author: Woodruff, J.

text:
    Auguste A. Bates v. Jacob A. Reynolds and Henry Slingerland.
    1. The Superior Court of the city of New York has jurisdiction of an action on contract, where one or more of several defendants, jointly liable on the contract, reside, or are personally served with the summons within that city. (Code, § 33, sub. 2.)
    2. Where the complaint in an action against two persons as common carriers, who are partners in that business, avers the delivery of goods to them, at New Baltimore, Greene county, to be carried thence to New York city; that they were common carriers between those places, and partners in that business; that they received the goods, and “then and there undertook to convey the same from New Baltimore to the city of New York, and to deliver the same to the plaintiff;” that they did not safely carry andt deliver, but so negligently conducted that the goods were wholly lost, it states an action on contract, where the defendants are jointly liable.
    3. Where, in such an action, one of the defendants is served with the summons within the city of New York, that court has jurisdiction of the action; and where the defendant so served alleges in his answer that both defendants reside in Greene county, and did at the time of, and since the commencing of the suit, and that his co-defendant was served with a copy of the summons and complaint in Greene county, and not within the city of New York; that part of the answer will be stricken out on motion as irrelevant.
    Special Term, March 8. 1861.
    Before Woodruff, J.
    This action was commenced by the service of the summons and complaint herein upon the defendant, Reynolds, in the city of New York. After which service, a copy of the summons and complaint was served on the defendant, Slingerland, by the sheriff of Greene county, at New Baltimore, in that county.
    The complaint alleges, in substance, that the defendants were copartners, and as such were 'common carriers; and doing business as common carriers, in the conveyance of goods for hire between New Baltimore and the city of New York. That on the 25th day of August, 1860, at New Baltimore, the plaintiff delivered to the defendants, to be carried and delivered to the plaintiff, at New York, for a reasonable compensation, &c., a certain trunk, containing apparel, &c., belonging to the plaintiff, of the value of $300; and the defendants received the same, and then and there undertook to convey the same from New Baltimore to New York, and to deliver the same to the plaintiff. That the defendants did not safely carry and deliver the same, but so negligently conducted, in regard to the same, that the same was wholly lost to the plaintiff; whereby she sustained damage to the amount ok $300, with interest from the said 25th day of August, 1860, which the plaintiff claims to recover.
    The defendant, Reynolds, by his answer, admits his co-partnership with the defendant, Slingerland, in the business of carrying merchandise and produce from New Baltimore, in the county of Greene, to the city of New York, and denies all the other allegations in the complaint. And for a second' or further defense, he alleges that his copartner, Slingerland, was served with a copy of the summons and complaint herein, in the county of Greene, and not in the city of New York; and that both of the defendants were, at and prior to the time of such service of the summons and complaint in this action upon them, and still are, resident in the down of New Baltimore, in the county of Greene, and not in the city and county of New York.
    The plaintiff now moves to strike out of the answer this second or further defense, as irrelevant

      William Allen Butler, for the Plaintiff, in support of the . motion.

      William A. Whifbeck, for Defendant, Reynolds, in opposition.
   Woodruff, J.

—The notice of motion in this case proposes to strike out, as irrelevant and immaterial, so much of the answer 'of the defendant, Reynolds, as sets up, by way of defense, that this court has no jurisdiction of this action, or for such other or further relief, &c.

As nothing is said in the answer on the subject of jurisdiction, the notice in those terms can hardly be said to designate, with appropriate distinctness, the precise portion of the answer to which it refers. The motion was nevertheless argued, without objection as to the form of the notice; and, as argued, it was applied to those averments in the answer which, if they do not warrant the claim that this court has no jurisdiction of the action, are clearly irrelevant: for, confessedly, they can serve no purpose if they do not raise that question.

They are contained in the defendant’s second or further defense, and consist of averments that both of the defendants reside in the county of Greene; and that the co-defendant was served with the summons and complaint in that county, and not in the city of New York. The motion, made and argued, was to strike out this defense as irrelevant ; and the motion is resisted, on the ground that the action against a common carrier, for the loss of goods received for carriage, is in substance an action of tort; and that this court has, therefore, no jurisdiction, unless both of the defendants reside or are served with the summons in this city.

The Code declares, (§ 33,) that the jurisdiction of this court shall extend to certain specified actions; and “to all other actions where all the defendants reside, or are personally served, within” this city; “or where one or more of several defendants, jointly liable on contract, reside, or are personally served, within ” this city.

One of the defendants in this case has been personally served within thiS^city.

It is insisted on the part of the defendant that the action is an action of tort, and, therefore, not within the last clause above cited ; and that in actions of tort this' court has no jurisdiction, unless all of the defendants reside, or are served, within this city. If we were to adopt the suggestion, that all actions against common carriers for loss'of property committed to them for carriage are actions of tort, and wére we also to follow the cases uited to us by the defendants’ counsel, Ansell v. Waterhouse, (2 Chitty, 1,) and Bretherton et al. v. Wood, 3 (Brod. & Bing. 54,) in both of which the action, in form of tort against the common carrier, was held to involve a charge of misfeasance, and therefore to lie against one of them severally ■—the non-joinder of others not being pleadable in abatement, or otherwise available to defeat the action; Low v. Mumford, (14 J. R. 426 ;) I say, if we were to follow these cases and others therein cited, and apply ¿hem to the present action, the inquiry would be interesting, whether under the views expressed in McKensie v. Hackstaff, (2 E. D. Smith, 75,) the defendant, who is served with process within this city, can avail himself of the non-service or the irregular service upon another defendant. Each being severally liable, the court has jurisdiction as to the defendant served here; and the plaintiff may, at any time before the trial, discontinue as to the other defendant, and proceed to trial and judgment against the defendant so served.

I do not, however, deem it necessary to place the disposition of this motion upon that ground; nor to say whether, though the objection cannot be taken by motion, it may by answer. The view that I take of the nature of the action, determines the question before me.

It is not questionable, that an action on the case would lie at the common law against a common carrier; and that in this form of action, prior to the case of Dale v. Hall, (1 Wilson, 281,) the gravamen of the action, as laid in the declaration, was in general tort; and yet Denison, J., says,,in the case last cited, that in the old forms it was averred that the defendant undertook, &c., which he says shows that the action was ex contractu; and in Boson v. Sandford, (2 Salk. 440, and 2 Show. 478,) in 1689, the declaration was that the defendants undertook, &c., and the action was held ex quasi contractu; and the nonjoinder of some of the shipowners was fatal. [In noticing this case in Rice v. Shute, (5 Burr. 2612,) it was held that the non-joinder should be pleaded in abatement.] The discussion in the case of Govett v. Radwidge et al., (3 East. 62,) shows that, at all events since the case of Dale v. Hall, it was permitted to the plaintiff to declare in tort for' a breach of the duty of the common carrier, or to declare in assumpsit upon his express or implied promise or undertaking to carry. And in modern times, it is stated in the elementary works that the plaintiff has his option; and the advantages and disadvantages of either form of declaring are stated. As, for example, if the form of the action be tort, counts in trover may be added, and nonjoinder of defendants cannot be pleaded. (Dickon v. Clifton, 2 Wils. 319 ; Mitchell v. Tarbutt, 5 T. R. 649 ; Govett v. Radwidge, 3 East. 62 ; Ansell v. Waterhouse, 2 Chit. 1 ; Bretherton v. Wood, 3 Brod. & Bing. 54 ; and, in this State, Bank of Orange v. Brown, 3 Wend. 158.) But if the form of the action be assumpsit, it is founded upon the defendant’s contract, express or implied; all of the copartners or joint contractors must be made defendants, and other counts in assumpsit may be united therewith. (Powell v. Layton, 2 Bos. & Pul. N. R. 365 ; Max v. Roberts, 2 Id. 454 ; see note to Weall v. King, 12 East. 452-454 ; 1 Chit. PL 96, 136, 137; 1 Selwyn’s Nisi Prius, title “ Carriers,” V.; 3 Wend. 158, cited above.)

