text:
    John H. Sturtevant versus Henry Waterbury.
    The plaintiff recovered a judgment for 5000 dollars from different persons, in atl action of trespass de bonis asportalis; but no execution was ever issued upon, nor was any satisfaction ever obtained of, the judgment The defendant received into his possession the goods, (or a part of them,) which were the subject of the action of trespass,—sold them, and took the proceeds. In an action of assumpsit against him, for money had and received, (being the proceeds of the goods sold,) it was held that the action was well brought, and could be sus* tained.
    When trespass or trover will lie, if the wrong-doer has converted the property into money, the plaintiff may waive the tort, and bring assumpsit.
    This was an action of assumpsit for money had and received ; the declaration containing the common counts, to which the defendant pleaded the general issue. At the trial of the cause, it appeared, that several months before the present action was corn» menced, the plaintiff had instituted a suit, in the Supreme Court, against one Jera Waterbury, Micaiah Moore, JohnN. Brush, and Francis Dustan, for trespass de bonis asportatis, and that upon the trial of that action, he had recovered a verdict against them for 5000 dollars, upon which a judgment was afterwards entered up? but no satisfaction of the judgment was ever obtained, nor did the plaintiff ever issue an execution upon it.
    Upon the trial of the present suit, the plaintiff called two of the jurors, before whom the action of trespass was tried, and proved by them, that, upon the trial of that action, the present defendant, being called as a witness, testified that “ he had received certain “ goods, which'were the subject of controversy in that cause, into “ a house occupied by himself and his brother, Jera Waterbury;— “ which goods, the defendant afterwards, by the direction of his “ brother, sold by auction, and received the proceeds,—amounting “ to about 700 dollars. The defendant also testified, that he “ held said proceeds at the time of the trial of the action of trespass, “ for the purpose of paying a note of 200 dollars, which be, as “ one of the firm of Henry and Jera Waterbury, held against the “ plaintiff, and the balance for the plaintiff, or the parties entitled “ to it. After the goods were received by the defendant, they “ were placed under lock and key until sent to auction; and af~ “ ter the sale, he gave notice to the creditors of the plaintiff that “ the balance of said proceeds, after deducting the note, would “ be paid over to them, or any one who bad the legal right to it.”
    The defendant, on his part, called Moore, one of the defendants in the former suit, as a witness, and he testified, that at the time the goods, which were the subject of that action, were taken, the plaintiff and himself were partners; that the goods were taken to the house of the defendant and Jera Waterbury, for the purpose of being sold, and paying the debt due them on said note, and applying the balance towards the payment of other debts due from the plaintiff and himself. That the defendant received the proceeds of said sale, and, after the trial of the action of trespass, paid the proceeds over to the witness, deducting therefrom the amount of said note.
    The plaintiff then called witnesses to contradict the testimony of Moore, and show that he never had been a partner with the plaintiff. That the goods in question were taken from his store, at a time when he was absent from the city, by means of a combination or conspiracy formed by the defendants in the action of trespass, one part of which was, to represent Moore as a partner, in order to give a color of right to a high-handed trespass and outrage upon his property. But it did not appear, by any positive proof, that the defendant had joined in the combination, or that he knew from whence the goods came, which were put into his hands.
    The defendant, after producing the record of the judgment in the action of trespass, contended that the recovery in that action was a bar to any recovery in this. The Chief Justice, before whom the cause was tried, reserved that question, and directed the jury to find a verdict for the plaintiff, if they should be of opinion that Moore was not a partner with the plaintiff. The jury returned a verdict in favor of the plaintiff for the whole amount for which the goods were sold at auction, together with interest, amounting to 900 dollars and upwards.
    A case was thereupon made by the defendant, which either party had leave to turn into a bill of exceptions, or a special verdict.

      Mr. J. Anthon and Mr. Slosson, for the defendant,
    now contended that the defendant was not entitled to judgment on the verdict. That in trespass, all are principals, and that the defendant, by receiving and disposing of the goods, became a principal and joint trespasser. [Marsh v. Berry, 7 Cowen’s R. 344. 6 Com. Dig. 392. Tresp. C. 1.]
    2. That the plaintiff, by the judgment and recovery in trespass against the co-trespassers, elected his remedy, and could not maintain assumpsit against this defendant, for the same act. [Co. Lit. 144 b. 145 a. 2 Com. on Contr. 558-9. Kitchen v. Campbell, 3 Wills, 304. 308. 4 J. R. 474. 1 Pick. R. 62. 18 J. R. 459. Heyden’s case, 11 Coke, 5. Bacon’s Abrid. damages, D. 4.]
    3. The rule, (they said,) that a recovery without satisfaction is not a bar to another action in tort for the same trespass, is founded on the principle, that the plaintiff may elect de melioribus damnis, which cannot apply to actions inconsistent with each other, as trespass and assumpsit, or to actions founded on distinct causes of action.
    4. In all cases, therefore, where this election does not exist, a prior recovery must necessarily transfer the title, and be a bar. [2 Stran. R. 1078. Cas. temp. Hard. 319. 4 Esp. R. 251. 7 Cranch, 565.] Can the plaintiff recover the amount of the goods in addition to the amount, which must have been allowed for the same goods in the action of trespass 1 The former recovery, even without satisfaction, would transfer the title to the goods, except as against a joint trespasser. If the goods be sold, that sale cannot be questioned after a recovery in trespass or trover, and here it is perfectly apparent, that the plaintiff will have two satisfactions for one wrong.

      Mr. Hugh Maxwell, contra, for the plaintiff, contended,
    that as there was no satisfaction of the judgment against Jera Waterbury and others, the mere recovery, without satisfaction, did not change the property in the chattel. [8. Cowen’s R. 43.] The defendant, (he said) admitted that the goods were not his; he admitted also that he held the proceeds of. them for the lawful owner,—and the plaintiff is that person. As for the set-off claimed by the defendant, that is totally inadmissible, it being for a partnership and- not for an individual claim. Besides, as the money was obtained tortiously, no right of set-off could exist, [The defendants’ counsel admitted that the claim for a set-off could not be maintained, and waived that point on the argument.]
    II. A plaintiff may waive his action in tort, and proceed to recover the price of the chattel received by the tort-feasor, in an action for money had and received. [2 Ld. Ray. 1216. 1 Mau. Sel. 584.]
    In this case, the defendant was not a joint trespasser, and if he had been joined as a defendant in the original suit, he would, in all probability, have been acquitted. We have shown that he has the proceeds of our property in his hands, and he admits that it is held for the right owner. What shall be done with it 1 Shall he hold it as his own, or deliver it over to the wrong doers, and leave us to our judgment against them ? It was probably a part of the original conspiracy, that the property, or some part of it, should be placed beyond the reach of a process against the original trespassers; and to defeat this recovery, would be to carry the original combination into complete effect by the forms of the law.
   Oakley, J.

This was an action of assumpsit for money had and received. It appeared on the trial, that the plaintiff had recovered a judgment for $5000, in an action of trespass de bonis asportatis, against Jera Waterbury, Micaiah Moore and others, (of whom the defendant was not one) but that no execution had been issued, and no satisfaction of the same, or any part of it, had been obtained. It also appeared, that the defendant had received the goods, or a part of them, for the taking of which that action was brought, and that he subsequently sold the goods and received the avails.

The question is, whether this action of assumpsit can be maintained. In Livingston v. Bishop, [1 J. R. 290,] it was decided by the Supreme Court, that when separate actions are brought against joint-trespassers, the plaintiff may recover against each, but shall have but one satisfaction. In Osterhout v. Roberts, [8 Cowen's R. 43,] it was held, that in an action of trover against one defendant, it was no defence that another had been sued in a similar action for the same chattel, and that judgment had ' been obtained, and the party charged on execution, if no actual satisfaction had been received; and that the property of the plaintiff, in the subject matter of the suit, was not changed by the judgment and execution, without satisfaction.

These cases fully establish, that the plaintiff, in the present instance, might maintain an action of trespass against the defendant, if the evidence in the case was sufficient to charge him as a trespasser, and that his property, in the goods in question, was not changed or divested by the judgment obtained by the other trespassers.

It seems also to be well settled, that where trespass or trover will lie, if the wrong doer has converted the property into money, the plaintiff may waive the tort, and bring his action of assumpsit. [2 Com. on Con. 558. Parker v. Norton. 6 D. and E. 695. Lamine v. Dorrell. 2 Ld. Ray, 1216. Allanson v. Atkinson. 1 Mau. and Sel. 587.] It is, however, contended by the defendant, that the plaintiff having made his election in this case to proceed for a tort, is thereby concluded, and that he cannot afterwards affirm the sale of the goods by the defendant, and sue on qle imppe¿ contract arising from the receipt of the money. This might be so, if the defendant had been a party to the action of trespass. It was so held in Ketcham v. Campbell, [3 Wils. 304,] and the reason upon which the principle rests, is there stated to be, that you shall not bring the same cause of action twice to a final determination. Nemo debet bis vexari pro eadem causa ; ¿nd the court say, what is meant by the same cause of action is, where the same evidence will support both actions. It is manifest, that the principle of that case has no application to the present. Here no other action was ever brought against the defendant. It rests upon a different ground altogether from the trespass, and must be supported by different evidence. If it were clear that the defendant could have been sued in an action of trespass, I see no rea son, upon authority or upon principle, why the plaintiff as to him, may not waive the trespass and sue in assumpsit. It is the more favorable action for the defendant, as the recovery must be restricted to the amount actually received.

It is objected by the defendant, that as the value of the goods must have been included in the verdict, in the former cause, if the plaintiff recover here, he may obtain a double satisfaction. The same remark would apply to separate recoveries, on a joint and several bond, or against the maker and endorser of a note, which are cases of daily occurrence. The remedy, in all such cases, is by an application to the equitable power of the court, by way of motion, or if the party prefer it, by an audita querela.

