author: Moncrief, J. Bosworth, Ch. J.

text:
    Alexander Gillespie et al. plaintiffs and appellants, vs. Alexander Carpenter, defendant and respondent.
    The seller by weight of merchandize in bulk, who has received its price accord- ' ing to the weight specified in weigher’s certificates furnished by him to the buyer, is estopped from disputing the accuracy of such certificates and recovering for any excess of weight of such merchandize beyond that specified therein, after such buyer, relying on the accuracy of such certificates, has resold such merchandize by weight and received its price according to the weight therein mentioned.
    (Before BoSWOBTH, Oh. J. and Mqkcbief and White, JJ.)
    Heard May 14,1863;
    decided May 30, 1863.
    The plaintiffs, Alexander Gillespie, James Gillespie, John Dean, and James Dean, Jr. claimed, in the complaint in this action, payment for a quantity of wheat sold and delivered under several contracts specified therein, alleged to be not fully paid for by the defendant, in addition to one half of the expense of weighing. The answer denied that any more wheat was delivered than was paid for by the defendant, and that the plaintiffs paid the weigher’s fees claimed in the complaint; and averred that the defendant had shipped all the wheat to his principal, in France, as, of and for, the quantity paid for by the defendant.
    The cause came on to be tried before Chief Justice Bosworth and a jury, on the 26th day of Movember, 1862. The facts of the case are stated in the opinion of Moncriee, J. The court dismissed the complaint, when the plaintiff rested, on the defendant’s motion, and ordered the exceptions taken - to be heard in the first instance at the general term.

      J. S. McCullough, for the plaintiffs, appellants.
    I. The plaintiffs were not estopped from showing, at the trial, that they had delivered to the defendant the amount of wheat claimed in the complaint to have been unpaid for by the defendant.
    I. Estoppels are regarded with strictness. (1 Greenl. Ev.
      § 22. Leicester v. Rehoboth, 4 Mass. R. 180. Bridgewater v. Dartmouth, Id. 273. Owen v. Bartholomew, 9 Pick. 520.)
    2. The doctrine of estoppel tA pais has the following distinctive and necessary properties, none of which are presented by the present cause, to wit: (1.) Fraud. (Hill v. Epley, 31 Penn. R. 331.) (2.) Equal means and knowledge. (Parker v. Chambers, 24 Georgia R. 518.) (3.) Bad faith. (Dixfield v. Newton, 41 Maine R. 221. Taylor v. Ely, 25 Conn. R. 250.) (4.) Knowledge of one’s rights, and an intention to deceive. McAfferty v. Conover, 7 Ohio R. 99. Dyer v. Cady, 20 Conn. R. 563. Hendrickson’s Appeal, 24 Penn. R. 393. Spangler’s Appeal, Id. 424. Wesley v. Sargent, 38 Maine Rep. 315. McGar v. Williams, 26 Ala. R. 469. Baldwin v. Richman, 1 Stock. N. J. Rep. 394. Cicotte v. Gagnier, 2 Mich. R. 381. Pierce v. Andrews, 6 Cush. 4. Cambridge Inst. v. Littlefield, Id. 210. Lawrence v. Brown, 1 Seld. 401. (5.) Mutuality. (Dempsey v. Tylee, 3 Duer, 73. Lansing v. Montgomery, 2 John. 382. Bentley v. Cleaveland, 22 Ala. R. 814. Wright v. Hazen, 24 Verm. R. 143. Cohoes Co. v. GOss, 13 Barb. 137. Edmondson v. Montague, 14 Ala. Rep. 370. Averill v. Wilson, 4 Barb. 180. Bolling v. Mayor, 3 Rand. 563.) (6.) Absence of equal opportunity in both parties. (Casey v. Inloes, 1 Gill Md. R. 430. Brewer v. Boston and Worc. R. R. Co., 5 Metc. 483. Commonwealth v. Moltz, 10 Barr Penn. R. 527. Issac v. Williams, 3 Gill. 278. Gamble v. Gamble, 11 Ala. Rep. 966. Steele v. Putney, 3 Shep. Maine R. 327.)
    3. The party setting up the estoppel must not only have acted, but himself have been wrongly misled by the plaintiff. (Darlington’s Appropriations, 13 Penn. Rep. 430. Copeland v. Copeland, 28 Maine Rep. 525. Weisser v. Dennison, 6. Seld. 83.)
    4. The case differs in no material respect from the ordinary case of sale of goods delivered, where one or more of the articles has been omitted from the bill of parcels, except that in the present case the wheat was in bulk and was to have been measured; it was consequently an act of prudence, as .well as a duty, for the defendant to have measured the wheat, whether acting for himself or for another, and in not doing so he has been guilty of gross negligence. It can not be urged, in answer to this, that the plaintiffs’ recovery of the defendant in this cause would leave the defendant without a remedy, for the defendant can recover of his vendee upon the same grounds that we recover from him.
    II. The court erred in withdrawing from the jury the material question of fact, whether any receipt or representation was made in regard to the identical surplus wheat for the payment of which this action was brought. (Marshall v. Pierce, 12 N. H. Rep. 131.)
    1. The defendant waived the estoppel by the tailing issue upon the quantity of wheat delivered, even if an estoppel had otherwise been worked. (Bartholomew v. Candee, 14 Pick. Rep. 171.)
    2. Nor can the defendant escape liability by merely, at the trial, disclosing a principal whose name was unknown to the plaintiffs at the time of the transaction, as well as even the fact of any agency. (Ford v. Williams, 21 How. U. S. Rep. 289. McClellan v. Parker, 27 Mis. Rep. 162.) The effect of such disclosure at any time is not to exonerate the agent, but to give the plaintiffs an election to pursue either the party who dealt with them, or the principal so disclosed. (Magee v. Atkinson, 2 Mees. & Wels. 441. Jones v. Littledale, 6 Adol. & Ellis, 468. Mills v. Hunt, 20 Wend. 431. Thompson v. Davenport, 9 Barn. & Cres. 78. Taintor v. Prendergast, 3 Hill, 72. Story’s Agency, § 269. 1 Am. Lead. Cas. ed. of 1847, p. 455.)
    3. Nor does it make any difference that it is known to the other party, that the occupation of his contractor is that of an auctioneer or broker, employed in selling property as the agent of others. (Mills v. Hunt, 20 Wend. 431.)

      E. Randolph Robinson, for the defendant, respondent.
    The plaintiffs were estopped from showing any error in the weigher’s certificates and the receipts furnished by themselves. (Greenl. Ep. §§ 207, 208. Wyatt v. The Marquis of Hertford,
      3 East, 147. Cheever v. Smith, 15 John. 276. Davis v. Allen, 3 Comst. 171. Union Bank v. Sollee, 2 Strob. S. Ca. Rep. 407.) mmm
   Moncrief, J.

The sole question to be considered in this case is, whether upon the evidence in the cause, a verdict in favor of the plaintiffs could be upheld. If such a verdict would be set aside, then there was no error in dismissing the complaint, and the exceptions must be held to be. untenable.

The complaint, in' substance, is that on or about the 23d day of December, 1853, the plaintiffs bargained and sold to said defendant, at his request, at said city, for cash, a quantity of Canada wheat in store, to wit, about six thousand three hundred bushels, at and for the price of $1.65 per bushel, the number of bushels to be ascertained by weight. That on or about the 27th day of December, the plaintiffs bargained and sold to said defendant, at his request, at said city, for cash, a quantity of Canada wheat in store, to wit, about ten thousand four hundred and eleven bushels, at and for the price of $1.75 , per bushel, the number of bushels to be ascertained by weight. That said wheat was weighed and the number of bushels thereby ascertained, and. the iveigher’s certificate thereof thereupon delivered to said defendant, &c. That certain payments on account of said two purchases were made on the 7th, 11th and 12th days of January, 1854; that there is still due and owing to said plaintiffs, from said defendant, the balance of $273.13, with interest from 12th January, 1854, &c.

The answer denies the quantity of wheat delivered as alleged in the complaint; avers the payments, as specified therein, and that the sum paid on the 12th January, 1854; was in full payment of all the wheat ever before that time purchased of the plaintiffs by the defendant. The defendant further alleges that the amount of said payments was computed and adjusted between the defendant and plaintiffs, upon weigher’s certificates of the weight and quantity of said wheat, furnished by the plaintiffs, to the defendant, shortly before such payments were made, and the defendant paid to said plaintiffs the full amount which, appeared to be due from him to them by said certificates, &c. And further, that all said wheat was shipped by the defendant to France, and invoiced by him and sold by him, in France, at the amount, as to quantity, stated in said certificates. '

The action appears to have been commenced in September, 1856. The weighers testified that they weighed the wheat in question and sent return thereof to the plaintiffs, who never claimed to them that there was error. It was admitted “ that the plaintiffs had the wheat weighed, on its delivery to the defendant, and before the 12th day of January, 1854, sent to the defendant a bill, with the weigher’s certificate annexed, by both of which certificates and bill it appeared that the quantity delivered to the defendant was as follows : Under sale of December 23, 6225fo bushels. Under sale of December 27, 10,278 bushels. And the whole amount of the bill, at the price of $1.65 a bushel for the first mentioned parcel, and $1.75 for the second mentioned parcel, was (including therein one half of the expenses of weighing the same) $28,302.62. Thereupon the defendant paid the plaintiffs, on account of and in settlement of the bill, the following amounts at the following dates: •

January 7, 1854, -.........$12,000 00
January 11, 1854, - -- -- -- -- - 9,000 00
January 11, 1854, - -- -- -- -- 5,000 00
January 12, 1854, - -- -- -- -- - 2,302 62

And on the occasion of the last payment the plaintiffs delivered to the defendant a receipt, of.which the following is a copy :

‘New York, 12th January, 1854.
Received from A. Carpentier, twenty-three hundred two dollars, balance in full purchase -of wheat, as per acct.
Gillespie, Dean & Oo.
Per G. M. Clebburn/

The defendant was a commission merchant, and had bought-the wheat on an order from France. As soon as the defendant bought, he shipped it to France, drew bills against the shipments and settled with his correspondent in France, and according to the measurements in the weigher’s certificates, and plaintiffs’ bill delivered to the defendant by the plaintiffs, receiving payment only for the amount therein stated. It was not until after all this had happened, that the plaintiffs claimed that there was an error, or that the defendant heard of the alleged error.”

