author: By the Couet.—Sedgwick, Ch. J.

text:
    GUSTAVUS ISAACS, Respondent v. JAMES B. SMITH, et al., Appellants.

      Contracts—Written instrument not operative as such for uncertainly.—Buies as to inadmissibility of parol evidence, when not applicable.—Plans and specifications furnished for estimate, when not preclusive of a parol agreement varying them.—Quantum meruit, action on, when it lies.

    Where a written instrument provides for the furnishing of certain materials for certain houses, and the doing of work thereon for a gross sum, without specifying quantities either in terms or by inference, it has not that certainty, which is an essential quality of a contract; therefore it is not operative as a contract, and the value of the materials and work may be recovered on a quantum meruit.

    In such case it is not error to admit evidence of a parol agreement as to the quantities, which was the basis of the bargain resulting in the written instrument.
    The fact that in such case plans and specification (not referred to in the writing), from which quantities could be calculated, were submitted to the party agreeing to furnish the materials and do the work, for his estimate of the cost, does not exclude evidence that they were modified as to quantities by a parol agreement which was the basis of the bargain resulting in the written instrument.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided April 9, 1888.

      Appeal by defendants from judgment entered on report of referee.
    The facts sufficiently appear in the opinion.

      Jacob F. Miller, attorney and of counsel, and Hamilton Odell, of counsel, for appellants, on the points considered in the opinion, argued:
    I. It is a general rule that parol evidence is inadmissible to contradict or vary a written instrument. Proof of what passed during negotiations cannot be given. Pollen v. Leroy, 30 N. Y. 559; 10 Bosw. 53; Sherman v. Mayor, 1 N. Y. 316; Cone v. Heck, 102 Ib. 513. This rule protects from variance the legal effect of an instrument as well as its express terms. Renard v. Sampson, 2 Duer. 285; St. N. Ins. Co. v. Mercantile Co., 5 Bosw. 245; Norton v. Coons, 6 N. Y. 33 ; Bush v. Tilley, 49 Barb. 599. The proposal in this case was drawn by the plaintiff. He framed it in language of his own selection. He did not limit his liability to any figures suggested by the defendants. It is broad enough to include all the work of the kind mentioned which the building required. It must be construed most strongly against its author. Broom's Maxims, 529. When it appeared that the contract under which the work was done by the plaintiff was in writing, the testimony which he had given in respect to.what had gone before it became utterly incompetent. It would have been stricken out on motion. Newkirk v. N. Y. & N. H. Co., 38 H, Y. 158. No such motion was made, but it was the clear duty of the referee to disregard it in making up his judgment, and any finding based upon it is without legal foundation. The true and sensible rule is laid down in Koop v. Handy, 41 Barb. 454. There the court say that “ where a written contract appears on its face to be complete, you can no more add to or contradict its legal effect by parol stipulations than you can alter it through the same means in any other respect......A well established exception to the general doctrine exists where one party sues another, alleging as the gravamen of his action some fraud of the latter, by which the former was induced to enter into the contract.” And in that case the plaintiffs had framed their complaint so as to raise the question of the defendants’ fraud. In the present case if the plaintiff desired to avoid or escape from his written obligation, he should have set forth in his complaint the ground upon which he claimed it. should not be enforced against him, to wit, that he had been misled by the deliberate and false representations of the defendant Smith. It was not competent for him to determine in advance that the writing had no validity, and base his action wholly upon quantum meruit.

    II. The contract could not be reformed except for mutual mistake or fraud on one side and mistake on the other, neither of which is shown, and then only in' an action brought specially for that purpose. Well v. Yates, 44 N. Y. 525; Bryce v. Lorillard Fire Ins. Co., 55 Ib. 240 ; Hunt v. Rousmaniere’s Adm:, 1 Peters 13 ; Grymes v. Sander, 93 U. S. (3 Otto) 55; Lyman v. United Ins. Co., 17 Johns. 373; Coles v. Bowne, 10 Paige 526; Kent v. Manchester, 29 Barb. 595; De Peyster v. Hasbrouck, 1 Kern. 582; Redin v. Powell, 28 N. Y. 310; Bradley v. Aldrich, 41 Ib. 510. Mr. Isaacs cannot be heard to allege that he was misled by Mr. Smith as to the amount of work called for by the plans and specifications, because he examined them and knew their contents. It is an indispensable element of fraud that the party alleging it relied on the representations, was deceived by them, and acted upon them. Taylor v. Guest, 58 N. Y. 262; Lefler v. Field, 52 Ib. 621. ,

      Gershorn A. Seixas, attorney and of counsel for respondent, on the questions considered. in the opinion; argued :
    The writings being wholly silent as to quantities, the law permits parol evidence of that part of the agreement. The writings are not thereby contradicted. Hutchins v. Hebbard, 34 N. Y. 24; Hope v. Balen, 58 Ib. 380; Chapin v. Dobson, 78 Ib. 74; Julliard v. Chaffee, 92 Ib. 529; Harrington v. Mayor, 10 Hun 248; affd., 70 N. Y. p. 604.
   By the Couet.—Sedgwick, Ch. J.

The defendants had contracted to build certain houses. They communicated with the plaintiff in respect of an estimate of the costs of furnishing to the defendants, for the houses, certain material and of work in putting that material in the houses. The plaintiff examined plans and specifications handed to him by the defendants as those that were to be used in the building.

The plaintiff on July 9, 1881, made to the defendants in writing, the following proposal: “ I propose to furnish and erect 8 in. hollow brick arches, 1¡ in. concrete furring blocks, and 4 in. mansard roofing blocks in building 14, 16,18 and 20 Broadway, and 5 and 7 Beaver street, known as Hunniwell building, twenty thousand dollars, etc......Eleven tier beams to be filled, excepting corridors.”

The defendants sent to the plaintiff as an acceptance of the proposal, the following: “We accept your proposal to furnish material and put in burned clay arches, and to do the furring of the building for H. H. Hunniwell, Esq., at 14, 16, 28 and 29 Broadway, and 5 and 7 Beaver street, for the sum of $20,000.” etc.

The plaintiff proceeded to do the work, and as the referee found, did substantially all the work of the kind referred to that was required by defendants for the completion of the buildings in that respect.

The plaintiff claims in this action, that in furnishing the material and doing the work, he furnished and did more than was required by the proposal and estimate, and demanded judgment for an amount claimed to be unpaid upon the sum of $20,000, specified in the writing and for the value of the excess claimed. The form of plaintiff’s claim was a quantum meruit for the whole.

In proceeding to prove the contract between the parties, the plaintiff offered to prove certain oral statements of one of the defendants as to the amount of materials that the plaintiff would be called upon to furnish under the proposal that was asked of him. The defendants objected that such testimony would vary the contract in writing which was formed by the written proposal and acceptance, and was therefore inadmissible. The referee overruled the objection, and the exception to this makes the important question upon the appeal.

The plaintiff testified that before he made the proposal, he examined the plans and specifications in order to compute the quantities that he would be obliged to furnish, and upon his result he offered verbally to do the whole for $24,000. The defendant said that was too high. The plaintiff said it was not too high, if he was to do what the plans called for, at the same time giving his calculation as to this. The defendant said in substance, that there would be changes in the plans, etc., and that the plaintiff need not estimate upon more than sixty thousand feet of arching, thirty-two thousand feet of furring work, and filling in mansard roof with four inch hollow mansard block.

The plaintiff in pursuance of that made his written proposal.

In my opinion the referee correctly allowed the testimony.

The contract does not specify quantities. The appellants’ counsel does not argue that the written terms inferentially fix them, by the reference to the buildings. The houses were not then so far built as to disclose in the structure how much material and work of the kinds in the contract, would be needed. It was not meant that the plaintiff should do all that might be called for by the defendant in altering the buildings as he pleased, in those respects that might indefinitely increase the amount of materials to be furnished by the plaintiff. There was therefore by necessity to be a resort to something outside of the writings to fix the quantities. The appellant argues that the contract intended there should be a resort to the plans and specifications. There is, however, no mention of those in the contract. If resort should be had to them, it would not be because the contract in writing specifically required it, but because, in fact, they had been the basis of the bargain. But the evidence showed that they were not in fact the basis. The defendant in substance, verbally modified them as to quantities, saying the plaintiff should only estimate upon the quantities that have been specified.

Any other view of the arrangement would leave the writings without that certainty that-is an essential quality of a contract, and the plaintiff would have the legal right to sue for the quantum meruit, referring in the evidence upon value to the writings as admissions.

In the course of the trial, the plaintiff gave evidence of what corroborated his specific position and also gave him a cause of action in itself for part of what he recovered. He testified that when he ascertained that he had furnished the quantities that had been named to him by the defendants, he informed the defendants of it, and declared that he was not bound to do more. Whereupon one of the defendants requested him to proceed, and promised to pay him for what he should thereafter do.

On the trial the defendant witnesses contradicted the testimony for the plaintiff, that has been referred to. The determination of the referee of this. question of credibility cannot be reversed upon the case as it is.

The other exceptions have been examined. They do not require a reversal of the judgment.

Judgment affirmed with costs.

Truax and Dugro, JJ., concurred.


source: Caselaw Access Project

author: By the Court .—Truax, J.

license: Public Domain

text:
    THE BOSTON MARINE INSURANCE Co., Appellant v. GEORGE SLOCOVITCH, Respondent.

      Over-insurance—Effect of as fraudulent misrepresentation of value—Witness; incriminating question—When privilege not waived—Evidence— Offer to purchase at fixed price,t when competent, on question of value— Original cost, when competent.