Such would be my view of the case, if the evidence showed that the defendant might have been joined in the action of trespass against Moore and others. But in fact, he does not appear to have been a joint trespasser although he received the goods, and kept them in his possession until the sale ; there is no proof to show that he knew, that they had been taken from the store of the plaintiff; certainly not, that they had been improperly taken. When the defendant sold the goods at auction, they still continued the property of the plaintiff, unless that property was changed by the judgment against the trespassers, who had wrongfully taken them from his possession. Such, upon the authority of the cases . before cited, was not the effect of that judgment. The plaintiff • then had a right to reclaim his goods wherever he could find them. He might have sued the defendant in trover, or he might affirm the sale of the goods by him, and recover the proceeds in this action of assumpsit, The defendant, in fact, never claimed any right to the goods, or their proceeds, but declared he held the latter for the plaintiff or whoever might appear to be entitled to them, after paying a note held by him and his brother against the plaintiff. His subsequent payment of the proceeds of the goods to Moore, who had no right to receive them, cannot exonerate him from his liability to account to the plaintiff.

Judgment for the plaintiff.

[W. P. Hawes, Att'y for the plff. W. Slosson, Att’y for the deft.]

Note.—This cause was twice tried. Upon the first trial, when Moore was offered as a witness, he was objected to by the plaintiff, and excluded by the Judge. The question being brought before the court, a new trial was granted, upon the ground that Moore was improperly rejected. The defendant, did not offer to show that he was intrusted in the goods, but that he was a partner with Sturtevant, and that fact, the court held might be proved by Moore himself.


source: Caselaw Access Project

author: Oakley, J.

license: Public Domain

text:
    Stephen Myers versus Elias Dixon.
    Although an action of debt upon an arbitration bond, cannot be sustained, where the award is not made within the time specified in the condition, and the parties have, by a new agreement, extended the time for making the award; yet where the declaration sets forth the bond, the enlargement of the time by the new agreement, an award within the extended period, and a breach of its requirements, on the part of the defendant, it contains a complete cause of action.
    To an action of debt, wherein the above particulars were all set forth, the defendant, by plea, set out the original arbitration bond, and the award, whereby it appeared that the award was not made within the period originally stipulated: Upon demurrer to this plea, it was held not to be an answer to'the declaration—■ no notice being taken in it of the allegations in the declaration, as to the enlarged time.
    This was an action of debt, founded upon a submission to arbitration, and the award made in pursuance of it. The declaration, in its first count, set forth, that certain differences having arisen between the plaintiff and the defendant, the parties, by a certain bond of arbitration, bearing date the 9th day of February, 1839, became bound to each other, in a certain penal sum, to abide by the award of certain arbitrators, therein named, who were to decide all matters in controversy between them, and make their award in writing, and under seal, on .or before the ¿5th day of the same month; which time for making the award, (the declaration alleged,) was afterwards, and before the time for making the same expired, to wit, on the 35th day of February, 1839, by consent of the plaintiff and defendant, “ enlarged until the 6th day of March, then next,” it being agreed, by the parties, that the award made within the extended time, should be binding and conclusive upon them. This count then averred, that the arbitrators duly made their award within the time, for that purpose last appointed, determining thereby that the defendant was indebted to the plaintiff in the sum of 1,334 dollars, to be paid by him on or before the 31st of March, 1839, of which the defendant had notice ; yet the said Stephen Myers did not, nor would, at the time, for that purpose in the award appointed, or at any other time, pay to the plaintiff the said sum of 1,324 dollars, or any part thereof, although requested, whereby an action accrued to the plaintiff to recover the amount of said award»
    In answer to this count of the declaration, the defendant pleaded that the bond therein set forth, contained a condition, stipulating that the award contemplated should be made by the 25th day of February, 1829; whereas, in point of fact, it was not made until the 6th of March following, as fully appeared by the same, under the hands and seals of the arbitrators. The bond itself and its condition, together with the award, were spread out in extenso upon the plea, which concluded with the usual verification.
    The plaintiff demurred generally to the plea, and Mr. George Griffin, in support of the demurrer, insisted that the plea was bad, because it takes no notice of the enlargement of the time for making the award, set forth in the declaration, which was an essential ingredient in the cause of action declared upon. That the enlarged time incorporated itself into the bond,—and a plea which takes no notice of this particular, must necessarily be defective upon general demurrer. [Evans v. Thompson, 5 East. 193. Keating v. Price, 1 John. Cas. 22. Fleming v. Gilbert, 3 J. R 528. Hasbrouck v. Tappen, 15 Ib. 200. Jenkins v. Law, 8 T. R. 87. Brown v. Goodman, 3 Ib. 592, (note.) 3 Dow. and Ry. 444. 2 Barn. and Cres. 179. King v. Hall, 7 Price’s R. 636. 1 Mau. and Sel. 21. 1 Esp. N. P. 35. 5 Bro. P. C. 313. 8 J. R. 193. 2 Chit. Plead. 457.]

      Mr. H. Holden, contra, for the defendant,
    insisted that the declaration was bad. That the action should not have been brought either upon the bond or the award, but on the submission implied in the new agreement for enlarging the time. The declaration states, that the time for making the award was extended, but it does not tell us how it was enlarged—whether by parol, or by writing. When the time was extended, a new agreement was formed; the old one was abandoned or merged in the new one, and an action of debt, founded upon the original bond, could not be sustained. [3 D. and E. 592, (n.) 9 J. R. 115, 2 Wend. R. 399.]
   Oakley, J.

This case comes before us on a general demurrer to the defendant’s plea to the first count of the declaration. That count sets forth, 1. That mutual bonds of submission to arbitration, dated the 9th of February, 182.9, were executed by the parties, by which the award was to be made, on or before the 25th day of February. 2. That before that period, the time for making the award was extended by the parties to the 6th of March, and that it was agreed, that an award, to be made within such extended time, should be binding. 3. That an award was made within such enlarged time;—and the count then sets forth a breach of the award, on the part of the defendant, in the non-payment of the money awarded. The plea sets forth the bond and its conditions, together with the award, by which it appears that the latter was made after the expiration of the time limited for making it, in the conditions of the bond. To this plea the plaintiff demurs.

The question sought to be raised by the defendant in this case, is, whether an action of debt can be sustained on an arbitration bond, when the award is not made within the time specified in the conditions of the bond, though the parties may have extended that time by a new agreement. It seems to be settled, in such a case, [Freeman v. Adams, 9 J. R. 115,] that the action must be on the submission implied in the new agreement. The defendant here, however, seems to have mistaken the nature of the action, as set forth in. the plaintiff’s first count. It is not founded on the bond, but on the submission made by the new agreement, and on the award made in pursuance of it. The count sets forth all the circumstances,—the bond, the enlargement of the time, the agreement that the award shall be binding, and the award itself. It is strictly appropriate to the case, and the plea is clearly no answer to it. There must be judgment for the plaintiff on the demurrer.

Judgment for the plaintiff, with leave to the defendant, &c.

[Geo. W. Strong, Att'y for the plff. Horace Holden, Att'y for the deft.]


text:
    John Elting, Jun., and Jacob Shook versus Stephen J. Brinkerhoff.
    The defendant, residing in Dutchess County, drew an order, payable on demand, in favor of the plaintiffs, for 100 dollars, on one Ring, the master of a sloop, by whom he was in the habit of sending his produce to market. The order was not negotiable, nor was it presented until nearly sue years after its date; and in the mean time, various settlements had taken place, between the plaintiffs and the drawee.
    Held, that if the draft wore to be considered as an inland bill of exchange, the drawer was discharged by the laches of the holders; but if it were treated as a mere banker’s check, then that a presentation for payment, at any time before suit brought, would be sufficient, unless tire drawer could show injury from the delay. Held also, that the consideration of the order, whether check or bill, could be inquired into, between the original parties ; and as the defendant contended that the order was drawn for the mere accommodation of tire plaintiffs, the court ordered that question to be submitted to a jury.
    This was an action of assumpsit against the defendant as the drawer of the following check or order, the plaintiffs being the payees and holders thereof.
    “ Capt. Ring,
    “ Please to pay Messrs. Elting & Shook, one hundred dol- “ lars, and oblige
    Stephen J. Brinkerhoff.”
    “ June 3d, 1822.”
    The declaration contained a count upon the order, together with the common money counts. Plea the general issue. It appeared, at the trial, that the defendant, at the time of the drawing of the order, was an extensive farmer, residing in Dutchess County, and the drawee was the master of a sloop, who was in the habit of transporting the produce of the defendant’s farm to New-York, and of disposing of it for him there. The order was not presented to Ring, the drawee, until nearly six years after its date, and payment being then refused, the plaintiffs, in May, 1828, caused it to be again presented, and this action immediately thereafter to be brought. Between the date of the order and the bringing of the suit, various settlements had taken place between the drawee and the plaintiffs, in some of which, the latter were found indebted to Ring, and, on one occasion, the plaintiffs gave him a promissory note for one hundred and thirty dollars ; but the order in question was not considered in any of the settlements. Brinkerhoff was generally in the habit of drawing the proceeds of his produce out of the hands of Ring as fast as the latter received it, and their dealings were confined to this business. It did not appear, distinctly, whether there were funds in the hands of the drawee at the date of the order, or not, and Ring, who was examined as a witness, could not testify positively on that point, but he had at all times been solvent, down to the day of trial, and if the order had been presented in season, it would have been paid.
    Upon this state of facts, the defendant insisted that the bill or order, did not upon its face import a consideration and that as the plaintiffs had not shown any, aliunde, they could not recover. He also insisted, that the drawer was discharged for the want of a timely demand on the drawee, and notice of non-payment.
    His honor Judge Hoffman, (before whom the cause was tried,) overruled the objections, and directed the jury to find a verdict for the plaintiffs, which, having been done, the defendant now moved for a new trial.