The question of law arises, upon this state of facts, whether the plaintiffs are estopped from claiming that in point of fact the second lot of wheat weighed “ Ten thousand three hundred and ninety-two bushels,” as alleged in the complaint, instead of “ Ten thousand two hundred and seventy-eight bushels,” as stated in the weigher’s certificate, as returned to the defendant by the plaintiffs, as per their account rendered as aforesaid ?”

Admissions, whether of law or of fact, which have been acted upon by others, are conclusive against the party making them, in all cases between him and the person whose conduct' he has thus influenced. (1 Greenl. Ev. § 207.) It makes no difference in the operation of this rule, whether the thing admitted be true or false, it being the fact that it has been acted upon that renders it conclusive. (Id. § 208.)

Judge Bronson, approving of the decision in Welland Canal Co. v. Hathaway, (8 Wend. 483,) in his dissenting opinion in Dezell v. Odell, (3 Hill, 220,) in discussing the question of estoppel, says: “ Before the party is concluded, it must appear, 1. That he has made an admission which is clearly inconsistent with the evidence he proposes to give, or the title or claim which he proposes to set up. 2. That the other party has acted upon the admission; and 3. That he will be injured by allowing the truth of the admission to be disproved.” The authorities upon this point are numerous, and all speak the same language. (Frost v. The Saratoga, Mut. Ins. Co., 5 Denio, 154, and cases cited at page 158.)

The number of bushels of wheat was, by the agreement of the parties to this action, “to be ascertained by weightthe plaintiffs allege as a material averment in their complaint that the wheat was weighed and the number of bushels thereby ascertained, and the weigher’s certificate thereupon delivered to said defendant.” These returns of weight were so delivered by the plaintiff. It is clearly inconsistent, now, to set up that the weight was in excess of what those certificates exhibited. The defendant acted upon the supposed correctness of the certificates in making his payments on account of his purchases ; in making the payment of the 12th January, 1854, which the plaintiffs received as “balance in full purchase of wheat as per ac’t,” which they thus again repeated was without error; in the shipment of the wheat to France, drawing bills against the shipments and settling with his correspondent in France, relying upon the measurements in the weigher’s certificates and the bill of the plaintiffs : and in receiving payment only for the quantity stated in those returns. The defendant, assuming it to be true that a greater number of bushels of wheat was actually delivered to him, than the certificates and' the plaintiffs’ account specified, must necessarily suffer by permitting the plaintiffs now to assert the claim (Cheever v. Smith, 15 John. 276.) They are thereby deprived of the opportunity of establishing the true measurement and of disputing the truth of their assertion in January, 1854. The defendant is left for two years with its silent indorsement of the certificates being correct; he has drawn upon his principal upon that basis and a settlement has been made. It seems quite clear, that good conscience requires that the- plaintiffs should not, under such circumstances, be permitted to speak in derogation of their claim as made in 1854, and acquiesced in for two years subsequently.

The complaint was therefore properly dismissed, and judgment must be entered upon the verdict for the defendant, with costs.

Bosworth, Ch. J.

The evidence relied upon as a bar to the action, was admitted under a written stipulation that it might be read. There is nothing in the other evidence tending to repel the inferences and conclusions partly deducible from it. There is no question in regard to the pleadings.

The substance of the evidence is, that "the plaintiffs furnished written and official certificates of the quantity of wheat delivered; that the defendant has not only paid in full for the quantity thus certified, (which fact alone would not be a defense,) but relying on the accuracy of those certificates he has sold the wheat as being the quantity thus certified and accepted payment accordingly; and has done this in ignorance of the alleged mistake, or in other words relying on the accuracy of these certificates.

He has been induced thereby to change his position, and it will be an injury to him if the plaintiffs are now permitted to contradict the truth of those written statements, which they furnished, and furnished as a basis for the defendant’s future action.

The admission or certificate, is clearly inconsistent with the fact sought to be proved. The defendant has acted on the admission or certificate, by selling the wheat as being of the quantity certified. And he will be injured by allowing the truth of the admission or certificate to be disproved.

• These elements satisfy the conditions of an estoppel in pais. (Dezell v. Odell, 3 Hill, 222. Cheever v. Smith, 15 John. 276, cited with approbation in Davis v. Allen, 3 Comst. 170, 171.)

These certificates were furnished with the expectation that the defendant would rely upon their accuracy, and forbear to have the wheat weighed for his own safety or future protection.

Whether the plaintiffs did or did not know that the defendant bought the wheat to be shipped to France, I do not consider very material. They must have supposed it was bought to be resold, and that if it could be sold as an entirety lot, it would naturally be sold, relying as to quantity upon the accuracy of the certificates.

I think the plaintiffs' are concluded. (See also, Kingsley v. Vernon, 4 Sandf. 361.)

White, J. concurred.

Judgment affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    Thomas B. Oakley, plaintiff and appellant, vs. William S. Sears, defendant and respondent.
    1. Evidence of the admission by one party to an action of a fact or occurrence, material to the issues therein, and made before the trial, in regard to which his testimony on such trial conflicted with that of the adverse party, but not known or discovered or likely to be, by the latter, before such trial, is sufficiently newly discovered evidence, to require the granting of a new trial.
    2. Such evidence, not being directly of knowledge of the fact or occurrence admitted, but merely of an admission tending to prove it, is not cumulative, being of a different kind and occurrence from that actually introduced on the trial, and entirely independent.
    3. Although proo^ of such admission might detract from the reliability of the ^testimony of the party making it, it might do so as well oh the ground of want of memory as of veracity, and therefore does not necessarily impeach the character of the witness. , ■
    4. So held, where^the action was on a bank check, against the drawer thereof; and the point at issue was whether the plaintiff took it with knowledge that it had been originally delivered to a third person, with the understanding that it should only be paid out of funds to be provided by the latter.
    (Before Boswobth, Oh. J. and Mohcbiee and White, JJ.)
    Heard May 16,1863;
    decided May 30, 1863.
    This was an appeal by the plaintiff from an order made by Mr. Justice Barboub, in March, 1863, granting a new trial. The action was tried originally February 3, 1863, before him and a jury, and a verdict rendered for the plaintiff. A case was made by the defendant, upon which, as well as upon affidavits, he moved at a special term for a new trial, upon the ground of newly discovered evidence. The motion having been granted, the plaintiff appealed from the order granting such new trial.
    The action was brought upon a bank check drawn by the defendant to the order of the plaintiff. The defense was that a previous check in renewal of which this one was given, was made at the request of one White, and delivered to him, payable to plaintiff’s order, with the understanding between the defendant and White, that the check was not to be paid until White gave the defendant funds to meet it. That such first check was given hy the defendant to White for the purpose of enabling the latter to borrow money of the plaintiff. That the check in suit was given on the surrender of the original check, upon similar conditions, and that White never gave any funds to the defendant to meet it.
    The plaintiff being examined as a witness in his own behalf, testified that he paid $12,000 in money to White for the original check. The defendant being examined as a witness in his own behalf, testified that the original check was given under the circumstances set up in his defense, and that some time after its date, the plaintiff called upon him one day at his office, when the following conversation took place. The plaintiff said “the check (this first check,) has not been paid.” Said I, “You know the arrangement. That you are not to have the money until White puts funds into my hands. Whenever he puts it into my hands you shall have it.” Said he, “do you expect it soon ?” I said “ Mr. White said it was coming soon, and whenever it ■ comes, you will get it.” The plaintiff being recalled and examined on his own behalf, testified that prior to taking the original check from Mr. White, the defendant, as he told the plaintiff, held in his possession a guaranty for the payment of the check. Before the plaintiff, took the check he wanted to know whether the check was good; whether the defendant had a valuable consideration for it. The latter stated, that Mr. White was his client with a lawsuit pending, in which a large amount of money had to be put up in court. He had collateral security with which he could pay by twenty-four hours’ notice, and he would, and he (the plaintiff,) accepted the check upon those remarks, from the defendant, knowing, as he said, he had security in his posession. ' The plaintiff held the original check and notified the defendant by letter, and gave him the twenty four hours’ notice that he required it paid: To extend the time to enable Mr. White to consummate his matters, or the defendant his lawyer, the second check was given. The plaintiff had no conversation with him about the second check.”
    The plaintiff had a verdict.

      The substance of the newly discovered, evidence upon which the defendant moved, is stated in the opinion of the court.

      George R. Thompson, for the plaintiff, appellant.
    No error, so far as this appeal is concerned, is claimed to have occurred upon the trial. It was error for the court at special term to grant a new trial on the case. The sole question is whether the court below was right in granting a neto trial on the ground of newly discovered evidence.

