text:
    Charles P. Currie et al., plaintiffs, vs. Cumberland G. White, defendant.
    1. Dividends declared, and additional shares of stock issued, become the property of those who own the stock in respect whereof they are declared and issued, at the time of such issuance and declaration. They are not incorporated in, nor do they become part of, that stock in respect whereof they are issued; but are mere profits arising therefrom to the then owners thereof.
    2. Onq, -by making a contract whereby he agrees to sell, a year after its date, property, real or personal, does not thereby deprive himself of- any profit which may have accrued therefrom, or advantage which may arise from its possession or use, during that year; nor do such profit and advantage pass to the purchaser, in the absence of an express contract that they shall pass.
    3. A. contract to sell and purchase stock, payable and deliverable at sellers’ option, within a year, is an executory contract; and if it. remains unexecuted until after dividends are declared, and additional stocjf issued, the purchaser is not entitled to them.
    4. In an action for the breach of a contract to deliver certain stock, the vendee not having paid to the vendor the purchase money in advance, the measure of damages is the difference between the contract price of the stock and its market price on the day of breach. If the market price of the stock on the day the breach occurred was less than the contract price, the purchaser has sustained no damage.
    5. Where a vendor of stock, after tendering the same, declares himself not ready then to fulfill his contract, by saying that he desires' time to consult his lawyer, and will return, shortly, an£ thereupon departs, with the stock in his possession, he will be deemed to -have withdrawn his previous tender.
    (Before Jones, J., at Special Term,
    October, 1868.)
    On the 18th of February, 1867, the plaintiff and defendant entered into an agreement with each other, and executed, as' evidence thereof, the following written instruments :
    exhibit A.'
    “New York, 18th Feb’y, 1867.'
    (1000 shares.)
    We have purchased of O. Q-. White one thousand (1000) shares of the capital stock of the Hudson River R. R., at one hundred and twenty-eight per cent, payable and deliverable seller’s option, in this year, (1867,) with interest at the rate of six per cent per annum ; either party having the right to call, from time to time, for deposits, to meet the fluctuations of the market.
    Currie, Martin & Co.”
    [ 10 Cent Stamp.]
    EXHIBIT B.

      u New York, Feb’y 18th, 1867.
    (1000 shares.)
    I have sold to Currie, Martin & Co. one thousand shares of the capital stock of the Hudson River Railroad Company, at one hundred and twenty-eight per cent, payable and deliverable sellers’ option, in this year, with interest at the rate of si-x per cent per annum; either party having the right to call, from time to time, for' deposits, to meet the fluctuations of the market.
    0. Gk White.”
    [ 10 Cent Stamp.]
    Under this contract the plaintiff made six deposits in the United States Trust Company, as follows:
    Qn the 23d February, 1867, the sum of 110,000 66 66 13 th May, 66 66 10,000 66 66 20th May, 66 66 5,000 66 66 8th June, 66 66 10,000 66 66 19th July, 66 66 10,000 66 66 22d July, 66 66 10,000
    and called upon the defendant to make six like deposits, which he did.
    The Trust Company gave to the plaintiffs, for each deposit made by them, a certificate in the following form:
    EXHIBIT 0.
    “United States Trust Company of Eew York, \ 23d February, 1867. J •
    (110,000.)
    This is to certify, that Currie, Martin & Co. have deposited with this company ten thousand dollars, payable in current funds, on five days’ notice, to them and C. Gk White jointly, upon the surrender of this certificate, (which is assignable only upon the books of the company,) with interest commencing after ten days from date, at the rate of four per cent per annum. Uo interest to be allowed unless the same amounts to at least fifty cents.
    John A. Stewart, President.
    W. Darrow, Jr., Secretary.”
    .The certficates were all alike, except as to the dates and amounts, which were made to correspond with the deposit for which the particular certificate was given. The Trust ’Company also gave to the defendant, for each deposit .made by him, a certificate in the following form:
    EXHIBIT D.
    “ United States Trust Company of Sew York,. \ February 23d, 1867. j
    ($10,000.)
    . This is to certify, that C. Gr. White has deposited with this company ten thousand dollars, payable in current funds, on five days’ notice, to him and Currie, Martin & Co. jointly, upon the surrender of this certificate, (which is 'assignable only upon the books of the company,) with interest, commencing after ten days from date, at the rate of four per cent per annum. So interest to be allowed unless the same amounts to at least fifty cents.
    John A. Stewart, President.
    W. Darrow, Jr., Secretary.”
    These certificates were all alike, except as to the dates and amounts, which were made to correspond with the deposit for which the particular certificate was given.
    On the 15th of April, 1867, the Hudson Eiver Eailroad Company declared a cash dividend of $4 a share, upon their capital stock as it stood on the 18th February, 1867; and on the l'5th day of October, 1867, declared another cash dividend of $4 a share, upon the same, amount of capital stock. These dividends were paid to the then holders of the stock.
    The plaintiffs claim that in the month of April, 1867, the Hudson Eiver Eailroad Company increased their capital stock by doubling it, and that the books of the company were opened for subscriptions to the additional stock, under regulations established by resolution of the board of directors, as follows :