    This action was brought by plaintiff the insurer, under a clause in the policy subrogating it to the rights of the assured, viz.: the holders of certain master’s drafts hypothecating the vessel, etc., in question, and was brought against the owner of the vessel, on the theory that .he had destroyed it to obtain certain other insurance thereon, effected by the owner for his own benefit. Plaintiff claiming that the said vessel was over insured to the extent of more than one third above its actual value, made certain requests to charge, to the effect that such over-insurance should be regarded by tlie jury unless satisfactorily explained, as a willful and fraudulent misrepresentation, and in itself, evidence of fraud. Held, that as the defendant obtained no policy from plaintiff, made no representations to it, and there was no evidence to show that plaintiff was influenced by any representations made, the only charge to which plaintiff was entitled on this point, was to the effect that the jury were to consider on this question of fraud, what the defendant had to gain or to lose by the destruction of the vessel in question.
    The complaint alleged that one Pfaff at defendant’s instigation, had fired the vessel. On the trial, said Pfaff being called and examined by plaintiff, declined to tell how the fire arose for fear he might criminate himself. He was then asked by plaintiff if before the time of the fire he had any conversation with defendant in regard to setting fire to this vessel, whereupon the court instructed the witness, that if he answered tins, he might be compelled to answer the former question. Held, no error, as the substance of the instruction was only as to the witness’s . rights and obligations.
    Plaintiff offered in evidence a deposition of the above witness which showed that he had on another occasion testified to something that was a waiver of the privilege claimed on the trial. Held, that this evidence was incompetent ; that it showed no waiver of privilege here, and could be used only to contradict the witness or refresh his memory, neither of which contingencies existed here.
    One of the material questions involved, was the value of the vessel, which before its loss was the property of defendant, who on the trial asked a witness (a seaman and shipmaster acquainted with the value of vessels), if he had not theretofore made defendant an offer for the purchase of said vessel, and on an affirmative answer being given, further asked the amount of said offer, which was objected to by plaintiff and the objection overruled. Held, that the question was properly allowed.
    After proving the condition of the vessel, at the time of its loss, three years before the trial, defendant was allowed, under plaintiff’s' objection and exception, to show what he paid for it at that time. Held, no error. 1st. Defendant offered the best evidence he could under the circumstances, and brought himself within Jones v. Morgan, 90 N. Y. 4. 2d. The point at issue was not the value of the vessel, that question being material only as it bore on the question of defendant’s motive to destroy it.
    Before Truax and Dugro, JJ.

      Decided April 9, 1888.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial.
    -The action was brought by the Boston Marine Insurance Company as subrogated to the rights of its assured, to recover from the defendant the amount of a loss paid by plaintiff under its policy of insurance upon certain master’s drafts, hypothecating the ship “Zorka,” of which ship defendant was sole owner, and his firm of Slocovich & Co., the consignees. The complaint, after alleging the incorporation of the plaintiff, the issuing of the said master’s drafts by the defendant, the insurance thereof by plaintiff in favor of the holders, Messrs. I. & C. Moore and others, the loss of the “Zorka” by fire, and the payment by plaintiff to its assured of the sum of $5,000 in full satisfaction of their claim under the policies of insurance on the drafts, which allegations were admitted by the defendant’s answer, then went on to allege that plaintiff thereby became subrogated to all rights of action of said assured against the ship, its owner, etc., that the interest of defendant in said ship was, at all the times referred to, insured in the further sum of $16,000 ; that the defendant, while the said insurance was pending and said drafts were immature, “ maliciously and designedly did cause the aforesaid ship 6 Zorka ’ to be set on fire by her master, Albert Pfaff, who was the defendant’s agent and servant; whereby the said ship ‘ Zorka ’ burned to the water’s edge and became a constructive total loss. At the time of her loss as aforesaid, the sum for which the defendant was insured in his said ship against marine perils was at least three times her value.” These last allegations were denied by the defendant. The verdict of the jury was in his favor.
    Further facts appear in the opinion.

      Edward D. McCarthy, for appellant:
    I. The testimony of the witness, Meyer, that he offered the defendant $12,000 for the ship, was incompetent, and its admission was an important error, (a) It was hearsay evidence only. As an offer, it did no more than show the opinion of the would have been purchaser, who proposed to give $12,000 for the ship; and the opinion of the owner, who refused to accept that sum for her. The offer was not the best, because not original evidence of opinion. The opinion, either of the proposed purchaser, or of the owner, was not shown to have empirical value. (b) In every such case, where the value of a chattel is to be determined, the sole legitimate inquiry is for market value. Of course, a mere offer to purchase is no evidence of a ruling price, (c) There can be no principle of law which would admit hearsay, and, therefore, incompetent testimony, merely to show a good motive in an accused person. Commonwealth v. Chubbock, 1 Mass. 144. But, manifestly, this testimony did not show a good motive, because the offer may not have been made, bona fide, (d.) Decisions of weight and authority, maintain the foregoing principles. Fowler v. County Commissioners, 88 Mass. 96 ; Whitney v. Thacher, 117 Mass. 527; Gallinger v. Gallinger, 4 Lans. 473; Dugan’s Estate, Tuck. 338; Wood v. Firemen’s Ins. Co., 126 Mass. 319; Keller v. Paine, 34 Hun 177; Young v. Atwood, 5 Ib. 235; Masterson v. Mayor, 7 Hill. 72; Rice v. Hanson, 5 Lans. 305; Flannagen v. Madden, 81 N. Y. 623. In Campbell v. Woodworth (20 N. Y. 499), the sale was at public auction. In Hoffman v. Connor (76 N. Y. 124), it does not appear that the previous sale was an isolated transaction. In Wells v. Kelsey (37 N. Y. 143), the testimony was elicited by cross-examination, merely to test the credibility of the witness. There is not a recorded case, that an isolated sale, unless inter partes, is competent proof of market value. Much less, would a mere offer be such proof. It would be different if the sale or the offer were inter partes, because the proof would then be competent as declarations.
    II. It was error to receive testimony on defendant’s part, that he paid $10,000 for this ship, three years before, at a private sale. The foregoing authorities seem conclusive on this point. If there were no other objection, the time of purchase was too remote.
    III. It was error to refuse to charge as plaintiff requested in 1st to 3d requests. Taken together, the requests amount to this: A gross over-valuation of property under a marine risk, is evidence of fraud, if unexplained. The following cases, and many others which might be cited are relevant: Catron v. Tennessee Ins. Co., 6 Humph. 176 ; Haigh v. De Lacour, 3 Campb. 319 ; Alsop v. The Commercial Ins Co., 2 Sumn. 470 ; Franklin Fire Ins. Co. v. Vaughn, 92 U. S. R. 519; Hoffman v. West, F. & M. Ins. Co., 1 .La. 216; Ragmer v. West, F. & M. Ins. Co., 12 La. 336; Feise v. Aguilar, 3 Taunt. 506; Lewis v. Rucker, 2 Burr. 1167, 1171; Munn v. Taggart, 3 Binney 305; 2 Story, C. C. R. 51; 2 Cranch, C. C. R. 550.
    IV. The fifth request is peculiar in its character and bottoms on ground of its own. It presents a clean question of law, and inasmuch as it was a material subject, the refusal to allow it, if error, was material error. The following authorities are cited to support this assignment of error. Read v. Mutual Sun Ins. Co., 3 Sand. 54; Smith v. Williams, 2 Caines Cas. 110; Force v. The Pride, 3 Fed. Rep. 162; 3 Wash. C. C. R. 1; 1 Phill. Ins., § 307.
    V. Witness Pfaff was the master of the ship, and set fire to her at the instigation of the defendant. The fact of applying the match he had declined to admit, because of self-crimination. But he was ready to testify to a conversation had between himself and the defendant just before the fire, when he was interrupted by the court, and thus instructed: “ If you answer that question you may be obliged to answer the other question ; you cannot insist upon your privilege.” Thereupon the witness declined to proceed, and the plaintiff lost most important testimony. It is plain that the right to refuse is the privilege of the witness, and it is for him, alone, to determine whether he shall assert a privilege It is no justification of the warning given by the court, that the witness had previously declined to tell the jury what was the immediate cause of the .fire. The fact that he was about to tell had no direct and immediate connection with the ignition of the match. Proof of overvaluation and of conspiracy would have been sufficient to avoid the policy. If nothing else availed, then we showed that the witness had lost his privilege, by having, ■previously, testified to the. same facts.

      Sidney Chubb and C. M. Dacosta, for respondent.
   By the Court .—Truax, J.

It was alleged in the complaint, and the plaintiff attempted to prove on the trial, that the defendant destroyed a vessel which belonged to him, in order to obtain certain insurance which he had effected on that vessel. As part of his case, the defendant called a witness, Myer, who was a seaman and shipmaster and who was acquain ted with the market value of vessels in New York, and asked him whether he had made defendant an offer for the purchase of his vessel. He testified that he had made such an offer, and then was asked, What price did you offer ? ” This question was objected to by the plaintiff, on the ground that it was incompetent. The objection was overruled, and the plaintiff excepted.

It has been held that an offer to sell a thing is some evidence of the value of that thing (Harrison v. Glover, 72 N. Y. 451), and there is no reason why an offer to buy should not have at least as much weight as an offer by the owner to sell.

The defendant was also allowed to show, under the objection and exception of the plaintiff, that three years before he had paid ten thousand dollars for this ship at a private sale. It was not error to receive this testimony. Hoffman v. Conner, 76 N. Y. 121. The vessel was no longer in existence, and the defendant offered the best evidence that he could offer under the circumstances of the case. He showed the cost and the condition of the vessel at the time it was destroyed, and so brought himself within the decision of the court of appeals in Jones v. Morgan, 90 N. Y. 4. Moreover, the point at issue was not the value of the vessel, and the question of value became relevant only as it tended to show the motive of the defendant in destroying his vessel, if he did destroy it. We think that it was not error to allow the defendant to show what he had paid for the vessel.

The court was asked to charge, in substance, that every man is presumed by the law to know the value of his own property, and a difference between actual value and an amount insured for, which is more than one third above the actual value, may be regarded as a willful and fraudulent representation, unless satisfactorily explained; and that if the ship in the month of April, 1883, was not worth more than ten thousand dollars and was insured for sixteen thousand dollars, such over-insurance would in itself be evidence of fraud. (See the first, second and third requests to charge.)

