author: By the Court, Robertson, Ch. J.

text:
    Adolphus Schwerin et al. plaintiffs and respondents, vs. William A. McKie, defendants and appellants.
    1. Imported goods, on their passage to this country, are in the actual or constructive legal possession of the owner, importer or consignee, and so remain even when placed in the joint custody of the owner of a bonded warehouse and an United States officer of customs, to secure the payment to the United States of duties, and until then, to be taken care of.
    2. The meaning of the term “ custody,” as applied to the possession, by United States officers, of merchandize, used in the acts of congress, {act of March 28, 1854,10 V. S. Stat. at Large, eh. 30, p. 270, §§ 1 and 3,) is confined to its original sense of a guard or watch for the interests of the government. It was not intended to embrace legal possession for all purposes.
    3. Notwithstanding the “custody” given to the United States officers, by statutes, the warehouse keeper is the guardian of the interests of the owners; that is, of the goods subject to the lien for duties, and is responsible for their safe keepin'g, like any other bailee. If he neglects to exercise due diligence, he is liable to the owners of the goods.
    4. In an action by the owner against the warehouse-man to recover the value of goods lost, the burden of proof, as to due diligence, is upon the defendant. The mere non-production of the subject of.bailment is prima facie evidence of a deficiency in the care of it.
    5. After the defendant has, by an objection, excluded positive testimony of negligence, offered by the plaintiffs, he should he estopped from moving to dismiss the complaint for want of that proof.

      6. Where the proof introduced, after a motion to dismiss the complaint, sustains the verdict, this will cure any error in the refusal to grant the motion.
    7. A court is not bound, in instructing a jury, to pronounce upon every proposition that may be conceived to have some bearing on the case, but only those which the evidence either warrants, or might naturally give rise to in the minds of the jury. Per Robertson, Ch: J.
    8. In an .action against a warehouseman for the conversion of goods, interest on the value of the goods (if allowed by the jury) is recoverable, by way of damages; it being an action for a breach of duty.
    (Before Robertson, Ch. J., and Barbour and Garvin, JJ.)
    Heard January 7, 1867;
    decided March 2, 1868.
    This is an appeal from a judgment entered at. special term upon the verdict of a jury in favor of the plaintiff, for $1543.35.
    The facts are as follows, viz. on the 15th of April, 1864, the plaintiffs (who are' importers in this city) deposited on storage with the defendants (who are warehousemen, .keeping what is commonly known as a private bonded warehouse,) a large quantity of valuable cigars, to be by them safely kept (for a pecuniary consideration agreed to be paid by the plaintiffs) and delivered to the plaintiffs upon demand. The cigars were placed by the defendants in their warehouse, No. 69 Greenwich street, on the second story, in a small office enclosed by window sashes. When the plaintiffs delivered the cigars to the defendants the customs* “ duties ” upon them were unpaid; and they were so deposited, in conformity with the United States revenue laws, subject to the lien of the government therefor until such “duties” should be paid.
    The plaintiffs, from time to time, withdrew from the de-. fendants’ custody a portion of the cigars, and on or before the 30th day of April, 1864, had paid all “ duties ” thereon, whereby the goods were discharged of all lien of the government, and were subject only to the defendants’ lien for expenses of storage thereof. Subsequently, the defendants delivered to the plaintiffs all the cigars except 52 boxes, containing 7600 cigars, which the defendants could not account for or deliver to the plaintiffs. On the 23d of August, 1864, the plaintiffs, having previously failed to obtain these 52 boxes, made a formal demand for them, and they were not forthcoming. The plaintiffs had a verdict for the value of the cigars, and interest from date of the last demand. The defendants undertook to excuse their default by shówing the degree of care they had exercised in the premises. There was evidence tending to show some care, and evidence tending to show negligence, and the court submitted this evidence to the- jury with directions that the defendants were entitled to a verdict if they had “exercised ordinary care,” or if “the loss occurred without negligence by them.” The defendants also undertook to show that there was reason to believe a burglary had been committed on the premises and the cigars stolen. The court charged the jury that they should determine “ whether there was evidence to show a burglary had been committed,” and whether the cigars were thus lost, and that they should give the evidence on this subject all the weight it deserved. The defendants also claimed exemption from liability because their warehouse was a private bonded warehouse under the laws of the United States.

      St. Clair Smith, for the appellants, defendants.
    I. There is a great difference between the proprietor of a United States bonded warehouse and a common law warehouseman, both as regards the keeping of goods and liability for loss or damage.
    1. The latter is a sole bailee and must exercise ordinary care. (Schmidt v. Blood, 9 Wend. 268. Kent’s Com. vol. 2, marg. paging 566. Parsons on Contracts, vol. 1, p. 622 and cases there cited.) While the former, together with an officer of the customs, are joint custodians, and the goods are at the sole, and exclusive risk and expense of the owner, importer or consignee. (10 U. S. Stat. at Large, p. 270, ch. 30, §§ 1 and 3, act of March 28, 1854.)
    2. By the common law a warehouseman has a lien for storage on the goods committed to his charge. The proprietor of a bonded warehouse has no lien except in the single case of unclaimed goods sold to pay duties, in which case, out of the proceeds of such sale, his charges are to be paid. (10 U. S. Stat. at Large, p. 270, ch. 30, § 2, act of March 28, 1854.)
    3. Goods in a bonded warehouse, not only during the time that the duties remain unpaid, but also after the payment of duties, are at the risk and expense of the owner. (12 U. S. Stat. at Large, p. 560, ch. 163, § 21, act of July 14, 1862, entitled uAn act increasing temporarily the duties, on imports, and for other purposes.”) And in case goods-while in a bonded warehouse are injured or destroyed by fire, or other casualty, the duties paid or accruing, are abated or refun'ded as the case may be. (10 U. S. Stat. at Large, ch. 30, p. 270, § 8, act of March 28, 1854.)
    II. There is a defect of parties defendant in this action.
    1. The proprietors of a bonded warehouse and an officer of customs, “ shall have the joint custody of all merchandise stored in said warehouse.” (10 U. S. Statutes at Large, p. 270, ch. 30, § 1, act of March 28, 1854.) The officer should have been made a party defendant. And this objection was properly taken by answer.
    2. This joint custody is not merely nominal or constructive ; it is an actual, absolute joint possession.
    HI. Where there is a partial loss of goods deposited with a warehouseman, the onus probandi, as regards negligence, is upon the plaintiff; where there is a- total loss, it is upon the defendant. (Schmidt v. Blood, 9 Wend. 268. Platt v. Hibbard, 7 Cowen, 500, note a. Harris v. Packwood, 3 Taunt. 264. Marsh v. Horne, 5 B. & C. 322. Clay v. Willan, 1 H. Bl. 298. Jones on Bailments, 2d ed. 106, note 40.)
    . TV". That there was only a partial loss of goods in this case, is unquestionable. This appears from the pleadings and the testimony.
    V. The cigars in question were in this warehouse on the 6th, and were not there on the 14th of June, 1864; it had been broken into through the scuttle, which was first discovered on the morning of June 14. Its fastenings, and the building itself, had been and were approved by the officer appointed by the United States • government to examine buildings to be used as bonded warehouses. This, of itself, is conclusive as to the sufficiency of the building and its fastenings.
    Upon the testimony of the United States warehouse superintendent, and the evidence as to the manner in which the, store was fastened, and as to the great force required to burst open the scuttle, the court should have charged as requested by the defendants.
    VI. Warehousemen are not liable if goods are stolen by their servants or agents. (Schmidt v. Blood, ubi sup.) And assuredly they are not when the goods are stolen by burglars. And the request of the defendants so to charge was was a proper one.
    VII. The evidence does not disclose negligence on the part of the defendants; on the contrary, it shows the absence of all negligence, and if .there was no exception in the case, the verdict should be set aside as against evidence. Eegligence cannot be inferred. (Tobin v. Munsin, 4 N. Y. Leg. Obs. 115.)
    VIII. It requires higher evidence to convict for burglary than to show that a burglary has been committed. (1 Greenl. p. 20, § 13, and cases there cited.) And the judge erred in charging the jury, “that (if any one descended through the scuttle and carried off" the cigars) it was a matter of fact for them to decide, as much, as if the party, who' was charged with having thus carried them off, was on trial here for burglary.”
    IX. This is an action in tort. The charge is, that the goods were lost. Interest on the value of the goods should not have been allowed. It is only allowed in trover by way of damages for the conversion. (Wilson v. Conine, 2 John. 280. Bissell v. Hopkins, 4 Cowen, 53. Hyde v. Stone, 7 Wend. 354.)