      Mr. D. B. Tallmadge, in support of the motion, contended,
    I. that the bill or order, did not import or denote a consideration. Bills or notes, he said, do not import a consideration, unless the words value received are used, or the true consideration is expressed, or the instrument made negotiable.

    Every agreement, to be binding in law, must be on a sufficient consideration. This consideration is either expressed or imported. A seal denotes or imports it. So also do the words order or bearer in commercial paper.
    Although a bill of exchange is not a specialty, but merely a simple contract, yet a sufficient consideration is implied from the nature of the instrument. The validity of the bill cannot in general be disputed, on account of the want of a sufficient consideration, when it is in the hands of a third person.
    In this respect, therefore, a bill of exchange, although it is not a specialty, yet it carries with it the same presumption of consideration, as a bond or other specialty, particularly when it is in the hands of a third person. It is not, however, owing to the form of a bill of exchange, nor to the circumstance of its being in writing, that the law gives it this effect, but in order to strengthen and facilitate the commercial intercourse, which is carried on through the medium of this species of security; for, notwithstanding a contract be in writing, it is essential, to the validity of it, that it should in all cases be founded on a sufficient consideration, unless the writing, from its being of the highest solemnity, import a consideration, or unless it be negotiable at law, and the interest of third persons are involved in its efficacy. [Chitty on Bills, 6. 13, 14. 2 Wils. 212.]

    II. If this be a valid instrument on the face of it, yet no action can be maintained by the payee against the drawer, because it is an accommodation draft or order, and without consideration in fact.
    A bill or note, importing on its face to be for value received, is prima facie evidence of that fact between the parties to the note and third persons, whenever the bill or note is admissible as evidence. But the presumption of value received, arising from the words on the face of the bill, may be rebutted by circumstances, as if the payee should neglect entirely to present it for acceptance. [Bailey on Bills, 317. Grant v. Da Costa, 3 M. and S. 351.]
    III. The demand was not made, nor the notice given in time to allow the plaintiff to recover. Bills payable at sight, and notes payable on demand, stand upon the same footing, and to charge the drawer of a bill, or the endorser of a note,- the bills should be presented, or payment demanded within a reasonable time. [Aymar v. Beers, 7 Cowen’s R. p. 705.]
    It appears to have been formerly held, [Chitt. on Bills, 251,] that it was incumbent on the person, insisting on the want of notice, to prove, that he had really sustained damage by the laches of the holder; but it has been settled by later decisions, that such damage is to be presumed, and that the only excuse for the omission, is the proof of the want of effects in the hands of the drawee; and.it is always presumed, till the contrary appears, that the drawer of a bill has effects in the drawee’s hands, and consequently, that he may have sustained a loss by the neglect to give notice.
    But demand and notice are necessary where the party draws the bill with a bona fide and reasonable expectation, that he shall have assets in the hands of the drawee, as where there are fluctuating accounts between the drawer and drawee, or where, at the time of drawing a foreign bill, the drawee has effects of the drawer in his hands, though they are taken out before the bill becomes due, or where the drawee has effects of the drawer in his hands, at any time while the bill is running, [4 Stark. 263. 3 Esp. R. 158. Chitty on Bills, 86. 256. 2 Camp. 503. 15 East. 216. 20 J. R. 146. 11 East. 117. 7 Cowen’s R. 176.]

      Mr. R. C. Wheeler and Mr. J. Tallmadge, contra, contended,
    I. That the draft or order, imported a sufficient consideration; and that it was evidence, under the common money counts, sufficient to support the action.
    II. That demand and notice at any time, before suit brought, were sufficient, the plaintiffs having proved that the drawee had no funds of the defendant in his hands at the date of the draft; that the drawee had been at all times since the making of the draft, and was still solvent, and that the defendant had withdrawn all his funds from the hands of the drawee, leaving this order unpaid.
    III. Bank checks are the same as inland bills of exchange, and may be declared on as such, or given in evidence under the money counts; and there is no difference, in principle, between checks on a bank and orders on individuals. The holder never proves the consideration of a check, note or bill; they import consideration in all cases, and even, as between the original parties, the defendant, if he disputes the consideration, must show the want of it. [3 J.

      Cases 5. 259. 6 Cowen’s R. 484. Stark. Pl. 4. 280. 2 Camp. R. 596.]
   Oakley, J.

The defendant, residing in Dutchess County, drew the order in question, in favor of the plaintiffs, on Ring, the captain of a sloop, belonging to the same county, and by whom the defendant was in the habit of sending his produce to the New-York market. The order was not presented to Ring, until nearly six years after its date, and, in the mean time, various settlements of accounts had taken place between Ring and the plaintiffs, in which the plaintiffs were found indebted to Ring; and on one occasion, in a sum larger than the amount of the order for which the plaintiffs gave him their note, which still remains unpaid.

1. If the draft in question is to be considered as an inland bill of exchange, it is very clear, that the lapse of time between the drawing of the bill, and its presentation to the drawee, has been such as to discharge the defendant. Though it does not clearly appear whether the drawer had funds of the defendant, at the time of the drawing of the bill, yet he had a right to expect that his bill would be accepted and paid; and it is in evidence, that it would have been paid, on sight, if it had been presented. Under these circumstances, it" was necessary for the holders of the bill, to present it for acceptance within a reasonable time, and to give due notice of its dishonor to the drawer. [Stark. on Evi. pt. 4. 263.] What is a reasonable time for the presentation of such a bill, is the facts being undisputed, a question of law; [7 Cowen’s R. 705,] and it cannot be doubted, that the bill, in the present case, was not presented in a reasonable time.

2. If the draft in question, is to be considered as a mere banker’s check, (and it seems to me to be nothing more, as it is not negotiable on its face,) then, a presentation of it for payment, at any time before suit brought, is sufficient, unless the drawer has been injured by the delay, [6 Cowen's R. 490. 3 J. Ca. 5. Ibid. 259;] and there is no evidence, in this case, to show, that any such injury has been sustained.

But, whether it be an inland bill or a check, and whether, in either case a consideration is prima facie, imputed by its terms, it is well settled, that as between the drawer and payee, the consideration is open to inquiry. The defendant here contends, that the circumstances of the case show that the draft in question, was for the accommodation of the plaintiffs ; and I am of opinion that, that fact should have been submitted to the jury. The very long delay in presenting the draft, and the repeated settlements which took place between the plaintiffs and the drawee, without any demand of payment of the draft, are facts from which the jury might well have inferred, that they had no. real interest in it, and that it had been given to them, for their accommodation merely.

The Judge having directed a verdict for the plaintiffs, it ought, in my judgment, to be set aside.

New trial granted.

[R. C. Wheeler, Att’y for the plffs. E. Curtis, Att'y for the deft.]


text:
    Elisha Smith versus William Tracy.
    The plaintiff brought an action of assumpsit for work and labor bestowed by him as a physician, surgeon and apothecary, on the defendant’s wife, and for the medicines found and applied by him in the course of his attendance as such physician. It appeared, at the trial, that the plaintiff had no license, authorizing him to practice, but was employed by the defendant to attend upon his wife, and in the course of such attendance, furnished a quantity of medicines, for the preparing of which, he had obtained a patent; And he sought, in this action, to recover a compensation for his services, as a physician, and also for his medicines. Held, that he was not entitled to recover any part of his claim,—not even for the patent medicines furnished in the course of his attendance.
    This was an action of assumpsit, for work and labor as a “ physician, surgeon and apothecary,” bestowed by the plaintiff on the defendant’s wife, and for medicines found and provided by the plaintiff, and used and applied by him in the course of his attendance as such physician. It appeared in evidence, at the trial, that the plaintiff had no license, authorizing him to practise, as a physician,—but he was employed by the defendant to attend his wife, and in the course of-such attendance, furnished a quantity of medicines, for' the preparing of which he had obtained a patent; and he sought, in this action, to recover a compensation for his services as a physician, and also for his medicines. The recovery was resisted on the ground that the statute disabled the plaintiff from maintaining the action. The plaintiff, it appeared, was a practitioner in “ botanic medicines” and he attended the defendant’s wife, thrice every two days, from October, 1828, to April thereafter. Her complaint was a cancer, and the bill of particulars showed a list of medicines, amounting to 75 dollars, and visits to the amount of 150 dollars. No cure was effected, a regular surgeon having been called in before “ the work was complete.”
    At the trial, Mr. Justice Oakley, (before whom the cause was tried,) directed the plaintiff to be nonsuited upon his own evidence, with leave to move to set the nonsuit aside, upon a case which either party had leave to turn into a bill of exceptions,

      Mr. D. Graham, for the plaintiff, now moved to set the nonsuit aside, and for a new trial. He contended,
    I. That the plaintiff was not within the statute, and was entitled to recover for his services. But, if he were within the statute, still that the defendant, having contracted with him, with a full knowledge that he had no license, could not afterwards turn round and set up the want of a license by way of defence.
    II. That the plaintiff having had a patent for the medicines, for which he claimed to recover, was at all events, entitled to a verdict for that part of his demand. [2 R. L. 233. 220, sec. 12. 20.]