Attention being given to the distinction between the cases in which the contract or undertaking of the defendant, and the breach thereof, is made the ground of the action, and those in which no contract or undertaking, express or implied, is stated, but the action is plainly a case for a breach of duty, most of the apparent discrepancies between the cases will disappear. The result is that a plaintiff may, if he think proper, bring his action against the common carrier in assumpsit on his undertaking or agreement to carry and deliver. Such an action is an action on contract, and in that action all the co-contractors must be joined as defendants.

And in another aspect, this point seems to my mind quite clear: whatever be the forms of remedy provided for a plaintiff proceeding against the carrier, the ground work and substance of the liability of the latter is an acceptance of the goods, either under an express agreement to carry, or under a duty to carry, from which on such acceptance there arises an implied undertaking to carry. In judgment ■ of law, there is a contract in all cases, and hence the decision in Campbell v. Perkins, (8 N. T. R. 430,) that the liability is discharged by a discharge under the U. S. bankrupt act of 1841, and on the express ground that it is a claim arising on contract. In that case the decision in Brown v. Treat, (1 Hill, 225,)—in which it was held that under the non-imprisonment act, forbidding an arrest in actions on contract, the plaintiff could not, by suing a warehouseman in an action of tort for not safely keeping and delivering goods, become entitled to arrest the defendant— is cited with approbation, notwithstanding the limitations qualifying, if not overruling it, in Suydam v. Smith, (7 Hill, 182,) and McDuffie v. Beddoe, (Id. 578.)

This review of the subject seems to me to show it to be quite settled that there is a contract between the carrier and'his employer, and that, on the loss of the goods, the latter may have an action on that contract if he so elect. Now, although the forms of pleading have in this State been abolished, the • rights of parties remain unaffected thereby; and the owner may still bring an action, stating facts amounting to a contract or alleging an undertaking, and if he do so, he has a right to insist that his action is founded on contract, and to have the advantages, if any, previously resulting from adopting that form of action, when forms were material.

The plaintiff here has alleged an undertaking to carry and deliver, (an appropriate form of alleging a contract,) and stated a breach of contract by alleging a neglect to deliver. This is in my opinion an action on contract, and of such an action-, where one of the defendants resides or is served within this city, this court has jurisdiction.

It is true, that in considering whether¡ in such an action, the summons should state a sum specified for which the plaintiff will take judgment in default of an answer, or should state that the plaintiff will apply to the court for relief, Mr. Justice Harris says that, although at common law it was an action ex contractu or ex delicto, at the option of the pleader, he is unwilling to admit that it has brought that feature into the new system. I find nothing in the Code altering the relations of parties to each other in this respect; if a carrier agrees to carry and deliver the property of the plaintiff, that contract, as such, may be enforced, or the breach of it redressed by action founded thereon, as well_ now as before the Code, and as well as a contract to do any other specific thing beneficial to another. The point, however, of Judge Harris’ decision is, that the form of the summons in such case should be under the 2d subdivision of \ 129, viz: that the plaintiff will apply to the court for relief; that is to say, it is not an action arising on contract for the recovery of money only, within the meaning of the 1st subdivision; and to the like effect is Clor v. Mallory, (1 Code R. 126,) in which Johnson, J., places his decision, not on the ground that this action is not an action on contract, but that the 1st subdivision of § 129 was intended to apply to contracts for the payment of money express or implied, and not to actions which, though founded on contract, were brought to recover damages for the non-performance of some stipulation other than the payment of money; and to a similar purport is the construction given to that section in other subsequent cases, in which it is shown that subdivision 1 does not apply to all cases in which the action is founded on contract, although the ultimate end may be the recovery of money as damages for the breach. (The People v. Bennett, 6 Abb. 343 ; Hyde Park v. Teller, 8 How. 504; Tuttle v. Smith, 14 Id. 395 ; West v. Brewster, 1 Duer, 647.)

Those cases do not, therefore, conflict with the views already expressed. Here the action is for damages, unliquidated, incapable of ascertainment from the face of the contract or undertaking of the defendants, by computation or otherwise, without extraneous proof. It may, therefore, be held to be an action in which it is necessary, on default of answer, to apply to the court for relief, and yet be none the less an action on contract.

Such, in my judgment, is its true character, and of that this court has, as already stated, full jurisdiction where one of the joint contractors resides or has been served within this city. (See .4 Duer, 682.)

An order must, therefore, be granted, as moved for on the argument, viz: to strike out the second or “further” defense contained in the answer of the defendant, Reynolds.

The plaintiff’s costs of motion, $10, to abide the event of his recovery of costs in the action.


source: Caselaw Access Project

license: Public Domain

text:
    Miller et al. v. Henry Stettiner, with John W. Kamps.
    1. Settled practice does not permit a defendant to set aside a summons, on motion, on account of his being misnamed therein.
    2. His remedy, when entitled to any relief, is a plea in abatement.
    3. If the plaintiff is ignorant of his true name, and, before suit brought, inquired of him, and the information is refused, and the plaintiff is unable to ascertain it, he may sue him by any name, and on discovering his true name, the pleading or proceeding may be amended accordingly.
    Special Term, March 9, 1862.
    Before Woodbuit, J.
    This motion is made upon the complaint and the affidavit of Simon Stettiner, who states that he is the person served with the summons and complaint, and is the copartner of the defendant Kamps, under the name and firm of Stettiner & Kamps, and that there is no person named Henry Stettiner who is a member of that firm; and the complaint shows that the action is for goods alleged to be sold to the two defendants; and the affidavit of Kamps is also produced to the effect that his copartner’s name is Simon Stettiner, and that there is no person named Henry Stettiner connected with him in business.
    Upon the ground, therefore, of misnomer of the defendant Stettiner, who should have been named in the summons and complaint Simon Stettiner, the latter asks that the summons be set aside “ for irregularity in this, that the said Simon Stettiner, the person on whom said summons was served, is therein named and described as Henry Stettiner, defendant,” and for costs of motion, and for such other order or relief in the premises as the court may see fit to grant.
    The .motion is opposed by affidavits made by one of the .plaintiffs and their clerk, and the clerk of the plaintiffs’ attorney, in which it is not in terms denied that the name of Stettiner is Simon.and not Henry, but it is stated that the action is for goods sold to the firm of Stettiner & Kamps, and the plaintiff states that after much trouble and inquiry he ascertained the names of.the persons composing that firm to be the names set forth in the summons and complaint. His clerk testifies that he went to the place of business of Stettiner & Kamps, and inquired of Stettiner for their card, in order to obtain the names of the members of that firm, and that Stettiner refused to give it, assigning as a reason that the plaintiffs wished to get the names in order to sue them, and the clerk of the plaintiffs’ attorney states that the name of Stettiner, as given in the New York City Directory for 1861, is Henry Stettiner, and that he served the summons and complaint upon the defendant, who then told him he was a member of the firm of Stettiner & Kamps, and thereupon, the deponant explained to him that the summons and complaint were intended for him, and the defendant made no suggestion that he was not the person mentioned in the summons and complaint.

      John Moody, for Defendant Stettiner.

      Samuel J. Glassey, for Plaintiffs.
   Woodruff, J.

—When this motion was made, 1 expressed some surprise that counsel had deemed a motion to set aside the process or proceedings in a cause, on the ground of misnomer of the defendant, warranted by any existing practice, and intimated that since I ¿ame to the bar I had not known of such a motion. I was therefore surprised when my attention was called to the case of Elliott v. Hart, (1 How. Pr. R. 25,) in which such a motion 'was granted, and have been induced thereby to examine the subject.

For more than thirty-five years past, no such motion has been entertained -in this State, with the exception above referred to; and it was declared by Justice Woodworth of the Supreme Court, in 1825, that such a motion was without precedent in that court.