    I. No newly discovered evidence was revealed upon the motion sufficient to sustain the order. In respect to granting new trials on the ground of newly discovered testimony, the following principles are well settled,- viz: 1. The testimony must have been discovered since the verdict. 2. It must have been such as could not have been attained with reasonable diligence in the former trial. 3. It must be material to the issue. 4. It must go to the merits of the case and not to impeach the character of a former witness. 5. It must not be cumulative. (People v. Superior Court, 10 Wend. 285. Porter v. Talcott, 1 Cowen, 359.)
    II. The order granting the new trial in this case violates several of these rules. 1. The evidence could have been obtained at the trial by the defendant with reasonable diligence. The case ought to be free from laches. (Williams v. Baldwin, 18 John. 489. Hollingsworth v. Napier, 3 Caines, 182. Kendrick v. Delafield, 2 id. 67. People v. Marks, 10 How. Pr. 261. Leavy v. Roberts, 8 Abb. Pr. 310.) 2. The evidence, if obtained, is not material to the issue, and would not have been admitted on trial. The check is dated October 25, 1860, and is payable October 20,1860. . The statement alleged to have been made by the plaintiff to Parsons, was not made until November, and merely shows that the plaintiff knew at that time how Sears came to give the check. There is not a particle of evidence that he knew any thing about it when he parted with his money on the strength of the check—• what he discovered afterwards amounts to nothing. 3. The proposed evidence, if admitted, would tend to impeach the plaintiff. Oakley swears he never knew of any such arrangement as that testified to by Sears. The proposed evidence directly contradicts that statement. When the action is between the original parties, a new trial will not be granted to admit proof of admissions of a plaintiff as newly discovered evidence. (Guyot v. Butts, 4 Wend. 579.) 4. As to what is impeaching evidence, see Brown v. Hoyt, (3 John. 255; Shumway v. Fowler, (4 id. 425.) Harrington v. Bigelow, (2 Denio, 109;) Meakim v. Anderson, (11 Barb. 215;) Beach v. Tooker, (10 How. Pr. 297.) 5. The proposed evidence establishes no new fact, (a.) It merely goes to disprove, if evidence at all, what has already been sworn to by Oakley. A new trial will not be granted by means of the discovery of such evidence. (Halsey v. Watson, 1 Oai. 24; S. G. Gol. & Gai. Gas. 160.) (b.) The evidence discovered is cumulative. If newly discovered evidence relates to any fact proved or controverted, whether bearing upon" the issue directly or collaterally it is cumulative. (Leavy v. Roberts, 8 Abb. Pr. 310. Brisbane v. Adams, 1 Sand. 195.)
    The evidence is to a point testified to by Sears, and denied by Oakley. It is strictly cumulative, because it goes to show the same fact exactly. (See Adams v. Bush, 23 How. Pr. 262.)

      L. S. Chatfield, for the defendant, respondent.
    I. What is cumulative evidence is not very well settled, but the leading distinction is that it must not be of the same hind to establish the same fact, as in 4 Wend. 579, where the new evidence is direct, and the former was circumstantial, to prove the same fact. (Graham’s Pr. 630.) Such evidence is not of the same kind or character. One is direct, the other is circumstantial. (Seeley v. Chittenden, 4 How. Pr. 264. 10 Wend. 285. Porter v. Talcott, 1 Cowen, 381. Simmons v. Fay, 1 E. D. Smith, 107. Sargent v.-, 5 Cowen, 106. 10 Barb. 307. Guyot v. Butts, 4 Wend. 579. Platt v. Munroe, 34 Barb. 297.)
    II. When parties are the only witnesses, if evidence other than that of the parties can be obtained, it is certainly desirable that it should be obtained, and this remedy should be most liberally applied.
    III. The gravamen of these motions is the furtherance of justice, and to ascertain the real truth. It is purely a discretionary motion, governed so far as it may be by precedents, (Platt v. Munroe, 34 Barb. 297,) and it is submitted that when a Hew trial is granted, the order granting is not an appealable order. (10 Barb. 303.)
   By the Court, Bosworth, Ch. J.

The plaintiff and the defendant were the only witnesses as to the interviews between themselves, and what was then said between them; or as to interviews between thém and White when the three were together; Their testimony is in direct conflict throughout. The suit is upon a check made by the defendant. The judge charged that “if Mr. Sears is to believed, it (the check) was delivered to White to be used in a certain manner and for a certain purpose. It was delivered with the understanding that it was not to be paid by Mr. Sears, the maker of it, except out of the funds which should come into his hands belonging to White. If you believe that statement of Mr. Sears, the defendant is entitled to your verdict.”

Assuming that instruction to be correct, as perhaps we must for the purposes of appeal, (Tappan v. Butler, 7 Bosw. 487 ; Bunten v. The Oriental Mut. Ins. Co., 4 id. 255;) but without expressing any opinion as to its accuracy, it is quite clear, on this assumption, that the newly discovered evidence is material. Evidence of the plaintiff’s declarations, that he knew when he received the check, that it “ was a loaned check without any consideration being paid to the said Sears for it,” would naturally lead the jury to believe Mr. Sears’ statement as to the origin of the check and the use it was to serve ; as his testimony was in no way impaired, except by the contradiction by the plaintiff, in testifying to what took place between him and Mr. Sears before the original check was accepted by the plaintiff. The defendant explicitly denied that he knew or conversed with the plaintiff before he received the original check. But for the testimony given hy the plaintiff as to an interview between himself and the defendant, before the plaintiff received the original check, to the effect that Sears told him “he had collateral security-with which he could pay by 24 hour’s notice, and he wouldthe defendant, under the charge made, for aught we can perceive, should have had a verdict in his favor.

Proof, by the testimony of third persons, that the plaintiff knew or had notice when he took the original check, .that it was made without consideration, and as a memorandum check, and not to be paid or demanded until White put Sears in funds to pay with, would he proof of facts which, with Sears’ testimony as to the origin of the check, if unimpeached, would entitle him to a verdict. The circumstance that proof of such facts would tend to discredit the plaintiff, does not convert the evidence into mere impeaching evidence. It. is nevertheless as truly direct and pertinent evidence, to the .merits, as if the plaintiff had not testified to any conversation between himself and Sears before taking the original check.

Declarations of the plaintiff; that he knew the check was so made, and was to he so used, is competent evidence to establish the same fact, and is none the less evidence in chief, because it may also tend to impeach.

It is not cumulative, merely. The defendant did not offer any evidence, nor testify himself, either as to any declarations of the plaintiff to Parsons on the subject, nor as to any notice to, or knowledge of, the plaintiff-at the time he took the original check, as to its origin and the use to be made of it, except in so far as the alleged conversation prior to giving the second check would tend to show he had such knowledge. The plaintiff denies that any such conversation took place.

The newly discovered evidence is direct and independent testimony, tending to show notice to the plaintiff, of facts which, if communicated and existing, might prevent his recovery. It is not to a point upon which any testimony was directly given or offered hy the defendant, at the trial. If his testimony has' any claims to fairness, it is to a matter- which he had no right to expect would he material. Eor if the check was made as he swears it was, and was transferred as collateral to a precedent debt, there could be no recovery.

And if it be true, as the plaintiff swears, that he paid $12,000 cash for the check, he will of course recover if he took it in good faith, and without notice that it was fraudulently diverted from the purpose for which it was made. But if he had the notice which Parsons’ affidavit tends to show he had, he may not be able to recover.

What Mr. Parsons’ testimony may be, we can only infer from his affidvavit. We understood it to import the making of a declaration, to him, by the plaintiff, that he knew when he took the original check, what he represents the plaintiff to have stated that he knew.

Simmons v. Fay, (1 E. D. Smith, 107,) and the cases there cited, show that the newly discovered evidence can not be regarded as merely cumulative or impeaching testimony.

The order should be affirmed.