      Mr. J. Anthon, contra, for the defendant, insisted that,
    I. That as the plaintiff practised physic without being duly licensed, he was disqualified from collecting any demands accruing from such practice; and that the practising in botanical medicines for profit was equally prohibited to unlicensed persons,
    II. That the exception, in the statute in favor of botanical medicines, merely relieves a party who applies them for the benefit of the sick, from the penalty of the. law against practisers of physic without license, but gives no right to make a profit of such practice; and that this exemption is confined to the administering of herbs, roots or bark, the growth or product of the United States.
    III. The plaintiff’s sirup, (he said,) contains, as its essential ingredients, sarsaparilla and lignumvitse, which are not of the growth of the United States; and his wash contains oxyd of iron, none of which are within the exception. He not only cannot recover for demands accruing in such practice, but is liable, moreover, to a penalty for so practising.
    IV. The patent granted by the United States, cannot give him any rights in opposition to the statute, which being for the protection of the health of the citizen, is a valid and constitutional act. [He cited 14 J. R. 369. 1 Wend. R. 528. 1 N. R. L. 455. 9 Wheat. R. 203.]
   Oakley, J.

[After a statement of the facts of the case.] By the 12th sec. of the act, regulating the practice of physic and surgery, [2 R. L. 222,] it was provided, that if any person shall practice physic or surgery without a license, “ he shall for-" ever thereafter be disqualified from collecting any debt or debts, “ incurred by such practice, in any court of the state.” By the new revised code, which was in force at the time the plaintiff rendered the services in question, [1 R. S. 455. sec. 22,] it is enacted, that every person “ not authorized by law, who for any “ fee or reward, shall practise physic or surgery, within the state, shall be incapable of recovering by suit any debt arising from "such practice.” The provisions of both acts, in this respect, are similar in effect, and undoubtedly must receive the same construction.

In the case of Timmerman v. Morrison, [14 J. R. 370,] the Supreme Court held, that by the true construction of the former act, no person practising without a license, could recover, for services rendered or medicines furnished, as a physician or surgeon. In Allcott v. Barber, [1 Wendell’s R. 526,] the action was for medicines furnished. The plaintiff, in that case, being an unlicensed physician, was employed to attend the defendant’s daughter, and, in the course of such attendance, furnished a quantity of medicine. The • Court of Common Pleas, in which the action was tried, directed the jury, that the plaintiff had a right to recover for the value of the medicine furnished; and the Supreme Court held that direction to be erroneous. The Chief Justice says, that “where the same person officiates as physician and apothecary” he comes within the decision of Timmerman v. Morrison ; and he says, that if it were otherwise, the country would be filled with quacks and pretenders, “peddling their nostrums, and deceiving and “ destroying the ignorant and the credulous, the very mischief “ which the statute is intended to prevent.” I cannot distinguish the case now before us from Allcott v. Barber. The plaintiff acted in the joint capacity of physician and apothecary. The medicines charged by him, were used and applied in the course of his attendance, and prescriptions as a physician. The case comes entirely within the principle of that decided by the Supreme Court, and must be controlled by it.

It is contended by the plaintiff; that the patent, in evidence in the case, gives him the right to sell the medicines in question, notwithstanding the provisions of the state law, and his general right to sell his medicines, as an apothecary, is not questioned in this case. The patent confers no additional right on him, but precludes others from selling or using them. The state law, by the construction given to it by the Supreme Court, prohibits him from “peddling his nostrums” in the character of a physician, and inducing people to buy and use them, in consequence of their reliance on his pretended skill. Such practices, the law of the state has declared to be dangerous to the public health, and if the patent in question, had authorized him, in express terms, to vend his medicines in the manner in which he has done it in this case, I should have no hesitation in holding, that the patent would be inoperative against the provisions of the law. It is not necessary, however, to enter further into this view of the case.

The plaintiff also contends, that the knowledge of the defendant that the plaintiff was an unlicensed physician, is a feature in this case, which distinguishes it from those decided by the Supreme Court. I cannot so consider it. That knowledge, no doubt, exis ted in the case of Allcott v. Barker, and exists also, in the great majority of cases, in which unlicensed physicians are employed. The mischief intended to be prevented by the statute, is injuryAo the “ ignorant and credulous,” and the protection of the statute, to that class of people, would be in a great measure defeated, if a circumstance of such common occurrence, were permitted to take the case out of its operation. The motion to set aside the nonsuit must be denied.

Motion denied.

[D. Graham, jun. Att’y for the plff. E. Anthon, Att’y for the deft.]

Note.—This “ practitioner” professed to cure “most diseases incident to humanity,” among which were enumerated gout, gravel, asthma, syphilis, stone, dropsy, ulcers, salt rheum, affections of the nerves, palpitation of the heart, St. Anthony’s fire, tetters, scald heads, consumptions, and all diseases arising from impurity of the blood. One of his recipes for a “ tincture” in the above complaints, was as follows:

“ Take one gallon of cider, half a pound of horse-reddish-root, a quarter of a “ pound of white-oak bark, and two ounces of oxyd of iron. Let the mixture stand “ six days, stirring it twice every twelve hours, and it will be fit for use.”


author: Per Curiam.

text:
    William Smith versus Enoch Wiswall and Francis Price.
    The declaration alleged, that it was agreed between the plaintiff and the defendants, 1. That the plaintiff should subscribe for and taire 80 lots of ground, in a certain tract in the city pt N. T. “ agreeably to the conditions, as setforth-in said articles of subscription.” 2. That he should pay over, at the meeting of the said subscribers, for the division of said lots, a certain sum of money. 3. That the defendants should allow to the plaintiff) on the settlement for said lots, a certain sum as commissions, &c. It then averred a performance, on the part of the plaintiff, in the words of the agreement, as set forth, and assigned, as a breach, the nonpayment of the sum to be allowed as commissions. Upon general demurrer to this declaration, for the want of a sufficient statement of the cause of action, it was held to be sufficient, although liable, perhaps, to objections, upon special demurrer.
    This case came before the court upon a general demurrer to the first count of the declaration, which set forth, that in and by a certain agreement between the plaintiff and the defendants, dated the 4th day of March, 1827, it was stipulated that the plaintiff should subscribe for, and take 80 lots of ground, on a certain tract in the city of New-Yorlc, called the Bloomingdale Tract, “ agreeably to “ the conditions, as set forth in said articles of subscription, and to “ pay over, in cash, at the meeting of the said subscribers, for the
      “ division of said lots, the sum of 3,200 dollars; and that the de- “ fendants should allow to the plaintiff, on the settlement for said “ lots, the sum of 2,800 dollars, as commissions for taking up said “ subscription.” “ And although the said plaintiff, afterwards, &c. “ did subscribe for and take the said 80 lots of ground on the said “ tract, agreeably to the conditions as set forth in said articles of “ subscription, and did also pay over, in cash, at the meeting of “ the said subscribers, for the division of said lots, the sum of 3,200 “ dollars,” yet the defendants “ wholly neglected and omitted to “ pay or allow the said plaintiff, on settlement of said lots, the said “ sum of 2,800 dollars, or any part thereof, (althoirgh often re- “ quested,) as commissions for taking up said subscription,” &c.

      Mr. D. Selden, for the defendants, in support of the demurrer, contended,
    that the count did not set forth the cause of action with sufficient certainty, to enable the defendants to ascertain for what they were sued. That it did not set forth the whole contract, but only a part of it, leaving all the conditions of subscription to be supplied by proof at the trial.
    A declaration, on a special contract, (he said,) ought to contain such a statement of the cause of action, as to enable the defendants to present the rights of the parties as a question of law or fact, at his option. Here there is not enough set forth, for the - exercise of any such power of election, and the declaration is decidedly defective. [9 J. R. 291. 2 Bos. and Pul. 265. 1 Day’s R. 315. 1 Chitt. P. 214, 234-5, 255. 299. 300.]

      Mr. E. Barnes, contra, for the plaintiff, contended,
    that as the sole objection to the declaration was for an alleged defective statement of the terms of the subscription, the defendants could not take advantage of it on a general demurrer. That as they had the subscription paper in their own hands, that which was apparently uncertain, might be made certain by a reference to proof in their own possession. There is no necessity, (he said,) for setting out, with more particularity, that which is in the defendants’ knowledge. The terms of the agreement are known to them, and we have set out enough to enable the court to perceive what the contract is,—-that we have fulfilled it on our part, and that the defendants have been guilty of default on their part. A general demurrer to such a declaration cannot be supported, for it admits the contract in the terms stated in the pleading.
   Per Curiam.

The statement of the agreement in the declaration, is sufficient on general demurrer. The plaintiff avers performance of all the stipulations on his part, (which the demurrer admits,) and the breach assigned is of a specific character, namely, the non-payment of a certain sum of money. On a special demurrer, it might have been held that the plaintiff should set forth, more particularly, the terms of the subscription; but upon the present pleadings, there must be judgment for the plaintiff.

Judgment for the plaintiff, with leave to the defendants, &c.

[E. Barnes, Att'y for the plff. D. Selden, Att’y for the defts.]


text:
    James Bennet versus Adinijah Moody.
    An action of debt, in this court, will lie upon a judgment obtained in the Marine Court. And where the declaration alleged, that the plaintiff, “ levied his certain plaint” in the Marine Court, against the defendant, for a cause of action arising within its jurisdiction, and such proceedings were had, that a judgment was obtained, &c., a demurrer to it, for want of jurisdiction, as manifested by the pleading, was held to be not well taken.
    Although the first process in the Marine Court is by summons or warrant, it does not follow, from this, that such process may not be founded upon a plaint previously filed. But if otherwise, then the words, “levied his certain plaint,” are to be taken as tantamount to “ commenced his suit,” or “impleaded the defendant ;” either of which would be sufficient, prime fade, to show, that the court had jurisdiction over the defendant’s person.
    This was an action of debt, upon a judgment obtained by the plaintiff against the defendant in the Marine Court. The declaration alleged, that the plaintiff, on the 20th day of May, in the year 1829, in the Marine Court, in the city of New-York, “ levied his certain plaint” against the defendant, “ in a plea of trespass on the case, for a cause of action, arising within the jurisdiction of said court,-and such proceedings were had,” that afterwards the plaintiff, by the judgment and consideration of said court, recovered against the defendant the sum of money demanded, “whereof the defendant is convicted, as by the record,” thereof fully appears.
    The defendant demurred to the declaration, and Mr. E. Barnes, in his behalf, contended,
    I. That the plaintiff, having as full and ample means-of obtaining a satisfaction of the judgment, in the Marine Court, by execution, at the time Of the commencement of the suit, as he had at the time the judgment was obtained there, could not, for the mere purpose of accumulating costs, bring a new action thereon. [Hale v. Angel, 20 J. R. 342. 2 Bac. Abridg. p. 14. A. Roll's Abridg. 600, 601.]
    II. That the declaration failed to show, that the Marine Court had jurisdiction, so as to enable it to give d valid judgment in the premises. [2 R. L. 381. 8 Cowen's R. 314. 6 Ib. 234. 3 Dall. 382. 4 Ib. 8. 5 Cranch, 173. 5 Jac. Law. Dic. 158.]