In Mann v. Carley and Chapin v. Carley, (4 Cow. 148,) the defendant was called in the capias by a wrong Christian name, and was declared against by his true name, and motions were made on his behalf to set aside the proceedings on that ground, and in one of the cases in which the defendant had not appeared before making his motion, the motion was granted. On that motion, the English cases and books of practice on the subject were very fully cited ; and the court, although the motions were novel, and without precedent in this State, and not of long ancient date in the English courts, and although the court disapproved of the practice, yet deemed it advisable to follow the English practice in the case then before them, deeming that practice, though modern, yet of sufficient antiquity to be binding in this State, until abrogated by some rule, order or decision on the subject. It would seem to me that the fact that the motion was in this State without precedent, and the practice disapproved, would have warranted the court then in saying it was evident that it had never been adopted in this State; or if it was the practice in England when the practice of their courts was' made the practice in the Supreme Court, it had gone into disuse"; or having never been used, had been already and long since abrogated. Be this as it may, the court took care that the practice should no longer exist; for, by an order made at the same term, they provided that in future the court will not entertain such a motion, but will leave the defendant to his plea in abatement.

By no action of the court, that I can discover, has the practice enjoined by that order ever been changed; and from that time, February, 1825, until the present, I find no trace of any such motion, with the exception above referred to. Soon after the above order, it was provided by statute that when the name of any defendant shall not be known to the plaintiff, a capias ad respondendum may be issued against such person by a fictitious name. (2 R. S. p. 347, § 3.) Under this statute, it is clear that no motion to set aside the process on the ground of a misnomer of the defendant could be entertained; and unless this statute is repealed by a section of the -Code hereafter to be noticed, it' is still in force. Accordingly, it was said by the court in Waterbury v. Mather, (16 Wend. 613,) that if the parties are before the court, if all or any of them be misnamed, the only way to make the objection good is by plea in abatement; although if the misnamed defendant was not served, his codefendant might, under the system of practice then in use, take advantage of the variance between the proceedings and the proofs on the trial. And although the order of February, 1825, forbidding a motion to set aside the process, on the ground of misnomer of the defendant, does not appear to have been incorporated in the body of the written rules, afterwards from time to time promulgated, yet the practice conformed thereto; and the rules of 1829, adopted in October, to take effect January 1, 1830, (framed for the purpose of adapting the practice to the Revised Statutes, which then went into operation,) provide, in No. 72, that in cases not provided for by statute or these rules, the proceedings shall be according to the customary practice, as it has heretofore existed. It had become settled practice, originating in the disapproval of the court above stated, the absence of previous precedent in this State, and the order of February, 1825; and the language of the court in Waterbury v. Mather, in 1837, that “the only way to make the objection good, is by plea in abatement,” affirmed the practice as settled, although not embodied in the written rules. The revision of the rules made in 1845 do not, as I perceive, contain any saving in terms of preexisting practice; but they cannot be deemed to abrogate a practice then long established, which was not dependent upon any court rule which was the subject of revision, any more than they should be regarded as abrogating the entire system of practice, a small portion of which was then to be found prescribed in the written body of rules in use. But in the revision of July, 1841, under the new Constitution and the judiciary act, it is expressly provided that, in cases not provided for by statute, nor those rules, the proceedings shall be -according to the customary practice as it has heretofore existed in the Supreme Court, in cases not provided for by statute or the written rules of the court, (No. 103.)

So that, down to the adoption of the Code of Procedure, no such motion as the present could be entertained. Such motions had been declared without precedent; had been disapproved, and, by express order of the court, pro-, hibited, and the practice had been settled and confirmed; and it is proper to add that, in the very case which constituted the solitary instance which had been before the court, and which led to the order of prohibition, the question may be regarded as one of variance between the declaration and the process, and not a naked case of misnomer of the defendant.. It was a case in which the plaintiff had sought to anticipate and avoid the effect of a plea in abatement, by declaring against the defendant by his true name.

The Code of Procedure took effect in 1848; and by section 389 of that Code, and again by section 469 of the Code of 1849, et seq., it is enacted that the practice of the courts in civil actions shall continue in force when consistent with the Code, subject to the power of the courts to alter, &c.; and the court, by the rules first adopted under the Code, August 4, 1849, reenact the former provision, that in cases not provided for, the former practice shall prevail, (No. 92;) and the same provision has been continued in each revision of the rules to the o present time. (Rule 93 of the present rules.)

Unless, then, -the Code itself is, in its provisions, inconsistent with the order of February, 1825, that “the court will not entertain a motion to set aside the process or proceedings in a cause on the ground of a misnomer of the party arrested,” then the practice under that order still continues.

I perceive nothing in the Code inconsistent with the practice heretofore existing on this subject. A doubt is suggested in Eliott v. Hart, (ubi supra,) whether, under the Code, any remedy by plea in abatement now exists. I think the doubt is not warranted. The Code has not limited the defenses which a defendant may interpose. It has given the grounds of demurrer, and provided that if they do not appear on the face of the complaint they may be set up by answer ; but defenses which, from their very nature, cannot appear on the face of the complaint, and which are sufficient in law, may still be set up in the answer. Defenses are numerous which are not included in the enumeration of grounds of demurrer; and it would be both absurd and unjust to hold, that because they are not included in that enumeration, therefore they are no longer available. Former judgment, payment, release, may be named as examples.

Again, the provision of the Revised Statutes above referred to has been reenacted in the Code 175), which provides that when the plaintiff shall be ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name, and when his true name shall be discovered, the pleading or proceeding may be amended accordingly.

If there were doubt upon the general question I have considered, this section would be in the present case conclusive; the plaintiffs’ affidavits .go far to show that, in truth, the defendant is known by the name of Henry Stettiner, and recognized that as his name when sued; but if his name be Simon Stettiner, and only Simon Stettiner, then the plaintiffs were ignorant of his true name, and not only ignbrant after diligent efforts to ascertain his name, but designedly kept in such ignorance by the defendant himself when applied to. The evidence shows a design, on the part of the defendant, to conceal his name either to defeat the plaintiffs’ suit or to embarrass them in its prosecution. It is, then, a clear case for the application of the lT5th section, if Simon be the true name of the defendant, and the plaintiffs are perfectly regular. They are by the motion papers themselves, apprised that the defendant claims that his true name is Simon. I cannot set aside the summons and complaint because it does not contain the true name of the defendant, when the Code, in very terms, warranted the plaintiffs in suing him by any name. It may possibly be that, under this section, if a defendant whom the plaintiff, in ignorance, has sued by a wrong name, applies to the plaintiff and discloses his real name, and asks that the proceedings be amended, might, if the plaintiff refused, apply to the court to direct an amendment; on that question, I express no opinion; but a defendant thus sued cannot, for the first time, disclose his name in the motion papers, and ask -thereupon that the plaintiff’s proceedings, which are in all respects regular, be set aside. Neither do I express an opinion upon the question whether, when there is a variance between the summons and complaint in respect to the name of the defendant, a motion to set aside the latter would be proper. Many of the cases in England, supposed to warrant the motion here made, were cases of variance.

My conclusions are that the practice, as settled before the Code, and still in force, does not allow of a motion to set aside a summons on the ground that there is a misnomer of the defendant therein.

And that under the ll5th section of the Code, the plaintiffs being ignorant of the true name of the defendant, are in all respects regular, although the defendant is misn'amed; and that the defendant cannot first disclose his . true name by his motion papers, and therein ask that the summons be set aside for the misnomer.

The motion is, therefore, denied, with $10 costs.


author: By the Court. White, J.

text:
    The Bridgeport Fire and Marine Insurance Company, Plaintiffs and Appellants v. Thomas Wilson et al., Defendants and Respondents.
    1. Where, in a suit against several defendants, they, in good faith, and for sufficient cause, appear and defend by different attorneys, and succeed in the action, each attorney is entitled to a full bill of costs.
    2. Though the action he on an indemnity bond executed by three as principals, they being at the time partners, and by the fourth as a surety, the facts that at the time of suit brought the partnership had been dissolved, and one of the partners was not on speaking terms with the other two, is a sufficient excuse for such partner and the surety appearing separately, and by an attorney other than that of the other two partners, espéeially when it is shown that they so appeared in good faith, and without any intent to subject the plaintiff, thereby, to unnecessary costs.
    (Before Hoitman, Moncbiee, Robertson and White, J. J.)
    Heard February 23,
    decided March 23, 1861.
    Appeal b,y the plaintiff from an' order in relation to costs.
    The Bridgeport Fire and Marine Insurance Company is the plaintiff, and the defendants are Thomas Wilson, James E. Coll, Henry P. Wilson and Henry Brewster. The defendants were sued upon an indemnity bond executed by the three first named as principals, (they then being partners,) and by Brewster as surety. The defendants Coll and Brewster appeared by different attorneys, and the defendants Wilson appeared by a different attorney from either. í’he defendants succeeded, and the order appealed from held that each attorney was entitled to a full bill of costs. The facts appear in the opinion of the court.