      Albert Mathews, for the respondents.
    I. The motion for a nonsuit was properly denied.
    1. As to the negligence. The plaintiffs offered evidence tending to prove- want of ordinary.care, and, upon the defendants’ objection, it was excluded. It did not, therefore, lie with the defendants to move to dismiss the complaint for want of this proof. They were estopped by their own act; whether they so intended or not. (Manuf. and Traders’ Bank v. Hazard, 30 N. Y. Rep. 226.)
    2. The burden of proof of the exercise of reasonable care, and of accounting for the loss, of the goods, and the privilege of endeavoring to show that it had happened from no negligence of the defendants, rested with them, when the plaintiffs had closed their proofs.

      [a.) The plaintiffs proved the delivery of the goods to the defendants, under a special promise for hire, to safely keep and return them, and that, upon a demand thereof, the defendants had wholly failed to deliver or account for them. This made out a prima facie case of breach of contract, and conversion of the goods on the part of the defendants; it was then incumbent on them, if they could, to excuse their default.

    (5.) The evidence on this subject of negligence or care against probable danger, must necessarily have been submitted to the jury. The rule was thus laid down by the Supreme Court, in 1827. (Platt v. Hibbard, 7 Cowen, 501,) and has been followed in all subsequent cases of authority, where this question has arisen. (Willard v. Bridge, 4 Barb. 367. Van Horn v. Kermit, 4 E. D. Smith, 457. Arent v. Squire, 1 Daly, 347. Bush v. Miller, 13 Barb. 489. Newstadt v. Adams, 5 Duer, 46.) The distinction made in some of the cases, that under certain circumstances, the-plaintiffs must themselves first prove the negligence of the defendants, cannot be taken in this case for the reasons that, first, the plaintiffs had proved a technical conversion of the goods; and, secondly, there was a “total default to deliver the goods bailed,” or to account for them. (Platt v. Hibbard, 7 Cowen,
      500, n. Beardslee v. Richardson, 11 Wend. 26.) In the case of Knapp v. Curtis, (9 Wend. 60,) the destruction of the property bailed having been shown to have resulted from inevitable casualty, without default of the bailee, the question now under discussion did not arise. In the case of Schmidt v. Blood, (9 Wend. 268,) it having appeared affirmatively, that the goods bailed had been stolen by the servant of the bailee, and there being no presumption or evidence of negligence on the-part of the bailee, this question did not arise, and the court merely say obitur, “the onus of showing negligence, seems to be upon the plaintiff, unless there is a total failure in delivering or accounting for the goods.” (Seep. 271.) In the case of Foote v. Storrs, (2 Barb. 326,) there was no question upon whom rested the burden of proving negligence of the bailee; there was evidence tending to show that no loss had happened, and that the loss, if any, had happened through the fault of the bailor; and also tending to show that the bailee had exercised due care. (P. 327.) The referee, upon all the evidence, found as matter of fact, that the loss was not owing to the fault of the bailee. The question now under discussion did not arise. The distinction referred to, was not adverted to. The remarks of the judge,■ even upon the general rule, were obitur. In the case of Wiggins v. Hathaway, (6 Barb. 632,) the bailee was- without hire; he was a public officer, not liable for the acts or omissions of his servants; there was no evidence that the' property in question had ever come to his possession, nor any proof of á demand, and failure to deliver the property to the alleged bailor.

      {e.) The same rules of evidence are applied in cases of carriers of passengers, where the liability arises only from negligence. (Wilkie v. Bolster, 3 E. D. Smith, 332. Holbrook v. U. and S. R. R. Co., 16 Barb. 116. Stokes v. Saltonstall, 18 Peters, 181.)

      {d.) The same rule applies in analogous cases of common carriers of goods, and of innkeepers. (Clute v. Wiggins,
      14 John. 175. Finn v. Timpson, 4 E. D. Smith, 278. Van Wyck v. Howard, 12 How. Pr. 147.)
    (e.) The same doctrine has repeatedly been held in other states in cases of ordinary bailees for hire. (Beekman v. Schous, 5 Rawle, 189. Clark v. Spencer, 10 Watts, 337. Alden v. Rearson, 5 Gray, 348. Logan v. Matthews, 6 Penn. Rep. 419. Cox v. O’Reilly, 4 Ind. Rep. 371.)
    (/.) Any other rule would be unreasonable and unjust. The bailor cannot account for the non-delivery of the property. The bailee is the custodian, and knowledge of what has happened to it rests exclusively with him; the bailor is ignorant from the necessity of the case. The bailee is put in the wrong by his failure to surrender the property upon demand; he ought to excuse his default and rebut the presumption naturally arising from this circumstantial evidence against him; otherwise there would be great temptation to ' fraud, or concealment of negligent cause of loss, and the bailee might set the bailor at defiance.
    3. Evidence was adduced tending to prove negligence, and it is settled that “ the court will not disturb a verdict on the ground that the proof was insufficient, when the non-suit was moved for, in cases where the deficiency was after-wards supplied.” (Kent v. Harcourt, 33 Barb. 495.)
    4. Moreover, there was some positive proof of negligence, when the plaintiff rested.
    II. The circumstance that the defendant was keeper of a private bonded warehouse under the revenue laws of the United States, did not exempt him from liability for loss of the goods. (Arent v. Squire, 1 Daly, 347, et seq. Grinnell v. Oelricks, MS. N. Y. C. P., Nov. 25, 1865, per Brady, J.)