text:
    Justus S. Redfield, plaintiff and respondent, vs. William J. Widdleton, defendant and appellant.
    1. A party, who, under an agreement between himself and the plaintiff to publish books jointly, whereby the latter was to contribute contracts with authors and receive at first a salary and afterwards become a partner in the business,, obtains from the plaintiff the stereotype plates of certain books, the right of publishing which belonged to the latter; and attempts to publish hooks therefrom, but refuses to perform the rest of such agreement, may be compelled to deliver up such books and plates and account for any profits therefrom to the plaintiff.
    2. The former decision in this case, (Medjield v. Middleton, 7 JBosw. G19,) distinguished and explained.
    (Before Boswobth, Ch. J. and Moncbiee and White, JJ.)
    Heard May 16,1863;
    decided June 27, 1863.
    This was au appeal from au order overruling a demurrer to an amended complaint. A former decision upon the original complaint is reported in 7 Bosworth, 649, sub nomine Bedfield v. Middleton. The plaintiff subsequently served an amended complaint, the allegations of which are sufficiently stated in the opinions.
    The cause was heard upon the demurrer before Mr. Justice White, at a special term, in December, 1862, who sustained the complaint, delivering the following opinion:
    White, J. The defendant demurs to the amended complaint in this action on the ground that it does not set forth facts sufficient to constitute a cause of action.
    All the statements of the complaint are to be taken as true, and they are in substance these: The plaintiff had formerly carried on the business of publishing, and had mortgaged his stock and material in that business to Bangs Bro. & Co., who took possession of it under the mortgage and placed it in the hands of a trustee for sale. During this condition of things, the defendant and plaintiff made an oral agreement in January, 1860, by the terms of which, the defendant was to carry on the business of publishing as successor of the plaintiff, so soon as he (defendant) could purchase said stock and material; the plaintiff was to contribute to' the business his contracts with authors, his influence with them and others, Ms experience and knowledge as a publisher, and the good will generally of the business formerly carried on by him; he was also to give his time and personal attendance to the business; and for this he was to receive a salary, the amount of which was to be determined at a future time, and on January 1st, 1864, he, or Ms appointee, was to receive from the defendant, and become absolute owner of one half of the then business, with its accumulated stock and assets of every Mnd, subject however to one half of the then liabilities of the concern. From January to June, 1860, the plaintiff received from England from R. 0. Trench, advance sheets of two of Ms, Trench's, works for the purpose of having an American edition of each issued simultaneously with the British publication, and under an agreement with the plaintiff and Trench, that the plaintiff should stereotype and publish the work, and that Trench should receive ten per cent of the retail price of the books, and the plaintiff have all the remainder, with the stereotype plates. The plaintiff ordered the stereotype plates to be made in his, the plaintiff’s name, and upon his own credit.
    About the time when the stereotype plates were completed, the defendant effected the purchase of the old stock and material formerly belonging to the plaintiff, and entered upon the publishing business as successor of the plaintiff; and the plaintiff thereupon, in pursuance of, and relying upon the good faith of the defendant, and the agreement between them, permitted the defendant to take a bill of sale of the stereotype plates from the founder, and to give his note to the founder for .their cost, being $445.
    The defendant immediately caused an edition of each work .to be printed, and advertised them for publication by himself, as successor of the plaintiff. The plaintiff then requested the defendant to have the oral agreement between them reduced to writing, but he refused to do so, and repudiated the agreement in all .its parts, stating that he would not fulfill any stipulation of it, except that relating to the payment of a salary to the plaintiff, and denied that the plaintiff or Trench had any right, title, or interest in or to said plates, or editions or the profits thereof. The share of the business and its assets which the plaintiff was to have in January, 1864, was, to him, the most valuable of the consideration of said agreement. The plaintiff could, and would have paid for the stereotype plates when they were completed, if it, had not been for his confidence in the defendant’s good faith, and his reliance upon the agreement between them. ■
    The plaintiff, upon "this repudiation by the defendant of their contract, obtained possession of the defendant’s note given by him for the plates, and tendered it to the defendant, and also offered to reimburse him all the expenses he had incurred about said stereotype plates and the printing of said works, and offered to indemnify him fully against any liabilities he had incurred in the business ; and he demanded from the defendant the advance sheets and plates and the printed books. With this demand the defendant refused to comply.
    The plaintiff now brings this suit, and asks judgment that the defendant be required to deliver the plates and books to him, upon his reimbursing the defendant all his expenses, and fully indemnifying him against all liabilities upon account of said plates or works. He asks also for an account of any sales made of the books, and that the proceeds be paid over to him by the defendant; he also alleges that the defendant has little or no property, and is pecuniarily irresponsible, and that the works referred to are valuable and will find a ready and profitable sale: and he further avers that he has tendered performance, and is ready, fully, to perform the contract upon his part.
    I think these facts constitute a sufficient cause of action. They allege, in effect, that the defendant, an insolvent, under the pretext of forming a regular, permanent business connection with the plaintiff, of considerable value to the plaintiff, obtained from him, as part of his contribution to the proposed joint undertaking, the privilege of advance sheets and means of publishing two works of much profit f o the publisher, and having obtained them, he published the works and refused to form the connection, or quasi partnership, upon the promise of forming which, he obtained from the plaintiff the property and interests in question. This is so fraudulent upon its face, that so long as the property wrongfully acquired existed, and was in its nature capable of recaption and delivery, I can see no reason why it could not be forthwith retaken by the plaintiff in an action of replevin.
    But as the property or rights acquired by the defendant in this case have undergone a change in their conditions, or been incorporated with other rights or interests since the plaintiff parted.'with their control, the present application to the equitable powers of the court is the proper form of proceeding, and the plaintiff should have all the relief which the power of the court can give.
    The fact that the contract was not in wilting, and therefore void, as being within the statute of frauds, does not apply here; because the action is not brought to enforce the performance of any contract, but simply upon the averment that the defendant, under a false promise, or pretense, that he would "make a certain contract with the plaintiff, obtained the plaintiff’s property, and now, while refusing to, and declaring that he will not fulfill that false promise, fraudulently retains and uses the property and interests which he had acquired by-means of making it, and refuses to return it, or to account respecting it, although requested to do so by the plaintiff.
    The suggestion that the plaintiff should not sue the defendant until January, 1864, but should continue to serve him in the meanwhile, and allow him to enjoy the interest which the plaintiff had contributed to the business, and take the risk of a recovery against him at that time for his breach of contract, is neither sound "nor reasonable. The plaintiff could be no more bound to go on" and give his time and services and means to the defendant for four years, when the defendant notified him beforehand, that he, defendant, would only pay him half price, or no price at all, for such time and services, and means, than a merchant would be bound to continue to deliver merchandise upon a contract running for four years, to an insolvent man, who, upon receipt of the first parcel, should refuse to pay for it, and should declare that he never would pay any thing, or, at best, but a very small fraction of the value of the contract price of whatever -the merchant might thereafter deliver to him. Such a frank, freebooting purchase, would receive but slight comfort or encouragement from any court of justice, whose process the despoiled merchant might demand for the recovery, in specie, of the first parcel which his unprofitable customer had succeeded in fraudulently extracting from him.
    I take this view of the case only upon the assumption which a demurrer always requires, that all the material allegations of the pleading demurred to are true.
    Upon an answer taking issue upon those allegations, the case may prove to be a very different one. •
    But as it stands upon the demurrer, I must order judgment for the plaintiff, with costs ; "but with liberty to the defendant to answer in ten days after notice of the order to be entered upon this decision, upon the payment of the costs of the demurrer to be taxed.
    From the order entered on this decision the defendant now appealed.

      F. N. Bangs, for the defendant, appellant.

      R. Wynkoop, for the plaintiff, respondent.
    I. The oral agreement was void under the statute of frauds, because not to be performed within one year from the making thereof. Being void, (unless reduced to writing, which the defendant refused,) there would be no force in the suggestion that the plaintiff should have waited till January 1, 1864. He could not then enforce specific performance; nor recover damages for breach of contract.
    ■ II. This is, in fact, an action to recover property, (or its proceeds,) which has been obtained by the defendant from the plaintiff, by false pretences, without consideration, and by a promise which the defendant now repudiates, and which can not be enforced.
    III. The advance sheets were valuable only because of their exclusiveness. That value passed to the stereotype plates, and thence to the books printed therefrom. The defendant .possessed himself of that value by fraud. By means of his promise, to enter into business with the plaintiff, he induced the plaintiff to allow him possession of the plates. Having obtained possession he repudiated his promise.
    IV. The plaintiff has been ever willing, ready and able to perform his part of such oral agreement.
    Y. The plaintiff’s demand of possession was sufficient.
   By the Court, Bosworth, Ch. J.

According to the allegations in the complaint, all of which the defendant by demurring, admits to be true, the plaintiff and defendant agreed orally, in January, 1860, that the defendant should enter upon a designated business as soon as he could effect a specified purchase; that the plaintiff was to make certain contributions to such business, and give to it his time and personal attendance; the defendant was to pay him a salary, the amount of which was to be fixed subsequently, to commence at the time of such purchase, and on the first of January, 1864, the plaintiff was to have one half of the business in its then condition, subject to one half of its then liabilities.

That in January and June, 1860, the plaintiff received from B. C; Trench, the advance sheets of two works to be stereotyped and published, said Trench to have ten per cent of the retail price of the'books, and the remainder of the profits and the plates were to belong to the plaintiff. The plaintiff ordered the stereotype plates made, and' relying upon his agreement with and the good faith of the defendant, allowed a bill «of sale of the plates to be made to the defendant, for the price of f>450, for which the defendant gave his note.

That the defendant effected the purchase first mentioned, about this time; and although the plaintiff demanded it, the defendant refused, and still refuses, to reduce the oral agreement to a written one, and alleges his right and intention to carry on the "business for his own exclusive profit—that he has not only refused to sign a written agreement like the oral one, but declared that he would not be bound by such agreement ; that he would not form such a business connection with the plaintiff.” '

That the plaintiff has at all times been ready and willing, and has offered to perform his part of said agreement, and to have the same reduced to writing and signed by the parties.

That the defendant caused an edition of said works to be printed in his own name, and has advertised them for publication by «himself as successor to J. S. Bedfield, and denies that the plaintiff or Trench has any right, title or interest in said plates, editions or the profits arising therefrom.

That the plaintiff has offered to surrender to the defendant the note he gave for the plates, and to indemnify him against loss or any expense in the premises, and has demanded of him the plates, and the sheets and hoots manufactured therefrom, which the defendant refuses to surrender; that said works are valuable and saleable j that the defendant is a man of little or no property, and a judgment in damages against him would not be of any value, as the plaintiff believes.

It prays that the defendant be adjudged to surrender to the plaintiff “ said plates, sheets and books, and to account for and pay to the plaintiff the proceeds of sales thereof, if any such shall have been made, upon such terms as the court may adjudge,” and also for an injunction and receiver, pendente lite.

I think the complaint is rather inartificial. But it alleges, in substance, that the defendant is .possessed of certain property of the plaintiff, which came to his possession as part of the plaintiff’s contribution to a business which he agreed to prosecute for the common benefit of the two, but which business he now refuses to prosecute in connection with the plaintiff; or otherwise than for his own sole and exclusive benefit.

The whole consideration for the transfer has failed, and" that too, by the wrongful conduct of the defendant, and without fault on the part of the plaintiff. An action in damages would, presumptively, be of no value; and the plaintiff’s damages are not susceptible of computation, and 'the property should be restored to him, on such terms as may be just. -

The complaint is now quite different from the one before us, in this case, on the appeal, reported in 7 Bosw. 649, as Redfield v. Middleton.