      S. P. Nash, for Plaintiffs.

      James W. Gerard, Jr., for Defendant Coll.

      W. B. Booth, for Defendant Brewster.

      James W. Wilson, for Defendants Wilsons.
   By the Court. White, J.

—In this case an appeal is taken to the general term from an order made by this court at special term, denying the plaintiffs’ motion for a retaxation of the defendants’ costs in the action.

The suit was brought upon an indemnity bond executed by the defendants, Thomas Wilson, James E. Coll, Henry P. Wilson, and Henry Brewster. The three first named defendants were partners in business at the time of the execution of° the bond, and executed it as principals. The other defendant, Henry Brewster, executed it as surety for his co-defendants. He is and was then a resident of Connecticut. The other defendants were and are residents of the city of New York. The partnership existing between them had been dissolved before the commencement of this action, and the defendant Coll was not on speaking' terms with his former copartners, the Wilsons, and occupied towards them in their business affairs an antagonistic position. He appeared, therefore, and answered separately, by Platt, Gerard & Buckley, his attorneys. The defendants, Wilsons, appeared and answered by James W. Wilson, as their attorney; and the defendant Brewster appeared and answered, in like manner, seperately by William D. Booth, his attorney.

The defendants having succeeded in the action, three bills of costs, one for each defendant, or set of defendants, appearing and defending separately, were taxed, or adjusted by the clerk upon opposition, against the plaintiffs, who appealed from that taxation to the special term of this court, alleging that only one bill could be charged for all the defendants; that the defenses were all one and the same, and that the defendants should not be allowed to sever, and thus unnecessarily and improperly seek to oppress the plaintiffs with more costs than those required for the proper protection of their rights; those rights being common to all, and the interest of all the defendants in the subject matter of the controversy being a joint interest, and no one defendant having an objection to present to the plaintiffs’ recovery, which was not equally available for, and possessed by all the other defendants.

It is true that the court will not permit any litigant before it to conduct the defense or prosecution of an action in an oppressive manner, when it has the opportunity or means to interpose its authority and prevent injustice óf that character. It will not, when it can prevent it, permit a party to realize the unjust fruit of proceedings taken in a cause, not for the purpose of protecting or enforcing any right, but solely with a design to mulct an adversary in unnecessary and unreasonable costs. And if the severance of the defense in this action was of the character alleged by the plaintiffs, that is, if it were a mere unnecessary and opressive device to extract treble-costs from an opponent, it would be such a case as the court could and would lay its hand on, and prevent the accomplishment of the intended oppression.

But we do not think the defendants in this action are obnoxious to a charge of this kind. The affidavits and papers upon which the appeal has been argued before us, fully disprove any improper motive or 'purpose such as is alleged against them. Hostile relations subsisted between some of the defendants, and it would hardly be reasonable to require that either of them should, under such circumstances, relinquish the right which every man possesses to defend himself in person or by his own attorney, and place his cause in the hands of parties with whom he was at variance, and with whom it would not be in human nature that he could feel that he was as safe as if he had retained the matter under his own control. The other defendant, Brewster, was a surety, residing in another State, unconnected in any manner with his co-defendants, except by the mere circumstance that he was their surety; and thus situated, and in view of the embarrassments and controversies in which the parties for whom he had become responsible were involved, it was neither improper nor surprising that he should choose not to abdicate the management of his own defense in favor of those who had brought him into the peril which rendered a defense necessary.

There appearing, therefore, to be nothing collusive or unfair, but, on the contrary, that the defenses were conducted separately in good faith, there is no ground remaining upon which the defendants’ right to recover costs, severally, as they have appeared, can be denied. In all actions “for the recovery of money,” § 305 of the Code gives a defendant costs as a matter of .right and of course, when the plaintiff, under the provisions of § 304, is not entitled to them, And this is the rule whether the action is founded in tort or on contract. (Becker v. Gardiner,4 Seld. 29 ; Corbett v. Ward, 3 Bosw. 632.) To give but one bill of costs, where several defendants have justifiably severed in their defenses, and appeared separately "by different attorneys, would not be giving to them the full measure of indemnity to which the law entitles them. This is the' view which has always been taken of this question under both the old and the present systems of practice. The case of Castellanos v. Beauville, (2 Sandf. 670,) in this court, was' decided upon this principle; and we do not think the amendment of 1851 to § 306 of the Code, which has been referred to .by the counsel for the plaintiff's, affects this particular question, this case not being one embraced within that section of the Code.

■ The order, therefore, made at. special term must be affirmed, with $10 costs to the defendants.

Ordered accordingly.


author: By the Court—Bosworth, Ch. J. Cowen, J., Bronson, J., said: Wightman and Earle, J. J., concurred.

text:
    T. U., I. S. and G. T. Young v. Orsamus Bushnell.
    1. Admissions by a party will operate as an estoppel in pais, where they are designed to influence the conduct of another and where a denial of their truth will injure the latter.
    2. A party shall be estopped by his admissions, where his intent is to influence another or derive an advantage to himself. But where he has not acted with this view, and there is no breach of faith in receding, he shall not be concluded.
    3. The defendant B. by mistake, exhibited to the plaintiffs a contract between him and P., as being a paving contract, of which plaintiffs were at the time assignees, having on it a written statement signed by P., to £he effect that it was canceled, put an end to and given up, in consideration of $100 paid therefor to him, by B. It was in fact another contract for grading which had been canceled and extinguished. The plaintiffs, on inspection of this written statement, insisted that the effect of it was to require the defendant to pay in cash the balance due on it, which balance by the contract itself was payable in land. B. insisted that such was not its meaning or effect, and if it was, that it did not express the agreement actually made between him and P., as understood by both of them—that in fact such agreement merely released P. from doing more paving, and required him to accept payment of the balance' due, in land; the plaintiffs then purchased of P. his claims under the paving contract, paid him therefor $700 cash, and discharged a debt against him of $1,500, believing at the time that the statement exhibited was indorsed on the paving contract: held, that B. was not estopped from proving, that it was indorsed on the grading contract, and that the agreement as to the paving contract was such as B. asserted it to be.
    4. Held also, that treating it as being on the paving contract, it imported that such contract was canceled, and all claims under it, of either party against the other, were extinguished.
    5. Held also, that even if the proposition last expressed was doubtful, there was nothing, in the terms of such statement or in its necessary legal import, in conflict with the idea that P. agreed to accept payment in land for the paving done; and that in any view of the case, B. was not estopped from proving the truth of his declarations, made at the time the written statement was exhibited.
    (Before Bosworth, Ch. J., and Woodruff and White, J. J.)
    Heard, Nov. 8;
    decided, Dec. 29,1860.
    Exceptions ordered at the trial to be heard in the first instance at the General Term:
    This suit is brought by the plaintiffs as assignees of one William Pearson, to recover moneys alleged to be due from the defendant, for grading and paving done for him by Pearson.
    The paving contract, so called, is in writing and* not dated, but was made in the winter of 1854. By it, Pearson agreed to purchase of Bushnell three lots for $8,500; one-half of the price was to be paid in paving and for the other half he was to give his bond and mortgage.
    The contract for grading is in writing, and is dated April 20,1854, and by it Pearson was to grade the Bridges and Shortland’s blocks, so called. About, but subsequent to Sept. 20, 1854, it was agreed between Pearson and Bushnell, that the grading contract should be rescinded and ended, and that Bushnell should pay Pearson $100, and that the paving contract should be so far modified that Pearson should do no more paving, and should be paid for what he had done, in the manner specified in the paving contract.
    An indorsement as follows was then written on the grading contract, and signed by-Pearson (the agreement as to the paving contract being verbal).