We think that these requests, as well as the fifth request, were charged in substance when the court charged the jury that in determining this question of fraud, it was important for them to consider “ what the defendant would have had to gain by her destruction, as opposed to what he would have lost by that event; whether it would be better for him to have the cash from those policies without the obligation to pay the drafts or without their maturing by the arrival of the ship, or was it better for him in his judgment to keep his property and continue his business. If the latter was the case he had no motive to set the ship on fire. If the former was the case, you must find out how much the motive was, what it actually amounted to, and how much it weighed on him in connection with the other facts in the case. He had raised $5,500 on this vessel and got the money for the drafts. If the vessel did not reach St. Johjis, he would owe nothing on these drafts because the condition of the obligation to pay was that she should get to St. Johns.”

This was all that the plaintiff was entitled to have charged. If the defendant misrepresented the value of the vessel, it was a fraud on those to whom he made the misrepresentations—that is, it was a fraud on the insurance companies from whom he obtained his policies of insurance. But he obtained no policy of insurance from the plaintiff in this action, and he made no representations to the. plaintiff. And there is no evidence -that the plaintiff was influenced by any representations, and, therefore, whether they were or were not fraudulent is immaterial.

A witness named Pfaff was called by the plaintiff. The plaintiff had alleged in its complaint and attempted to show on the trial, that Pfaff - had set the boat on fire on the instigation of the defendant. Pfaff declined to tell how the fire arose, for fear that he might criminate himself. He was then asked by the plaintiff’s counsel if he had had any conversation before this time—that is, before the time of the fire—with the defendant in regard to setting fire to this vessel, and the court instructed the witness that if he answered that question he might be obliged to answer the other question. To this instruction the plaintiff took an exception.

We do not think that the court erred in informing the witness—which was the substance of the instruction—of his (the witness’) rights and obligations. If we look at the ruling as a ruling not to compel the witness to answer, there was no error committed. The testimony tended to show that the witness had committed a crime. It was a link in the chain of testimony showing that fact, and he could not be compelled to disclose any portion of the evidence that might help to convict him of an offense.

The appellant sought to offer in evidence a deposition which showed, in effect, that on another occasion this witness had testified to something which was a waiver of the privilege which he claimed on this trial. This was objected to as incompetent, the objection was sustained and the plaintiff excepted.

We think that there was no error in this ruling. The witness had not waived his privilege by testifying on another occasion, nor wras what he had testified to on another occasion admissible as evidence on this trial. The testimony given by the witness on the former examination could only be used for the purpose of contradicting the testimony given by him on this examination or of refreshing his memory, neither of which contingencies existed on this trial. Grattan v. Metropolitan Life Insurance Co., 92 N. Y. 287.

The judgipent and order appealed from are affirmed with costs.

Dugro, J., concurred.

       The 5th request to charge was as follows:
      “Fifth.—These master’s drafts were equivalent to insurance on the ship, and were not payable unless the ship arrived at her destination. So far as this case is concerned they are equivalent to an insurance to the extent of $5,115, which was paid before the happening of any loss.”


author:
      Sedgwick, Ch. J.
      By the Court.—Truax, J.

text:
    MARY CLUFF, suing, &c., Appellant v. HENRY S. DAY, et al., Respondents.

      Executor and trustee—Bondsmen of executor, as such, are not liable for his acts as trustee, after final settlement of his account as executor.

    Where it appeared that the same person was appointed executor and trustee by the provisions of the will of the deceased; that subsequently a decree was duly made by the surrogate adjudging that the accounts of said executor be finally settled and allowed, as filed and adjusted, and that the said executor retain, invest and keep invested the balance (the amount being specified) in his hands according to the trusts and provisions contained in said will; and that some years thereafter another decree was made by the surrogate by which it was adjudged that said person never had made any proper investment of the said trust fund, but had wasted the same, etc., and had without good cause, neglected to obey the direction of the surrogate concerning the investment of said trust fund, contained in the former decree,

      Held, that an action would not lie against the bondsmen of said person as executor, for his default, it not appearing that said person did not have in his hands the funds of the estate at the time of the making of the former decree; that the burden of showing that the default occurred whilst said person was acting as executor rested upon plaintiff.
    Before Truax and Dugro, JJ.

      Decided April 9, 1888.
    Appeal from a judgment entered on the trial of an action before the court at special term, without a jury.
    The complaint alleged that the plaintiff is the widow of one Burgess Cluff, deceased; that said Cluff died on or about March 12,1871, leaving him surviving this plaintiff and their two children; that said Cluff left a will which was duly admitted to probate by the surrogate of county of New York; that letters testamentary were duly issued by the surrogate of said county to one Edward E. Tower, on or about April 12,1871; that the defendants, together with said Tower, acknowledged and delivered to the surrogate of said county an official bond; that said Tower has failed to account for all the money that he received as such executor, and that the estate of the deceased has thereby been injured by him to the extent of $ 10,906.02, with interest thereon from September 30,1886; that payment of such sum has been demanded from said Tower and the defendants, but that no part thereof has been paid; that no successor has been appointed to said Tower as such executor under said will; and that plaintiff has been duly authorized by the surrogate to maintain an action on the official bond given as aforesaid by said Tower, pursuant to § 2609 of the Code of Civil Procedure.
    The following opinion was delivered at special term:—

      Robert Owen, attorney, and Henry L. Burnett and Robert Whitney, of counsel, for appellant:
    I. The surety is privy to the decree against his principal, and is bound to the same extent as the latter. Harrison v. Clark, 87 N. Y. 572; Casoni v. Jerome, 58 Ib. 315; Kelley v. West, 80 Ib. 139 ; Gerould v. Wilson, 81 Ib. 573; Scofield v. Churchill, 72 Ib. 568; Hood v. Hood, 85 Ib. 561, 578; Titus v. Fairchild, 49 Super. Ct. 211.
    II. The decree of 1886, standing alone, makes a clear
      prima facie case for the plaintiff. If the sureties can extract no defense from the prior proceedings, judgment must be given against them.
   Sedgwick, Ch. J.

My conclusions are as follows: No action lies against the defendant for any disobedience by the executor, as executor of the decree of 1873. That decree adjudged that as executor,he had acted properly. By a proper construction of all the terms of the decree of 1886, in connection with the petition upon which it was made, and the past and then existing facts, that decree was against Tower, as trustee, and not as executor, and the sureties are not liable for a disobedience of that decree. I do not see how there could be a judicial investigation of his misconduct as trustee under the will, without he had ceased to be executor. The complaint is to be dismissed, with costs, and no allowance.

III. The sureties have failed to show a discharge. They have not attempted to show a discharge by payment or resignation on their own part (which are the only ways by which it can be effected by the bondman himself), or by consent of all parties. They have not attempted to show a discharge by Tower’s separating the fund, turning it over to a trustee account, and investing it as such. No such discharge by matter in pais is known to the law. The beneficiaries must consent, or there must be legal proceedings. The infants "are entitled to be heard by guardian before an unsecured liability is substituted for a secured one. In fact, the proceedings of 1886 (by which the sureties are bound) show the most disgraceful breaches of trust on the executor’s part. The estate’s funds were used in his private business and their condition concealed from the widow. The only discharge claimed is based upon the decree of 1873. That the settlement of 1873 was a “ final ” one did not mean a discharge, or that there could be no further accountings as executor. There may be many final ” settlements.. Each one is “ final” up to date of account. A “ final ” settlement leaving a balance to be retained by the executor, without a discharge, necessitates a future accounting as executor. Redfield Sur. Prac., ch. 19, art. II. § 2; Glover v. Holley, 2 Bradf. 291; Matter of Hood, infra. If there be any discharge in the decree of 1873 it must be sought in the concluding clause, which directed that the said executor retain,” etc., the fund in question according to the trust and provisions contained in the said last will and testament.” We submit the rule in New York (following that in Massachusetts) to be as follows: When one is both executor and trustee under a will, a decree settling his accounts does not discharge him as executor and make him trustee alone, unless: (1.) It in terms discharges him as executor; or (2.) it credits him as executor as having already paid the fund over to himself as trustee (thus making a binding adjudication of the past fact); or (3.J it directs him to hold in futuro distinctly as trustee ; and in the third case the decree of itself is not a discharge, but compliance with the decree, by at least setting apart the trust fund and turning it over to trustee account in some way, is a necessary condition. The decree of 1873 fulfilled none of these requirements, nor was it followed by a setting apart of the trust fund. The leading case in New York in plaintiff’s favor is Matter of Hood, 98 N. Y. 363, and 104 N. Y. 107. The decree of 1886, upon which this suit is brought, having charged Tower in terms as executor,” a motion was made in January, 1887, to change these words to “ as trustee.” This raised the question as squarely as it could be raised. The surrogate in Matter of Cluff, Daily Reg., Feb. 11, 1887; S. C., 25 Week. Dig. 375, denied the application. The rules so clearly indicated in the second Hood opinion had been respected, though never entirely formulated, in the prior New York authorities. Hall v. Hall, 78 N. Y. 535, 540; Matter Roosevelt, 5 Redf. 601; Johnson v. Lawrence, 95 N. Y. 154; Laytin v. Davidson, Ib. 263. A line of able opinions in Massachusetts is to the same effect. It is held that the executor must have been credited in his final account with the amount thereafter claimed to be held as trustee, and charged as trustee. Hall v. Cushing, 9 Pick. 395; Newcomb v. Williams, 9 Met. 525; Conkey v. Dickinson, 13 Met. 51; Prior v. Talbot, 10 Cush. 1; Miller v. Congdon, 14 Gray 1; Treadwell v. Cordis, 5 Ib. 341.

1Moreover, the above discussion has been conducted entirely on the theory that a discharge of Tower as executor discharged his bond. But does not this theory disregard the last clause of the bond itself ? Tower is by the terms of the bond not only to “ faithfully execute the trust reposed in him as executor,” but also (not as executor,” but individually) to “ obey all orders of the surrogate touching the administration of the estate committed to him.” This' last clause we find no adjudication upon, except in the case of Scofield v. Churchill, 72 JSí. Y. 568. In that case the clause was held to have independent force, and we think that the fair and natural construction would protect the estate from all misconduct of the principal “as executor” or “as trustee.”