    1. The acts of Congress contain no provision exempting the warehouseman from his common law obligation to exercise ordinary care and prudence in keeping goods entrusted to him. (Brightly’s U. S. Dig. p. 488, §§ 296-299, andp. 1222, § 58.)'
    2. On the part of the government of the United States, there is .no obligation towards the owner of the goods to exercise any care whatever over them. That obligation falls exclusively upon the warehousemen, by giving bond to the United States government exempting it from all liability in the premises. The government are quasi custodians of the goods, exclusively for their own benefit, and merely to protect their lien for duties. (Brissac v. Lawrence, 2 Blatch. Cir. Ct. Rep. 121.) The title and legal possession of the goods were vested absolutely in the plaintiffs; the relationship of bailor and bailee subsisted only between them and the defendants. (Mottram v. Heyer, 1 Denio, 483. S. C. 5 id. 632. Waldron v. Romaine, 22 N. Y. Rep. 368.) The custody of the officer of customs was not in judgment of law, a possession of the goods, but rather a qualification of the possession which was vested in the keeper of the bonded warehouse. It was a mere restraint upon removal (before the duties were paid,) while the actual possession was in the defendants, who were - the sole agents of the plaintiffs in the premises. (Cartwright v. Wilmerding, 24 N. Y. Rep. 536.)
    3. In this case, the “ duties ” having been paid, the lien of the government for duties was discharged. Although if the defendants had discharged their obligation, and safely kept the goods, the plaintiffs (if they had so chosen) might have elected to allow the goods to remain in custody of the officer of the customs, and might have exported the goods back to' Cuba, (if so disposed,) and reclaimed the duties paid by them, less one per cent; they never did so; and there is neither evidence nor presumption they expected or intended to do it; the goods, therefore, remained unquestionably in the exclusive custody of the defendants.
    4. The defendants were bound to advance all the expenses of the custody of the goods, including the salary of the United States officer, and reimburse themselves by receiving the compensation paid by the plaintiffs for the storage of the goods. (Corble v. Maxwell, 3 Blatch. 419.)
    5. After the “duties” were paid, the plaintiffs did not further consult the officer of the customs about the custody or delivery of the goods.
    ITT There was no error in the admission or exclusion of evidence on the trial, to the prejudice of the defendants. The evidence as to interest upon the value of the goods, from the time of the defendants’ final failure to deliver them to the plaintiffs upon their demand, was properly admitted. The defendants having failed to account for the goods, and the loss arising from their fault, the true measure of damages was the value of the property at this time, and interest thereon to the time of the trial. Still, if there were any error in this respect, it could be corrected by a deduction from the verdict. (Willard v. Bridge, 4 Barb. 368. Sherman v. Wells, 28 id. 403. Dana v. Fiedler, 12 N. Y. Rep. 51. Andrews v. Durant, 18 id. 502.)
    IV". There was no error on the part of the court in refusing to charge the “ twelve ” propositions requested by the defendants, further than they were embraced in the charge as actually given to the jury. . '
    1. The first three propositions were already disposed of upon the motion for a nonsuit.
    2. The next two are based upon the unfounded assumption that a bailor for hire is liable only for loss by gross neglect; whereas it is undisputed that he is at least bound to exercise that degree of ordinary care and diligence which a prudent person exercises about his own affairs; and that he is liable for any loss happening to property entrusted to him for safe keeping, unless he excuses- himself by reason of having exercised such care, and the loss having happened without his fault. (2 Kent’s Com. 565.)
    3. The next was too broad. The liability of the defendants would not have been excused by a “ burglary” unless they had exercised due care and were free from neglect. The judge properly presented this matter to the jury in his charge. They were told, the defendants were not responsible if the jury believed the cigars were lost by a burglary, or otherwise, without the negligence of the defendants. Besides, the charge of the judge substantially covered the proposition as requested, and this cured the error, if any. (Decker v. Mathews, 12 N. Y. Rep. 320.)
    4. The next proposition (7th) was not well founded. It had already been decided upon the refusal to nonsuit. The question was not so much whether there was evidence of negligence, as whether there was evidence of ordinary care and prudence. The evidence on the subject was properly submitted to the jury by the court in the charge, and its weight left to their determination. Whether there was negligence or want of care was a question of fact arising out of the circumstances detailed, and exclusively within the province of-the jury to decide. (Ireland v. Oswego R. R. Co., 13 N. Y. Rep. 533. Bernhardt v. R. and S. R. R. Co., 19 How. Pr. 204. 22 id. 168. Keller v. N. Y. Central R. R. Co., 24 id. 174. McGrath v. Hudson, R. R. R. Co., 32 Barb. 147.) The fact that the defendants did not notify the plaintiff, of the absence of the cigars until the latter failed to find them, and the entire failure of the defendants to prove they had been stolen, or account for the loss otherwise, coupled with the fact of instances of carelessness in closing the building at night, with the other facts proved in the case, were not very well calculated to encourage the belief, that the defendants had exercised the same care prudent men use about their own property.
    5. The three next' propositions (8th, 9th, 10th) involved immaterial and abstract inquiries. It was unimportant how other stores of this description were secured. The question was if in this store these goods were kept with the care of .a person of ordinary prudence, &c.' So far as these three propositions were legitimate, they were fairly submitted to the jury. The court was not bound to take the precise words of the requests. It is enough that the charge substantially covers the points suggested. (Decker v. Mathews, 12 N. Y. Rep. 320.)
    6. The last two propositions were also abstractions not arising in the ease, except so far as they were fully covered by the judge’s charge.
    V. The exceptions to the charge of the court as actually given are already discussed. The whole charge is to be taken together. All that was said about “burglary” was a proper instruction to the jury in connection with the evidence, to enable them to determine how far the defendants had succeeded in establishing their theory, that the cigars had been lost “ by some one descending through the scuttle, and carrying them off.”
    VI. The sole question involved in the case was one of fact for the jury. It cannot be denied there was some evidence on both sides, (though somewhat in conflict,) upon the issue tried. This evidence was submitted to the jury with a charge very favorable, in many respects, to the defendants. Tfle judgment should therefore be affirmed.
    1. The defendants theory of a burglarious entry of the premises and taking of the goods in question was not sustained by the proof. The jury (who were the exclusive judges of the weight and effect of the evidence,) properly refused to believe the goods were carried off in this manner. Indeed, it did not appear but that the scuttle was negligently open several days and nights after it was broken, and before the fact was discovered by the defendants; that is to say, from Saturday, June 11, until Tuesday, June 14.
    2. The defendants utterly failed to account for the absence of the cigars, or to explain the non-production of them. If this happened through suppression of what they knew, it raises a presumption of fraud. If they could not tell what had become of the goods, this ignorance raises a presumption of negligence. Prudent men generally know where their property is, or can given some plausible account of its loss.
    3. The verdict of the jury should not be disturbed, although the court itself, might suspect it would have come to a different conclusion upon the evidence as it now appears in print, abbreviated and condensed into a .narrative form. (Donohue v. Henry, 4 E. D. Smith, 164. Cohen v.
      Dupont, 1 Sandf. 262. Gardner v. Ryerson, 19 How. Pr. 109. Mackey v. N. Y. Central R. R. Co., 27 Barb. 528. Williams v. Vanderbilt, 29 id. 504. Smith v. Tiffany, 36 id. 25.)
   By the Court, Robertson, Ch. J.

The most prominent question in this case is one of law, to wit, whether the defendants could be sued alone, without joining the officer of the customs of the United States, in whose custody, jointly with theirs, it is assumed the goods in controversy were placed; and if not, whether the United States officer can be made responsible for the loss of such goods.

The act of Congress of March 28, 1854, (10 U. S. Stat. at Large, 270, ch. 30; Brightly's U. S. Dig. 488, §§ 296-299,) by its first section provides that goods subject to duty may be stored, at the expense and risk of the owners in a private warehouse, used exclusively for such purpose, and approved of by a government officer, (secretary of the treasury,) in charge of a proper officer of the customs, who, with the owner of such warehouse, “ should have the joint custody of such goods.” But all labor on such goods is to be performed by such warehouse keeper at his own expense. Its third section requires such warehouseman to give a bond, to hold “ the United States and its officers harmless from, or on account of, any risk, loss, or expense of any kind or description, connected with or arising from the deposit or keeping of the merchandise of the warehouse.” And it declares that all goods so deposited shall be at the risk and expense of their owner. The 4th section of such act provides against any abatement of duties or allowance “for any injury, deterioration or loss sustained'by goods so deposited.” A subsequent act, passed in 1862, (Brightly’s Digest, 1222, § 58,) provides that, after the payment of duties on merchandise, they may still remain in such warehouses, in the custody of such United States officers, but at the expense and risk of the owners, and that the latter shall be entitled to ninety-nine per cent of the duties on exporting them directly to a foreign country.

The purposes of these statutes is very plain. It was, at the same time, to give credit to the importer for duties, while securing for the government their payment. The system of the latter having stores of their own for the deposit of imported goods, was thus dispensed with; and private individuals, on securing the government against loss, were allowed to become depositaries of them for the joint account of the government and the consignees. In addition to that, in order further to protect the government, one of its officers of the customs was made a joint custodian with the warehouse keeper of the dutiable goods. Whatever .lien the warehouseman may have for storage, is postponed to the right of the government for its duties, (probably because he still holds the liability of the consignee,) except that where unclaimed goods are sold, by the second section of the act of 1854, he is entitled to be paid his charges out of the proceeds; probably because in such cases the owner is unknown. The statute of 1862 (ubi sup.) became necessary, because no goods, upon which no duties were due, could remain stored in such warehouse, and a continued joint custody by the officer of the customs and the warehouse man became necessary to protect the government from fraud.

It is very evident, therefore, that the “ custody’’ spoken of in such statutes was confined' to its original sense of a guard or watch, for the interests of the government, and was not intended to embrace legal possession for all purposes, since the same term is used in the statute of 1862, in pari materia with that of 1854, when the United States would have no lien on or interest in the goocls. There can be no doubt that, without that statute, the moment the duties were paid, the custody of the United States officer would cease, and the warehouse keeper would remain in sole, undisturbed possession, having a lien for any storage unpaid. Imported goods on their passage to this country are in the actual or constructive legal possession of the owner, importer or consignee, and when placed in the joint custody of the keeper of a bonded warehouse and an United States officer of customs, they are so placed to secure the payment to the United States of duties, and to be taken care of in the mean time. In the ease of Cartwright v. Wilmerding, (24 N. Y. Rep. 536,) it was held by the highest court of the state that consignees retained “possession ” of dutiable goods stored in a bonded warehouse, under the factors’ act of this state, (N. Y. Sess. Laws, 1830, p. 203; 3 R. S. 5th ed. 176,) notwithstanding the ueustody” of the custom house officials, which was a mere restraint upon removing before the duties were paid. This accorded with the views of the same court in the prior ease of Waldron v. Romaine, (22 N. Y. Rep. 370;) where, upon a sale of goods stored in a bonded warehouse, (the proper documents for exportation having been executed by the vendors,) and their delivery to a carrier selected by the vendees, (to be, as required by law, under the charge of a public officer until exported,) they were destroyed by fire before the proper authority permitting their surrender by such officer was received, and it was held that such charge and custody of the custom house officer was only to protect the lien of the government, and did not interfere with the transfer of the title, or the right of possession, when the duties were paid. (See also Brissac v. Lawrence, 2 Blatchf. 121.) It is very evident, therefore, that the warehouse keeper was the guardian of the interests of the plaintiffs, that is, of the goods subject to the lien for duties, and became liable for their safe custody like any other bailee, unless he was deprived of all control of the goods, and could not make provision for their safe keeping, without being thwarted or controlled by the United States officers (if they were so minded,)' so as to be a mere automaton owning the warehouse, (having a right to storage and other charges, but) no duties to perform. The fact, that the warehouse was required by the government to be examined by suitable officers, for. their own protection, and to conform to certain regulations, would not debar the owner of it from taking every additional precaution for the safety of the goods, or deprive him of his possession and control of the warehouse. If the government required the warehouse keeper to dispense with any precautions advisable for the safe keeping of the goods, and such omission was the cause of the loss, he might be excused upon the ground of inevitable accident, or that the exception from that cause formed part of the contract of the consignee of the goods with him. But there is no pretense of any such regulation or exclusion in this case. The defendants exercised sufficient uncontrolled dominion over the building, to enable them to use every precaution necessary for the safe keeping of goods deposited there. They were even bound, by the statutes before mentioned, to perform all labor on such goods at their own expense, and even indemnify the government against any expense, and were entitled to receive storage as compensation, commensurate with their care and trouble, for the exercise of due diligence. They are, therefore, liable for the want of such diligence.