      “ In consideration of one hundred dollars to me paid by O. Bushnell, I hereby cancel, give up, and put an end to the above contract, and consent and agree that said Bushnell may put out the said work, or so much thereof as is ' unfinished, to any other contractor ; and I hereby acknowledge the receipt of the said one hundred dollars. “ $100. William Peaesoy. [l. s.] ”
    Bushnell had paid Pearson all the cash payments due for paving, and was ready to convey the three lots, on receiving a bond and mortgage for the part of the price unpaid. Pearson being indebted to the plaintiffs (Theodore IT., John S., and George T. Young), subsequently assigned to them, as security, the paving contract, and his rights and claims under it, and they by a written notice dated February 7,1856, so notified the defendant; which notice concludes thus, viz.:
    “And you will further please take notice, that we demand an immediate settlement of said claims, and particularly of said claims under said contract, and that you convey to us the said lots, and accept our bond and mortgage for whatever sum may be found necessary over and above the value of the work and materials furnished under said contract; or, in default thereof, we shall be under the necessity of bringing suit to enforce om’ rights.”
    Pearson, a short time after this notice was given, informed the plaintiffs that the agreement rescinding the paving contract was in writing; thereupon Mr. Pike, one of plaintiff’s attorneys, called on Bushnell, and told him what Pearson said. Bushnell said it was not in writing ; Pike requested him to look at his papers ; Bushnell did so and took from his safe a bundle of papers, and the top paper being indorsed—contract between Bushnell and Pearson—he supposed it to be the paving contract (the grading contract having escaped his memory) and exhibited it to Pike. Keither of them read the contract. It was in fact the grading contract, having the indorsement thereon ' above set forth. There were subsequent conversations, and some correspondence between Pike and Bushnell, as to the effect of this contract of cancellation. Pike insisted that Bushnell was bound by it, to pay in cash the balance due for paving, and Bushnell insisted that he was not, and that if -such was its legal effect, it was contrary to the actual agreement between him and Pearson, as understood by both of them.
    On the 30th of April, 1856, the plaintiffs surrendered their assignment of this claim, made a purchase of it and took a new assignment thereof, and paid Pearson $700, and released a debt against him for $1,500, and brought this action. Before the time to answer expired, Bushnell examined his papers with care, and discovered that the contract he had exhibited to Pike was the grading contract, and so wrote to him and requested him to call and see it.
    The Judge (Hoitmaít, J.,) charged the jury (inter alia), thus:
    “ The indorsement was, in my mind, a total extinction of the contract to which it applied; and the plaintiffs’ counsel so treated it. The plaintiffs, under the advice of their counsel, took a new assignment of the contract, and released then claim against Mr. Pearson of $1,500, and gave $600 or $700- in addition.
    “ If you come to the conclusion that the plaintiffs discharged their debt and made the advances in consequence of this information got from Mr.- Bushnell, whether by his mistake or not, the plaintiffs are entitled to recover for the amount due on the paving contract.”
    The defendant excepted to the last sentence in this part of the charge, and made various requests to charge, touch-, ing the question of Bushnell being estopped from denying that he exhibited the paving contract to Pike, all of which the judge refused to charge. These requests, it is not deemed material to state.
    The jury found for the plaintiffs $2,486.94, the amount due on the paving contract, with interest, and only that; and found specially, that by the agreement between Pearson and Bushnell, the paving contract was rescinded only so far as further paving was concerned, and that plaintiffs purchased Pearson’s claim under that contract, supposing the indorsement exhibited to Pike was written on that contract, and paid $700 cash, and discharged a debt against Pearson of $1,500.
    The questions of law arising at the trial, were then ordered to be first heard at General Term, and the entry of judgment, in the meantime suspended. The facts proved are stated more in detail in the opinion of the court.
    P. G. Galpin, for the plaintiffs.
    I. Where A. having a qualified property in a claim against B., growing out of B.’s business transactions, and presumptively within his knowledge, applies to B. for information in regard to the same, and from the conduct of B. is induced to purchase said claim in good faith and to pay a valuable consideration therefor, B. is estopped from showing in bar of an action thereon, that his acts and statements were the result of a mistake, and that such statements were untrue. (Greenleaf’s Ev., vol. 2, §§ 22, 27, 207, 205 ; Starkie’s Ev., vol. 2, part 4, p. 28 ; Phillips’ Ev., Cow. & Hill’s Notes, part 1, p. 366.)
    The cases where estoppels in pais have been raised are divisible into two distinct classes.
    1. That in which the acts were done, and statements were made with the intent to defraud, and in bad faith.
    It is not claimed that the principle on which these cases stand applies here.
    2. That in which the acts were done and statements were made without any intent whatever to defraud.
    In the latter class of cases, the intent is entirely immaterial. Whether the estoppel is raised, turns not on the intent of the actor, but the effect of his acts on others. In the words of Justice Bronson, in Dezell v. Odell, (3 Hill, 215,) “when a part;*- either by his declaration or conduct, has induced a third person to act in a particular manner, he will not afterwards be permitted to deny the truth of the admission, if the consequence would be to work an injury to such third person, or any one claiming under him. The following cases establish the principle that the estoppel may be raised without regard to the intent or motive of the party at the time the acts were done or the statements were made. (Doe, ex dem. Eyre, v. Lambly, 2 Esp. R., 635 ; Harding v. Carter, 2 Park on Ins., 7th ed., 4 ; Frost v. Saratoga Mut. Ins. Co., 5 Denio, 154 ; Petrie v. Feeter, 21 Wend., 172 ; Howard v. Tucker, 1 Barn. & Adolph., 712 ; Stonard v. Dunkin, 2 Camp., 344 ; Salem Bank v. Gloucester Bank, 17 Mass., 12-27 ; Carnes v. Field, 2 Yeates, 541 ; Watson v. Threlkeld, 2 Esp., 637 ; Stables v. Eley, 1 Car. & P., 614 ; Simmons v. Bradford, 15 Mass., 82 ; Divoll v. Leadbetter, 4 Pick., 220.)
    In none of the above cases, if we recollect aright, was there any proof of an intent to defraud; but the estoppel was put upon the broad ground of public policy and fair dealing. This precise question came up before this Court in Kingsley v. Vernon, (4 Sandf., 361,) and the Court says:
    “ The fact that the plaintiff acted in ignorance of the true state of the case and without any bad faith, was relied on to except this cause from the principles we have referred to. The authorities do not, however, sanction such an exception. The estoppel is applied in those cases not upon the ground of willful misrepresentation or fraud in making the admission or declaration, but upon the ground that it will be a fraud to show that it is untrue, to the prejudice of one who has acted upon the faith of the statement.”
    “ Where an admission is made by a party which if true entitles another and induces him to bring an action against the party, he shall be bound whether he spoke true or false, and the facts, with all their legal consequences, shall be taken exactly as the party stated them.” (Cowen & Hill’s Notes to Phil. Ev. ; part 1, p. 372, and cases cited.)
    It is alleged as the first ground of error that the estoppel is not raised, if the defendant believed at the time of his alleged representations that the plaintiffs were already the owners of the claim. If the defendant so believed, that belief could only avail to exempt him from the suspicion of fraud, as it might well be argued that if he then thought the plaintiffs already held the claim, there was no inducement to attempt to deceive them. Granted. Since, as we have seen the raising of the estoppel turns not on the intent, or belief, or opinion of the defendant, but the effect of his conduct on us, his belief is entirely immaterial.
    The plaintiffs stand in a position similar to that of a liona fide purchaser of the claim, not only without notice of an existing equity between the parties, but with notice from the defendant that none such existed.
    Under such circumstances, could the defendant deny his notice, on the faith of which we purchased and set up his equity ?
    Is it any reason why he should be permitted to do this, that we need not have trusted him, but could have examined for ourselves.