IV. In conclusion, we may notice what appears to us to be a misconception in the opinion and findings of the court below. The court says : “ That decree [of 1873] adjudged that as executor he had acted properly.” The decree on an accounting has never been a conclusive adjudication in favor of the executor for all purposes, and in particular decides nothing as to the executor’s management of the property in his hands. If he charges himself with the full principal and 6 per cent, interest, the decree is the same whether he has earned the interest by good investment or has gambled the whole fund away. 2 R. S., p. 94, § 65; 2 Edm. 97; Code Civ. Proc., § 2742. The surrogate, therefore, on discovery of the gambling, may remove the executor whether or not his accounts have since been settled.

Charles E. Wilson and Isaac Fromme, for respondents:

I. The will of testator creates a trust which does not pertain to the office and duties of his executorship, and appoints Edward E. Tower such trustee, (a.) The language used by testator in creating the said trust is as follows: “ I give, devise and bequeath all my property, of every name or nature whatsoever, to Edward E. Tower, of the town of Cohasset, in the state of Massachusetts, to be held by him in trust nevertheless, for the following purposes and no other, to wit: To convert all my said property into money and to invest the same, together with what money I may have at the time of my death in good and sufficient securities, and to pay the interest arising therefrom and which may become due from time to time to my wife,” etc. (b.) A subsequent clause of said will was : “ I appoint my friend, Edward E. Tower, of Cohasset, of the state of Massachusetts, executor of this my last will and testament.” (c.) “If the trust is given to one named and the same person is afterwards appointed executor, the trust is not annexed to the office of executor.” Perry on Trusts, § 262. {d.) The term “ testamentary trustee ” “ includes an executor or administrator where he is acting in the execution of a trust created by the will, which is separable from his functions as executor or administrator.” Code Civ. Proc., § 2514. (e.) Where a will appointed an executor and created a trust by saying, “ I devise and bequeath to my executor herein named in trust,” certain property, held that the relation of the executor to the trust estate, as trustee, was the same as if he had not been named executor in the will and as if the property had been devised and bequeathed to him in trust by his individual name. Parsons v. Lyman, 5 Blatch. 170; Matter, Schell, 53 N. Y. 263 ; Matter, Wadsworth, 2 Barb. Ch. 381. (f.) An executor is appointed trustee when the will, distinct and separate from his executorship, provides by express terms, or by fair intendment for the separation of the two functions, the dutiés of the one to be substantially performed before those of the other begin. Johnson v. Lawrence, 95 N. Y. 154; Hurlburt v. Durant, 88 Ib. 126; Hall v. Hall, 78 Ib. 538. (g.) This point seems to be conceded by appellant, for no exception was taken to the third conclusion of law made by the court on the trial of the action, which is as follows: “ That bv the will of said testator said Tower was appointed trustee of said estate distinct and separate from his duties as executor.”

II. The duties and responsibilities of said Tower, as executor, terminated and his separate duties as trustee commenced in 1873, some eight years before the commencement of the special proceeding for his second accounting. The legal effect of the decree of 1873 was to discharge said Tower as executor and leave him acting as trustee. Matter, Carman, 3 Redf. 47; Ward v. Ford, 4 Redf 34. The principles of these two cases have been cited with approval in the court of appeals in numerous cases. Hall v. Hall, 78 N. Y. 538; Hurlburt v. Durand, 88 Ib. 121. See also Johnson v. Lawrence, 95 N. Y. 154; Laytin v. Davidson, Ib. 263 ; 29 Hun 624; Matter, Mason, 98 N. Y. 527. The case of the Matter of Hood (98 N. Y. 363) in a negative way supports the view here taken. In that case there had been neither an actual separation nor a decree which in law amounted to such a separation. In Phoenix v. Livingston, 101 N. Y. 451, the principles here discussed were again enunciated. See also Blake v. Blake, 30 Hun 471.

III. No manual transfer of the funds from Tower’s hands as executor to his hands as trustee is necessary in order to establish his trusteeship. This transfer is accomplished by operation of law under the well established principle that “ when the same hand is to pay and receive what the law requires to be done will be deemed done.” Matter, Gilbert, 39 Hun 67 ; Warner v. Knower, 3 Dem. 212 ; Seegar v. The State, 6 Harr. & John. 162; 14 Am. Dec. 265.

IV. There has been no disobedience by said Tower as executor of the decree of 1873. (1.) By said decree of 1873 it is adjudged that the account of said executor as filed was correct, and that he accounted for all the moneys and property of the estate of the testator which had come into his hands as executor, and his said account was thereby settled and allowed as filed. (2.) The direction in said decree of 1873 that said Tower retain, invest and keep invested the balance remaining in his hands according to the trusts and provisions contained in said last will and testament pertain to his duties as trustee, in which capacity all investments were to be made. Laytin v. Davidson, 95 N. Y. 266.

V. The decree of 1886 is against Tower as trustee and not against him as executor.

By the Court.—Truax, J.

(after stating the facts as above)—The defendants bound themselves that the above named Tower should faithfully execute the trust reposed in him, as executor of the last will and testament of said Cluff, and obey all orders of the surrogate of the county of New York touching the administration of the estate committed to him, and they cannot be held on this bond unless it has been shown that said Tower has failed to faithfully execute the trust reposed in him as executor of the said last will touching the administration of the estate committed to him.

The appellant claims that this has been shown by the decree made in the surrogate’s court, September 30,1886, while the defendants claim that said Tower was discharged as executor by a decree which was entered in the said surrogate’s court, November 26, 1873.

Said Tower was appointed executor and trustee by the said last will and testament of the said Cluff, and, by the said decree of November 26,1873, it was ordered, adjudged and decreed that the accounts of said Tower be finally settled and allowed, as filed and adjusted, and it appearing that there was in the hands of said executor the sum of $12,222.98, it was ordered and adjudged that the said executor retain, invest, and keep invested, the balance remaining in his hands after making the payments which were ordered to be made by said decree according to the trusts and provisions contained in said last will and testament. By a subsequent decree this amount was reduced to the sum of $10,906.02. It was adjudged by the decree of September 30, 1886, that the said Tower never had made any proper investment of the said trust fund, but that he has wasted, improperly applied and improvidently managed the same, and that he has, without good cause, neglected to obey the direction of the surrogate concerning the investment of said trust fund, contained in said decree of November 26,1873.

I cannot find it stated anywhere in the case whether said Tower did or did not have in his hands, at the time of the making of the decree of 1873, the whole or any part of the funds of the estate. In other words, it does not appear that he, as executor, has failed to faithfully execute the trust reposed in him as such, or to obey any orders of the surrogate of the county of New York, touching the administration of the estate committed to him. The defendants Day and Thompson were not sureties for Tower as trustee. They could be held liable only for his default as executor. The burden of showing that the default occurred while said Tower was executor, rests with the plaintiff. This, the plaintiff has failed to show. And for this reason and for the further reasons assigned by the chief judge in his opinion delivered on the trial of the case, I am of opinion that the judgment appealed from should be affirmed with costs.

Ditgro, J., concurred.


author: Freedman, J.

text:
    WILLIAM SCHOLLE v. JACOB SCHOLLE, et al.

      Infant, judgment against by court of general jurisdiction, validity of, under ■ Code of Procedure, although no affidavit of service in the judgment roll.— General guardian may derive benefit, through a judgment in an action to which both he and the infant are parties.

    Where the judgment roll in an action in a court of general jurisdiction (judgment entered June 12, 1852), contains an affidavit made by the father of an infant defendant, setting forth that the summons was personally served on the infant, and praying for the appointment of a guardian ad litem, and further shows that a guardian ad litem (other than the father) was appointed; that he appeared by attorney and interposed an answer praying that plaintiff be compelled to make proof of the facts alleged in the complaint; that a referee was appointed to take such proof and report; that the referee issued a summons to the attorney of the adult defendant and to the attorney of the guardian ad litem requiring them to attend on the reference, which was duly served on the parties; that the referee then took such proof and reported that all the allegations of the complaint were true, and that the plaintiff should have a certain judgment; and that the report was duly confirmed and judgment entered in accordance therewith; but did not contain an affidavit of service on the infant.

      Held, no proof being adduced that the summons had not been served on the infant according to law, that the judgment was valid as against the infant, and the infant was conclusively bound thereby.
    The action above mentioned was brought by Hickson W. Field, Sr., against John M. Bradhurst, Elizabeth B. Field (then an infant) and others, for the specific performance of a contract of sale of real estate contained in a lease to the plaintiff, under which lease the plaintiff had an unqualified right to terminate the lease and purchase the property, subject to which lease the property was granted by John M. Bradhurst and wife to Hick-son W. Field, Jr., and wife, and their issue. The judgment, among other provisions, adjudged that John M. Bradhurst and wife and Elizabeth A. Field, by her guardian ad litem,, execute and deliver to Hickson W. Field, senior, a deed conveying to him the premises in fee simple. It also appointed Hickson W. Field, Jr., guardian for Elizabeth B. Field, his daughter, with certain specific directions.

      Held, that under the circumstances there was no bar to Hickson W. Field, Jr., deriving title or benefit through the judgment, arising out of a relation of general guardian sustained by him towards the infant.
    At Special Term, before Freedman, J.

      Decided October 5, 1885.
    Action of partition.
    The facts appear in the opinion.
   Freedman, J.

The action was commenced by the filing of a summons and complaint and notice of pendency of action on October 27, 1884, for the purpose of partitioning the real estate described in the complaint. In due course of proceedings an interlocutory decree of partition and sale was entered and a sale had by and under the direction of a referee appointed by the court for that purpose. Among other parcels exposed for sale were thirty lots in the block bounded by 149th and 150th streets and Tenth avenue and the Boulevard in the city of New York as numbered and shown on a certain diagram set forth in the catalogue of sale. At the sale which took place June 11,1885, the lots numbered Nos. 15, 16, 17, 18 and 19 on said diagram were duly struck off to Joseph McGuire, he being the highest bidder for the same, and he signed the terms of sale and paid ten per cent, of the purchase price to the referee. All the bids, including that of McGuire, were reported by the referee to the court, and they were all confirmed as to adequacy and fairness, and the referee’s report was likewise duly confirmed and judgment entered thereupon in the usual form. Subsequently McGuire refused to accept the referee’s deed and to pay the balance of the price.