That did not allege that the plaintiff had offered to perform the oral contract on his part. (Id. 652.) That did not allege that the defendant declared “he would not form such a business connection with the plaintiff,” as he had agreed to do. (Id. 654.)

The present complaint shows the extent of Trench’s interest, and also of the plaintiff’s interest, under the contract between them, in the advance sheets and sales of copies of the works.

The present complaint shows, though not as clearly as more formal averments would express it, that the plaintiff has-offered to. perform in all things on his part, and that the defendant refuses to have the business 'connection with the plaintiff agreed upon. The agreement would be void by the' statute of frauds, and the defendant has given formal notice that he will not be bound by it, or act under it, or permit any thing he may do, to be deemed done under or in part execution of it.

I think the complaint sufficiently states a cause of action, and that the order appealed from should be affirmed.

Order affirmed.


author: Bosworth, Ch. J. Robertson, J. (dissenting.)

text:
    James F. Towle et al. plaintiffs and appellants, vs. David Jones, defendant and respondent.
    1. Where the summons and demand of relief in the complaint is for a remedy at law only, to wit, the recovery of money, it renders equitable relief so far inconsistent “with the case made hy the complaint” and excluded “from the issue,” within the meaning of the 275th section of the' Code, that the plaintiff is not entitled to it if he failed on- the trial to establish a right to such legal relief.
    2. So held where the plaintiffs, being vendors of real property, sued the purchaser for breach of his contract to take the title, not claiming to recover the amount of the purchase-money, but merely damages hy reason of his alleged failure to perform, and upon the trial before a justice of the court alone, a jury being waived, the plaintiffs failed to make out a right to recover such damages.
    3. And further held that in such case the court could not give judgment for specific performance in favor of such plaintiffs, although upon the evidence they might have maintained an action for such relief. (Eobertsob, J. dissented.)
    (Before Bosworth, Ch. J. and Robertson and Barbour, JJ.)
    Heard December 10,1862;
    decided June 27, 1863.
    THis..was an appeal from a judgment entered in favor of the defendant, on a trial on the 10th to the 17th of January, 1862, before Mr. Justice Monell, a jury having been waived by consent of the parties.
    The action was brought by James F. Towle and Charles F. Eover, to recover damages from the defendant, for the non-performance of a contract for the purchase of the unexpired' term in certain leasehold premises in the city of Hew York. The contract was bipartite, one part being signed by the plaintiffs and the other by the defendant. The part signed by the defendant, which was substantially the same as that signed by the plaintiff, was as follows :
    “ Hew York, September 15th, 1860.
    This is to certify, that I, David J ones, have this day purchased of Towle and Rover the lease and improvements on lot Ho. 202 Sixth street, known and occupied by them as a stable and carriage repository, free and clear of all incumbrances, for seventy-five hundred dollars, twenty-five dollars of which, the receipt I hereby acknowledge. David J ones.”
    The plaintiffs averred and proved, that on the 26th day of March, 1861, they tendered to the defendant an assignment of the lease of the premises, which he declined to accept. The contents of the summons and nature of the demand for relief in the complaint, is stated in the opinion of the chief justice.
    The defendant in his answer insisted as a defense, that the plaintiffs had not a good and valid title to the premises ; and that the same were not free and clear of incumbrance, but were incumbered by judgments and assessments. The justice before whom the cause was tried found, among other things, that the plaintiffs’ title was subject to incumbrances, which by their contract they were bound to remove, and, that not having done so after notice, the defendant had a right to rescind the contract, and had rescinded it; and he ordered judgment for the defendant for his costs. He refused to find, as requested - by the plaintiffs’ counsel, that the defendant had a right to retain out of the purchase money sufficient to pay off the incumbrances. The plaintiff excepted to his decision, and appealed from the judgment entered thereon.

      C. H. Tracy, for the plaintiffs, appellants.
    I. The special term erred in respect to there being incumbrances.

      II. The several liens on the premises, for the payment of sums of money, being much less than the consideration money of the sale, were no valid objection to the assignment of the lease; the vendee being entitled to accept the property, and then to withhold or apply from the purchase money the. necessary sums to pay off such liens. (Dart on Vendors, 281-283, 381. Fagen v. Davison, 2 Duer, 153. Holmes v. Holmes, 5 Seld. 525.)
    III. The defendant having never applied for a conveyance, he has never put the plaintiffs in default. He can not now object'that there was any defect in the title, which has not been supplied since the commencement of the suit. (3 Stark. Ev. 1610, " Vendor and Vendee.” Todd v. Hoggart, 1 Moo. & Mal. 128, Thompson v. Miles, 1 Epinasse’s Cases, 184.)
    IV. There was no valid or effectual rescission of the contract by the defendant.
    V. The plaintiffs have a clear and meritorious cause of action.
    1. The bargain was made in the simplest form.
    2. The arrangment about possession and occupation was in conformity with the contract, and suited to the mutual convenience of the parties The defendant thus had the use of the premises for several months.
    3. The plaintiffs sacrificed their business to prepare to give up full possession; and when the market value of the lease fell off, the defendant sought to escape from the bargain upon the pretense of a trifling incumbrance, which he could at once discharge out of the purchase money.

      P. G. Clarke, for the defendant, respondent.
    I. Assuming that the contract of sale was valid and binding upon the respective parties, as no time was fixed for its performance, each party was bound to perform within a reasonable time. (Atwood v. Cobb, 16 Pick. 227. Chitty on Cont. 625, and cases cited.)

    II. The plaintiffs did not perform, or offer to perform within a reasonable time, and the defendant was justified in refusing the assignment, and the plaintiffs are not entitled to recover. What is a reasonable time, is a question of fact. , (Story on Cont. 405, § 665, 1st ed.)

    III. At the time of making the contract, and at the time the defendant gave notice that he should decline completing the purchase, there were incumbrances.
    IY. By the terms of the contract the plaintiffs were to transfer the term free and clear of all incumbrances.
    V. To entitle the plaintiffs to recover, they were bound to prove: That they could, within a reasonable time after the making of the contract, transfer a good title to the premises. That they offered to do so ; and that at the time of the offer the premises were free and clear of all incumbrances. They failed in every particular, and the judgment in favor of the defendant should be affirmed. (Morange v. Morris, 34 Barb. Rep. 311.)
   Bosworth, Ch. J.

Unless in an action for the recovery of money only, brought upon a contract to purchase and take a conveyance of real estate, and brought to recover damages specially stated in the complaint, but not to recover any part of the purchase money, a plaintiff may have a judgment for specific performance, although he fails to establish a right to recover any part of the moneys for which judgment is prayed, the judgment appealed from in this case must be affirmed.

The Code provides that certain actions shall be tried by a jury, and that all other actions are triable by the court. (§§ 253, 254.) Those now required to be tried by a jury, were formerly known as actions at law ; and those triable by the court, as equity suits.

Section 253 declares that an issue of fact in an action for the recovery of money only, * * must be tried by a jury,

&c. What is the test by which it is to be determined, whether an action is for the recovery of money only ?

When the action arises on contract, and is for the recovery of money only, the summons must state that the plaintiff will take judgment for a sum specified therein. The summons in this Case states that judgment will be taken for a sum named therein. The complaint states a contract between the parties, by which the plaintiffs were to sell and the defendant to purchase an unincumbered leasehold property for the sum of $7500; payment of $25 of the purchase money ; that defend-ant took possession : a tender of an assignment of the lease, and the defendant’s refusal to accept or to perform the agreement on his part; a sale of other property by the plaintiffs, in consequence of the making of this Contract, at a loss of $300 ; and of still other property at a loss of $500 ; a loss of the use of other property to the amount of $200, and generally that the plaintiffs u sustained damages in consequence of the said defendant refusing to perform his said contract, to the sum of $5000 over and above the use and occupation of the building,” alleged to bé worth $150. Wherefore the plaintiffs demand judgment against the defendant for the sum of $5150 damages, besides the costs and disbursements of the action.”

The Code (section 142) requires that a complaint contain A demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated.”

The summons shows the action to be one on contract, and for the recovery of money only. The complaint states a cause of action arising on contract, and demands no relief except the recovery of money. The sum demanded is only $5150; while the amount of purchase money remaining unpaid is $7475; of the' $5150 claimed, $150 is for the use by the defendant, of the leasehold premises.

If, therefore, the plaintiffs could recover for such causes of damages as they specify, a recovery for them only would leave them without a verdict for any part of the purchase money, and payment by the defendant of the sum recovered would not confer on him any right to an assignment of the lease ; for the reason that it would not include any part of the purchase money. And it was evidently the view and intent of the pleader who drew the complaint, that the recovery of damages, of the nature and on the grounds therein stated, would leave the plaintiffs the owners of the lease, and freed from obligation to transfer it to the defendant.

This view and intent are manifest from the facts that there is no prayer for judgment for the unpaid purchase money. Judgment is prayed for $5150, and the claims composing that sum do not include any part of the purchase money; the part of it unpaid being $7450; or $2300 more than the amount sought to be recovered. The allegations of the complaint, therefore, not only do not attempt to make a case for the recovery of the purchase money, but it could not be recovered even if the allegations of the complaint made a case for it, without amending the summons and prayer for relief, in respect to the sum demanded. These plaintiffs no more seek, on the case made, a recovery of purchase money than would a vendor of personal property deliverable at a future day, who should sue, alleging as a breach of the purchaser’s contract, his refusal to take and pay, and claim as damages the difference between the contract price and the market value, on the day the contract should have been performed.