      William Bliss, for the Defendant.
    I. The only serious question in the cause is as to the alleged estoppel. In regard to that, the charge of the Judge was erroneous.
    1. Upon an examination of the charge of the learned Judge it appears that the acts by which he charges that the defendant is estopped are the handing, even though by mistake, of the grading contract instead of the- paving contract to the plaintiff’s attorney, to look at (which he neglected to read), with the rescission upon it, and the sending, at his request, to him of a copy of such rescission. These acts are entirely insufficient to constitute such an estoppel.
    2. The plaintiffs ought not, and could not, in common prudence, rely on circumstances so indecisive.
    There was no direct and positive assertion on the part of the defendant. It was fair to infer that he believed the contract to be the paving contract, when he took it out and offered it to the plaintiffs’ attorney, but they ought not to have relied on such an inference when a mistake might so easily occur. Where there are neither frauds, nor confidential relations, a person should be estopped only by unequivocal acts and positive, deliberate assertions, for on those only will a person of ordinary prudence rely.
    The contract related to real estate. The defendant handed it to Mr. Pike “ to look at,” and he ought to have examined it. But he made no examination and read only the rescission, which could only be understood by reference to the preceding contract. In this he was guilty of negligence, and the plaintiffs were guilty of great negligence * in acting upon such an imperfect inquiry. '
    The defendant assured them that the real understanding and agreement of the parties was that the paving contract should.not be rescinded. They were thus apprised of the real agreement between the parties, and ought not to have relied on the terms of the supposed canceling instrument. They did so at their peril. They had reason to believe that there was some mistake.
    II. But, more particularly, the Judge erred in not charging as requested by the counsel for the defendant.
    1. “A party may avail himself of an estoppel in pais, but such estoppel, to be effectual, must be reciprocal and binding upon both parties, and the acts and admissions relied on by way of estoppel must lime leen intended to influence the conduct of the party setting them up, must have had the effect intended, and the denial must operate to the injury of the latter party.” (Welland Canal Co. v. Hathaway, 8 Wend., 480, 483 ; Dezell v. Odell, 3 Hill, 219 ; Carpenter v. Stilwell, 1 Kern., 73, 74.)
    “The very definition of an estoppel is when an admission is intended to lead a man with whom a party is dealing into a line of conduct which must be prejudicial to his interest, unless the party estopped be cut off from the power of retraction.” Per Justice Cowen, in last case. (4 Kent’s Com., 261, note ; Copeland v. Copeland, 28 Maine [15 Shepley], 525 ; Griffith v. Beecher, 10 Barb., 432.)

      2. A man is not estopped, if the truth appears by that which would otherwise work an estoppel. (Sinclair v. Jackson, 8 Cow., 543.)
    In Dezell v. Odell, (3 Hill, 219,) the Court say: “If he (the defendant) can show that he was drawn into the admission of an adverse title, or perhaps by some gross mistake of fact he may be able to defend himself.” (Gamble v. Gamble, 11 Ala., 966.)
    There is neither eqxfity nor justice in making the defendant suffer for an innocent mistake, as to the contents of a written paper open to the perusal of the plaintiffs.
    3. The defendant neither acted in bad faith, nor contrary to the principles of faff dealing, nor did he make any representation which it would be a fraud for him to retract. (Carpenter v. Stilwell, 1 Kern., 73 ; Welland Canal v. Hathaway, 8 Wend., 483 ; Pickard v. Sears, 6 Ad. & Ellis, 469 ; Freeman v. Cook, 2 Exch., 654 ; Copeland v. Copeland, 28 Maine [15 Shepley], 525 ; Commonwealth v. Moltz, 10 Barr, 527 ; Hawes et al. v. Marchant, 1 Curtis C. C., 144 ; Crocket v. Lashbrook, 5 Mon., 530 ; Edmondson v. Montague, 14 Ala., 370.)
    In Kingsley v. Vernon (4 Sandf., 361), it was indeed held that a representation might in some cases be honestly made, and yet the party making it estopped. It may be conceded that this is sometimes so, where such party undertakes for the fact, and the other party does not know, and has no means of knowing the contrary to be trxxe. In that case the jury found positively that the plaintiff said that the note was paid. If that case can be sxxstained, it can be only on sxxch express finding of the jury.
    But the facts of this case are materially different.
    The object of the rule is, certainly, only to secure good faith and fair dealing. And the learned Judge shoxxld have charged that, in the absence, of bad faith, there was in this case no estoppel.
    The defendant uniformly informed the plaintiffs that by the actual agreement of the parties the paving contract was not rescinded, and so the jury have found.

      The Judge, therefore, erred in instructing the jury that the defendant was estopped to deny that it was rescinded. The motion for judgment should be denied; the verdict should be set aside, and a new trial granted.
   By the Court—Bosworth, Ch. J.

The plaintiffs, as assignees of William Pearson, bring this action to recover moneys alleged to be due from the defendant to Pearson for grading and paving parts of certain streets in Brooklyn under two several contracts, one for grading and the other for paving.

The plaintiffs recovered a verdict for the-amount claimed under the paving contract, and only that, on a trial of the action had before Mr. Justice Hoffmau and a jury, on the 15th of December, 1857. The Judge, at the trial, directed the questions of law presented by the case to be first heard at the General Term, and the entry of judgment to be suspended in the meantime.

The verdict for all the purposes of the present proceeding determines all questions of fact in favor of the defendant, except those affecting the contract called the paving contract. The verdict -rendered is for the amount due on that contract, and was rendered for work done by Pearson un der it.

The “paving contract” was made in the winter of 1854, but not in writing. Subsequently, and on the 20th of April, 1854, a written contract for grading was made between Pearson and Bushnell, which is spoken of in the proceedings and testimony as the grading contract.

By the paving contract, as modified by Pearson and Bushnell after it was made, Pearson contracted to purchase of Bushnell certain lots specified, and to do certain paving for which Bushnell was to pay one-half cash, and the other half was to be applied as payment, pro tanto, by Pearson, on account of the lots which he so agreed to purchase.

Bushnell has paid the one-half cash and something more, and has at all times been ready to apply the unpaid residue, as payment toward said lots, and convey them to Pearson, or to the plaintiffs as his assignees, on receiving a- bond and mortgage for the balance of the purchase money, which would remain unpaid after making such application.

The position of Bushnell is, and the jury have, in effect, specially found, that it was agreed between Pearson and Bushnell that the paving contract was to be so far given up that Pearson was to do no more work under it, and Bushnell was to be at liberty to contract with some other person to do the unfinished work, and Pearson was to be paid for what he had then done in the manner stipulated in the paving contract.

The written notice of February 7, 1856, from the plaintiffs to Bushnell, that they had “become the owners” of the paving contract, and requiring payment of the balance due from Bushnell under it, states the contract and the then rights and liabilities of the parties to it, and of the plaintiffs as assignees of Pearson, as Bushnell claims they actually existed, demands a conveyance of the lots to the plaintiffs as the stipulated mode of paying such balance, and offers to give their bond and mortgage for the difference between such balance and the contract price to be paid for the lots.

Shortly after the 7th of February, Mr. Robert G. Pike (one of the law firm of Pike & Galpin), in behalf of the plaintiffs, called on Mr. Bushnell “and learned for the first time (as he says) that there was a modification of the paving contract, in this respect, that Mr. Pearson had been released from performing the work, hut not from talcing the deed.”

This information he communicated to the plaintiffs and to Pearson.

Pearson insisting there was a rescission in writing, Mr. Pike again saw Bushnell and told him what Pearson said, and Bushnell “denied it.”

Pike requested Bushnell to look at his papers; Bushnell did so, and took from his safe a bundle of papers, and the top paper being indorsed “a contract between Bushnell and Pearson,” and Bushnell, forgetting at the time that there were two written contracts between him, and Pearson, and supposing it to be the paving contract, handed it to Mr. Pike to look at. It was, in truth, the grading and not the paving contract. Beither of them then read the contract itself. There was a writing at the foot of it, signed by Pearson only, declaring it to be canceled, given-up and put an end to for the sum of $100, acknowledged by the writing itself, to be paid. Messrs. Pike and Bushnell, supposing the contract to be the paving contract; Bnshnell “maintained that the cancellation and agreement was, in substance, what he had before told” Mr. Pike. A copy of this writing was sent to Pike at his request, a day or two before the 20th of March, 1856.