The present motion is made by the plaintiff and the referee to compel McGuire to complete his purchase. McGuire on the other hand, asks to be relieved of his purchase.

The main objection on the part of McGuire to the taking of the title is, in substance, that the title comes through on action brought in the Supreme Court in 1852, by Hickson W. Field against John M. Bradhurst and others for the specific performance of a contract of sale, in which action judgment was entered June 12, 1852, that one of the defendants in said action, Elizabeth B. Field, who was then an infant under fourteen years of age, had an interest in the five lots in question; that there is no due proof of the service of the summons in said action on said infant in the judgment roll of the case and that for that reason her interest has not been divested by the judgment; and that at the present time she is still alive, married, and has three children.

It is true that the said judgment roll contains no affidavit of service upon said infant. Among the. papers contained therein there is, however, an affidavit made by Hickson W. Field, Jr., the father of the infant, setting forth that the summons was personally served upon the infant, and praying for the appointment of a guardian ad litem to appear for her and protect her rights in the action. It further appears that thereupon John E. Develin, Esq., was appointed guardian ad litem, and that, as such, he appeared by an attorney and interposed an answer praying that the plaintiff be compelled to make proof of the facts alleged in the complaint, and submitted the infant’s rights in the action to the court, that a referee was appointed to take such proof and to report thereon; that before proceeding in the matter the referee issued a summons to the attorney of the adult defendants and the attorney of the guardian ad litem of the said infant defendant to attend upon the reference which was duly served upon the said parties ; that the referee then did take such proof and reported thereon that all the allegations of the complaint were true and that the plaintiff should have a certain judgment; that the said report was duly confirmed and that judgment was entered in accordance therewith.

By that judgment it was, among other things ordered and adjudged, that John M. Bradhurst and Elizabeth, his wife, and Hickson W. Field, Jr., and Mary Elizabeth, his wife, and the said Elizabeth Bradhurst Field, by her guardian ad litem, John E. Develin, do forthwith execute and deliver to Hickson W. Field a deed conveying to the said Hickson W. Field in fee simple the premises in the complaint mentioned; and that the deed so to ben executed shall convey to and vest ,in the said Hickson W. Field, his heirs and assigns forever, an indefeasible estate in fee simple absolute in and to the whole of the premises, free, clear and discharged of and from all claims, right, title, estate or interest of the said infant defendant Elizabeth Bradhurst Field, and of any person claiming or to claim by, from or under her, and of any after-born children of the said Hickson W. Field, Jr., and Mary Elizabeth, his wife, and of the said John M. Bradhurst and Elizabeth, his wife, and of the heirs of the said John M. Bradhurst, forever. And it was further ordered and adjudged “ that Hickson W. Field, Jr., be and he is hereby appointed guardian for his daughter, the said infant defendant Elizabeth Bradhurst Field, on his filing security with the clerk of this court, to be approved by one of the justices of this court, in the amount of three thousand dollars, and that upon the filing of such security he shall receive the said sum of one thousand and sixty-nine ^ dollars, awarded to the said infant, and invest the same on bond and mortgage on real estate or in stocks of this state or of the United States for her advantage, and for that of any after-born children of the said Hickson W. Field, Jr., and Mary Elizabeth, his wife, who shall be entitled to the same in equal proportion, share and share alike.

Thirty-three years have now elapsed since the entry of that judgment and all parties in interest have acquiesced in it, inclusive of the infant defendant therein mentioned who has since that entry married and now has three children.

It is upon these facts that it remains to be considered how far Joseph McGuire, as a purchaser, may attack the validity of said judgment in so far as it affects the interest of the infant defendant therein named. That he is entitled to have a good title in fee simple, admits of no dispute.

At the time of the commencement of the action in „the supreme court and the entry of the judgment therein, the provisions of the Code then in force required that in an action against a minor under the age of fourteen years, the summons should be served by delivering a copy thereof to such minor personally and also to his father, mother or guardian (§ 134). And such service had to precede the appointment of a guardian ad litem (Ontario Bank v. Strong, 2 Paige 301), and had to be affirmatively shown on the application for the appointment of such guardian. Grant v. Van Schoonhoven, 9 Paige 255.

On the other hand, the Code, in prescribing how a judgment should be entered in the judgment book, provided as follows: “ § 281. Unless the party, or his attorney, shall furnish a judgment roll, the clerk, immediately after entering the judgment, shall attach together and file the following papers, which shall constitute the judgment roll. (1.) In case the complaint be not answered' by any defendant, the summons and complaint, or copies thereof, proof of service, and that no answer has been received, the report, if any, and a copy of the judgment. (2) In all other cases the summons, pleadings or copies thereof, and a copy of the judgment, with any verdict or report, the offer of the defendant, exceptions, case, and all orders and papers in any way involving the merits and necessarily affecting the judgment.”

Thus it was only in case the complaint was not answered by any defendant, that proof of service of summons upon that defendant had to appear in the rolls, and even this had an exception, for service of the summons was not necessary when a defendant appeared voluntarily in the action (§ 139).

This construction of § 281 has been fully established by the decision of the court of appeals in Bosworth v. Vandewalker, 53 N. Y. 597. In the case last referred to. it was further, upon authorities cited, distinctly held that the intendment of law always is that a superior court of general powers had jurisdiction, until the contrary appears; that this intendment applies both to the jurisdiction of the subject matter and the jurisdiction of the person of the defendant; that the record of a judgment of such a court is prima facie evidence, and will be held conclusive until clearly and explicitly disproved; that the recitals in the judgment may be used to establish jurisdiction prima facie ; and that the infancy of the defendant makes no difference. This decision completely disposes of the objection of Joseph McGuire which has been so far considered. Not only did he fail to adduce any proof that the summons had not been served as required by law, but the record contains some affirmative proof of service upon the infant and proof of the appearance of her father in consequence thereof upon an application for the appointment of a guardian ad litem. In addition the record shows, as already stated, the appointment as such guardian of a person other than the father, the interposition of an answer by such guardian and a determination of the infant’s rights under said answer.

Under these circumstances, the cases cited by the learned counsel of Joseph McGuire in which it affirmatively appeared that there had been no service as required by law, have no applicability.

Nor is there any force in the argument that because Hickson W. Field, Jr., sustained the relation of general guardian to the infant, he could not subsequently, either directly or indirectly, derive any benefit from or through the judgment. However sound that argument might be, if he had been the guardian ad litem,, it is entitled to no weight under the peculiar circumstances of this case, from which, in addition to what has already been said, it appears that the estate granted to Hickson W. Field, Jr., and wife, and their issue, by John M. Bradhurst and wife, was expressly made subject to the covenants of the lease to Hickson W. Field, Sr., and that under said lease Hickson W. Field, Sr., had an unqualified right to terminate the lease and purchase the property.

The remaining objections are so clearly untenable as not to require special notice.

The motion to compel Joseph McGuire to complete his purchase must be granted with $10 costs.


text:
    WILLIAM SCHOLLE v. JACOB SCHOLLE, et al.

      Deed, purporting to convey an estate or interest greater than the grantor in fact had, when not sufficient to pass under § 1, title 5, eh. 1, part 2, B. S., the interest or estate, which he in fact had.—Surrogate's decree on accounting, circumstances rendering it a serious question whether infant parties are absolutely concluded by it.—Power of sale not well executed, by conveyance in satisfaction of a debt due by decedent.—Trustee, a deed by one of three in whom the legal title is by will vested in trust, when it will not pass a title which a purchaser will be compelled to take.

      E. made a deed to L. J. P., purporting to convey seven undivided tenths of certain real estate. These seven tenths had previously been conveyed to R. under an agreement by which he held two of them in trust to convey to A. S. and two in trust to convey to L. J. P. The two to be conveyed to A. S. had been so conveyed before the deed to L. J. P.; and L. J. P. made affidavit that the deed to him was not intended to convey R.’s entire interest. Held, that an objection to the deed to L. J. P. that it did not pass the entire interest or estate which R. then had, was well taken, and was not overcome by the provisions of § 1, title 5, chap. 1, part 2, R. S.; but on the contrary, that deed was at least liable to be reformed in equity at the suit of R.’s representatives as heirs-at-law.
    An executrix and trustee presented to the surrogates’ court a petition for an accounting, and from the schedules filed in connection therewith it appeared that Abraham Scholle had presented to her a claim against the estate which she classified as uncertain and disputed. It did not appear on what the claim was based. Afterwards she presented a petition for a final accounting and the account and schedules filed in connection' therewith showed that the claim of Scholle had been settled by a conveyance of decedent’s interest in certain real estate, but the precise nature of the settlement was not fully disclosed and no copy of the deed was submitted. Under those circumstances, Held, that it was a serious question whether infants, though represented by a special guardian, were by the decree entered on the accounting, absolutely concluded as to the settlement made between the executor and Scholle of his claim (which was based on a written guarantee of the deceased that fifty per cent, of the principal and interest of a bond secured by a mortgage on real estate in which the decedent had a three tenths interest, one L. J. P. two tenths interest, one W. three tenths, and Scholle himself two tenths, should be paid, and that he would pay one half of the taxes and assessments on the property), whereby he should withdraw his claim against the estate and allow it to be settled up and the executrix should withdraw the answer interposed by her in an action brought by him to foreclose the said mortgage, and relinquish all interest she had in the mortgaged premises, individually and as executrix and trustee; or as to deed executed and delivered pursuant to the settlement.
    Where a will gives to an executor power to sell real estate as he shall deem expedient and for the best interests of certain legatees, Held, that the power is not well executed by a conveyance to a creditor of the deceased in discharge of the debt due him.
    Where a will devises real estate to the executors thereinafter named in trust, with power to sell, dispose of, and convey at such time and times and in such •manner as to them should seem proper and best for the interest of his estate, and then nominate and appoint three persons executors, Held, under the authority of Argali «. Raynor, 20 Hun 267, and Jordan «. Poillon, 77 2V. Y. 518, that a deed made and executed by one of the three, the other two being in life and not having renounced their executorship and trusteeship, will not pass a title which a purchaser will be compelled to take.
    At Special Term. Before Freedman, J.