      EXHIBIT E.

    To the Stockholders of the Hudson River Railroad Company :
    Take notice, that the board of directors of this company, at their meeting, held this day, passed the following preamble and resolutions:
    Whereas, the stockholders of the company, at a meeting of such stockholders, called by the directors of the company, in the manner required by law, and held at the office of the company on the 30th day of • March last, did, with the concurrence of more than two-thirds in amount of all its stockholders, authorize and sanction the increase of the capital stock of the company, to the amount of thirteen millions, nine hundred and thirty-seven thousand and four hundred dollars; therefore,
    Resolved, that the capital stock of the company be, and the same is hereby increased to the amount of thirteen millions, nine hundred and thirty-seven thousand and four hundred dollars.
    Resolved, that the stock transfer books of this company be closed on the tenth day of April instant, and that the persons or parties in whose names stock shall be standing on that day shall severally, on or before the 15th day of April instant, be entitled to subscribe at the office of the company, Ho. 270 West 30th street, in the city of Hew York, for an equal amount of additional stock; that the price of the additional stock shall be fifty dollars per share, payable as follows :
    Fifteen dollars per share at the time of subscribing.
    Five dollars per share on the 15th day of May next.
    Five dollars per share on the 15th day of June next.
    Five dollars per share on the 15th day of July next.