In reference to the burden of proof of the absence of proper diligence, being negative it necessarily did not lie on the plaintiffs. The bailees, in such case, can much more easily give. affirmative proof of due diligence, than the bailors can of want of it. The mere non-production of the subject of bailment, is prima facie evidence of a deficiency in the care of it. (Platt v. Hibbard, 7 Cowen, 501. Newstadt v. Adams, 5 Duer, 46. Willard v. Bridge, 4 Barb. 367. Bush v. Miller, 13 id. 489. Van Horn v. Kermit, 4 E. D. Smith, 457. Arent v. Squire, 1 Daly, 347.) The plaintiffs are not driven to their special action on the case, but trover will lie. (2 Salk. 655.) In some cases cited on the argument to establish the opposite doctrine, no such question arose. (Knapp v. Curtis, 9 Wend. 60. Schmidt v. Blood, Id. 268. Foote v. Storrs, 2 Barb. 326.) In the case of Wiggins v. Hathaway, (6 id. 632,) the defendant received the property, if at all, as a public officer. There was no proof that it. ever came into his hands, or of any demand and refusal. The same rule is adopted in other states. (Alden v. Rearson, 5 Gray, 348. Beekman v. Sehouse, 5 Rawle, 189. Clarke v. Spencer, 10 Watts, 337. Logan v. Matthews, 6 Penn. Rep. 419. Cox v. O’Reilly, 4 Ind. Rep. 371.)

Some English cases cited in a note to Platt v. Hibbard, (7 Cowen, 500,) appear to sanction . a different doctrine. Thus, in Harris v. Packwood, (3 Taunt. 264,) where Lord Mansfield' seems to have held, that the ora¿s of proving due care did not lie with the defendant; who was sued, as a common carrier, for the loss of a parcel of over ¿620 value, when he had limited his liability by a notice, that he would not be answerable for any package above the value of ¿620, unless notified thereof and paid a premium of insurance above the price paid for its carriage, and the right so to limit his liability was acknowledged; the other justices (Heath, Lawrence' and Chambre) expressed no opinion on that point; but the last named (Chambre) placed his opinion upon the ground, that the defendant would not under his notice be liable at all. That doctrine was afterwards sustained by the Court of King’s Bench in the case of Marsh v. Horne, (6 B. & C. 322,) which cited the former case (Harris v. Packwood, ubi sup.) as authority for its decision. A similar decision was made in Clay v. Willan et al. (1 H. Bl. 298.) The editor of the second edition of Jones on Bailments, (Balmanno,) remarks, in a note thereon, (page 106, n. 40,) that in the last case (Clay v. Willan,) no proof was “ adduced of negligence or conversion of the parcel by - the defendants or their servants, and it would have been inconsistent with legal principles to have presumed ” a breach of trust. This corresponds with the language of Chief Justice Abbott, in the previous case, (Marsh v. Horne, ubi sup.) who says, “ a person may engage to place goods in a course of conveyance and delivery, .and yet not be answerable for their loss.” In other words, in such cases where- an actual loss is established, negligence of so gross a character must be proved as to warrant the inference of fraud or a conversion; and such seems to be the opinion of the anno-tator in Platt v. Hibbard, (ubi sup.)

The defendants in this case ought to be estopped from raising any such objection, having excluded positive testimony of negligence offered by the plaintiffs, by their objection. (Manuf. and Traders’ Bank v. Hazard, 30 N. Y. Rep. 226.) There was, also, some positive proof in this case, however slight, of negligence on the part of the defendants, when the plaintiff rested, such as the nature of the place where the goods were stored, the facility of entering it, and its want of proper fastenings. It was left to the jury to determine, on those and other facts in evidence, whether or not the goods in question “ were taken away in consequence of some acts of negligence, of which” they had “other evidence than the.loss of the goods.” They were also instructed that they should find for the defendants, if they had “ exercised ordinary care on their part, or the loss occurred without negligence by them;” and no exception was taken to those parts of the charge. The jury must, therefore, be held to have passed definitely upon the question of negligence. The proof introduced on both sides, after the motion for dismissal of the complaint, sustaining their verdict, cured any error in the refusal to grant that motion. (Kent v. Harcourt, 33 Barb. 495.)

On the trial, the counsel for the defendants took an exception to a refusal of the judge to charge that “ if the goods were stolen by burglars breaking into the store at night through the scuttle, after it was closed for the night, the defendants are not responsible.” This wholly disregards the condition of the building, and ignores any precautions to be taken to render it safe against a forcible entry, and any duty in guarding it, and was, therefore, properly rejected. Exception was also taken to a refusal of the court to charge that “ if the goods were stolen by burglars entering through the scuttle in the night, ordinary care did not require that they should ascertain the best known methods of securing the scuttle against burglars, and securing it in that way;” also, “ that the degree of care required to be exercised by a railroad company, in providing the most approved and best known inventions to prevent accidents to passengers, is greater than that required of the defendants in providing fastenings or inventions to prevent burglars from entering their store.” The court charged the jury that “ the warehouse keeper was liable, if he did not do what an ordinary storekeeper should do to take care of goods in his charge. * * In the first place, when goods are taken into a warehouse,” it must be properly built, so as to be secure against attacks by burglars, * * against all the attacks and dangers which commonly present themselves to a prudent man. You are not bound to set your wits to work in such case to see what further protection might have been used in regard to it, * * You are not to occupy .your time in endeavoring to find out in what form, the highest exertion of the most acute human intellect and experience would enable a man to devise means to protect goods in a warehouse against dangers. You are only to determine what a man would do, in the exercise of ordinary prudence, to protect his property.” Although considerable evidence was given on the trial as to the nature of the fastenings of the scuttle and other parts of the premises, not a particle was offered of any other special means, invention or device for securing such scuttle, as being an improvement on those actually employed; there was, therefore, nothing in the case to which the instructions asked for were applicable, and they would have been abstract propositions entirely outside of the case as made. A court is not bound, in instructing a jury, to negative every imaginable proposition that may be conceived to have some bearing on the case; but only those which the evidence warrants or .might naturally raise in the minds of the jury. The charge was also sufficient as to the general test of the degree of care to be exercised by the defendants. The request to charge that there was no evidence of gross neglect by the defendants or their servants was properly refused, as no such question was made in the case, and the court charged, in substance, that ordinary care was sufficient. No such instruction was given to the jury as that the same evidence was necessary to establish a burglary in this case as on a trial for burglary, but only, that it was as much a matter of fact to he decided hy the jury, as on such a trial. The exception on that score was, therefore, properly overruled.

The requests to charge the jury in reference to the secuity of the building in question, compared with those of other stores in New York, Brooklyn and. New Jersey, in the vicinity, had no aliment in the evidence. They contained mere abstract propositions outside the ease, and were, therefore, properly refused. Indeed, the only attempt to introduce any evidence upon that point was defeated, in consequence of the generality and leading nature of the question proposed.

The interest on the value of the goods, (if allowed by the jury,) was properly allowed by way of damages, (Dana v. Fiedler, 12 N. Y. Rep. 51; Andrews v. Durant, 18 id. 502; Willard v. Bridge, 4 Barb. 368; Sherman v. Wells, 28 id. 403;) it being an action for a breach of duty. No instruction was given to the jury on that point. All the exceptions to the admission or rejection of evidence were properly overruled.