On the 20th of March, Messrs. Pike and G-alpin wrote to the defendant their views of the meaning and effect of this writing.

The defendant replied by letter, of April 2, 1856 (still supposing that the writing was on the paving contract), in which he insisted the facts to be that the contract was not -put an end to; that the whole intent of the writing was “simply intended to put an end to his work” and enable the defendant to contract it to others, and averred his readiness to carry out the contract according to the facts and merits.

On the 3d of April, 1856, Messrs. Pike and Galpin made a reply to this letter, stating their views of the effect of the contract and of the writing supposed to be at the foot of it.

To this Mr. Bnshnell responded by letter, of April 12, 1854, and stated that the writing was hastily made and was never intended to vary the contract, except to enable' Bushneil to get some one to do .the work, and that “what (Pearson) had done was to be settled for by the contract.”

In this letter Mr. Bnshnell also insists that Pearson knows this to be the truth of the matter, and that the plaintiffs did when they purchased the contract. He says: “The omission by me of one word in making that indorsement on the contract is now sought to be used against me contrary to the understanding of all—everybody, until now,” * * “The attempt is one to escape from the contract on Messrs. Youngs’ part, not on mine, and against, as anybody can see, all the true facts and morality of the matter.”

In this state of things the original assignment of the contract by Pearson to the plaintiffs was destroyed, and on the 30th of April, 1856, a new assignment of it was executed, and the plaintiffs, at the same time, discharged Pearson from his indebtedness to them ($1,500 in amount) and paid him $700, viz., $100 cash and their note or notes on time for $600.

It is quite evident that when the paving contract was first transferred to the plaintiffs, the transfer was taken with notice to them, and with the belief on their part, that anything due upon it was payable in land. And that whatever may be the meaning and effect of the writing, exhibited to Mr. R. G-. Pike, Mr. Bushnell at all times insisted that the actual agreement made, on releasing Pearson from, doing more work under it, was that Pearson should be paid in land for what he had done, and that any effort on the part of the plaintiffs to compel the defendant to make payment in any other manner was an attempt on their part to escape from the contract against “all the true facts and morality of the matter.”

On the 12th of May, 1856, this action was commenced. Mr. Bushnell, on the 24th of May, after having examined his papers with more care, discovered that the contract which he had exhibited to Mr. Pike was the grading and not the paving contract, and on that day addressed to Messrs. Pike and Galpin a letter stating that to be the fact, and tendering to them permission to examine the papers.

The practical question now presented to us is simply this: “Is Mr. Bushnell estopped from proving the facts to be as he, at all times, strenuously asserted them to be?” Is he precluded, by the act of handing the grading contract to Mr. Pike, as being the paving contract, from showing it was not the paving contract?

The Judge charged the jury: “If you come to the conclusion that the plaintiffs discharged their debt and made the advances in consequence of this information got from Mr. Bushnell, whether by his mistake or not, the plaintiffs are entitled to recover for the amount due on the paving contract.” To this the defendant excepted.

In Cowen and Hill’s and Edwards’ Notes, vol. 1, pp. 454, 455, on a review of the cases adjudging certain admissions to be operative as estoppels in pais, this conclusion is expressed. “ They are said in this case, (8 Wend., 483,) so to operate where they are designed to influence the conduct of another, and have that effect, and when a denial will injure the latter. In another case the rule is put broader, that the party shall be estopped, where his intent was to influence the other, or derive a credit or advantage to himself. (Tufts v. Hayes, 5 N. H. R., 452 ; Kingsley v. Vernon, 4 Sand., 361 ; 21 Wend., 172.) But where he has not acted with this view, and there is no breach of faith in receding, he shall not be concluded. (Id.) The cases will, we imagine, be found to satisfy these rules in then broadest construction.”

Petrie v. Feeter, (21 Wend., 172,) was brought to recover back part of the amount of a note signed by the plaintiff, John D. Petrie, with and as surety for Adam Petrie, which the plaintiff had paid to the present defendant Eeeter. Eeeter being offered the note after it was due, declined to purchase it, unless the plaintiff consented. After this, the plaintiff “ called on the defendant, and told him that he was willing he should purchase the note; that he was as willing to pay the money to him as any other; that he had signed the note and was holden to pay it.” Upon this the defendant bought it, paying $218 cash, and passing the residue to his vendor’s credit. On the 18th of October, 1831, Petrie gave his note to the defendant for $250, payable at bank; paid it when'due, and afterwards brought suit to recover back the money, on the grounds that his principal had in fact paid the original note, viz.: $385.50, July 7, 1829; $101.99, Jan. 20, 1832,. and the balance May 1,1832.

In that case, the admissions and representations, were made to induce the defendant to purchase the note; and the plaintiff assured Feeter that he was holden to pay it, and was as willing to pay the money to him as to any other man.

And although Petrie made the representations in ignorance of the existence of facts, discharging his liability, in part at least, yet to admit proof of them would operate as a fraud on Feeter, and be permitting Petrie to prove facts, in direct contradiction of what he had stated to be the truth of the matter.

In Dezell v. Odell, (3 Hill, 215,) the defendant, on a levy being made by the plaintiff, a constable, of an execution against third persons, signed a receipt acknowledging the receipt of the property from the plaintiff as a constable, and agreeing to deliver it to him on a day, and at a place named. He refused to so deliver it, was sued in trover, and attempted to defend the action, on the ground that the property was his own.

Cowen, J.,

who delivered the prevailing opinion, says: “We have then a clear case of an admission by the defendant, intended to influence the conduct of the man with whom he was dealing, and actually leading him into a line of conduct which must be prejudicial to his interests, unless the defendant be cut off from the power of retraction. This I understand to be the very definition of an estoppel ingais.” (Id., 219.)

“It is not enough for him afterwards to show that he had the title. If he can show in addition, that he was drawn into the admission of an adverse title by fraud, or perhaps by some gross mistake of fact, he may be able to defend himself. * * The defendant below offered no proof of the kind; but on the contrary, it is entirely apparent that the title he proposed to set up at the trial, was known to him at the time of the levy and receipt.” (Id., 219, 220.)

Bronson, J., said:

“Beforethe party is concluded, itmust appear, 1st, that he has made an admission which is clearly inconsistent with the evidence he proposes to give, or the title or claim which he proposes to set up.; 2d, that the other party has acted on the admission; 3d, that the other party will be injured by allowing the truth of the admission to be disproved.”

In that connection he quotes the observation of Mr. Justice Eelsoe" in the Welland Canal Company v. Hathaway, (8 Wend., 483,) as a correct statement of the rule, viz.: “As a general rule, a party will be concluded from denying his.own acts or admissions, which were expressly designed to influence the conduct of another, and did so influence it, when such denial will operate to the injury of the latter.” (Dezell v. Odell, 3 Hill, 222.)

He reviews the leading cases, and reaches the result, that “ the conduct or admission which concludes a party, must be plainly inconsistent and irreconcilable with the right which he afterwards sets up.”

Every estoppel, because it concludeth a man to allege ■the truth, must be certain to every intent, and not to be taken by argument or inference. (Co. Litt., 352, b.) “If the .act "can be referred to an honest and proper motive, the party will not be concluded, although, upon one construction, his conduct maybe inconsistent with the right which he afterwards sets up.” (Hearne v. Rogers, 9 Barn. & Cres., 577.)

In Kingsley v. Vernon, (4 Sand. S. C. R., 361,) the defendant, the indorser of a bilí, on receiving notice of protest, •“.sent, his clerk to the plaintiff, for the purpose of paying the bill, and the plaintiff informed the clerk that the bank had passed the bill to his credit, and he supposed it was paid, and at the same time showed him the bank book, with the note so credited.” This was about the 1st of August, 1848. The plaintiff had no notice that it was not paid until the 20th of September. The proof was, that it .could have been collected of the drawer, up to the 23d of August, 1848, when he failed, and since had been insolvent.