      Five dollars per share on the 15th day of August next.
    Five dollars per share on the 16th day of Sept. next.
    Ten dollars per share on the 15th day of October next.
    That on the 15th day of October next, all installments being paid, full paid stock shall be issued.
    Eesolved, that where parties desire, for their own convenience, to anticipate payments, their money for any number of installments will' be received, but no interest will in any -case be allowed ; nor will the stock be issued until the 15th day of October next.
    Eesolved, that stockholders failing to subscribe on or before the 15th day of April instant, or neglecting to pay their several installments as they severally become due, will lose all right to the additional stock, and will be deemed to have abandoned their subscriptions.
    Eesolved, that the subscriptions may be made to the additional stock, either in person or by attorney. A scrip receipt will be given for the payments made, and this receipt must be presented at this office on the payment of any of the subsequent installments, in order to have them entered upon it, and be surrendered to be canceled on the issue of the additional stock.
    Eesolved, that where parties desire to receive full stock on the 15th day of April instant, they may do so by paying fifty-four dollars per share at the time of making their subscriptions. By order of the board.
    C. 0. Clarke, Treasurer.”
    On the 10th of April, 1867, the plaintiffs sent to the defendant a notice, of which the following is a copy:
    ' EXHIBIT E.
    “Hew York, April 8th, 1867.
    C. Q-. White, Esq.
    Dear Sir: On the 18th February last, we purchased from you pne thousand shares of Hudson Eiver Eailroad Coinpany stock, at one hundred and twenty-eight per cent, sellers' option, this year.
    You will please take notice that we elect to subscribe for the additional stock as provided in the resolutions of the company, at their meeting on the 1st April inst., and that we look to you for the same. .
    Very respectfully,
    Currie, Martin & Co."
    This notice was not received by the defendant until between four and five o’clock in the afternoon of April 10th, 1867.
    On the 18th of December, 1867, the defendant sent to the plaintiffs a notice, of which the following is a copy:
    o
    • EXHIBIT G.
    “ Hew York, Dec. 18th, 1867.
    Messrs. Currie, Martin & Co.
    I will deliver you, to-morrow, 1000 shares Hudson R. R. stock on my contract, Feb. 18th, seller this year, at $128 per share. Respectfully,
    C. Q-. White."
    On the 19th of December, 1867, the defendant, pursuant to his1 notice, went to the plaintiffs’ office, having with him 1000 shares of said stock, and also a bill, properly stamped, of which the following is a copy:
    EXHIBIT H.
    “ Currie, Martin & Co.
    To O. C. White,
    February 18th, 1000 Hudson, $128, . . . $128,000 00
    10 mo. and 1 day int., 6 p. c. 6,421 33
    Certified check, $134,421 33"
    He saw Mr. Martin, one of the plaintiffs, standing behind the counter. He handed Mr. Martin the bill, a copy of which is given above. Mr. Martin asked him if he • would not take off the cash dividends. He replied that he would, if Mr. Martin would send over his certificates-in the Trust Company. Mr. Martin then handed him two papers, copies of which are as follows:
    EXHIBIT i.
    “Hew York, Dec. 19th, 1867.
    “Mr. C. G-. White,
    We will accept the 1000 shares Hudson R. R. stock you propose to deliver to us to-day, and pay you therefor the sum stated in your account, $134,421.33, and we demand of you the cash dividends thereon, and interest.
    Respectfully,
    Currie, Martin & Co.”
    EXHIBIT K.
    Hew York, Dec. 19th, 1867.
    “ Mr. C. G-. White,
    We require you to deliver to us, under your contract dated 18th February, 1867, a second 1000 shares of Hudson R. R. stock, the portion of the new issue of stock by said company, on their increase of capital in April, 1867, accruing to the owner and holder of the 1000 shares mentioned in your said contract.- We tender to you the price at which said new stock was issued, with interest, $56,232, and demand and claim from you the delivery of said second 1000 shares, and the cash dividends, if any, that have been made thereon. Yours,
    Currie, Martin & Co.”
    He then stepped to the window, read the two papers, and remarked to Mr. Martin that he did not know the effect of said papers, hut would consult his attorney and return. He then left, taking with him the stock.

      At this interview of the 19th, the defendant, when he entered the office, had the certificate of stock in his hand, but while reading the two papers put them in his pocket, and did not take them out again while in the office. There was no tender of the stock, or -demand of payment, unless the presentation of the bill marked Exhibit H, be regarded as such tender and demand: Mr. Martin, at this interview, drew a check for $134,421.28, but the check was not certified, nor was it offered or tendered to the defendant, although it was all ready to be delivered, before he left. This is the substance of what occurred at this interview. Nothing further took place until the 31st of December.
    On the 31st of December, 1867, about 1J o’clock p. M., the plaintiffs sent to the defendant a letter as follows:
    EXHIBIT L.
    “Mr. O. G-. White,
    Sir: Our checks for $134,421.33 and $56,232 have been ready for you since they were tendered you, with our two notices relative to our Hudson River contract, on the 19th inst.; you then said you were not ready to give an answer, but would see about it.
    We are ready to do what we offered and tendered in our notices, and renew our notices, but suppose your silence is equivalent to your refusal to comply with them.
    Yours, &c., Currie, Martin & Co.
    N. Y., December 31, 1867.”
    and two uncertified checks, one for $134,421.33, the other for $56,232. The. messenger who took the checks and letters to the defendant told him that he would get them certified if that was required; and receiving no answer, he afterwards added, “if he would deliver the stock.” The defendant read the letter, and looked at the checks, and told the messenger that he would let him know, shortly; that he would see his lawyer, and stop in at the plaintiffs’ office.
    It is in proof that on the-19th day of December, 1867, '
    the stock was worth, .........$132,778
    On the 31st of December, 1867, .'.....131,078
    And on the 8th of February, 1868, .... 149,000
    The trial took place after the 8th of February, 1868.

      Wm. R. Martin, for the plaintiffs.

      Wm. C. Barrett, for the defendant.
   Jones, J.

The plaintiffs claim, 1st. The dividend declared on the 1000. shares, and interest.