      Mr. D. Graham, contra, contended,
    that the declaration contained a legal cause of action which was well pleaded. [2 R. L. 381, sec. 106. Ib. 370. sec. 88. 112. 1 Saund. 92. n. 2 Chitty P. 181, notis.]
   Oakley, J.

The defendant contends, that no action of debt will lie on a judgment obtained in the Marine Court. It is clearly otherwise. The case of Hale v. Angel, [20 J. R. 342,] shows that such an action may be maintained, even on a judgment in a Justice’s Court.

It is said, however, that the declaration in this case, does not show, that the Marine Court had jurisdiction, so as. to make its judgment effectual. The count states, that the plaintiff “ levied his certain plaint in said court, against the defendant, for a cause of action arising within the jurisdiction of said court, and such proceedings were thereupon had, that judgment was obtained, &c. This would clearly be sufficient, as to those counts where the action is, technically speaking, commenced by plaint. [1 Saund. 92. n. 2.] But as to the Marine Court, it is said, that no such proceeding as that by plaint is known, but that the first process is, in all cases, to be by summons or warrant. Although the statute directs, that the first process shall be a summons or warrant, it does not necessarily exclude the idea, that such first process may be founded on a plaint. The Marine Court is a court of record, and its organization will admit, for aught I can see, like other courts of record, of the practice of filing a plaint, as the foundation of the first process against the defendant.

Were this otherwise, I should be inclined to hold, that the words, “ levied his certain plaint,” are to be taken, not in their technical sense, but as equivalent to the allegation, that the plaintiff in that court had commenced his suit against the defendant, or had impleaded the defendant, either of which would be sufficient, prima facie, to show that the court, rendering the judgment, had jurisdiction of the defendant’s person. The legal intendment in such a case would be, that the suit had been legally commenced. On the . whole, I think, there is no foundation for the objection.

Judgment for the plaintiffs on the demurrer.

[D. Graham, Jun., Att'y for the plff. E. Barnes, Att'y for the deft.]


text:
    James Graham versus Felix O’Niel.
    In an action for goods sold and delivered, it appeared that the defendant introduced one Mrs. C. to the plaintiff, and directed him to let her have what goods she should at any time want, and charge the same to him, and he would see the plaintiff paid. Goods were delivered accordingly, from time to time, which were charged to the defendant; and Mrs. C. made various payments, which were credited in the account; but a balance having accrued, this action was brought to recover its amount. The Judge, charged the jury, that if the plaintiff gave credit to Mrs. C., or if the defendant limited his responsibility to the first purchase, the verdict ought to be for the defendant. But if they believed, that the credit was given originally to the defendant, if it was unlimited in point of time, and had not been countermanded, their verdict should be for the plaintiff. The jury having found for the plaintiff the charge of the Judge was held to he correct; that the case was not within the statute of frauds, and that the plaintiff could recover upon the common counts, for goods sold and delivered.
    Assumpsit for goods sold and delivered. The declaration contained the common counts only, and the defendant pleaded the general issue. It appeared, at the trial, that the plaintiff was a shopkeeper, and that the defendant, in September, 1828, came to the plaintiff’s shop, in company with a Mrs. Connolly, (a pedler,) introduced her to him, and told the plaintiff to let her have what goods she might want, at any time, and charge the same to him, and he would see the plaintiff paid. Mrs. C. accordingly took up goods of the plaintiff, at the time of her introduction, and for a long time afterwards, at different periods, and made payments from time to time, on account of her purchases. The goods were entered in the books of .the plaintiff to the debit of the defendant, as goods delivered to Mrs. C.; and bills of parcels were rendered in the same form to her. After this trafílele had been carried on for several years in the same manner, Mrs. C. failed, leaving a balance due to the plaintiff, and to recover that balance this action was brought.
    The defendant contended, first, that the case was within the statute of frauds; and secondly, that there could he no recovery except upon a special count. The Chief Justice, (before whom the cause was tried,) reserved the questions of law, and directed the defendant to proceed with the cause.
    The defendant then introduced evidence to show, that the credit given Mrs. Connolly, was limited by him to the first purchase; and the C. J. charged the jury, that if the credit was given to Mrs. C. or if it was limited to the first purchase, to find a verdict for the defendant. But if the credit was given originally to the defendant, and there was no limitation as to time, nor countermand of the credit, that, then, their verdict should be for the plaintiff.
    The jury found a verdict for the plaintiff, and the defendant now contended, that the plaintiff was not entitled to judgment upon the questions of law.
    The cause was argued by Mr. R. Bogardus, for the defendant, and by Mr. Anthon, for the plaintiff.
    For the defendant it was contended, I. That the declaration ought to have been special, stating the agreement as made between the parties.
    II. That the proof showed the case to be within the statute of frauds ; that it amounted to a request, on the part of O’Niel, that the plaintiff would sell to Mrs. Connolly, and a promise on his part to see him paid for the goods. [6 Cowen’s R. 346. 8 J. R. 39. 6 Mod. Rep. 249. 2 Term. R. 80.]
    III. That the whole claim, except as to the credit given within one year from the sixth day of September, 1823, was clearly within the statute.
    For the plaintiff it was contended, I. That upon the sale of the goods, the credit was given by the plaintiff directly to the defendant, and not to Mrs. Connolly; and that the credit was so given, and the dealings so conducted by the defendant’s authority.
    II. That the credit, as authorized by the defendant, was unlimited, and had never been countermanded. In pursuance of the engagement, the goods sold were charged directly to the defendant, who alone was responsible for them.

      III. That the facts presented the ordinary case of goods sold and delivered by the plaintiff to the defendant, and had nothing to do with the statute of frauds. That the common counts were all that the case required, the facts not being susceptible of, or requiring a special count.
   Oakley, J.

This was an action for goods sold and delivered. It appeared, that the defendant introduced one Mrs. Connolly to the plaintiff, and directed him to let her have what goods she should at any time want., and charge them to him, and he would see him -paid. Goods were accordingly delivered to her, from time to time, and charged to the defendant. She made various payments, which were credited, and this action was brought to recover the balance.

The Judge directed the jury, that if they found that the plaintiff had given credit to Mrs. Connolly, or that the defendant had limited his responsibility to the first purchase, they should give a verdict for him; but if they believed, that the credit was given to the defendant, and with his authority, and that such authority was unlimited as to time, and had not been revoked, they ought to find for the plaintiff. The jury found their verdict for the plaintiff.

The direction of the Judge appears to me, to have been right, and the verdict of the jury is supported by the evidence. The facts present a case, not of a collateral, but an original undertaking to pay for the goods. They were furnished to Mrs. Connolly, as the agent of the defendant, and on his account, and by his express authority, and the purchase of them stands upon the same footing, as if it had been made by any member of the defendant’s family, whose authority to purchase on his account, had been recognized by him. In this view of the case, the statute of frauds .has no application to it, nor was there any necessity for a special count in the declaration. It is the ordinary case of goods sold and delivered to the defendant by his agent, and a recovery may be had on the general counts.

Judgment for the plaintiff.

[J. Hildreth, Att'y for the plff. R. Bogardus, Att'y for the deft.]