The judgment should be affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    Thomas C. Durant, plaintiff and respondent, vs. Lewis Einstein et al. defendants and appellants.
    1. A court of equity has no general jurisdiction of an action to redeem personal / property pawned, without some additional circumstances rendering its ihterference necessary. The remedy at law is ample, hy tender of the amount due, and a possessory action to recover the articles pledged, or damages for their detention.
    2. The only ground upon which jurisdiction has ever been assumed in equity over an action for the redemption of personal property pledged, except the necessity of going there for a discovery, (or perhaps, before an assignee equld sue in his own name at law, an assignment of the pledge,) is the necessity of taking an account.
    3. The account, however, on which equity bases its jurisdiction in • such a case must be really one requiring the aid of the powers of a court of equity; that is, not having merely one item on one side and a number of set-offs on the other, but a series of transactions on both sides.
    4. Where the claim on the part of > the defendants, in such case, consists of but one item, to wit, their original advances for which the goods were pledged, or so much thereof as remains unpaid, and every sum paid or to be credited in that account, set out in the complaint, forms a proper subject of set off in an action at law, including even any liability of the defendants for'selling any of the property pledged below its market price—there is no necessity for equitable intervention; especially where no discovery is shown to be necessary.
    5. Even assuming that a court of equity will restrain the sale of pawned personal property until an account can be taken of the amount due on the loan upon it, under the same circumstances as it would a suit at law, the mere validity of a prior sale by the pledgee of stock pledged, is not one of such circumstances.
    6. If the objects of an action by a pawnor or his assignee, against pawnees, be to attack a prior sale of pledged goods, in order to make the defendants liable in damages for the conversion of those sold, they cannot, until liquidated in an action, form any part of an account. Nor is a court of equity authorized to tie up the defendants, by an injunction order, from using the authority as -pledgees bestowed on them by the plaintiff, until the amount of such damages can'bé ascertained.
    7. Mere unliquidated damages for an entirely unauthorized sale of stock cannot form part of an account, so as to give to a court of equity the jurisdiction exercised by it over complicated accounts.
    8. Sales of pledged stock below the market price, by the pledgees, will not alone make the latter liable for the difference, unless made with intent to injure the pledgor, beyond the mere realization of the amount due the pledgees, as in other cases of abuse of lawful authority. Something besides a mere sale below the market price is necessary to show such intent. There must be at least such recklessness shown, in the mode or time of selling, as to establish an intent to injure the pawnor, before the pawnee can be made liable for any loss.
    9. Prima facie the denial, in the answers of defendants, of the equities of a complaint, entitles them to a vacation of an injunction order.
    10. Although the court on appeal, at general term, cannot properly interfere with any decision made at special term founded on conflicting evidence, yet it may do so, where that on one side is mere information and belief, and that on the other, positive knowledge.
    (Before Robebtsoh, Oh. J., and Moheel and 'Q-abvix, JJ.)
    Heard November 19, 1867;
    decided March —, 1868.
    Appeal from an erder denying a motion to dissolve an injunction order.

      The action was for an accounting and the redemption of a pledge; the object of the injunction was to prevent a sale of the pledge until the accounting should be had and the fact ascertained whether any thing, and if any thing, how much was due on the pledge. The property-pledged consisted of a certain -number (100) of land grant bonds of the Union Pacific Railway Company (eastern division) of $1000 each, and a certain number (66) of shares of stock of the Pacific Mail Steamship Company of a certain value each ($159 or upwards.) The defendants claimed the balance of the account to be in their favor; the plaintiff alleged that nothing was due to the defendants, but, on the contrary, the balance was against the defendants and in favor of the plaintiff.
    The complaint states that the plaintiff made a contract with the defendants for an advance on a certain number (10,000) of shares of preferred stock of the Chicago and North Western Railroad Company, the advance of the defendants to be a certain sum, ($700,000,) and for such time as the -plaintiff might choose, not exceeding a certain time (sixty days.) If the stock fell below a certain price ($80) a share, so as not so leave a certain margin ($10) a share, the plaintiff was to place -in the hands of the defendants, sufficient security to make good such difference. In default of such additional collateral, the defendants might sell the preferred stock without notice of sale. That said contract was made January 11, 1867; the plaintiff immediately delivered to the defendants divers certificates of shares, with power to transfer annexed, amounting in all to a certain number (10,000) of shares, and the defendants received the same under the contract; and, the-plaintiff never waived his right as pledgor to have the stock held unsold, until he should be in default, and should be called on to pay and redeem it. That the market price of said preferred stock fell below eighty per cent on the day of the contract, and the defendants called on the plaintiff to make good the margin, and the plaintiff paid a part ($20,000) of the loan, and thereby made good the margin. Mne days after-wards (January 20th) the defendants having again represented the margin as having become insufficient called for additional security, and the plaintiff then furnished the land grant bonds in question, and they were received as a certain sum ($50,000.) Four days after that (24th January) the defendants, on like' representation, called for more security, and the plaintiff gave them 'a promissory note of the Union Pacific Bailway Company, (eastern district,) for a certain sum ($25,000,) which was received as worth par. On the same day, (January 24,) at a late hour, after hanking hours, the defendants, on like representations, having called for further margin, the plaintiff paid them a certain sum ($10,000) in cash and gave them as collateral the Pacific Mail Steamship Company’s stock in question, such stock being then worth in the market a certain sum ($10,494.) Ho further calls for security were made, and no decline requiring it happened on that day. Later on that day the plaintiff gave the defendants notice that on the next day he would pay the loan on a certain number (2000) of shares and take them up, and leave the residue of the stock and all the other collaterals as security for the residue of the .loan, and if the defendants should request it the plaintiff* would pay off the loan on a further number (3000) of shares, and leave all the security as before. By usage and custom, the plaintiff was entitled till three o’clock in the afternoon, or later of the next day, (January 25,) to make the payment and withdraw his stock according to such notice, and made arrangements and was ready in time to pay accordingly. The defendants early the next day, commenced selling the preferred stock, and before the time to which the plaintiff was entitled to pay on his notice, the defendants reported to the plaintiff that the whole of his stock was sold. After the margin was made good and satisfactory on the 24th, no call was made on the plaintiff for security, nor was any notice given to him that the margin was deficient, until after the sales, or pretended sales, were completed. The defendant rendered a pretended account of sales of a certain number (10,000) of shares, claiming that the proceeds were not sufficient to cover the loan. Afterwards the defendants collected the $25,000 note, and a large sum of interest on the land grant bonds; advertised the preferred stock for sale at auction “to satisfy a balance due under a pledge ” as expressed in their advertisement, and claimed such balance to be about $74,000. The market price of said preferred stock on the 25th of January, 1867, was above sixty per cent and averaged 63| during the day; yet none of the sales in the defendants’ account were so high as 60, and the average of them all was about 57J. Some of the shares reported by the defendant as sold on that day below 60 were in fact sold for 63J. Some of the sales so reported at below 60, were sales of other shares, not the plaintiffs. The sales made 25th January, 1867, by the defendants, were out of the usual course of business, below the market, and designed to depress the price, and did depress it. The plaintiff, therefore, sought for an investigation of the transaction under the contract, the receipts, payments and other matters, and offered to pay the balance, if any should be found against him, and redeem the land grant bonds and Pacific Mail Steamship Company stock; and demanded judgment accordingly.
    Upon the complaint and affidavits tending to establish the facts contained in it, the court granted a preliminary injunction order. The defendants applied for a vacation of it on an answer and supporting affidavits, which contained allegations of a similar action for the same cause in the Supreme Court in which a similar injunction order was granted and vacated, but it is not deemed necessary to give the details, as the decision was not put upon that ground. The plaintiff furnished additional counter affidavits in support of the injunction.
    The court, at special term, held that, upon giving adequate security, the plaintiff was entitled to retain the injunction order until the court should decide the issue between the parties, and made an order requiring an additional undertaking in $25,000 which was given.

      J. Laroeque, for the appellants, defendants.
    I. The orders of the special term of the Supreme Court dissolving the injunction there, and of the general term affirming that order on appeal, were made in an action between the same parties, by a court of competent jurisdiction, upon the same subject, matter directly in issue. The whole matter is therefore res adjudieata, arid those orders are a bar to the proceeding by injunction in this court. (Dwight v. St. John, 25 N. Y. Rep. 203. Demarest v. Darg, 32 id. 281. Bangs v. Strong, 4 Comst. 315. Ogsbury v. La Farge, 2 id. 123. Mercein v. The People, 25 Wend. 64.)
    1. It was decided at special term upon full consideration of its merits, as presented by the pleadings and affidavits. That order, having been affirmed by the general term, remains an adjudication upon the merits, although two of the judges in hank thought, as matter of law, that the plaintiff had not made a case by his complaint for such injunction order.
    2. It dobs not help the plaintiff that he afterwards discontinued his action in that court. Those orders remain in full force and effect as adjudications, notwithstanding the discontinuance.
    3. Such trifling with legal process, and making the rounds of courts and judges, to find some one favorable to his suit, and obtain the credit desired by prolonging the struggle, makes the case worse for the plaintiff, and deserves, the severest reprobation at the hands of the court.
    II. The additional abuse was practised, in this case, by taking possession, in another action, under procéedings for the claim and delivery of personal property of the securities, the sale of which is now sought again to be restrained of obtaining, full counter security for their return by the defendants, if return should be adjudged; and when that proceeding failed in its design, discontinuing it, in its turn, and commencing a new action, in which the defendants have again been restrained (without any fault of theirs) more than six months.
    1. The plaintiff is estopped, by his claiming in the claim and delivery proceedings, that he was entitled to the immediate delivery of the property without any account or tender, and that it was wrongfully withheld from him by the defendants, 'from now alleging, that there was any embarrassment in the way of his availing himself of that proceeding. (Code, § 207.)
    2. This is trifling with the solemnity of oaths, in addition to trifling with legal process.
    HI. The case now made for an injunction order is no better than the former one made in the Supreme Court, adjudged to be insufficient; the grounds taken and sustained there are equally applicable here.
    1. The plaintiff claims, in his present complaint, that the defendants sold his stock without right. If so, they were guilty of a conversion; and his proceedings by claim and delivery óf the securities held as margin were, therefore, the appropriate" remedy. (Scott v. Rogers, 31 N. Y. Rep. 676.)
    2. His allegations as to the land grant bonds, that they have “ a’n actual and prospective value to the plaintiff much greater than the present market price thereof, and are not readily salable, nor at all salable at auction for such actual value,” make no case for an injunction order. A court of, equity does' not grant injunction orders which have the effect of a stay law preventing the collection of debts, and enable a debtor, owing a debt in presentí, to keep his property applicable to its payment, in order to take the chances of its prospective speculative value. If they have a prospective, greater than their present market value, he cam redeem them by paying his debt, or buy them in at the sale to be made by the defendants. He even had judicially approved security, in the replevin proceedings which he voluntarily discontinued, in double their market value, for their return, if a return should be adjudged at the end of that suit.