      Decided April 9, 1888.
    Action of partition.
    The facts appear in the opinion.

      Alexander B. Johnson, attorney for plaintiff.

      J. Bleecker Miller, attorney for Thomas Lyons.

      Thomas Hooker, attorney for J. Romaine Brown.
   Freedman, J.

This is an action of partition. An interlocutory judgment of partition and sale was entered in this action in May, 1885. As to the premises now in question, the sale took place in December, 1886, under a supplemental decree of this court.

At said sale Mr. Thomas Lyons purchased two lots on the east side of Sixth avenue, forty-nine feet eleven inches north of 139th street, being fifty feet upon the avenue and about 7 5 feet in depth.

At the same sale Mr. Benjamin Fairchild became the bidder for six lots, and paid ten per cent, of the purchase money, and then assigned his bids to J. Romaine Brown, whereupon it was stipulated that Brown should be bound by the printed terms of sale.

Subsequently Mr. Lyons, through his attorney, served upon the referee a notice declining to accept the title and stating several objections to the validity of the title which may be summarized as follows :

(1.) That the deed from William H. Raynor and wife to Lewis J. Phillips, dated November 30, 1872, and recorded Jan. 13, 1875, in liber 1317 of conveyances, at page 102, is void for uncertainty by reason of its omission to specify the amount of interest conveyed.

(2.) That the descendants of William H. Raynor, that is to say his grandchildren, were not made parties to the foreclosure suit brought by Abraham Scholle as plaintiff against Benjamin A. Willis and others as defendants.

(3.) That the executors of William H. Raynor’s will, viz.: William R. Stewart, John H. Morris and Jonathan Edgar were not made parties to such foreclosure suit.

(4.) That the deed executed by Sarah E. Cornish (formerly Sarah E. Raynor) individually and as sole acting executrix of and trustee under the will of William H. Raynor deceased, as party of the first part, to Abraham Scholle, William Scholle and Jacob Scholle, parties of the second part, dated November 21, 1878, and recorded in liber 1477 of conv., p. 171, was void or voidable for want of a consideration and the further reason that there were creditors of William H. Raynor who might show themselves entitled to have it set aside.

(5.) That no record title appears to have existed in Garrett Myer, the predecessor in title of Charles Henry Hall.

(6.) That the premises in question, or a portion of them, were originally below the high water line of the Harlem River.

Mr. Brown, through his attorney, also served a notice declining to accept title and stating objections to the validity of the title which were substantially the same as those urged by Mr. Lyons except that he made no claim that the title to the lots purchased by him was affected by the original line of high water.

Mr. Lyons now moves to be relieved from his bids, which motion is opposed by the< plaintiff, and at the same time the plaintiff moves that Mr. Brown be compelled to take title.

. These motions present questions of the highest importance because they affect the titles of a large number of lots in addition to the titles of the lots directly involved. In view of such importance, I have given to the questions presented, the most careful consideration.

The lots in question are claimed by the plaintiff to have been part of a large tract of land north of 125th street in the city of New York owned and possessed by Charles Henry Hall from about the year 1825 to the time of his death in the year 1852. From the year last mentioned until the year 1872, nothing seems to have been done with the property. In 1872, Benjamin A. Willis formed a syndicate to buy it, and did acquire title to it from the parties having an interest in it. In substance the arrangement was that Abraham Scholle should advance $58,500; that Willis should purchase the property and thereupon should transfer to William H. Ray-nor an equal undivided seven tenths of the property, and that out of these William H. Raynor should convey to Abraham Scholle two tenths, and to Lewis J. Phillips two tenths. To secure the amount to be advanced by Abraham Scholle it was further agreed that Willis should execute and deliver to Phillips and Raynor a bond and mortgage securing the payment of $58,500, and that said bond and mortgage should be assigned by Phillips and Raynor to Scholle. The arrangement was carried out and in pursuance of it the conveyances and the mortgage and the assignment thereof were made, except that William H. Raynor, instead of conveying to Lewis J. Phillips two tenths in terms, executed and delivered to the latter the deed to which the first objection above specified is made. This deed purported to convey all the undivided tenth parts which had been conveyed to Raynor by Willis and described them as seven undivided tenth parts. In point of fact Raynor, after having conveyed two tenths to Abraham Scholle, had only five tenths left which he could convey.

In 1873 Lewis J. Phillips mortgaged his interest in two tenths to John D. Phillips. That mortgage was foreclosed and the title to the interest covered by it transferred to Benjamin A. Willis by referee’s deed dated November 28,1876, and recorded in liber 1400, at page 122. Thus, if the deed by Raynor to Phillips was sufficient to convey at least two tenths, Willis became seized of an equal undivided one half of the property.

Abraham Scholle foreclosed the mortgage transferred to him by Phillips and Raynor, and the title to the property bound by that action became vested in Jacob Scholle by referee’s deed dated April 1, 1880, and recorded in liber 1542, at page 256.

The objection to the deed by William H. Raynor to Lewis J. Phillips cannot, in this case be overcome by a mere reference to the .statute which provides that a conveyance of real estate shall pass all the estate or interest of the grantor, unless it shall appear otherwise by express terms or by necessary implication from the terms of the grant, because the agreement called for a conveyance of two tenths only and because Phillips has made affidavit that the deed was not intended to convey to him the entire or five tenths of the interest of Raynor. It is therefore clear that the deed is at least liable to be reformed in equity at the suit of Raynor’s representatives or heirs at law. This being so, it remains to be seen whether all the interest of Raynor’s representatives and heirs at law has been cut off by the judgment of foreclosure obtained by Abraham Scholle. If it was not cut off by that judgment, some substantial interest remains outstanding which affects the title under consideration. This at once requires an examination of the merits of the second objection above specified.

William H. Raynor died in 1874 leaving a will by which he appointed Sarah E., his wife, as executrix, and three other persons as executors. Of these Sarah E. , alone qualified as executrix. Under this will the grandchildren of William H. Raynor had an interest in the remainder after the happening of certain events.

The plaintiff, on the final hearing of the present motion, conceded that under the decision of Argall v. Raynor, 20 Hun 267, the proceedings in the foreclosure action instituted by Abraham Scholle were defective for the reason that the grandchildren of Eaynor who then were infants, had not been made parties, but he insisted that the defect is immaterial by reason of the execution and delivery by Sarah E. Cornish (formerly Sarah E. Eaynor) of the deed specified in the fourth objection, which is claimed to be a good and sufficient deed, and by reason of the legal effect of certain proceedings before the surrogate.

Upon this branch of the case the following facts appear among others, viz.: On or about October 9, 1876, Sarah E. Eaynor, as executrix of and trustee under the will of William H. Eaynor, deceased, presented to the surrogate’s court a petition for an accounting, and from the schedules filed by her in connection therewith it appeared that Abraham Scholle had presented a claim on his part against Eaynor’s estate for $28,948.18 with interest from November 1, 1875. This claim was classified by the executrix among the uncertain and disputed claims. In point of fact it was based, although the schedule did not show it, upon the written guarantee of Eaynor that fifty per cent, of the principal and interest of the bond and mortgage for $58,500 should be paid and that he would also pay one half of the taxes and assessments. On or about February 8, 1877, Abraham Scholle commenced his action to foreclose the $58,500 mortgage. In the meantime Sarah E. Eaynor had married again, and her name then was Sarah E. Cornish; As such she interposed an answer to the complaint. Thereupon an agreement was made between Scholle and Mrs. Cornish that the former should withdraw his claim against the estate of Eaynor and allow the estate to be settled up, and that in consideration therefor Mrs. Cornish should withdraw her answer and relinquish all interest she had in the mortgaged premises individually and as executrix of and trustee under the will of Raynor. The agreement was carried out and in pursuance thereof Mrs. Cornish executed and delivered to Abraham Scholle, William Scholle and Jacob Scholle the deed dated November 21, 1878. By that deed she conveyed the mortgaged premises and all the estate, right, title, interest, claim and demand whatsoever, both in law and equity, which William H. Raynor had in them in his lifetime and at the time of his decease, and which she had in them by virtue of his will and testament or otherwise.

Thereafter, on or about December 28, 1881, Mrs. Cornish presented to the surrogate a petition for a final accounting, and the accounts and schedules filed in connection therewith showed that'the claim of Scholle had been settled. The precise nature of the settlement was not fully disclosed and no copy of the deed was submitted. The schedules simply showed that the settlement had been made by a conveyance of Raynor’s interest of three tenths in the mortgaged premises.

Under these circumstances, and inasmuch as no previous order had been granted by the surrogate authorizing a sale of Raynor’s real estate on the ground of the insufficiency of the personal estate to pay the debts of the testator, it is quite a serious question whether the infant grandchildren of Raynor, though represented by special guardian, were absolutely concluded as to the settlement by means of thé decree of the surrogate entered upon the accounting and directing the distribution of the surplus.

In Russell v. Russell, 36 N. Y. 581, the decision was to the effect that a power to an executor to sell real estate as he shall deem expedient and for the best interests of certain legatees named, is not well executed by the conveyance to one of the legatees of a portion of the real estate of the testator in payment of a debt due from the testator to the legatee; that the debt is to be discharged by means of the personal estate, and that the real estate can be applied only for that purpose upon an order of the surrogate after the personal estate is exhausted ; that a sale authorized by the will as stated must be one in which judgment and discretion are exercised, and which the executor as trustee believes to be for the interest of the legatees; and that a conveyance in discharge of a debt does not comply with these requisites. It may be argued that that decision does not strictly apply to the case at bar, because in the latter the executrix held not only the power of sale but also the legal title in trust for the purposes of the will. This at once raises the whole question of title under Raynor’s will.