text:
    John T. Smith versus John J. Spies.
    The defendant agreed, by parol, with the plaintiff, that if he could purchase and deliver to him the notes of the New-Jersey Manufacturing and Banking Co., and pay a certain sum for discounting them, that he (the defendant) would take of the plaintiff all the notes of that Co. which he should so purchase, and pay him the amount thereof, deducting the discount The plaintiff under this agreement, purchased such notes from time to time, which were taken by the defendant on the stipulated terms, until finally an amount, which the plaintiff had on hand, being offered to the defendant, he neglected to pay for the same, and on that day the bank failed.
    An action' being brought for a breach of this contract, it was help, that the case presented a sufficient consideration for the agreement, and that the plaintiff had a right to recover, under it, the amount of all such notes as he had received in the regular course of his business, and in which he had a complete right of property, at the time the bank stopped payment.
    Assumpsit on a special contract. The declaration set forth that, in consideration that the plaintiff would purchase, procure, and deliver to the defendant the promissory notes of the New-Jersey Manufacturing and Banking Company, to such an amount as the plaintiff might be" able to purchase or procure, to be discounted by the defendant for the plaintiff, and also in consideration that the plaintiff had agreed to allow the defendant a certain sum of money for discount upon said notes, at the rate of one eighth per cent, upon the amount procured and delivered, the defendant undertook and promised to receive and discount all such notes, of the said company, as should be purchased or procured by the plaintiff, and to pay him the full amount thereof in current money, deducting therefrom said discount.
    It appeared in evidence, at the trial, that the defendant, (who was a money broker,) in the month of September, 1828, agreed, by parol, with the plaintiff, (who was also a broker,) to give him, in exchange for such, of the notes of said company, as he should receive in the regular course of his business, notes of other banks, current in the city of New-Yorlc,—deducting therefrom one eighth of one per cent, on the amount exchanged, as a remuneration to the defendant for his trouble in carrying the notes received to the New-Jersey Company for exchange or redemption. Under this agrcemeat, the plaintiff, from time to time, collected the notes of said company, and they were exchanged for him by the defendant, according to the stipulated terms.
    On the 14th of March, 1829, the N. J. Manufacturing and Banking Company failed, and on that day the plaintiff carried to the defendant 1,599 dollars in the notes of the company, and demanded that he should redeem or exchange them. Of this sum, 83 dollars had been received by the plaintiff in the regular course of his business; 289 had been taken by him as collateral security for 200, loaned to one Patton, and the balance had been sent to the office of the plaintiff, by other brokers, on the morning of the failure of the company, that it might be exchanged by the defendant. It appeared that the plaintiff, while his arrangement with the defendant was in progress, had been in the habit of receiving the notes of said company from other brokers, for'the purpose of exchanging them at the office of the defendant; but it was understood by the brokers, that the notes in question were to be returned to them if the defendant declined to exchange them.
    Upon these facts, the defendant moved for a nonsuit: first, because the declaration was not supported by the proof; secondly, because the contract was void, for want of consideration and mutuality; and thirdly, because it was within the statute of frauds,—whether it was considered as an agreement for the sale of goods, or as a contract to guaranty the solvency of the bank. In this last case, it should have been in writing.
    His honor, Judge Oakley, (before whom the cause was tried,) refused to nonsuit the plaintiff and proposed to reserve the questions of law, for the consideration of the court upon a case. This being assented to by the parties, he recommended the jury to find a verdict in favor of the plaintiff for the sums received by him in the regular course of his business, and for the amount loaned to Patton, excluding therefrom the sums received by the plaintiff from the other brokers, on the morning of the failure of the Company.
    The jury returned a verdict for 283 dollars in favor of the plaintiff including the $200 loaned to Patten.

      A case having been made by the defendant, Mr. H. Ketcham, in his behalf, now contended,
    that the plaintiff was not entitled to judgment. He insisted that there was a variance between the contract declared on, and the contract proved. [8 Cowen’s R. 35. 7 Ib. 263. 18 J. R. 451.]
    II. That there was no consideration, to support a promise, on the part of the defendant, to take from the plaintiff the bills of the company, and the defendant could only be held liable, under the contract, to pay for those bills at the stipulated rate, which he actually took. [Cooke v. Oxley, 3 T. R. 653. Burnet v. Bisco, 4 John. R. 235.]
    III. That the contract proved, was not made in contemplation of the future insolvency of the company; it was not an undertaking, on the part of the defendant, to guaranty the solvency of that institution ; but the small compensation of one shilling for the exchange of 100 dollars, was to be allowed him by the plaintiff, for his trouble and the expense of getting the bills of the company exchanged at Hoboken, where the bank was situated. [Com. Dig. title Agreement, (C.) 1 T. R. 701. 2 Mau. and Sel. 363. 10 John. R. 412.]
    IV. If, however, the contract was to be regarded as a contract to guaranty the goodness of the paper, or the solvency of the company, it was void, (he contended,) under the eleventh section of the statute of frauds, the same not being in writing. [Saund. 211, note 2.] If, however, it was to be considered as one for the sale of goods, wares, and merchandise, then, he contended, that it was void under the 15th section of the statute of frauds, not being in writing. That if the contract was a legal one, still, that the plaintiff was not entitled to recover under it the 200 dollars of Patton’s money. [6 Cowen's Rep. 346.]

      Mr. S. A. Foote, contra, for the plaintiff, insisted,
    that the declaration was substantially supported by the proof, and that there was no variance which eould form the ground of a nonsuit.

      II. That the contract was a valid one, the bills having been taken by the plaintiff upon the faith of the agreement. That the contract was an original one. The plaintiff was not to take the notes to the bank, but the defendant was to -receive them at his counter;—and there was to be no communication between the makers of the notes and the plaintiff. The defendant agreed to redeem them, in consideration of a promise, on the plaintiff’s part, that be would collect them, present them to the defendant, and allow him a discount for the exchange. The contract having been executed, it is not obnoxious to the objection arising from a want of mutuality, and the plaintiff is entitled, at all events, to judgment for 83 dollars.
   Oakley, J.

The action in this case, is on a special contract, whereby the defendant agreed, that if the plaintiff would purchase and deliver to him the notes of the New-Jersey Manufacturing & Banking Company, and would pay him a certain sum for discounting said notes, that he, the defendant, would take of the plaintiff all such notes as he should so purchase, and pay him the amount thereof, deducting the discount. The plaintiff, under this agreement, purchased the said notes from time to time, and they were taken by the defendant on the stipulated terms, until finally, an amount which the plaintiff had on hand, being offered to the defendant, he did not pay for the same ; and on the same day the Bank failed.

The evidence in the case, and particularly that of the defendant’s witness, substantially supported the declaration.

1. The first objection, on the part of the defendant, to the plaintiffs recovery, is, that there is no consideration for the agreement on which the action is founded. This objection ought regularly to have been presented on a motion in arrest of judgment. The agreement is set forth in the declaration, and if the consideration there stated, is not sufficient to support the defendant’s promise, he might have demurred.

I thinly however, that the objection is not well taken. The agreement, on the part of the defendant, was'to receive the notes if the plaintiff would purchase and deliver them, and pay a certain sum by way of discount, on them. The plaintiff acted under this agreement, and purchased the notes in question, on the faith of it, and the risk assumed, and the expenditure of money made by him in the purchase of the notes, constituted a good consideration for the defendant’s engagement.

2. It is contended, in the second place, that the defendant was not bound to guaranty the solvency of the bank, and that the bank having failed, he could not be required to take the bills. The terms of the agreement were very explicit, to take all the notes that the plaintiff should purchase ; and I should consider, that by its fair construction, the notes were to be purchased at the risk of the defendant. But be that as it may, the notes in question, were presented to the defendant, before the failure of the bank, and there is no evidence to show that at the time of the purchase of them by the plaintiff, he had any reason to suppose that such failure was about to take place. There was then a complete breach of the agreement, on the part of the defendant, before the bank stopped.

3. The plaintiff has no right to recover, under this agreement, the amount of any notes, except such as he had purchased in the course of his business, and in which he had a complete right of property. Among the bills presented by him to the defendant, was a certain sum, pledged to him by one Patten, as security for a loan. The property in these still remains in Patten, and the plaintiff cannot be permitted to recover in this action for his benefit. That sum must therefore be deducted from the verdict.

Judgment for the plaintiff for 83 dollars.

[A. Dey, Att’y for the plff. J. Wyckoff, Att’y for the deft.]


text:
    Richard Higgins versus Jacob Soloman.
    The defendant chartered a vessel of the plaintiff for a voyage from New-York to Gibraltar, thence to Santa Cruz in the island of Teneriffe, thence to Havannah, and from H. back to New-York. In an action upon the charter-party, the declaration averred a general performance of the voyage described in it, and also a specific and particular performance, alleging that the vessel proceeded to Gibraltar and to Vera Cruz, thence to Havannah, &c.

      At the trial, it appeared that the defendant put a supercargo on board the vessel, who acted as his agent during the voyage. That the vessel arrived at Santa Cruz as stated in the declaration ; but instead of proceeding directly to Havannah from Vera Cruz, she first went to Oralava, (a port on the west side of Teneriffe,) at the request of the supercargo, and for the benefit of the defendant, and from thence to Havannah.
    Held, that the declaration was supported substantially by this proof, and that there was no variance to furnish ground for a nonsuit. Held also, that the declarations of the supercargo accompanying his acts, might be given in evidence as part of the res gestee, he being the agent of the defendant.
    This was an action of covenant, upon a charter-party, bearing date the 6th of September, 1826. The defendant, it appeared, chartered of the plaintiff, as agent of the owners, the brig Emblem, (of which the plaintiff was master,) fora voyage from New-York to Gibraltar, thence to Santa Cruz, in the island of Teneriffe, thence to Havannah, in the island of Cuba, and from thence hack to New-York. By the terms of the charter-party, the vessel was to receive a cargo at each of the above named ports, to be transported from one to the other in the order in which they are named, the charterer paying 3000 dollars for the use of the brig during the voyage. The vessel was to he allowed 60 lay-days for receiving and discharging her cargoes; and, if a longer time were required by the freighter, he was to pay demurrage, at the rate of twenty dollars a day for every day the vessel might be detained. Of the freight, 500 dollars were to be paid at Gibraltar, 500 at Santa Cruz, 200 at Havannah, (if required,) and the balance on the return of the vessel to New-York. It was also stipulated, that “ a supercargo should have his passage free in the cabin, he finding his own provisions.”