    IY. All the allegations of the complaint, on which the claim to the injunction order rests, are fully and positively denied by the sworn answer of the three defendants, directly responsive, swearing to matters necessarily within their personal knowledge, and stated to be so. The defendants were, therefore, entitled to the dissolution of the injunction, in accordance with the settled rule on that subject.(Blatchford v. New Haven R. R. Co., 5 Abb. Pr. 276 Finnegan v. Lee, 18 How. Pr. 186. Gould v. Jacobsohn, Id. 158. Hoffman v. Livingston, 1 John. Ch. 211. Roberts v. Anderson, 2 id. 202. Skinner v White, (Court of Errors) 17 John. 357. Manchester v. Dey, 6 Paige, 295.)
    Y. The written contract between the parties required no notice to be given before selling to make good the margin when impaired.
    2. The plaintiff was bound to see to that at his own peril. The extraordinary fluctuations of the 24th and 25th of January are the best evidence of the foresight of the defendants in disembarrassing themselves of such an obligation, as they did by their contract. No demand of payment of the loan was necessary, nor could one be made as the sixty days allowed the plaintiff by the contract 'had not expired. Demands were made on the 24th and 25th repeatedly, for the increased margin to which the defendants were entitled by the terms of the contract; which was the only thing that could be demanded.
    2. The judge at special term, throughout his opinion, confounds the idea of the necessity of a demand and notice of sale as preliminaries to selling the Chicago and Northwestern preferred stock with that of the necessity of such demand and notice before selling the land grant bonds and Pacific Mail Steamship Company stock. The latter have never been sold; the very object of the injunction is to restrain their sale. It is undisputed that demand of pay-merit of the balance of the account was made and notice of sale given of the latter before the commencement of this action.
    VI. The appeal papers in the Supreme Court show, that the plaintiff, in that case, attempted to make out two “ customs or usages,” as applicable to his case; one, debarring • the defendants, while pledgees of his stock, from dealing on their own account in stock of the same company; the other, giving him until 2.15 p. m. of the 25th, to take up his stock. He procured the applicability of this latter usage to the contract in this case to be apparently supported by the affidavits of witnesses, which were met and controverted on the part of the defendants. In the .present complaint, however, the claim of the first usage is abandoned; but the plaintiff claims to have been entitled until 3 o’clock to take up the stock, and in connection with that, introduces affidavits of the same witnesses, who had testified in the Supreme Court, making the time 2.15 p. m; This proposition cannot be sustained; as no evidence of usage can be received, to control or vary the clear and explicit provisions of the written contract, giving the defendants a right to sell, the instant that the margin should be no longer good, The express purpose of that provision cannot be defeated, by the plaintiff when called on under it to make his margin good, by giving notice that he will take up some of his stock, and thus obtaining a delay of twenty-four hours.
    VH. The defendants had a right to use the stock certificates, (with powers attached,) received by them from the plaintiff on other sales made by them, so long as they always retained 10,000 shares in any shape applicable to the plaintiff’s, claim; this they always did. The fact, therefore,, that in some instances the certificates delivered on sales made for account of others than the plaintiff, were the identical certificates received from him, amounts to nothing. (Horton v. Morgan, 19 N. Y. Rep. 170. Saltus v. Genin, 3 Bosw. 257.)

      VIII. All allegations of unfairness in making the sales, and of fraud in reporting sales made on account of others as sales of the plaintiff’s stock, are fully rebutted by the answer and affidavits read on the part of the defendants.
    1. The judge, in deciding this cause at special term, treats the case, as though it were enough that there is a controversy to entitle a plaintiff to the .extraordinary remedy by injunction ; the rule is directly the reverse ; he must make it appear that his equity is clear, and his necessity is urgent. This, in every aspect, as to the responsibility of the defendants, the absence of equity, the willful throwing away, of full security for the protection of all legal and equitable rights by the plaintiff, after he had placed himself in a position to exact and had obtained it, the employment by the plaintiff of the process of courts for the purpose of accomplishing other than the avowed objects is probably as far from being such a case as any ever presented.
    2. The suggestion that the defendants have sufficient security, even-if true, is not calculated to avail the plaintiff. Their right is .to sell for the realization of their debt, and they are not to be deprived of it; especially when it is clear that they are abundantly responsible to make good any damage which the plaintiff may sustain. (Code, § 219. Willard’s Eq. Jur. 342. Redfield v. Middleton, 7 Bosw. 649.)

      Charles Tracy, for the respondent, plaintiff.
    I. The plaintiff" has a right to bring this action for an accounting, and to redeem the pledge of-land grant bonds and Pacific Mail Steamship Company stock.
    1. The defendants are bound to account for their transactions in the preferred stock; for the sums advanced, received and collected, sales, prices and times of sales, and the like; and the plaintiff has a right to a judgment establishing the balance as between him and the defendants.
    2. The plaintiff has a right to the aid of a court of equity to redeem his pledge. Although wheré there is no dispute about the amount due on a pledge, the pledgor may redeem by tendering the amount, or the pledgee may collect the amount by selling the property,. yet whenever there is a dispute whether any thing, or what amount is due, either party can come into equity to have the balance determined, and the redemption or payment enforced. ( Willard’s Eq. 456. Hart v. Ten Eyck, 2 John. Ch. 62, 100. 2 Story’s Eq. Jur. 1031. Curtis’ Eq. Precedents, 88. Equity Draughtsman, 171.)
    3. The plaintiff is ready to pay any such sum as shall be found against him, if he is found to owe; but he denies that such a sum as the defendants claim, or any sum, is due on the pledge. The pledge is merely a security for payment, and the plaintiff is content tó leave the bonds and Pacific stock in the hands of the pledgee pending the action, and he adds further security by undertaking. It is obvious equity, that the court enjoin the defendants from selling the pledged property, at their own pleasure, while they have perfect security for any thing which may be their due, and while they do not even bring a suit to assert or enforce their demand, in which the present plaintiff could contest the claim for a balance.
    II. The accounting sought in this action relates to all the transactions between the parties, on the loan in relation to the Chicago and Northwestern Railway Company stock, and includes the investigation of the defendants’ sales, which the plaintiff assails on the following grounds :
    1. The defendants, as pledgees of the preferred- stock, had no right to sell it, unless the plaintiff failed to furnish margin, and the defendants, after such default and a reasonable time before selling, demanded payment from .the plaintiff, or required him to redeem the pledge. In the absence of special stipulations,not only demand of payment- or redemption would be necessary, but also notice of the time and place of sale. By the present contract, notice of sale was waived, but not demand. The defendants had no right to sell without first demanding that the plaintiff pay and redeem the pledge. (Cortelyou v. Lansing, 2 Caines’

