmatively that the event has occurred, or the certainty of its occurrence, if nothing was done or omitted to be done to prevent it.

But if the property was capable of being sold in 1836 for $7000, or any other sum which would have produced a surplus, how have the Lintners been injured or prejudiced by Van Evera’s omission to sell it? He restored the property to Nellis on the nineteenth March in the same condifion, in every respect, that it was in when he took the deed for it, only about forty days before.

No further judgments were recovered against Nellis during that time, or afterwards, to cause any addition to the liens on the property, nor had anything been done in that interval to embarrass or affect the title in Nellis more than it had been by the previous encumbrances. A sale was as feasible then as it was while Van Evera held the legal title, or as it would have been had he continued to hold it. On a sale by either, the judgments would all have to be cleared off or provided for in some way, as well as the mortgages. If a voluntary sale should not be effected, a compulsory sale or sales might be, either by execution on the judgments or by virtue of the mortgages. So far as the Lintners had paid or might pay the debts in judgment against them as Nellis’ endorsers or sureties (the same being also judgments against Nellis), they would be entitled by subrogation to stand in the place of the creditors, and have all the benefit which could be derived from these judgments and from the executions issued upon them as against Nellis and his property. So if sales should happen to be made of the property by virtue of prior judgments and executions, the right to redeem belonged to them. If, therefore, it should be made to appear that there was a chance or a possibility of the Lintners realizing something from a sale of the property by Van Evera, that chance, for aught I see, remained equally good after it was reconveyed to Nellis. It is true it might make some difference to them, if, while Van Evera retained the property for sale, he could be charged with the rent or yearly value of the property, so as to increase the fund, whenever the property should be sold; but it will be observed that the written agreement does not provide for taking the rents into account, and, so far as the Lintners are concerned, they are excluded from any such benefit. The surplus which they have any interest in, is a surplus to arise from a sale of the property—from what Van Evera might realize by and out of the sale—and it is to be a surplus, not over and above the balance of an account which might be due to him, but over and above the specific sum of $2500, with interest thereon to the day of sale. The appellant, therefore, can have no right to invoke into the case any account of rents which Van Evera could or might have received.

It .is said, moreover, that the Lintners have, been prejudiced in another way by Van Evera’s abandonment of the alleged trust; that is, they went on and paid some of the judgments upon the faith of the arrangement. The proofs, however, show that the payments were compulsory, and not voluntary, being made to the sheriff on executions in his hands against them; and they were such payments as they must at all events have made.

From the views which I have thus far presented of this case, it would seem to be unnecessary to look any further into the facts or into the transactions which subsequently took place with respect to the property. They appear to be quite numerous. Nellis remained in possession all along from March, 1836, to March, 1840; occupying the premises as his own. At one time there was a sale of the property under a statute foreclosure of one of the mortgages; Van Evera was the holder of some of the earlier judgments which he had procured to be assigned to him on account of the money he had advanced, and which had been applied to them. Upon these, or some of them, executions were issued and sheriff’s sales were made. Litigation sprung up between Nellis and Van Evera. Jiellis managed to keep the possession, and prevent Van Evera from perfecting a title against him. What became of the rights and claims of the holders of the other judgments, or of his endorsers, who were entitled to be subrogated, does not distinctly appear, except that Abraham Lintner was paid and a release from him obtained. In March, 1840, Nellis made a sale of the property to Robert Crouse, his uncle, for $3000 over and above the mortgages held by Crouse. $2500 of that money was paid by Crouse to Nellis; the rest was thrown off by Nellis for the privilege of remaining as tenant of the premises for. one year. Van Evera was present at this transaction, joined Nellis in releasing the premises to Crouse, because he held the judgment spoken of and the title had once been in him, and at the same time Nellis paid over to Van Evera, $1500 of the money. This money, it is alleged, ought to have been applied to John Lintner’s claim, because as between him and Van Evera it was virtually so much money realized by the latter from a sale of the property, and a- part of what he ought to have received and might have received long before, had he done his duty towards the former. This I understand to be the substance of the argument. It involves the questions which I have already considered as to the character and extent of the obligation assumed by Van Evera, when he signed the paper of the 8th February, 1836, and the insufficiency of the evidence in the cause to fasten such a liability upon him.

Besides, the proofs show that this money was not paid to Van Evera as the vendor of the property. Nellis made the sale and received the money, and then paid over that portion of it to Van Evera, as his creditor upon the assigned judgments, two of which were against the Lintners as well as against himself. In that way John Lintner has been already benefited, in a degree, by this money. I find nothing, in the close of all this business, to strengthen his claim upon Van Evera for anything more.

For these reasons, and others to be found in the prevailing opinion of the court below, I think the decree of dismissal ought to be affirmed.

Decree reversed and special decree made in accordance with the opinion of Jewett, J.


text:
    Brady against The Supervisors of the City and County of New-York.
    A claim for services rendered as counsel for the board of supervisors of a county is a county charge.
    No action for the recovery of a county charge can be maintained against a county, or the board of supervisors.
    The supervisors of a county, as such, are not a body corporate, and possess no powers as a corporation.
    Assumpsit, commenced in the superior court of the city of New-York in 1847, to recover compensation for services as counsel for the defendants during the three years next preceding the commencement of the action. The plea was the general issue.
    Upon the trial, before referees, it was contended on the part of the defence that the action, being in form against the county, could not be sustained, because the services, if any, were a county charge, and because the remedy in such cases, is pointed out by statute (1 R. S., 385, §§ 1, 2, 3, 4; Id., 418, § 4, subd. 2); and that such a claim must be presented to the board of supervisors, who are empowered to settle it, and who act, in the exercise of this power, as a judicial body. The referees decided, however, that the action was maintainable, and reported in favor of the plaintiff for the sum of $2475. This report was set aside on motion at general term, and the plaintiff appealed.

      James T. Brady, appellant, in person.

      N. Hill, Jr., for the. respondents.
   The judgment of the superior court was affirmed here for the reasons given in that court by Oakley, Ch. J., and reported 2 Sandf. S. C. R., 460.