      The declaration set forth the charter-party at length, and averred that the vessel received her cargo at New-York, accord- ■ mg to the terms of the agreement; transported, and delivered the same at Gibraltar; received on board a second cargo for Santa Cruz, and delivered the same there; received on board another cargo at Santa Cruz, delivered it at Havannah; received onboard a fourth cargo there, and returned with it to New-York. And although the plaintiff had, at all times, since the making of said “ charter-party, well and truly performed, fulfilled, and kept all thin gs in the said charter-party contained, on his part and behalf to be performed” &c. yet the defendant kept the said brig on demur-rage, at New-York, for the space of six days, over and above the lay-days; and neglected, and refused to pay the balance due upon the charter-party, amounting to 1600 dollars.
    The defendant pleaded, 1. JVbra est factum. 2. That he did not keep the vessel on demurrage at New-York. 3. That he had paid the said sum of 1600 dollars, on the 24th day of May, 1817, upon the return of the vessel to New-York. 4. That the plaintiff did not proceed with said vessel from Santa Cruz to Havannah but, on the contrary, without any reasonable or probable cause, proceeded from Santa Cruz to another port or place in the island of Teneriffe, called Oratava, detaining the vessel there for the space of 30 days, “ by reason of which deviation from the “ voyage in the said charter-party mentioned,” the defendantwas “ disabled from loading or sending alongside of said brig at Havannah, a full homeward bound cargo.”
    The plaintiff joined issue upon the first, second and third pleas, and replied to the fourth, by protesting, that the vessel did not proceed from Santa Cruz to Oratava, and that the plaintiff did not, without reasonable cause, detain her there; and denying that the defendant was, by reason of any such delay, disabled from loading or sending alongside the said brig, a full homeward bound cargo: and this, he prayed, might be inquired of by the country;
    At the trial of the cause, it appeared that the defendant put one Pritchard on board the vessel as a supercargo, and that he continued on board during the whole voyage. That the brig sailed from New-York on the first of October, 1826, for Gibraltar, and arrived there on the 4th of November; departed from Gibraltar on the 29th of the same month, and arrived at Santa Cruz on the 18th of December. The supercargo, finding it difficult to procure either freight or passengers at Santa Cruz, persuaded the plaintiff to proceed to Oratava, on the west side of Teneriffe, for the purpose of procuring them there. The vessel accordingly left Santa Cruz on the 10th of February, arrived at Oratava on the 15th, took on board there, thirty passengers, together with a quantity of brandy; departed on the 19 th, and arrived at Havana on the 27th of March. The lay-days expired at Santa Cruz, and the vessel sailed from Havana on the 29th of April, with about one-half or two-thirds of a full cargo on board, and arrived at New-York on the 13th of May.
    It was stipulated in the charter-party, that the freighter might have all surplus room in the cabin, for the use of passengers, by paying the master 200 dollars, over and above the amount of the freight; .and it appeared by the evidence, that the plaintiff received that sum for going to Oratava. All the money paid by the passengers was received by the supercargo.
    The plaintiff, for the purpose of proving that the vessel proceeded from Santa Cruz to Oratava by the direction of Pritchard, gave in evidence his declarations made at the time; and to this testimony the defendant objected. The Chief Justice, (before whom the cause was tried,) ruled, that the declarations of Pritchard, accompanied by his acts, might be given in evidence as part of the res gestos. That if the defendant denied the authority under which Pritchard appeared to act, he could call him as a witness, or show his want of authority by other proof. But as he was on board during the whole voyage, acting as supercargo, the jury might infer, that he was the agent of the defendant, until the contrary was shown. To this opinion the counsel for the defendant excepted.
    After the evidence oh the part of the plaintiff was closed, the defendant moved for a nonsuit, upon the ground of a variance between the declaration and the proof; the declaration alleging a direct voyage from Santa Cruz to Havana, whereas, in point of fact, the vessel proceeded to Oratava, and was detained there a considerable time. This motion, however, was denied, with liberty to the defendant, to move to set aside the verdict if in favor of the plaintiff.
    As there was some controversy as to the weight which ought to be attached to the testimony of one of the witnesses for the plaintiff, and also as to the amount due, (the plaintiff having exhibited his accounts,) the cause was summed up for both parties upon the evidence. The Chief Justice then charged the jury, that if the vessel proceeded to Oratava, with the assent of the supercargo, for the benefit of the charterer, that that deviation would not defeat the plaintiff’s right of recovery. That the supercargo having been the agent of the defendant, would be presumed, in the absence of all proof to the contrary, to act for the benefit of his employer; and that in this case, his object seemed to be, to ob tain freight and passengers, which could not be procured at Santa Cruz. That as to the effect of the deviation, the defendant had pleaded, that it had hindered him from procuring a full cargo at Havana, but he had offered no proof to support this plea.
    The jury returned a verdict for 1,463 dollars in favor of the plaintiff, and the defendant, having tendered a bill of exceptions, now moved for a new trial.
    The cause was argued by Mr. D. Graham for the defendant, and Mr. J. Anthon for the plaintiff.

      Mr. Graham for the defendant.
    The plaintiff has, by his own showing, broken the contract; and he cannot, therefore, recover under it. He cannot introduce a parol agreement, varying the terms of the covenant, and yet recover in this form of action. The plaintiff must recover, if at all, upon his covenant,—but his own proof shows that the stipulations of that covenant have never been performed,—and another contract, made by the supercargo, was brought forward to support a declaration, founded exclusively upon the covenant. There is, therefore, a variance between the pleading and the proof, and the action must be defeated by the plaintiff’s own evidence. It might possibly be, that the plaintiff could recover upon a declaration, stating the facts as they actually occurred; but even then, it is doubtful, whether he could recover in covenant If a substantial variance be introduced into the agreement by parol, the covenant is gone, and the plaintiff must recover (if he recover at all) upon the new agreement.
    Here there is no proof of a breach corresponding with the issues. Pritchard had no authority to change the course of the voyage, even if he was supercargo. That was fixed by the covenant, and the master had no right to deviate from the track pointed out. Suppose an insurance upon the voyage round, and a loss at Oratava,—co aid the master justify the deviation, by pleading the authority or assent of Pritchard 1 The iter of the voyage was marked out by the freighter, that it might not be under the control of any one. It could not be changed except by him or his agent, duly authorized; and if he changed it, then there can be no recovery, except by an action on the new contract. This has been settled by repeated decisions in the Supreme Court, and recently by the case of Langworthy v. Smith, [2 Wend. R. p. 587. 1 Phil. Evi. 433. 8 John. R. 392. 491. 12 East, 583-4. 15 J. R. 200. 9 Ib. 115. 4 Cowen’s R. 564.]
    II. The declarations of Pritchard, as to the deviation at Teneriffe, were inadmissible.

      Mr. Anthon, contra, for the plaintiff,
    maintained the following points:
    I. The voyage stipulated for by the charter-party, was actually performed; and the stopping at an intermediate port, for the benefit and at the request of the defendant, did not affect the question of performance.
    II. That intermediate operation having been paid for by the defendant, was entirely out of the case; and in declaring on the charter-party, the intermediate voyage being dehors the instrument, and actually settled for, no rule of pleading required that it should be noticed.
    III. The declaration contains a general averment of performance, in the usual form, and evidence of substantial performance, which was abundantly given in this case, fully sustained that averment It likewise contains a special averment of performance, setting forth the voyage as performed from New-York to Gibraltar, thence to Santa Cruz, thence to Havana, and then home. To this the objection is made, that the stopping at the intermediate port of Oratava, ought to have been averred. If this objection were correct, the general averment of performance being sufficient, or the special averment unnecessary, would be surplusage: and utile per inutile non vitiatur,
    IV. Both the general and special averments are good, according to the rules of sound pleading, each being an averment of performance, secundum subjectam materiem. [Ogden v. Barker, 18 John. R. 87. White v. Parker, 12 East. 578.] The pleadings put this question to rest. The declaration sets forth the charter-party, avers performance, and assigns two breaches. I. Nonpayment of six days’ demurrage. II. Non-payment of balance of freight.
    The defendant "pleads, j, Non est factum; 2. No demurrage in arrear; 3. Payment of all the freight; 4. The intermediate voyage, as a deviation, whereby the defendant was delayed, and could not procure a full cargo at Havana.
    The plaintiff joins issue on the 2d and 3d pleas, and to the 4th replies, that the defendant was not hindered thereby from procuring such cargo. All these issues are found for the plaintiff, and the defendant has no ground of complaint.
    V. The supercargo was the general agent of the defendant. His declarations, accompanied by his acts during his agency, were correctly received in evidence.
   Oakley, J.

This case comes before us on a bill of exceptions, by the defendant. The first objection, taken at the trial, was that the declarations and acts of Pritchard were improperly admitted in evidence.

It was clearly proved that he was sent on board the vessel, as the agent and supercargo of the defendant, and continued on board as such, throughout the voyage. His declarations and acts in the course of his business, as such agent, are clearly competent proof. The charter-party in question, provided that a supercargo might be put on board, and his authority, as the agent of the defendant, to detain the vessel on the voyage, “ on account of cargo or otherwise,” is clearly recognized in the instrument itself.

The second and principal objection was, that the proof furnished by the plaintiff, showed that the contract on his part had not been performed, and that he ought to be nonsuited on that ground. The variance alleged is, that the vessel instead of proceeding directly to Havannah, from Santa Cruz, went from the latter place to Oratava, in the same island, and from thence to Havannah. The objection appears to me, to admit of two answers.

1. The declaration sets out the charter-party, and avers, that the voyage had been performed. The defendant pleads 1st, non est factum, which plea, in an action of covenant, puts in issue only the execution of the instrument, and admits all other averments. [Kane v. Sanger, 14 J. R. 93.] The 2d and 3d pleas of the defendant are in answer to the averments, as to the breaches assigned in the declaration. The 4th plea sets forth the fact, that the direct voyage from Santa Cruz to Havannah, was departed from, and that the vessel was detained at Oratava, “ by means whereof the defendant was disabled from putting on board a full homeward cargo, at Havannah.” The replication to the last plea, admits the fact of the deviation from the direct voyage, and of the detention of the vessel at Oratava, and tenders an issue on the last averment in the plea, which issue is joined by the defendant.