The court in its opinion, quote with approbation, Pickard v. Sears, (6 Ad. & Ellis, 469 ;) Freeman v. Cooke, (2 Exch. R., 654,) and the rule stated by Bronson, J., to Dezell v. Odell, (3 Hill, 219.)

The Court say: “The plaintiff knowing that the defendant had cometo pay the bill, informed him that it had been paid. He was bound to know that this statement would induce the defendant to omit taking any measures to collect the bill of the drawer.”

Applying the rules stated in these and other cases, we ma3r observe, first, that nothing was said or done by Mr. Bushnell with a view to induce the plaintiff to purchase the paving contract, or under circumstances which could have induced a suspicion on his part, that they would be thereby thus influenced. On the contrary; before any conversations were had between him and Mr. Pike, the plaintiffs had notified him, to writing, that they were the owners of the contract, and, in the notice itself, required him to convey the lots, and offered to give their bond and mortgage for so much of the price as would be unpaid, after being credited with the sum for which they have since recovered the verdict, which the defendant now seeks to set aside. The defendant could not therefore have conjectured any purpose of the plaintiffs, to change then* position to Pearson to respect to that contract.

Second. It is uncontradicted that Bushnell, at all times, and to all his conversations and letters, insisted that by the agreement as actually made, Pearson was to receive land to payment of the work done; that the only change made in the paving contract, was, that Pearson was to do no more work under it, and was to be paid for what he had done, as was stipulated in it.

The defendant does not now seek to prove anything in contradiction to this-; but on the contrary, he onty asks to prove the fact to be as he said it was, and to be permitted to pay, as in that state of things it would be his right and duty to pay.

The only admission, either express or implied, which he made, that he seeks to contradict or explain, is the alleged admission, that the contract exhibited to Mr. Pike was the paving contract.

He undoubtedly exhibited it, supposing it to be the paving contract. He and Mr. Pike both seem to have been too much engrossed with construing the- meaning of the writing at its foot, to inspect the contract itself, which would have disclosed as readily to the one as to the other, that it was the grading and not the paving contract. But while Mr. Pike insisted that by its meaning or legal effect, Bushnell was bound to pay in cash, the balance in arrear, Bushnell insisted to the contrary, and asserted that if that was its meaning or legal effect, then it was in conflict with the agreement actually made, as understood by both himself and Pearson.

In this view, there is no bad faith in receding from the admission, that this writing was at the foot of the paving contract, as Bushnell insisted that he had never agreed to any modification of that contract, except upon the terms that Pearson should receive payment in land.

The case, therefore, seems to be one in which the plaintiffs voluntarily changed their position with Pearson in respect to the paving contract, with a view to try the experiment of attempting to hold Bushnell to a liability which he declared he had never incurred, and if they succeed in it, it will not be for the reason that they have acted, relying on the facts being as Bushnell said' they in honesty and truth were; but for the reason that he is precluded from showing them to be as he said they were, and precluded because he exhibited the paper he handed to Mr. Pike, as being the paving contract.

It cannot be so held, without violating some of the essentials of the rule, allowing admissions to operate as an estoppel in pais. 1st. ¡Nothing was said by Bushnell to induce the plaintiffs to purchase the contract, for they had already notified him that they owned it. 2d. Proving what he offers to prove, is proving nothing in contradiction to what he asserted to be tiue. And 3d, he acted in entire good faith, and the mistake under which he labored, when he .exhibited the grading contract to Mr. Pike, was one which the latter had the means of ascertaining at the time. The mistake was a great one, but the act can be referred to an honest and proper motive, and was of a character, and accompanied by declarations, which will prevent him from being concluded from giving proof, that the actual facts were as he asserted them to be.

. To hold the defendant estopped, is to make out an estoppel by argument and inference, which is not allowed. (Callow v. Jenkinson, 5 Eng. L. and Eq., 533.)

In Howard v. Hudson, (2 Ellis & Black., 1,) Lord Campbell, Ch. J., says: “How I accede to the rule laid down in Pickard v. Sears, and in Freeman v. Cooke.”

“ The party setting up such a bar to the reception of the truth, (viz., a representation by the defendant to the plaintiff,) must show, both that there was a willful intent to make him act on the faith of the representation, and that he did so act.”

Wightman and Earle, J. J., concurred.

Obomptob, J., while disapproving of some observations of Lord Campbell, said that, “the word willfully, which is used in the judgment in' Pickard v. Sears, has been well commented on in the judgment in Freeman v. Cooke. As the rule is there explained, it takes in all the important commercial cases in which a representation is made, not willfully in any bad sense of the word, not malo animo, or with the intent to defraud or. deceive, but so far willfully, that the party making the representation on which the other acts, means it to be acted upon in that way. That is the true criterion, and, as I said before, I think in the present case the two ingredients are wanting.” (See the note at the end of that case, as reported in 75 Eng. Com. Law R., p. 13.)

Applying the rule, as it is stated in this case, or in the cases in our own courts, cited, (supra,) the defendant is not precluded from showing the facts to be as he insisted they were.

In Blake v. Tucker, (12 Vermont R., 44,) the court said, that whenever the application of the doctrine of estoppel would be likely to defeat the principle on which it rests, to effect justice and prevent wrong, it becomes the duty-of the courts to prevent its application; and several cases were there cited which were decided on that principle.

"What has been thus far said, has been said upon the assumption, that if the defendant was concluded from alleging that the agreement of rescission, so called, was written at the foot of the paving contract, then that agreement would import that Bushnell was bound to pay any balance that might be owing for paving at its date, in money.

We are not satisfied, however, that this is the true view. By that agreement, Pearson, who alone signed it, says: “In consideration of $100, to me paid, by O. Bushnell, I hereby cancel, give up, and put an end to the above contract.”

This imports, that Pearson, for $100, then paid to him, gave up the contract and all claims under it.

If construed in light of the facts existing at the time it was made, the conclusion would be the same. Mr. Pearson testified: “ I received certificates and pay for Bridges Knoll, up to the summer of 1854; some work I did at the close, for which I did receive pay; it amounted to about $100; I was paid for all the work done on the Bridges and Shortland blocks, except about $100 which was not measured up; the $100 paid on the cancellation of the grading contract, about made us square on this contract, and it was paid when the contract ended.”

Thus it would seem to have been the understanding of Pearson and Bushnell, that payment by the latter, and acceptance by the former of the $100, put an end to all claims of either against the other, under the grading contract.

.If the cancellation agreement imports that the contract, •at the foot of which it was written, was thereby extinguished, and that all claims of either against the other, under it, were also extinguished; then the exhibition of this agreement, as being written on the paving contract, could not have misled the plaintiffs—they have been misled, if at all, by their erroneous construction of its import and effect.

But suppose it does not import an extinguishment of all claims of either against the other, under the contract on which it is written, still, it is quite certain that Bushnell does not, thereby, in terms, contract to do anything.

If there was in fact a cotemporaneous agreement on his part, to pay for all the work that had been done, on what principle is either party precluded from showing what that agreement was, and whether it stipulated for payment in money or property; or for payment presently or at a future day?

Writings which, on their face, import a clear expression of what the parties have agreed upon, cannot be contradicted or varied by parol.

But when the writing does not import that, and is on its face an incomplete contract, or is the contract on the part of one party only, the contract on the part of the other party may be shown by parol, if it is not essential to its validity that it should be in writing. The cases on this subject are collected in Cowen and Hill’s and Edwards’ Notes, vol. 2, pp. 669, 670, and 671. Potter v. Hopkins, (25 Wend., 417,) was decided on this rule.

It certainly will be difficult to find any authority to the effect, that the contract, and the cancellation agreement at the foot of it, import an undertaking on the part of Bushnell, to pay any balance then owing for work done under the contract, in money. And until that proposition can be sustained, there is no rule or principle which precludes him from showing the agreement made, as to the manner in which that balance should be paid.

In any view that can be taken of the case as now presented, the verdict must be set aside, and a new trial ordered, with costs to abide the event.

Ordered accordingly.