      Cases, 200. Wilson v. Little, 2 N. Y. Rep. 443, 448, affirming S. C.1 Sandf. 351. Lewis v. Varnum, 12 Abb. 305. Genet v. Howland, 45 Barb. 560. Milliken v. Dehon, 27 N. Y. Rep. 364. Andrews v. Clerke, 3 Bosw. 585. Merwin v. Hamilton, 6 Duer, 244.)
    2. The defendants hastily sold the plaintiff’s stock, without any demand on him to redeem, or giving him any time to do so after the alleged fall of price, which' required further security to keep up the margin. Eo communication of any sort came to the plaintiff from the defendants, after the alleged fall of price,' until the report was made of sales of the whole. The plaintiff was not bound to anticipate a fall of price, nor was he bound to increase his margin until a fall actually had occurred, and until he, after such occurrence, had been called on to make the necessary increase of margin, or pay off the loans and redeem the stock. (Andrews v. Clerke, 3 Bosw. 585.)
    3. The plaintiff complied with every duty on his part under the contract, and at all times kept up the required margin of $10 a share.
    4. The plaintiff, having informed the defendants late in the day, that he would- the next day take a part of the pledged stock and pay off a corresponding part of the loan, was entitled to a reasonable time to do so. The defendants, by making no objection at the time, assented to the arrangement for the next day for the 2000 shares. If there should be a fall, requiring the taking of the additional. 3000 shares, by the terms of the arrangement the defendants were bound to let the plaintiff know their wishes and option.
    5. The usage and custom gave the plaintiff most of the next day to perform the operation; and long before the time elapsed he was informed by the defendants of their sales being completed. The custom is well established.
    6. The contract required additional security only when the ££ marhet price ” should decline so as to reduce the margin below ten per. cent. Such ££ market price ” is not determined by a few hurried sales made out of regular sales on calls of the recognized boards, or at public auction. In this case no auction price is shown, and the “market price," by such sales, did not go so low on that day as to entitle the defendants to any more margin; there was no such a fall of price before the defendants began to sell under the pledge.
    7. The defendants’ report of sales was below the market price throughout. Many of the sales (so reported) were not of the plaintiff’s shares, but of others. Some of the former sold for more than is reported.
    8. The plaintiff did not transfer his shares to the defendants on the company’s books, but lodged his certificate with powers of sale annexed in the defendants’ hands,- and thus retained his property in the identical shares and certificates, and was entitled to a return of the same on the discharge of the loan, The defendants had no authority to mingle such certificates with, or exchange them for, others; if the defendants would enforce the pledge by sale, they must sell the plaintiff’s certificates; if' they made a sale of other certificates, it cannot be reported as a sale of the plaintiff’s pledge. The case may be different where the shares of many proprietors are posted into one account on the stock ledger, and the broker has no means of distinguishing the shares of different customers; in the present there was no confusion of shares, but a clear and precise certainty of certificates. (Saltus v. Genin, 3 Bosw. 250-257. Horton v. Morgan, 6 Duer, 56. Allen v. Dykers, 3 Hill, 593. Nourse v. Prime, 4 John. Ch. 490.)
    HI. The fact that in another action for different relief, based upon a statement of facts similar in many respects, the Supreme Court dissolved .an injunction order, is no bar or defense to the proceedings now pending.
    1. That suit has been discontinued.'
    2. The determination, of a motion within the discretion of a court, never controls the rights of parties when they appear in a different action or court.
    3. The erroneous decision of the motion by the Supreme. Court grew out of the practice there established, of refusing to hear affidavits in support of an injunction, when the defendant moves to dissolve it on a verified answer, without other affidavits. This court holds the contrary rule. (Fowler v. Burns, 7 Bosw. 637. Hoffmans Pro. Rem. 351, 360, 361.) The practice of this court prevails in all the districts of the Supreme Court except the first. (4 Abb. 282. 8 Barb. 17. 1 Code Rep. 114. 4 How. 225. 5 id. 265.) The Code clearly treats the sworn answer as an affidavit, because, if it were not so considered, it could not be used as ground of the motion. (Code, §§ 220, 222, 226.)
    TV". It being impracticable in the present ease to decide, on a non-enumerated motion, upon affidavits, all the issues joined by the pleadings; and the court at chambers, on full hearing, having increased the security and continued the injunction until trial; and the dissolution of the injunction being fatal in the right of the plaintiff to reclaim his shares if he succeeds on the trial, and the cause being already referred for trial; the order appealed from should be affirmed. (Carpenter v. Danforth, 19 Abb. 225.)
   By the Court, Robertson, Ch. J.

The professed object of this action is, to redeem certain securities in the hands of the defendants, upon paying the amount due thereon, and' as incidental thereto, to obtain an order restraining the defendants from selling such securities, until an account can be taken of the amount due the defendants. It is essentially, therefore, an equitable action, and must be governed by the well settled rules of equity jurisdiction; and if it cannot be maintained under those rules, the injunction order appealed from cannot stand.

A court of equity has no general jurisdiction over actions to redeem personal property pawned, without some other circumstances rendering its interference necessary. (Glennie v. Imri, 3 You. & Coll. 436. Hirst v. Pierce, 4 Pine, 339. Jones v. Smith, 2 Vesey Jr. 372. Demenbray v. Metcalf, 1 Vern. 698.) The remedy at law is ample, by tender of the amount due, and a possessory action to recover the articles pledged, or damages for their detention. (2 Story’s Eq. Jur. § 1032.) It is true, as laid down in Kart v. Ten Eyck, (2 John. Ch. 100,) bills to redeem pawned personal property have been sustained, but o'nly in cases where either no objection has been made or an equity arose out of other circumstances, and all the eases cited in the last case as authority, are of that kind. (Kemp v. Westbrook, 1 Ves. 278. Demenbray v. Metcalf, Prec, in Ch. 194. S. C. 2 Vern. 698. Vanderzee v. Willis, 3 Bro. 21.) Certainly such an action would not spring out of any of the great sources of equitable jurisdiction. The only ground of equitable jurisdiction over an action for the redemption of personal property pledged, besides the necessity of a discovery, and perhaps an assignment of the pledge, is the necessity of taking an account. (2 Story’s Eq. Jur. § 1032, and cases cited in note.) It is, of course, not necessary to discuss how far the union of both legal and equitable jurisdictions in one court, and the right conferred on either party to an action to examine the other party as a. witness, (Code of Procedure, § 389,) has taken away a jurisdiction dependent solely on the right of discovery, as there is no pretense, in the complaint or elsewhere, of the necessity of any such discovery. There remains, therefore, in this case but the ground of some necessity of an account being taken, as in a court of equity, to enable the plaintiff to sustain his action.

It is fully settled that the account on which equity bases its jurisdiction must be really one, that is, not having only one item on one side, and a number of set-offs on the other, but a series of transactions on both sides. (1 Story’s Eq. Jur. §§ 458, 459. Porter v. Spencer, 2 John. Ch. 171. Moses v, Lewis, 12 Price, 502. King v. Rossett, 2 Y. & Jerv. 33. Dinwiddie v. Bailey, 6 Vesey, 136; and Wells v. Cooper, cited therein. Padwick v. Hurst, 10 Beav. 575. Phillips v. Phillips, 9 Hare, 471.) In this case the claim on the part of the defendants can only consist of one item, to wit, the original advances by them, or so much of them as remains- unpaid. Every sum paid or to be credited in that account, set out in the complaint, forms a subject of set-off in an action at law, including even any liability of the defendants for selling any of the originally pledged stock below its market price. For that is a subject of counter-claim in an action for the loan, under the first subdivision of section 150 of the Code of Procedure, as either arising out of the contract or tranaction, which would be the foundation of such action, or connected with the subject of the action, and as available in this court acting as a court of law, as in one of equity. There is, perhaps, .still less reason at this, time, for preserving or rather extending jurisdiction to give affirmative relief to a debtor in such a case of a one sided account, since the enlargement by the Code of the cases, in which references of all the issues may be ordered wherever a long account is concerned, the increase of the power of all courts to order the production of books and papers summarily, and the conferring on every suitor the right of examining the adverse party as a'witness, whatever the case may be..

So far from any discovery by the defendants being shown to be required, the plaintiff sets forth in his 'complaint, various defects in the sale of the stock originally pledged, not merely as derived, from the information of-others, but as matters of his own knowledge, although he escapes all responsibility for the statements, by not verifying them under his own oath. They consist of an entire failure to sell some shares of stock represented by the defendants in their report to the plaintiff of sales to have been sold, and sales of some at less than the market rate, and of others at higher prices than those stated in such report. He does not, however,' (as he was bound to do in order to render his complaint sufficiently definite and certain,) state the number of such unsold shares, or of those sold too low, or those whose prices are not properly accounted for. In the affidavits, however, presented on Ms behalf, he establishes what he -considers to be such amount, without the aid of any discovery from the defendants in regard to them.