Under this state of the pleadings, it was clearly incumbent on the plaintiff to prove, 1st, the execution of the charter-party, and 2d, the breaches assigned in the declaration. The burthen of proof, upon the issue joined under the 4th plea, (if deemed a material issue,) rested on the defendant. The question of performance on the part of the plaintiff, therefore, could not arise in the case, except under the general issue, and under that plea, the defendant cannot be permitted to show any failure of performance on the part of the plaintiff. The case of Kane v. Sanger seems to me to establish this doctrine clearly. There the action was on the covenant for quiet enjoyment in a deed. The declaration set forth the covenant and averred an eviction. The plea was non est factum, and the court held, that under that state of the pleadings, the plaintiff was not bound to offer any proof of the averments in his declaration, nor would the defendant have been permitted to question the fact of eviction, if he had not put it in issue, by a notice annexed to his plea. So, in the case now before us, the averment of performance of the voyage is admitted on the record, by the state of the pleadings, and that fact could not regularly be drawn in question at the trial. The same doctrine is also fully recognized in Gardner v. Gardner, [10 J. R. 47,] and in Thomas v. Wood, [4 Cowen's R. 185.]

2. But if this were otherwise, Í am of opinion, that the evidence in the case, supports substantially the averment of the performance of the contract on the part of the plaintiff. The voyage from Santa Cruz to Havannah, was, in fact, made. The deviation to Oratava, and the consequent delay in performing the direct voyage, were the acts of the agent of the defendant, who, by the terms of the charter-party, had the right to detain the vessel at pleasure. But for his interference, we have a right to presume that the plaintiff would have literally fulfilled his contract, and he is fairly to be considered as being willing and ready, at Santa Cruz, to proceed, and as offering to proceed, directly to Havannah. Upon this view of the case, it seems to fall within the principles laid down by the S. C. in Fleming v. Gilbert, [3 J. R. 531.] The defendant having himself prevented a literal performance by the plaintiff, shall not avail himself of a non-performance, which he has occasioned. A tender and refusal are held to be equivalent to an actual performance.

There appears to me, therefore, to be no weight in either of the exceptions taken by the defendant, and the motion for a new trial must be denied.

Motion for a new trial denied.

[E. Anthon, Att’y for the plff. D. Graham, Jun., Att’y for the deft.]

Note.—The Chief Justice expressed a doubt whether the plaintiff was not bound to declare upon the special circumstances of the case, showing the deviation by his pleading, as well as proof. But as the other two Judges were clearly of opinion that the verdict might be sustained, the Chief Justice acquiesced in their decision, and gave an opinion in accordance with it.


text:
    John Moadinger versus The Mechanics’ Fire Insurance Company of the City of New-York.
    The terms “stock in trade,” when used, in a policy of insurance, in reference to the business of a mechanic, (a baker for instance,) include, not only the materials used by the mechanic, but the tools, fixtures, and implements necessary for the carrying on of his business.
    The terms “false swearing,” (it seems,) as used in the conditions annexed to a policy, mean an intentional and corrupt mis-statement, under oath, for the purpose of proving the existence of property not lost, or of overcharging the property destroyed, or concealing that which was saved.
    It seems, also, that silver spoons, and articles of a like kind, used by a family upon ordinary occasions, are not necessarily excluded from the risk by the 8th condition, relative to plate, annexed to the policy, but may be included in the terms “ household furniture.” Q.uery,—whether family portraits are excluded by the same condition as paintings, to be specified in tlio policy ?
    Where the jury adopt the plaintiffs statement, as to the loss furnished by the preliminary proofs, without sufficient evidence to support it, the court will grant a new trial, and compel the plaintiff to prove the amount of his loss.
    The defendants insured the plaintiff “ one thousand dollars on “ his stock in trade, as a baker, and on household furniture, contained in a framed dwelling-house and bake-house, front and “ rear, situated at No. 17 Thomas-street,” for one year from the 18th day of March, 1828 : and this action was brought to recover the amount of a loss sustained by a fire which took place on the 12th of September following.
    The cause was tried before the Chief Justice. At the trial, two questions were raised by the counsel for the defendants ; one as
      to the extent of the plaintiff’s right of recovery, and the other as to the amount of his loss. The plaintiff contended that the words “ stock in trade,” covered not only the flour used by him in his bake-house, but also all the implements and fixtures belonging to , his business,—such as bread troughs, benches, pans, stoves, scales and weights, sieves, knives, baskets, &c. &c. He also included in his schedule of stock, a horse, waggon and harness, used in the delivery of bread to his customers; and he called several bakers as witnesses, who testified that all the articles included in the plaintiff’s schedule, were considered, by bakers, as “ stock in trade.”
    It appeared from the testimony, that thirty Barrels of flour, included in the schedule of loss, were stored, at the time of the fire, in a shed leading from the bake-house to the front house, and the defendants insisted that these were not covered by the policy.
    Among the items of household furniture, for the loss of which the "plaintiff claimed, were included five portraits, with their frames, twelve silver table-spoons, twelve tea-spoons, and a silver sugar-tongs. These articles, the defendants contended, were excluded from the risk by the 8th condition annexed to the policy, which provides that “jewels, plate, medals, or other curiosities, paintings and sculpture, shall not be included in any insurance, unless specified in the policy.”
    It appeared also, that the plaintiff had duly presented his preliminary proofs of loss, but his testimony, at the trial, as to the amount of his loss, the articles destroyed, and their value, was very general and vague. Indeed, the evidence was strong to show, that the household furniture was saved; and the defendants insisted, that the plaintiff had overrated his loss, both as to the quantity of the articles destroyed, and as to their value ; that he had brought himself within the provisions of the 9th condition annexed to the policy, as "to “ false swearing,” and that there was no proof upon which the jury could rest their verdict.
    The Chief Justice charged the jury, that by the terms “false swearing,” as used in the conditions of the policy, was meant an attempt to defraud the company, by swearing intentionally, and with had motives, to the existence of property which the insured ' a x ^ never lost, or by greatly overcharging that which was destroye¿l3 ov not acknowledging that which had been saved. If in there had been such “false swearing,” he charged the a verdict for the defendants. With regard to the Items of household furniture, excluded by the defendants from the loss, he remarked, that although “ plate and- paintings” were not covered by the policy, unless specified, yet he -doubted, whether the condition could be applied to the portraits, or silver-spoons specified in the plaintiff’s schedule ; and he charged the jury to consider them as covered by the policy, that the question might be brought before the court, by the defendants, if they should, choose to do so; / ,
    With regard to the terms stock in trade, the’jury were charged that those terms, when applied to a baker’s property, must be intended -to mean something more, than when -used among merchants, from whom they were borrowed, and to whose business they were, originally applicable. That the terms when used in a policy, to designate' the property of a mechanic, must be taken tq mean whatever was necessary for the conducting of his business, and in this case, not' merely the flour used for baking.
    As to the value and amount of the articles destroyed, the jury were instructed, that the plaintiff could not recover for the flour stored in the shed, ñor for items, the. existence, quantity, and value, of which he had-not. established by proof, and they were charged to weigh all the evidence upon these points carefully.
    The jury found a verdict for 1,013 dollars in favor of the plaintiffs, and the counsel of the defendants excepted to "the charge of the Judge.

      Mr. P. A. Cowdry, for the defendants,
    now moved for a new trial, first, upon the ground of a misdirection, and secondly, because the verdict was against evidence. " Upon the first point he contended, that "the terms “ stock'in trade” as used in the policy, did not -include the fixtures and implements of the plaintiff’s business, nor his waggon and;harness; but covered merely the flour and bread, which were upon the premises at the time of the fire.

      As to the finding of the jury, he further contended, that they must have relied entirely upon the oath of the plaintiff as presented by the preliminary proofs. That all the other evidence merely showed, that the plaintiff had some furniture, some fixtures, and some stock in trade; but the amount and value of the same was in no way shown, except by the plaintiff’s own swearing. As the proof upon all these points was entirely defective, he insisted, that a new trial ought to be granted.

      Mr. J Anthon, contra, for the defendants, contended,
    that the Chief Justice’s construction of the policy, was entirely correct, and that there was evidence enough to warrant the finding of the jury.
   Per Curiam.

The terms “ stock in trade” as used in the policy, are to have a more extended meaning in this case, than in their ordinary application to the business of merchants. The plaintiff was a baker, carrying on business in a limited way. On the day of the fire, his whole stock of bread was upon his cart, and he contends, that in order to give effect to the intention of the parties, his fixtures and implements of business, must be considered as covered by the policy. We think the policy protected every thing which was necessary for the carrying on of the plaintiff’s business ; and such ought to be the construction in all cases relating to the pursuits of mechanics. The construction contended for by the defendants, is altogether too narrow; and would, in many instances, entirely defeat the principal objects of insurance. The evidence shows, that the meaning given to the words by the presiding Judge, at the trial, corresponds with the understanding of persons skilled in the trade; and a mechanic who insures his stock, covers his implements of trade also. The meaning of the terms will vary, according to the business to which they are applied. The stock of a merchant comprehends articles entirely different from the stock of a farmer; but the terms in all cases, apply to personal property only. By giving a liberal construction to the policy under consideration, it is quite clear, that the intention of the parties will be best effectuated, and justice thereby be done. The charge of the Judge, at the trial, was, therefore, entirely correct, and the grounds of exception are not well taken.

But upon the second point raised by the defendants, we think there ought to be a new trial. , The verdict is for a much larger The jury have virtually amount than the evidence will warrant, adopted the plaintiff’s own statement of his loss, as the basis of their estimate, deducting therefrom the item of flour stored under the shed, which the Chief Justice properly instructed them, ought to be excluded. There is no evidence to show, that many of the items charged were upon the premises at all, at the time of the'fire. The witness who assisted in making out the plaintiff’s statement, knew nothing of the household furniture; and the proof is abundant to show, that such furniture as there was, was saved. , The causé must be tried again, to ascertain the amount of the plaintiff’s loss, and as the whole controversy, will be confined to che items of the plaintiff’s claim, there should be a reference of the. cause, to ascertain the extent of the loss actually sustained by the plaintiff.

New trial granted.

[P. A. Cowdry, Att'y for the defts.]