The action was noticed for trial as a jury cause, and was tried by the court only because a jury trial was waived. Had it been tried by a jury, the verdict, if for the plaintiffs, would have been for money only, and for such sum as upon the evidence and under the law as charged 'by the court, the jury thought the damages amounted to. The jury have in such a case an absolute right to render a general verdict, though they may be required “to find upon particular questions of fact to be stated in writing” (Code, § 261.) The clerk must enter judgment in conformity with the verdict, (section 264,) unless the case be reserved for argument or further consideration.

The only relief the defendant can have, if the verdict be against him, is a new trial, if there were errors in the trial; if he has no right to a new trial, judgment follows upon the verdict and in conformity with it,' as a matter of course. (§§ 264, 265.) It is of course conceded, that if the defendant alleged and proved facts entitling himself to relief on equitable principles against the plaintiffs’ strictly legal rights, it would be granted to him, in the judgment to be rendered. But this fact does not aid a solution of the question, what is the case made by the complaint, and what is the extent of the relief grantable to the plaintiffs thereupon ?

In this action, if the plaintiffs recover $50 or more, they recover costs as a matter of course, (§ 304, sub. 4,) and if they fail to recover any thing, the defendant recovers costs (§ 305 ;) whereas if it could be treated as an action in which equitable relief might be given, the costs of it would be in the discretion of the court. (Section 306.)

A plaintiff oh a given state of facts may not be able to recover at law, (or as legal relief to which he is entitled,) either the purchase money, or any damages for a refusal to take a deed, and yet may have a right to a decree for a spe-. ciñe performance. If he had not the title when the action was brought, or if the contract was void by the statute of frauds, he could not at law recover the purchase money, even though there was part performance of the contract.

While in case of part performance, if he could make a good title at the trial, he might have a decree for a specific performance. (3 R. S. 5th ed. 222, §. 10. Lowry v. Tew, 3 Barb. Ch. 407. 4 Comst. 403.)

The plaintiffs having made a case for the recovery of legal relief only, and having brought their action to obtain legal relief only, viz. to recover money only, and having failed to establish a right to any part of the relief prayed, they are not at liberty to say on an appeal from the judgment, that the facts found entitle them to equitable relief, and that the judgment should be reversed because equitable relief was not granted. (Cole v. Reynolds, 18 N. Y. Rep. 74. Wood v. Wood, 26 Barb. 356. Stevenson v. Buxton, 8 Abb. Pr. 414. N. Y. Ice Co. v. N. Wn. Ins. Co., 23 N. Y. Rep. 357, 360.)

No case has been cited and none has fallen under my observation where in an action on contract, brought to recover iponey only, and where the plaintiff failed to establish' a right to recover any thing on legal grounds, equitable relief has beep granted him upon the trial.

Section 275 does not aid the plaintiffs—where an action is brought to obtain legal relief only, and that relief is a recovery of money only, the granting of equitable relief is not consistent with the case made by the complaint.

To enable the court to grant equitable relief, and in order that the granting of it may be consistent with the case made by the complaint, the action must be brought to obtain such relief, wholly or in part, and whether it is so brought must be determined by the tests provided by the Code.

In a suit brought to obtain equitable as well as legal relief, it is consistent with the case made by the complaint to grant legal relief) though equitable relief be denied, where enough of the allegations embraced in the complaint and embraced within the issue to entitle the plaintiff to legal relief, are established, at the trial. (Marquat v. Marquat, 2 Kern. 336. Bidwell v. The Astor Mut. Ins. Co., 16 N. Y. Rep. 263. The N. Y. Ice Co. v. The North Western Ins. Co., 23 id. 357. See v. Partridge, 2 Duer, 463.)

Actions to obtain legal relief only, and actions to obtain equitable relief, or both equitable and legal relief, are contra-distinguished throughout the Code. The summons may be and in some cases must be different. The former must be tried by a jury, and without some special order, the latter can not be tried by a jury. In the former, the recovery of costs by the prevailing party is a matter of strict right; in the latter the court may impose them upon either party, as it deems justice requires. ,

The present case, viewed in the light of every test contained in the Code, is an action for the recovery of money only; or for legal relief only. On the facts found, no action at law would lie, and the plaintiff would not be entitled to recover any thing.

The premises were incumbered when this suit was brought, and continued to be at the time of the trial. The defendant, by the contract, was to have “the lease and improvements, free and clear of all incumbrances.” The plaintiffs never tendered such a title, and whatever title they had, was subject to incumbrances. If the cause had been tried before a jury, it would have been the duty of the court to nonsuit the plaintiffs.

The judgment should be affirmed.

Barbour, J. concurred in this opinion.

Robertson, J. (dissenting.)

The first question which the case presents, is whether the evidence on the trial would establish the right of the plaintiffs to recover in some form of action or by some course of proceeding. The next is whether if it does, they have by any act, omission or proceeding of theirs in this action, precluded themselves from obtaining any relief in it. That depends for its solution again on another point, whether the failure of the plaintiffs to establish a cause of action at common law, by proof of a written contract and the tender of a proper conveyance of a good title at the time required by such contract, deprives them of all redress in this action, although they may have proved an oral contract, of which time was not of the essence, and acts of performance sufficient to take it out of the statute of frauds; in other words, have shown a cause of action recognizable formerly in equity alone. (Baldwin v. Palmer, 10 N. Y. Rep. 232.)

The learned judge, before whom the issues in this action were tried, has found that the contract was in writing. The only evidence to sustain that finding is the instrument of September, 1860. That instrument does not, in terms, define with sufficient certainty the subject matter to entitle it to be enforced. “The” lease is no more definite than “a” lease. Extrinsic evidence must be had recourse to, in order to- explain it. The mere fact that the plaintiffs had a lease, does not establish it to have been what they meant to assign. (Price v. Griffith, 1 DeG., M. & G. 80. Stewart v. Alliston, 1 Merivale, 26, 33. Kennedy v. Lee, 3 id. 441, 451;) and parol evidence is • inadmissible to explain the intentions of the parties. If the subject matter had been properly described, it would have operated as a‘ conveyance in presentí, there being no provision for a future one, or any contingency to occur to give it effect. (Jackson v. Myers, 3 John. 388. The same v. Clark, Id. 424. Ives v. Ives, 13 id. 235. Jackson v. Moncrief, 5 Wend. 26.) A sealed instrument was unnecessary. (De Fonclear v. Shottenkirk, 3 John. 170. Holliday v. Marshall, 7 id. 211.) The word agree does not interfere with this, (Emery v. Hitchcock, 12 Wend. 156,) even in the past tense. (Jackson v. Fish, 10 John. 456.) It must therefore be assumed, in order to test the plaintiffs’ right to any relief, that in this case there was no written contract established, but there was evidence of an oral one partly performed, so as to furnish the plaintiffs with an equitable cause of. action. (Sutherland v. Briggs, 1 Hare, 26. E. India Co. v. Nuthumbadoo Mooddelly, 7 Moo. P. C. C. 482, 497. Lane v. Newdigate, 10 Ves. 192.) So far as the recovery of the purchase money of the contract is concerned, the plaintiffs are only entitled to it, in this action, in case they have not debarred themselves from it by their pleadings and proceedings therein.

The complaint alleges their making of the contract for the sale and purchase of a lease and buildings, at a certain price, and the tender of an assignment of such lease, more than six months after the making of such contract. If a sale, without fixing any time for its consummation, implies in law a conveyance at a reasonable time, as it probably does, (Thomas v. Dickinson, 12 N. Y. Rep. [2 Kern.] 364,) the period at the end of which such tender was made, was not in laio unreasonable. The complaint contains, therefore, facts showing a good equitable cause of action to recover the purchase money. (Clifford v. Turrell, 1 Yo. & Col. Ch. Cas. 138,150. Walker v. Eastern Counties R. R. Co., 6 Hare, 594. Kenny v. Wexham, 6 Mad. 355.) Besides these, it alleges that in consequence of such contract being made, they sold certain horses, carriages and harness at a loss of certain sums, and retained certain others unemployed at the loss of a certain other sum, amounting in all to $1000 ; but it does not aver that these damages were inflicted by any refusal to perform the contract, nor does it in any way connect such damages with the making of the contract, of which they were certainly not the necessary consequence. It does not claim such losses, as paid of the damages resulting from all the facts stated in the complaint, and does not ask to recover for them. The complaint, however, also alleges that the plaintiffs sustained damages, by the defendant refusing to perform the contract, to the sum of $5000, over and above the value of the use and occupation of the building by the defendant. The plaintiffs claim to recover also a certain sum for such use and occupation. The demand for relief asks for judgment for that sum added to the $5000. It is very clear that the plaintiffs could not recover the value of such use and occupation, except during the time within which they were not bound to deliver, a conveyance^ in addition to the purchase money.. The action for use'and occupation would necessarily be one at common law; but this would not prevent its being joined with one of an equitable kind. (§ 167.)

The defendant having answered, has entitled the plaintiffs to obtain any relief consistent with the case made by the complaint, and embraced within the issue. (Code, § 272.) The objection of the unsuitableness of the relief asked in the complaint, to the case made, can not be taken even by demurrer, (Andrews v. Shaffer, 12 How. Pr. 443,) and therefore after answer, it has been held that the demand for relief becomes immaterial, (Marquat v. Marquat, 12 N. Y. Rep. 341;) and although that was said in an action for an equitable cause, I am at a loss to understand any reason for a distinction in principle if it had been purely legal.