The fifth clause of the will which affects the lots in question, is as follows, viz.: “ Fifthly. I give, devise and bequeath all the rest, residue and remainder of my estate, real and personal, unto my executrix and executors hereinafter named, and the survivors and survivor of them in trust, with power to receive the rents and profits of the same and to sell, dispose of and convey the same at such time or times and in such manner as to them shall seem proper and best for the interest of my estate, and to invest and keep invested such rents and profits and the proceeds of such sale or sales in bonds of the United States of America, or of the city or state of New York, or in first bonds and mortgages upon good and sufficient real estate, and to divide and apply the same and the income thereof as hereinafter directed.” And the last clause of the will is as follows, viz.: Lastly, I hereby nominate, constitute and appoint my said wife Sarah E., executrix, and my friends William R. Stewart, John H. Morris and Jonathan Edgar executors of this my last will and testament, and guardians of the property of my children who may be under the age of twenty-bne years. And I hereby nominate, constitute and appoint my said wife, Sarah E., the guardian of the persons of my said children who may be under the age of twenty-one years. It is my request and wish that my wife shall qualify as executrix, and that at least one of my said friends shall qualify and act with her as executor, and in case of her decease that at least two of my said friends shall qualify and act as executors.”

It is claimed by the purchasers now before the court, that by these provisions of the will, the title to Raynor’s real estate became vested in the persons named as executrix and executors, as trustees, and that such result was accomplished irrespective of the question whether or not they qualified as executrix and executors and notwithstanding the statute contained in 2 R. S. 109, § 55, to the effect that in case any executor shall neglect or refuse to take upon him the execution of the will, all sales made by the executor or executors who shall take upon them the execution of the will, shall be equally valid, as if the other executor had joined therein. And it is further claimed that, in as much as at the time of the execution of the deed by-Mrs. Cornish to Scholle, Jonar than Edgar and John H. Morris were living and had not renounced their executorship and trusteeship, the deed bound neither them nor Raynor’s grandchildren.

A similar claim arising upon the above two clauses of the identical will and raised by other purchasers, was considered by the general term of the supreme court in Argall v. Raynor, 20 Hun 267, and disposed of as follows, viz.: “ Second. A serious question arises under the devises of the will as to the persons in whom the legal title to the land is vested. The fifth clause of the will devises all the real estate of the testator, ‘ unto my executrix and executors hereinafter named, and the survivors and survivor of them, in trust, with power,’ etc. The testator named his wife, Sarah E. Raynor, executrix, and his friends, William R. Stewart, John H. Morris and Jonathan Edgar, executors. Sarah E. Raynor qualified and took out letters as such executrix. Neither of the other persons named has ever qualified as executor. William R. Stewart had died before the action in foreclosure was commenced; John H. Morris and Jonathan Edgar were both then living and neither of them had made any formal renunciation either as executor or trustee. Mrs. Raynor (now Mrs. Cornish) was made a party to the suit as executrix and trustee under the last will and testament of William II. Raynor. Neither Morris nor Edgar were made such parties. None of the children or grandchildren of the testator who are the cestuis que trust named in the will, were made parties. The appellant claims that by force of the will alone the several persons named as executors became trustees and were vested with the trust estate. He cites as authorities for this proposition Dunning v. The Ocean National Bank, 61 N. Y. 497; S. C., 6 Lans 298; Dominick v. Michael, 4 Sandf. 375; and Burritt v. Silliman, 13 N. Y. 96. H the title vested in all the persons named as executors in the will, then all of such persons should have been made parties to the foreclosure, because it may well be asserted hereafter by the cestuis que trust that the making of one of their trustees a party cannot cut off their interest in the trust estate; and they may be yet heard to assert that a joint estate is vested in the trustees by virtue of which they are jointly entitled to redeem the property sold for the benefit of the cestuis que trust notwithstanding the fact Mrs. Cornish was made a party to the action. How these questions should be determined we are not. under the authority of Jordan v. Poillon, above cited, at liberty to decide, because the parties most interested in them are not before us in this action.”

In view of that decision and the doctrine of Jordan v. Poillon, 77 N. Y. 518,1 fail to see how I can reach any other conclusion.

Upon the whole case it therefore sufficiently appears that the title sought to be forced upon the purchasers, so far as it rests upon the sufficiency of the judgment of foreclosure obtained by Abraham Scholle, is not free from reasonable doubt, because neither Jonathan Edgar and John H. Morris as surviving executors and trustees of William H. Raynor deceased, nor the grandchildren of the said testator, were made parties to the action of foreclosure, and because the said Edgar and Morris did not as trustees join in the execution of the deed made by Mrs. Cornish to Scholle. The objecting purchasers had a right to expect that they would acquire a good title, which means a title free from reasonable doubt, and the law presumes that they bid with that object in view. As the plaintiff cannot give such a title, they must be relieved.

The objections already considered are, so far as they have been sustained, so decisive of the motions, that it is unnecessary to express an opinion concerning the others.

The motion of Mr. Lyons to be relieved from his bids must be granted with costs, and the motion of the plaintiff that Mr. Brown be compelled to take title, denied with costs. The orders to be entered should be settled on notice.


author: By the Court.—Dugro, J.

text:
    LOUIS ENGELHORN v. ALEXANDER H. REITLINGER, ET AL.

      Contract in writing, rule excluding parol testimony to vary or add to, applied.—Independent oral agreement collateral to contract in writing, breach of cannot be pleaded as a defence to an action on the writing.— Statute of frauds, rule as to pleading applied.

    The assignor of the plaintiff sold through brokers to defendants, and defendants bought through the same broker from such assignors, certain sulphate of quinine. Defendants refused to accept or pay for the quinine, for the reasons set forth as a defense in their answer to the complaint, which counted on a written agreement of sale and purchase. The answer admitted the written agreement, and alleged that it was entered into by defendants on the express representation and warranty, made at the same time by the vendors, and upon the condition, that the price at which they were then selling and at which they would continue selling sulphate of quinine, was sixty-one cents per ounce, and on the further express warranty and representation, and upon the condition that said vendors would issue a circular to the trade to that effect. It then alleged that on the faith of such representations and warranty and trusting therein, they entered into the agreement counted on in the complaint, which fact was well known to the vendors. It then alleged that the representations and warranty were not true; that the vendors’ then price for sulphate of quinine was not sixty-one cents per ounce, nor did they issue any circular to the trade to that effect, but on the contrary they were then selling said sulphate and continued to sell the same at a price far less than said sum. It then alleged that by reason of said breach of warranty defendants refused to accept said sulphate of quinine. The evidence to support these allegations was the oral testimony of one of the defendants who testified: “ He (the broker) said if you make this contract the seller will issue a circular of the price that the moment you ' make this contract the price will be sixty-one cents, then I said, I will take it.” The broker gave testimony as to his authority to make the statement. The sale note was put in evidence by the plaintiff and read: “Dated New York, February 7th, 1887. Sold, for account Messrs. C. F. Boehringer & Soehne to Messrs. A. H. Reitlinger & Company, fifteen thousand ounces B. & S. "sulphate of quinine in one hundred ounce tins, at fifty-nine cents per ounce, cash ten days from delivery; delivery to be had from a March, 1887, shipment from the factory in Europe, subject to manufacturers’, clauses, and war risks. (Signed) St. John Brothers.”

      Held, That whether the facts presented would have warranted the defendants in claiming the existence of an oral agreement as collateral to the written one, it was unnecessary to determine, as no counterclaim was set up, and the facts were so that if the oral agreement alleged be claimed to be collateral it was not available as a defense.
    That the sale note presented a complete, perfect and certain contract in writing, containing every element of an entire contract, leaving nothing to be supplied, exhausting the final intention of both parties, covering both sides of an entire contract, designed to signify the terms of the contract, and adequate for that purpose, and therefore it could not be varied • or added to by parol evidence.
    That the oral evidence did not warrant the conclusion that the written • agreement was made, not with the intention of making a present contract, but like an escrow to take effect only on condition of the happening of a future event and so be dependent for its existence on a condition precedent.
    That the oral evidence did not bring the case within the principle of Chapin v. Dobson, 78 N. Y. 74.
    That it was unnecessary to consider the point made by plaintiff that the contract sued on had the further protection of the statute of frauds; because among other reasons it did not appear in the pleadings that the statute-was relied on as a defense, the answer not showing that the representation and warranty claimed to have been relied on as a condition were not in writing. The fact that they appeared by the evidence not to be in writing is insufficient.
    Before Sedgwick, Ch. J., and Dugro, J.

      Decided April 2, 1888.
    The court below directed a verdict for plaintiff, in the sum of $2,661. The exceptions taken by defendants were ordered to be heard in the first instance at a general term.
    The facts sufficiently appear in the opinion and the head note.