Even assuming, however, that a court of equity will restrain the sale of pawned, personal property until an account can be taken of the amount due on the loan upon it, under the same circumstances as it would a suit at law, the validity of the sale by the defendants of the stock in this case originally pledged, is not one of such circumstances. If the sale was valid, the amount to be taken is reduced to the original loan on one side, and on the other the payment of two sums of $20,000 and $10,000 before, and the receipt of interest on the land grant bonds collected, (less the government tax, $33.25, and amount of a note for $25,000,) since the commencement of this action. To ascertain the amount due would, in such case, be a matter of mere clerical computation. If, however, one of the objects of this action be to attack such sale and endeavor to make the defendants liable in damages for the conversion of such, stock without authority, they could not, until liquidated in an action, form any part of an account such as is prayed for in this case. Nor would this court be authorized to tie up the defendants from using their legal authority as pledgees, bestowed on them by the plaintiff, until the amount of such damages could be ascertained. I shall, therefore, dismiss from consideration all the allegations in- the complaint, and all the evidence before us tending to establish any invalidity in such sale, as wholly superfluous and irrelevant, if not suicidal, in determining whether this action-can be maintained upon such a basis as to warrant an injunction. The complaint does not clearly and distinctly either avow or disavow such sales as being made by authority, although it apparently does the former, by claiming that in the account, which the plaintiff professes therein his readiness to have taken, the defendants shall be charged with the market price of the stock sold, and the full amount received by them therefor, and not allowed the benefit of any pretended sales of stock; notwithstanding it also prays that the defendants may be charged, in an accounting, with all loss suffered by the plaintiff by the unlawful disposition of such stock. ■ It might, with equal propriety, have sought that damages for selling any other stock without authority, should enter into such account. Indeed the only grounds suggested for attacking the validity of such sales, were, that the market had not fall,en so as to create the contingency on which the right of sale arose, and that no demand was made for further margin. In regard to the first, the evidence as to a fall on the 25th of January, the day of sale, is not conflicting, and, in regard to the last, the contract before us does not require such demand to be made as was required by that in Milliken v. Dehon, (27 N. Y. Rep. 364,) which case, in fact, rather' holds a demand for the amount' due not to be necessary, when a right is given to sell either at public or private sale, which a fortiori is applicable to this case, where a right of notice is expressly waived. The reasoning of Justices Wright and Marvin, in the case last referred to, (Milliken v. Dehon, 370, 374,) in regard to the impracticability of notice of time and place of sale, of articles of such rapidly fluctuating value as stocks, is equally applicable to a demand of payment or more security, which seems to have been purposely omitted in this contract. At all events, unliquidated damages for an entirely unauthorized sale, can form no part of an account to give jurisdiction to a i court of equity.

Of course, the plaintiff is entitled to the benefit of any originally pledged stock,. which remains unsold notwithstanding the written report of the defendants to him to the contrary. But I am at a loss to know, how any failure to sell it would aid him, in a mere accounting between him and the defendants to be had in this action. Such an account would not be affected, except by the receipt by the defendants of some sum as the proceeds of an authorized sale of shares of stock. If they were not sold, the debt of the plaintiff would be so much the larger. A mere representation by an account of sales, that stock had been sold, when it was not, would by itself furnish no ground of equitable interference. The plaintiff claims to have detected the falsehood, and furnished in the affidavits before us the evidence of it, without the necessity of an examination of the defendants. That evidence, if important, would be equally available in a trial at law, and no mere discovery would ever have been necessary.

Sales of the stock below the market price, when duly authorized, would not make the defendants liable for the difference, unless made with intent to injure the plaintiff beyond the mere realization of the amount due the defendants, as in other cases of abuse of lawful authority. (King v. Parks, 19 John. 375. Butts v. Edwards, 2 Denio, 164. Baldwin v. Weed, 17 Wend. 224.) But something besides a mere sale below the market price is necessary to show such intent. The-defendants, as mere pawnees, were not bound to use even the same diligence as an agent to obtain the best price. The latter would not be held liable except for extraordinary negligence, which must be proved, not presumed. There must, at least, be such recklessness shown in the mode or time of selling as to establish an intent to injure the pawnors, before the pawnees can be made liable for any loss. The complaint, indeed, avers that the sales below the market price were made by the defendants, “ out of the usual course of business, and in a manner designed and intended to depress the price and produce less than the marleet value, and which tended to and did produce that result.” But the only verification that allegation has, is an affidavit by the agent' of the plaintiff (Crane) that he believes such matters to be true, from having seen reports of sales at the Stock Exchange and board of brokers of that day, and been informed by persons named as purchasers in the report of sales rendered by the defendants, of prices paid by them, and the numbers on the certificates of stock received by them. This, certainly, is not sufficient to establish a design to obtain a less price than the market value, either to injure the plaintiff by such sales, or for any other purpose. Such allegations in the complaint are fully denied by the defendants in their answer, verified by their oath, and there is no other evidence before us of any such intent, or its result in such sales. On the contrary, the agents of the defendants, in selling, deny it. Consequently such allegations in the complaint, so verified and denied, furnish no ground for continuing the order of injunction in this case.

The remaining objection in the complaint to the account rendered by the' defendants of the sales by them of the originally pledged stock, of the receipt of larger sums, as the prices of some of them, than those stated in such account, the plaintiff claims to have discovered by other means, and sustained by ample evidence before us, without any discovery from the defendants. If so, the details are all given in the affidavits furnished on his part, and there would be no difficulty in establishing the set-off by way of' defense in an action at law, to the full extent of the sums kept back.

The whole account between the parties to be taken in this case, upon the plaintiff’s own showing, will be reduced to the original advance by the defendants on one side, and on the other cash payments made, by the plaintiff, interest on the land grant bonds and amount of the Pacific Company’s note received by the defendants, and the price of the shares of the originally pledged stock actually sold by them; omitting from such account, for reasons already given, all excess of the market value beyond such price, and also all sums pretended by the defendants to have been received by them in any of the sales claimed by the plaintiff to be fictitious, if there were any such. So simple an account, requiring mere computation of figures, is not of such a character as to require the aid of the equitable powers of the court to unravel it. Nor should the defendants be delayed in'using the means placed in their hands by the plaintiff to collect the amount due them, according to the plaintiff’s contract, until this action is reached on the calendar to be tried, or a referee can be called in to make the computations, and a decree be made for redemption, which the plaintiff may perform or not as he pleases.

Were it necessary, in order to justify a vacation of the injunction order in this case, beyond the question of the jurisdiction of this court to sustain this as an equitable action, and the incompatibility of the nature of the account to be had, under any state of facts shown by the plaintiff, with any necessity'warranting the exercise, of such jurisdiction, a further justification would be found in the denial in the answer of the' equities of the complaint, and in the affidavits of the brokers of the defendants, who actually sold the preferred stock, as opposed to that of the plaintiff’s agent, (Crane,) who testifies solely to information derived from the purchaser’s. Prima facie the denial in the answers of the defendants of the equities of the complaint ought to entitle them to a vacation of an injunction order, (Blatchford v. N. H. R. R. Co., 5 Abb. 276;) but the affidavits on the part of the plaintiff being admitted, those on the part of the defendants rebutted their effect. The plaintiff was undoubtedly bound to make out his case affirmatively, and although this court on appeal, at general term, cannot properly interfere with any decision at special term, founded on conflicting evidence, it yet may do so, where that on one side is mere information and belief, and that on the other positive knowledge. The apparent discrepancies of the affidavits of some of the witnesses on the part of the defendants when made -in the action in the Supreme Court, seem to be explained by them. There is also some discrepancy in the testimony of the witnesses as to the market value of the stock in question on the day it was sold, but that may originate in their knowledge of different sales/ and is not sufficient to warrant the conclusion of an undue sacrifice of it by the defendants for sinister purposes. The testimony of the defendants’ brokers, (Towars, Kohn, Minzesheimer Mllery,) is positive as to the sales of stock by the direction of the defendants, and the prices obtained therefor, which corresponds with the account rendered by the latter to the plaintiff. The defendants swear that all sales made of such stock, by such brokers, for thenq before a quarter before twelve o’clock, noon, were not made on behalf of the plaintiff, and the plaintiff ’s agent (Crane) is unable to testify whether some of the sales made at a higher rate than was reported by the defendants was of the plaintiff’s stock. Upon such evidence the plaintiff has hardly made out a clear case of sales at higher prices, or of any design by the defendants to lower the market value, and the mere fact of reporting fictitious sales is not sufficient to sustain the injunction order.

I am inclined to think, if material in this case, that the plaintiff is not bound in it by the decision of the case in another couH between the same parties upon a similar state of facts. In that th.e plaintiff claimed an illegal sale of the stock, and demanded its restoration in specie, by way of an equitable substitute for the remedies formerly known as actions of trover, detinue or replevin. An injunction was, of course, properly refused in it. The plaintiff subsequently discontinued that action, and attempted one of claim and delivery upon the same ground of an illegal sale, and finally abandoning that ground, has chosen this one in its present form for an accounting, recognizing all the sales actually made as valid, but claiming, more as to the sales of some, than the defendants are willing to admit. By this action he has succeeded, by giving security instead of making a tender and paying the money into court, or bringing a possessory action, in obtaining delay by an injunction order. It may possibly be a hardship upon the plaintiff to be driven to actions for damages or for his stock, although it certainly seems more convenient for him to obtain the delay of a suit, before paying the amount due on the original loan. But that should have been considered when he made so stringent a contract, giving the defendants so much authority. .The individual hardship, however, is not to be weighed against the danger of the abandonment of well settled legal principles as to the only cases, in which relief from such a species of hardship can be given.

The order appealed from must be reversed, and the order enjoining the defendants vacated, with $10 costs of the motion to vacate it. No costs.are given on the appeal.