In order, therefore, to deprive the plaintiffs of their right to recover the purchase money of the contract in question, if it be only an oral one and taken out of .the statute of frauds by part performance, and time be not part of its essence, and they are able to convey a good title, and their case, therefore, an equitable case, one of two legal principles must prevail; either that the Oode recognizes a distinction between causes of action formerly cognizable, only in a court of law, and those redressed in a court of equity, or between the natures of the remedies, sought in either case; and establishes some mode of determining which kind of suit the particular action has become by either the pleadings or proceedings in it; or else that it provides some means for determining in what actions money alone is sought to be recovered, and in what other relief, and prevents a party after he has commenced his action, from ever changing the remedy he requests.

The Code not only declares in its preamble the expediency of abolishing existing forms of actions and pleadings in cases at common law, discontinuing the distinction between legal and equitable remedies, and establishing a uniform course of proceeding in all cases, but it obliterates all the landmarks and confuses all the boundaries between legal and equitable causes of action, modes of proceedings and relief. The sturdiest stickler for those nice distinctions must yield to the judgment of the court of highest resort in the case of The N. Y. Ice Co. v. The North Western Ins. Co. (23 N. Y. Rep. 360,) in which Justice Comstock, who had doubted the constitutional power of the legislature to abrogate such distinctions in the prior case of Reubens v. Joel, (13 N. Y. Rep. 488,) felt bound to yield to the authority of Phillips v. Gorham, (17 N. Y. Rep. 270.) He there states emphatically that doubts as to the power of the legislature to make such change, or their intention to do so in the Code, must be set at rest. The constitution had already required the testimony in both kinds of cases to be taken in the same mode. (Art. 6, § 10.) The Code (§ 69,) expressly abolishes the distinction between actions at law and suits in equity, and all existing forms of action therein, and makes all actions substantially the prosecution of proceedings to obtain a remedy or a protection by judgment. (§2. People v. County Judge of Rensselaer, 13 How. Pr. 400.) After abolishing all previous forms of pleading, it restricts such forms, as well as the rules for determining the sufficiency of pleadings, to those which it prescribes. (§ 140.) It requires the complaint to contain only a statement of facts constituting a cause of action, in addition to the title of the cause and a demand for relief. (§ 142.) It permits but a certain number of objections to the complaint, none of which are that the action is equitable when it should have been legal, or viee versa. (§ 144.) On the trial, no objection can be taken to the complaint, except to the want of jurisdiction of the court or the insufficiency of the facts stated in it to constitute a cause of action generally, (§ 147,) and not that it has stated such a cause of action as was legal when it ought to have been equitable, or vice versa, or that the plaintiff has confined himself to either kind of relief. After answer any relief may be given consistent with the case made by the complaint. (§ 275.) Trials by jury are given in all actions for the recovery of money, or specific real or personal property, notwithstanding they might formerly have been equity cases.' (§ 253.) Summonses by by which- actions are commenced are divided into two classes ; one where only the recovery of money on a contract is sought, and the other embracing all other kinds of relief, (§ 129,) although courts of law formerly afforded specific relief, as in cases of replevin, ejectment, nuisance and the like, and courts of equity decreed the payment of money due on contracts, among others in suits for specific performance by vendors. The object of such division was simply to enable the plaintiff to obtain judgment for the amount claimed, if not opposed, without the necessity of any action by the court, (Code, § 246, sub. 1,) and perhaps to obtain the benefit of a trial by jury. (§ 253.) Although I apprehend the court may refuse to allow that mode of trial, if it can see from the face of the complaint that the plaintiff, although entitled to some relief, is not entitled to recover a sum of money.

In Wood v. Wood, (26 Barb. 360,) where specific relief was awarded, although a judgment for money was demanded, and in Cole v. Reynolds, (18 N. Y. Rep. 74,) where an accounting was ordered and judgment given for the balance to be found.due, although the action was brought for the balance due on an account stated, the utter ignoring by the Code of all distinctions between legal and equitable causes of action is well and forcibly put. Besides a demand for legal and equitable relief in the alternation has been sustained, (Young v. Edwards, 11 How. Pr. 202,) and relief in the alternative given. (Stevenson v. Buxton, 8 Abb. Pr. 414.) A judgment for damages has been given when a contract could not be specifically performed, (Pitt v. Davison, 12 id. 385,) or the plaintiff has failed in proving a case for it, although he attempted it. (Greason v. Keteltas, 17 N. Y. Rep. 491.) Equitable relief asked for has been denied and legal relief given, (See v. Partridge, 2 Duer, 463,) and both may be given, to take effect in succession. (Marquat v. Marquat, ubi. supra. Bidwell v. Astor Mutual Ins. Co., 16 N. Y. Rep. 263.) These cases illustrate the extent of the disregard by the Code of the legal or equitable nature of the cause of action.

The plaintiffs in this case were therefore not excluded from all relief by any distinctions maintained in the Code corresponding to that formerly kept up between causes of action available only in court of law, and those cognizable in a court of equity, ■and by having so impressed on this case the features of those of the former kind as to deprive them of relief in case it turned out to be one of the latter. This, however, does not relieve us from the necessity of determining whether some part of that distinction may not still be 'retained or a new one created by the Code, depriving them of relief in the mode in which they have sought it, although manifesting a case entitling them generally to relief.

The form of the summons prescribed in the Code, makes a distinction between cases for the recovery of money only, and those where other relief is sought, (Code, § 129 ;) and in the former the plaintiff may take judgment in case the complaint is unanswered, for the amount mentioned in it, (§ 246;) thus requiring the complaint to state the amount claimed. In all actions for the recovery of money, a jury trial is a matter of right, (§ 253,) and amendments to pleadings are -limited to those consistent with the case in the complaint, (§ 275.) Possibly these provisions may deprive the plaintiffs, where they have given notice in their summons, that the relief sought by them is the recovery and payment of money, and demanded such relief in their complaint, of the right of so amending their pleadings as to change their case so far, as-to the relief sought, as to deprive the defendant of the right of trial by jury. If so, it will be necessary to examine how far such inviolable right of trial by jury has deprived the plaintiffs of a right to equitable relief, by decreeing the payment of the purchase money to them, when they have only established a conditional' right to the purchase money, or making a good title and conveying it to the defendants. The only difference between the judgment of a court of law for the purchase money of land, and the decree of a court of equity for the same, always was, that the latter permitted and required the vendor to make a good title before he was entitled to such money. In the former case the vendee, upon paying the purchase money on the judgment, was left to his remedy, of filing a bill for specific performance. (Richards v. Edick, 17 Barb. 260. 4 T. R. 781. 5 id. 366.) I find it, therefore, impossible to conceive how the clogging of the plaintiffs’ demand for relief, with any of the conditions imposed by a court of equity, can make the action at all the less one for the recovery of money, and one requiring a jury trial. Such conditions are for the vendee’s benefit, and should be claimed by him. There is nothing which calls for the plaintiffs offering to do such acts; they are imposed by the court as conditions of granting relief.

There is no room to infer that the Code must intend by some provision to prevent a vendor of land, when plaintiff, from recovering the purchase money of it in case of a sale, if his contract is oral and partly performed, in case he simply demands the money due him, without offering to perform all the conditions usually exacted in a court of equity, merely because in an action for money it requires a jury trial. It would not follow that the plaintiff must keep both the money recovered and the land, because no condition is imposed on him in the same action in favor of the defendant: - There is" nothing to prevent the latter from commencing an action for the recovery of the land as soon as he has paid its purchase money, whether voluntarily or by coercion of a judgment. (Richards v. Edick, 17 Barb. 260. 4 T. R. 781. 5 Id. 386.) It would not be very harsh to put actions at law, where the contract was in writing, and suits in equity, where it was not, on the same footing. And that would be the case if courts could do nothing else, upon a verdict assessing the plaintiff’s damages at the amount of the purchase money, than award an unconditional judgment for it. But I apprehend the Code will be found to have made ample provision for such a case, and to have enabled the court still to give equitable relief, notwithstanding a trial by, and verdict of, a jury upon the issues of fact in a cause. It would be absurd to suppose they could not in an action for divorce, the issues in which are expressly required to be tried by a jury. (§ 258.) It is hardly less so in actions for specific real or personal property, when deeds or other instruments are to be executed, which actions are also required to be so tried. (Id.) It remains to be seen, whether when money is sought to be recovered, the court can not impose equitable conditions. The argument in favor of such consequence appears to be based solely on two provisions of the Code; one requiring a jury to assess the amount of the recovery, (§ 263,) and the other requiring the clerk to enter judgment in conformity with the verdict. (§ 264.) The latter is, perhaps, not a very lucid expression, but it evidently means such judgment as the verdict warrants; thus assimilating the proceedings on ,a trial by jury with those by the court; in which latter case the findings of fact and conclusions of law are required to be separately stated. (Gode, §§ 267, 268, subd. 2.) There are cases in which the judgment is provided by the statute, which do not require the exertion of much judicial knowledge. Thus, in case of a set-off, the defendant is entitled to judgment for the excess of his claim beyond the plaintiff’s, (§ 263;) and in an action for the delivery of personal property, the judgment is also prescribed.- (§ 277). But even in case of a trial by a jury, affirmative relief is expressly required to be given to the defendant if the verdict is in his favor, (§ 263,) and the plaintiff is entitled to whatever is consistent with his case, if the verdict be in his favor. (§ 275.) A verdict is nothing but a finding of facts in favor of one or .other of the parties upon all or some of the issues. Those issues are created by the pleadings. (Gode, §§ 248, 250.) A trial is their judicial examination, (§ 252,) even when they are tried by a jury, (§ 253,) and is kept throughout entirely distinct from the judgment.