      Smith & Dougherty, attorneys, and J. Hampton Dougherty, of counsel for plaintiff, on the questions considered in the opinion, argued:
    I. The bought and sold notes constitute a full and complete contract to sell and purchase quinine. “No element is wanting of an entire contract, exhausting the final intentions of both parties,” there is “ no uncertainty in subject matter or in terms, nothing which indicated some missing detail essential to be settled or supplied.” Such a contract falls within the rule which forbids parol evidence to modify any of its terms. Eighmie v. Taylor, 98 N. Y. 288 ; Wilson v. Deen, 74 Ib. 531; Johnson v. Oppenheim, 55 Ib. 280; Reynolds v. Robinson, 37 Hun 561. The facts in all these cases are closely similar to those in the case at bar. The rule of protection embraces all written contracts, whether under seal or not; and excludes all evidence dehors the contract. Bought and sold notes have often been held to form a written contract.
    II. There are only three classes of cases in which it is proper to show by evidence outside of the written instrument that a contemporaneous oral agreement was made which affects the apparent meaning of the writing: 1. Where the writing is manifestly informal and incomplete. 2. Where the oral agreement is a collateral contract consistent with the writing. 3. Where the oral agreement does not affect the terms of the writing, but qualifies its meaning by showing that it was conditional. Jones on Construction of Contracts, § 120. (a) The written contract was manifestly a complete contract of sale. (b.) An oral agreement collateral to the writing would not affect the contract. The contract was to buy 15,000 oz. quinine and defendants must pay therefor. Their only remedy, if the sellers made a collateral contract to advance the price, but broke it, is by action for damages. No damages were pleaded or proved—no counterclaim therefor was alleged in the answer, (c.) The contract when made was to be at once operative as a contract. There was no oral agreement that it was not to be a contract until some contingency occurred:
    III. The present contract has the further protection which the statute of frauds furnishes to contracts of sale. The writing is deemed to express all the terms upon which the sale is made. The memorandum cannot be helped by parol; nor can parol evidence be given to modify the memorandum. Wright v. Weeks, 25 N. Y. 160; Stone v. Browning, 68 Ib. 598; Hill v. Blake, 97 Ib. 216; Williams v. Robinson, 73 Me. 186; Benjamin on Sales, § 206; Jones on Construction of Contracts, § 127.
    IV. Chapin v. Dobson, 78 N. Y. 74, upon which the defendants relied below, is not inconsistent with the rules already enunciated, nor is it an authority for the defendants in their present contention.
    V. The evidence does not establish the claim of the defendants that the agreement for the purchase of .the quinine was made upon condition that the price should be advanced, and a circular of the advance issued. Pym v. Campbell, 6 Ellis & Bl. 370; 27 L. J., Q. B. 277.
    VI. The testimony shows that the defendants accepted the brokers’ warranty or representation in lieu of the sellers’ agreement. What the defendants really insisted upon was not that the price should be raised, but that they should be guaranteed that the price should be raised. The brokers gave them this guarantee.

      Adolph L. Sanger, attorney and of counsel for defendants, on the questions considered in the opinion, argued:
    I. It was proper to introduce in evidence the representations made by the agent as the inducement for the contract, and the letter written by the agent" which accompanied the contract was properly admitted as a part of the contract. Ahern v. Godspeed, 72 N. Y. 108; Bostwick v. R. R. Co., 45 Ib. 712 ; Johnson v. Oppenheim, 55 Ib. 293 ; Remington v. Palmer, 62 Ib. 33-34; Brewers Fire Insurance Co. v. Bunzer, 10 Hun 56; Matter of Commissioners, etc., 52 N. Y. 134; Benton v. Martin, 52 Ib. 570; Chapin v. Dobson, 78 Ib. 79-83; Greenleaf on Ev. §§ 277, 283; Wilson v. Randall, 67 N. Y. 338; Renard v. Sampson, 12 Ib. 566.
    II. The contract was made upon the agent’s representations and was induced thereby, and the evidence shows that the contract would not otherwise have been made. The plaintiff’s assignors were therefore bound to perform their covenant before defendants could be called upon to accept delivery of the goods, inasmuch as defendants’ obligation to perform was dependent and conditioned on the performance by plaintiff’s assignors of their agreement. The plaintiff’s assignors not having complied with the condition could not demand that the defendants should perform their part of the contract. This condition was a substantial part of the consideration, and the impelling element which induced defendants to enter into a agreement. Performance, therefore, by plaintiff’s assignors was a prerequisite to plaintiff’s right of action. 1 Chitty on Contracts, 11 Am. ed. 73 ; 2 Ib. 1082-1084, 1090; Grant v. Johnson, 5 N. Y. 247; Crance v. Knubel, 34 Super. Ct. 455; Portage v. Cole, 1 Wms. Saunders
      310 ; Morris v. Silter, 1 Den. 59 ; Rider v. Pond, 18 Barb. 179; Dey v. Dox, 9 Wend. 129; Mansfield v. N. Y. Central R. R., 102 N. Y. 211; Cross v. Beard, 26 Ib. 85, 88. The learned judge, at trial term, fell into the unintentional error of looking upon plaintiff’s assignors’ undertaking as an independent agreement. Under such a circumstance, if the ageement were independent, the failure of plaintiff’s assignors to perform would have given defendants a right to counterclaim for damages. But there is nothing in this case which shows that this was an independent agreement; and it cannot, therefore, be governed by the rule of law suggested by the court at- the trial. Where, from a consideration of the whole contract, it is clear that the defendants intended to rely on the performance of plaintiff’s assignors’ promise to raise the price and to issue the circular immediately upon the making of the contract, the performance by plaintiff’s assignors of their promise became a condition precedent and dependent. See 2 Benjamin on Sales, 4th Am. ed., §§ 854, 855; Tomkins v. Elliott, 5 Wend. 496; Mansfield v. N. Y. Central R. R., 102 N. Y., 211.
   By the Court.—Dugro, J.

The plaintiff in the action sues as the assignee of Boehringer & Soehne. The action was brought to recover damages from the defendants for an alleged breach of an agreement in writing whereby the firm of Boehringer & Soehne agreed to sell and deliver to the defendants, and the defendants agreed to purchase and accept from said firm, fifteen thousand ounces of quinine of the manufacture of said Boehringer & Soehne, in one hundred ounce tins at fifty-nine cents per ounce, to be paid for in cash ten days from delivery. Delivery to be from a March, 1887, shipment from the factory of the sellers in Europe, subject to manufacturers’ clauses and war risks.

Pursuant to this contract the quinine was shipped and duly tendered to the defendants, but they refused to accept or pay for the goods, for the reason set forth as a defense in their answer in the action, and which is as follows: “ (Admitting the written agreement alleged in the complaint) The defendants allege that said agreement [that above set forth] was entered into by them under and upon the express representation and warranty made at the same time by the duly authorized agents of said Boehringer & Soehne, and upon the condition that the price at which they were then selling and at which they would continue selling the said sulphate of quinine was sixty-one cents per ounce, and upon the further express warranty and representation and upon the condition that the said Boehringer & Soehne would issue a circular to the trade to that effect; that the said contract was entered into by these defendants upon the faith of such representations and warranties, these defendants trusting in such representations and warranties, and not otherwise, and which fact was well known to said Boehringer & Soehne at the time.

“ III. That said representations and warranty so made by the said Boehringer & Soehne were not true. That their price for said sulphate of quinine at time of the making of said contract was not sixty-one cents per ounce, neither did they issue any circular to the trade to that effect, but, on the contrary, the price at which said Boehringer & Soehne were selling the said sulphate of quinine at the time of the making of said contract with defendants and the price at which they continued to sell the same was far less than said sum, and the defendants by reason of said breach of warranty of said Boehringer & Soehne thereupon refused to accept the said sulphate of quinine from said Boehringer & Soehne.”

The oral evidence was in effect (assuming the authority claimed to have been possessed by St. John) that Boehringer & Soehne stated through the broker, St. John, that as soon as the sale of fifteen thousand ounces was made, they would not sell sulphate of. quinine for less than sixty-one cents per ounce and would issue a circular to the trade to that effect.

The defendants duly excepted to the ruling directing a verdict, and also excepted to the denial of their motion that the case be submitted to the jury for them to pass on all the facts in evidence.

Whether the facts presented would have warranted the defendants in claiming the existence of an oral agreement as collateral to the written one, it is unnecessary' to determine, as no counterclaim is set up; and the facts are so that if the oral agreement alleged be claimed to be collateral it is not available as a defense.

The contract in writing contains a definite agreement of sale, it leaves nothing of a complete, perfect and certain agreement to be supplied. On its face no element is wanting of an entire contract exhausting the final intentions of both parties and in this respect it differs from the writing which appears in the case of Chapin v. Dobson, 78 N. Y. 74. The contract must therefore be conclusively presumed to contain the whole contract as made. The writing covers both sides of an entire contract, was designed to signify its terms, was adequate for that purpose and cannot be varied or added to by parol evidence.

It seems from the testimony of William Reitlinger, one of the defendants, that the making of the contract was the consideration on defendants’ part for the oral agreement, for he says, He (the broker) said, If you make this contract the seller will issue a circular of the price that the moment you made this contract the price will be sixty-one cents......And then I said..... I will take it.”

The evidence does not warrant the conclusion that the agreement was executed or made not with the intention of making a present contract, but like an escrow or writing to take effect only on condition of the happening of a future event and so be dependent for its existence upon a condition precedent.

The answer admits that the contract between the parties was in writing, but the defendant claims it was made in reliance upon certain oral representations and inducements made under circumstances similar to those under which the representations and inducements were made by one of the parties in the case of Wilson v. Been, 74 N. Y. 531. The rule as applied and explained in the latter case will serve to show why in the case under consideration oral evidence is incompetent to effect the purpose proposed. That it would be improper in the case under consideration to apply the rule of law deemed pertinent in Chapin v. Dobson [supra) will be clearly perceived by a reading of Eighmie v. Taylor, 98 N. Y 288, and the authorities therein referred to.

I have deemed it unnecessary to consider the point made by the plaintiff that the oral evidence offered would have brought within the statute of frauds and so avoided a writing such as should be deemed in a case like this to express all the terms upon which a contract of sale is made; among other reasons, because it does not appear in the pleadings that the statute is relied upon as a defense. The facts set forth in the answer do not show that the representations and warranty claimed to have been relied on as a condition were not in writing. From the evidence it seems they were not, but this is not sufficient. If the' statute is relied upon as a defense it must be apparent from the pleadings that this is so. The Code of Civil Procedure provides that the answer must, among other things, contain a statement of any new matter constituting a defense in ordinary and concise language. In the pleadings no statement appears that the representation and warranty were by parol, and no facts are stated from which it can be inferred that the statute was intended as a defense. Marston v. Swett, 66 N. Y 206.

The exceptions of defendants are overruled and judgment for plaintiff, upon the verdict, with costs.

Sedgwick, Ch. J., concurred.