2d. The difference between the value of 1000 of the additional shares on Feb. 8th, 1868, and the sum required by the company to be paid therefor, and interest.

3d. The difference between the value of the 1000 shares mentioned in the contract, on the 8th of February, 1868, and the contract price and interest.

The defendant contests all these claims, and himself claims the difference between the contract price of the 1000 shares mentioned in the contract, and their market valúe on the 19th of December, 1867, with interest thereon.

As to the plaintiffs’ claims: The first two evidently depend on whether the contract was executed, or executory; that is, whether it operated as an actual and present sale, or only as an agreement to sell, to be carried into effect on a future day.

Dividends declared, and additional shares issued, become the property of those who own the stock in respect whereof they are declared and issued, at the time of such issuance and declaration. They are not incorporated in, nor do they become a part of, that stock in respect whereof they are issued; but are mere profits arising therefrom to the then owners thereof.

One by making a contract whereby he agrees to sell, a year after its date, property, real or personal, does not thereby deprive himself of any 'profit which may have accrued therefrom, or advantage which may arise from its possession or use, during that year; nor do such profit and advantage pass to the purchaser, in the absence of an express contract that they shall pass. If, then, the contract in question is executory, and remainéd unexecuted until after the dividends were declared, and the additional stock was issued, the plaintiffs are not entitled to them.

It is often a matter of great difficulty to determine whether a contract is executed or executory; but in this case, whatever doubts I may have had are set at rest by the case of Kelley v. Upton, (5 Duer, 336,) decided by the general term of this court, which is a direct authority in point, and according to which the contract in question is executory. Nothing was attempted to be done to execute it until December 19, 1867, long after the dividends were declared and the additional stock issued.

It results that the first two claims of the plaintiffs must be disallowed.

The third claim is founded on an erroneous application of the rules relative to the measure of damages. This defendant, if liable at all, is so for the simple breach of a contract to deliver certain stock, the.vendee not having paid to the vendor the purchase money-in advance: In such a case the measure of damages is the difference between the contract price of the articles agreed to be sold, and their market price on the day of breach. This difference the plaintiffs would be entitled to recover. It therefore becomes necessary to ascertain whether the defendant broke his contract. If so, when, and the market value of the stock on the day of the breach.

If there has been any breach by the defendant, it occurred either on'the 19th or 31st of December, 1867.. As the market value of the stock on each of those days was less than the contract price, the plaintiffs', even if there was a breach by the defendant, suffered no damage. It is therefore unnecessary, in this view, to consider whether there was such breach.

As to the defendant’s claim :

This rests on the defendant’s allegation that there was a breach of the contract on the plaintiffs’ part on the 19th of December. To establish such breach, he insists that he on that day tendered, and was ready and. offered .to deliver, the stock, but the plaintiff neglected to receive it and pay for it. Assuming that his handing up Exhibit H, the stock being in his possession, was a sufficient tender and a sufficient indication to the plaintiffs of his readiness then and there to fulfill his contract, yet the effect of it was done away with by his subsequent acts, at the same interview. Eor after the plaintiffs handed him Exhibits I and K he clearly withdrew his previous tender, and declared himself not ready then to fulfill his contract, by saying that he desired time to consult his lawyer, and would return shortly, and thereupon departing with the stock in his possession.

The result arrived at is, that neither party has a' claim against the other for damages arising out of a breach of the contract in question, and that each party is entitled to a return of the deposits made by him, with the interest thereon.

The case is one in. which each party should pay his own costs.


source: Caselaw Access Project

author: Jones, J. (dissenting.)

license: Public Domain

text:
    Francis Colton, plaintiff, vs. Edward S. Jones, defendant.
   This case is reported, ante, p. 164. The following .dissenting opinion of Justice Jones was not received in time to be inserted in its proper place:

Jones, J. (dissenting.)