The jury is bound to pronounce upon every issue of fact in the cause in favor of one or other of the parties. (Gode, § 260.) The judgment when entered in a book called the judgment book is required to specify clearly the relief granted, or other determination of the action, (§ 280.)

The judgment,-in conformity with the verdict, to be entered by the clerk in his minutes under the 264th section of the Code, is therefore only such as is either fixed by statute or merely for the -amount assessed by the jury. The very heading of the eighth title of the Gode separates the judgment from the trial. The sixth chapter of that title is devoted to the mode of entering judgment after a trial. It requires judgment, except when the clerk is so authorized to enter it, or upon confession, or when given at general term, to be entered upon the direction of a single judge or a referee’s report, (§ 278.) The court is authorized by section 264 itself to stop the clerk’s entry of judgment by reserving a cause for further consideration. There is no difference between the effect of a trial by the court and one by a jury, except in the different tribunal which is to pass upon the facts. The decision of the court on which judgment is to be entered (§ 267) consists of findings of fact equivalent to the verdict of a jury, as well as conclusions of law. The similar findings of a jury as distinguished from a verdict may control a general verdict, (§ 262,) which then becomes mere matter of form. The relief to which the plaintiff is declared by such sixth chapter (§ 275) to be entitled is to be governed not by either the verdict or the findings of the court, or the summons or prayer for relief in the complaint, but by the case made by the complaint and embraced in the issue. Any difficulty in the way of the same modification by the court in its judgment of the relief asked by the complaint or sought by the action in the shape of pecuniary payments which a court of equity Would formerly have made, is, notwithstanding the necessity of a trial by jury and a verdict for the plaintiff assessing his damages at a sum of money, purely imaginary. If the court is powerless to hold-back the judgment which must be entered by the clerk on a general verdict for a sum of money, it can at least procure that control by directing specific findings upon particular questions (§ 261) by which they can overrule such general verdict and such inevitable consequence of an absolute judgment, (§ 262.) Thus performing the same office as it would have done had it tried the questions of fact itself. Without any action by the jury on the questions of fact, they are called upon to assess the damages on the trial, (§ 263,) but the court is to pronounce the judgment. Upon a set-off, the jury may give a verdict upon both parties’ claims, yet judgment is only to be given for the excess. Whatever may be the jury’s verdict upon the facts, the defendant is to have his affirmative relief if entitled to any. {Id.) So that general verdicts can not,'in all cases, control the judgment.

The idea that the only relief to be given to a defendant after a trial and verdict is by a new trial is inconsistent with the provision in section 264 of the Code, that the cause, after a verdict, besides being reserved for argument, may be also reserved for further consideration. That means something more than passing upon a motion for a new trial. The cause has been considered so far as to dispose of the issues of fact in it, by the verdict of a jury ; it requires more consideration to adjudge what shall be the relief. But the equitable conditions imposed by the court on the right of enforcing payment of a sum of money, are not affirmative relief granted to the defendant; they but modify that given to the plaintiffs. If they had originally inserted those modifications in their demand for relief in the ^complaint, they would not the less have made their action one for the recovery of money, and that only.

But if the only difficulty in the way of giving the plaintiffs in this case the right to the purchase money of their term of years, be the right of trial by jury, the defendant has put it out of the way by waiving a trial by jury. When parties consent that a cause may be tried -without a jury, the fact that they were originaHy entitled to one can not change the course of proceeding prescribed for the court by the Code. They can only try it and dispose of it in the manner therein prescribed. (§§ 266, 267, 268.) The judgment is to be entered according to its decision, and that decision is required to contain both findings of fact and conclusions of law. If the court in this case had found the making of such an agerement as was alleged in the complaint, and that the plaintiffs were able at the time of the trial, to give a good title to the term of years sold, but that such agreement was only oral, although partly performed, so as to take it out of the statute of frauds, and further, that either time was not of the essence of the contract, or that the contract was to be performed within a reasonable time, and a tender of a conveyance had been made within that time, what conclusion of law could have been added, except that the plaintiff was entitled to his purchase money, in making a proper conveyance ? Would it have been prevented by finding further that the plaintiffs did not insert in their prayer for relief, that condition ? Such a result would at least defeat the ends which the Code declares it was passed to accomplish, if it would not be a mockery of justice.

If, therefore, the contract, although not in writing, was sufficiently partly performed to take the case out of the statute of frauds ; and time was not of its essence, I think the plaintiffs were entitled to recover the purchase money, or at least so much of it as they claimed. The evidence is sufficient to establish such a contract .to be performed either within a reasonable time, or before the succeeding spring after it was executed, and a part performance by payment of money, occupation of the ■ premises and removal by the plaintiffs of their stock, and the plaintiffs were entitled to recover the part of the purchase money they claimed.

But assuming that this is to be considered only an action at law, there is room for inquiring whether, on the facts as found, the plaintiffs are not entitled to recover. The agreement of purchase is found by the court to have been in writing, and that both parties had a reasonable time in which to perform it. It is further found that the premises, at the time of sale, were subject to certain incumbrances, and a prior owner had made a general assignment of his property to an assignee, who never went into possession of the premises; that the defendant had at a certain time notified the plaintiffs of the existence, of such incumbrances and outstanding interest, and after waiting a reasonable time for their removal, had rescinded the contract by a notification of a refusal to take the title. And also that on a certain day the plaintiffs had tendered a conveyance without removing all the incumbrances, which it appeared by the evidence, was only refused in consequence of such supposed rescission. It was not found that the time of such tender was not a reasonable time from the time of malcing the contract, in which to perform it, either as matter of law or matter of fact. But it was held as a conclusion of law, that the defendant had a right to rescind the contract after waiting a reasonable time from the notification of the existence of the Bens and outstanding claim, for their removal, and of course, that it was the plaintiffs’ duty to remove such liens and cloud on the title within such reasonable time. It does not appear whether the learned judge, before whom the cause was tried, considered that the unreasonableness of the time which elapsed after notice of the incumbrances without removing them, affected the question of the reasonableness of the time for the performance of the contract, which had elapsed since it was made. If the reasonableness of the time elapsing after notification of incumbrances, for their removal, be the only ingredient to determine the reasonableness of the time for performing the contract, after it was made, and is identical therewith, then under the.views of the court the plaintiffs were not entitled to recover. But if other considerations are to affect such question of reasonable time to perform, the contract clearly, if it had such legal effect imparted to it by the court, the defendant could not modify the contract by a notification to remove incumbrances, or terminate it by notice, after giving a reasonable time for such removal. . <

Reasonableness of time .is a question of fact, (Patteshall v. Tranter, A Nev. & M. 649; Fielder v. Starkin, 1 H. Bl. 17; Bain v. Case, 3 Car. & P. 497,) determinable by circumstances, (Wibert v. N. Y. and Erie R. R. Co., 2 Kern. 249,) and has been said to be, in regard to some contracts, the time it would take a person of ordinary business talents to perform the act required. (Smedberg v. More, 26 Wend. 242.) This could not be the rule in regard to the conveyance of premises used as a livery stable, filled with horses and vehicles. Besides, there was evidence of an agreement by the defendant to allow the plaintiffs to keep possession until the 1st of January, 1861, and again until the 1st of March following. No notice was given of incumbrances until the latter part of February, and even then there was no peremptory demand for the removal. The defendant had possession or occupied the premises until March, as one witness testified, being- after the notice to remove incumbrances. His counsel consulted with the other party as to the mode of relieving the premises from the effect of the assignment.

Moreover, one of the objections made was the outstanding interest of the assignee, (Allen,) which was required to be got lid of, when, in fact, he had no interest. This court has recently decided at general term, that a general assignment does not pass a leasehold interest without some act, assent, or acquiescence by taking possession, collecting rent and the like; and I see no distinction in this case, from the fact of the assignor executing such assignment to obtain a discharge from his debts. It is true, the statute declares that such assignment shall vest in the assignees all the interest of the insolvent, at the time of executing the same,'in any property, whether such interest be legal or equitable, (2 R. S. 21, §§ 28, 33, 5th ed.) but that provision was merely to carry equitable interests, which might not otherwise pass, and not in order to burden che assignee with responsibilities not intended by him to be assumed. Indeed such assignment, if rightly executed and framed, ought to enumerate the property ordered to be assigned, and set forth in the inventory of the insolvent, or subsequently disclosed. (2 R. S. 17, § 5; § 8, 5th ed. Id. 20, § 25; § 30. Id. 21, § 29 ; § 34, 5th ed.) In requiring the getting in or release of such outstanding interest, the' defendant asked for more than he was entitled to ; and his notification therefore was unavailing, and the reasonableness of the time for the performance of the contract should have been determined without regard to such notification.

I can not, therefore, avoid the conclusion, under the findings of the court, that the defendant had no right to terminate or rescind the contract, when he attempted it; unless the reasonable time for performing it had expired, that there was evidence to show that it had not, and that even taking an unreasonable time to remove incumbrances after a knowledge of them, could not modify the original contract, or give the defendant a right to rescind it; and that even if it did, the inclusion of an interest which he was not bound to remove renders such requisition harmless. The question how far the apparent title in Allen made the title unmarketable can not be agitated in an action at law, the only question there being if the title was good at the time of the tender.

Unless the assessments, therefore, prevented the plaintiffs from- making a good title, they would have been entitled to recover; but the refusal to take the title was not put on that ground, but of the rescission; if it had been non constat, but that the plaintiffs r would have removed them. And in any event, being pecuniary, they could be deducted from the purchase money.

I am of opinion, therefore, that the plaintiffs are entitled to a new. trial, with costs to abide the event; and the judgment should be reversed for the purpose.

Judgment affirmed.