The complaint alleges that the plaintiff hired a portion of the fourth floor of certain premises for a term from September 24, 1866,- to May 1, 1867, and took possession thereof and stored sundry goods therein; that on the 14th of February, 1867, the' defendant, vi et armis, broke and entered into said premises then in the actual and lawful possession of him, the plaintiff, and then and there broke and destroyed a certain partition of the plaintiff; and also then and there, vi et armis, seized and took divers goods of the plaintiff then and there being, of the value of §1500, and threw the same out of said premises, to their great damage, and carried away the same and converted and disposed thereof to his own use; and then and there ejected the plaintiff from the premises and the possession and enjoyment thereof, and hath kept him so ejected; that by reason of such wrongful, tortious and unlawful acts and trespasses, he the plaintiff wholly lost all of his said property, goods and chattels, and has been deprived of the use and enjoyment of his said premises, and has been damaged to the "amount of §2500.

The answer contains a general denial; and then sets up as a defense that the plaintiff hired the premises in question from one Townsend, who was lessee thereof for a term expiring November 1, 1866; that on the first December, 1866, Townsend surrendered and delivered up the premises to his landlord; that afterwards, in February, 1867, the defendant, as agent and by authority of the said landlord, requested and notified the plaintiff to remove from the premises, and to take away his goods, and that in default thereof the said landlord would charge and claim from the plaintiff at the rate of eight dollars a month for storage of said property as long as it remained there, “ but at the same time not only not giving the plaintiff any permission to keep it there, but distinctly forbidding him to do so;” that the plaintiff did not comply with this request, although he promised to do so, and in the meantime to pay storage on said goods at the rate of eight dollars a month; that subsequently the defendant, as the agent and by the authority of the landlord, in said month of February, 1867, again notified the plaintiff to remove from said premises and take away said goods, and requested him to do so, and to pay storage at the rate aforesaid; but the plaintiff refusing to do so, the defendant carefully, and without doing any damage thereto, removed said goods from said premises to another portion of the same building, as he lawfully might, for the causes aforesaid, and thereupon notified said-' plaintiff and requested him to take away said goods, which he neglected and refused to do.

The case made by the defendant on the trial was that . certain premises, whereof those in question were part, had been originally leased to one Townsend in September, 1866, for the remainder of that month.and October, and at the end of October for the next month; that on the first of December Townsend gave up the premises; that Townsend sublet the portion in question to the plaintiff •for the time that he, Townsend, would remain, at the rate of eight dollars a month; that shortly after Townsend, left, the defendant met the plaintiff on the stairs of the building and said to him, “Mr. Colton, Mr. Townsend has gone, and of course, we will expect rent from this place.” He said, “ I will pay you the same as I have been paying Mr. Townsend if you let me store my goods up there, and as soon as you find a tenant I will move them out.” Under this arrangement the plaintiff" remained. Subsequently the defendant rented the floor to a society, which wished the plaintiff’s goods to be removed; the plaintiff made repeated promises to remove them, but not fulfilling them the defendant entered into the premises on February 14, 1867, and caused the goods to be removed into his own apartments, where he retained possession of them. On the 18th of February the plaintiff" demanded the goods of the defendant, who refused to deliver them unless sixteen dollars storage was paid, being for two months, at eight dollars a month; that in all the above matters the defendant was the agent duly authorized of his mother. There was contradictory evidence as to the value of the goods.

The court decided that the only question to be submitted to the jury was one of damages. Counsel for defense requested the court to charge the jury—

First. That under' the agreement between Jones and Townsend, as testified to by Townsend, the latter ought to leave at the end of any month; and if the jury believed that Townsend notified the plaintiff of that agreement when he underlet to him, when Townsend surrendered the premises, the rights of the plaintiff, as his under-tenant, also ceased, and he thereafter had no right to the possession of the premises as under-tenant of Townsend. The court refused so to charge, under the view taken by the judge of the law in this case. The defendant excepted.

Second. That if the jury believed that Townsend surrendered the premises to his landlord, and the plaintiff was notified thereof, and thereupon the agreement testified to by the defendant as to the storage and removal of the goods was made, the defendant, after letting the premises to the Delta Kappa Lambda Society, and after notice to the plaintiff to remove the goods, had a right himself to remove the goods without liability for damage, unless he injured the goods in removal, and the defendant was not,'nor was Mrs. Jones, obliged to take any legal proceedings to get possession. The court held that the conversation testified to by the defendant did not amount to an agreement as to storage, so as to entitle the defendant to a lien therefor, and declined to so charge, and refused to submit any question to the jury except that of damages. (The defendant’s counsel took exception.)

Third. That if the jury believed the plaintiff promised to pay storage, as testified to by the defendant, the latter had a right to detain the goods until the storage was paid, pfovided they also believed that when the demand was made on the defendant he stated, as testified by him, that .the plaintiff could not have the goods until the storage was paid. (The court refused so to charge, and the defendant’s counsel took exceptions.)

Fourth. That if the jury believed that subsequently the plaintiff agreed "to pay eight dollars a month storage for the goods, as testified by the defendant, the defendant’s mother, for whom he was acting, had a lien for that storage on the goods in question, and had a right to detain them until the storage was paid. (Same ruling and exceptions.)

Fifth. That if the defendant rightfully entered and removed the plaintiff’s goods from the premises in question, this action, in the form in which it is brought, cannot be maintained, even if the defendant subsequently wrongfully refused to let the plaintiff have Ms goods. (The court refused so to charge, and the defendant’s counsel took exception.)

The judge charged the jury that the only question for them to consider was the amount of damages which the plaintiff was entitled to recover from the defendant. In determining that question they should be governed by the evidence before them, and tiot by any judgment of their own, as to the value of the goods. At the same time they had a right to look at all the testimony as affecting the credibility of the witnesses; and if they were satisfied that the evidence furnished on the part of the plaintiff was not credible, it was their duty to disregard it. The only evidence given by the defense, as to the value, was that of Mr. Brown, who did not seem to" be acquainted with this specific kind of property, but had dealt in cots of a similar kind. They should take his testimony into consideration, and at the same time scrutinize the evidence of Mr. Colton for the purpose of ascertaining whether his testimony was to be credited; and then render a verdict for such an amount as they should find to be the value of the property at the time a demand was made by the plaintiff" for its delivery. ■

The jury found a verdict for the plaintiff for $1153. The court ordered all the exceptions aforesaid to be heard in the first instance at the general term,- and that judgment be in the meantime suspended.

It is evident that the learned judge regarded the complaint as containing an independent cause of action in trover, for the unlawful conversion of the plaintiff’s goods by the defendant. In this view he allowed the plaintiff to recover for the value of his goods, solely on proof of a demand for the goods, made on the 18th of February, 1867, and a refusal to comply with the demand, restricting the amount of the recovery to the value of the property on the day of the demand, and withdrawing from the consideration of the jury the transaction of the'14th of February, respecting the unlawful entrance into the plaintiff’s premises, and the matters connected therewith.

If this view be incorrect, then the judgment should be reversed; for unless there is a cause of action in the complaint, which this proof of a demand and refusal on the 18th of February supports, then the judgment is rendered on a cause of action not supported by the proof, and there is a failure of proof. (Code, § 171.) The fifth request sufficiently raises the question as to the correctness of the view of the judge; for, if incorrect, he should have charged as therein requested.

This leads to a consideration as to what cause of action is alleged in the complaint. The complaint alleges that on or about the 14th of February the defendant, with force and arms, broke into his premises, and then and there, witht force and arms, seized and took his goods and threw them out of his premises, and carried them away and converted and disposed of them to his own use. Any fair construction of this language can lead to but one result; to wit, that there is but one cause of action here alleged, which is for the violent and forcible acts of the defendant at the time of the breaking into the plaintiff’s premises. There' is but a single act of trespass alleged. It is, in effect, that the defendant forcibly broke, into the plaintiff’s premises and carried off his goods, and by that act converted them to his use. The words “ and then and there” show that the pleader avers the seizing of the said goods as part of the trespass in breaking into the close, and also that the conversion pleaded took place at the time of the trespass, and consisted in seizing the goods, and is averred as the legal incident to that act.

This view was taken and always acted on by the profession and the courts in respect to similar allegations in a declaration in an action quare clausum fregit. The words “ converted and disposed of to his own use” were regarded as referring to the act of trespass in taking them, and as being alleged simply as the incident to that act. (Taylor v. Cole, 3 Term Rep. 292. Per Buller and Grose, JJ.) Indeed, if they had been regarded as setting out distinct causes of action from that arising from the act of trespass in taking, the declaration would have been bad under the former rules of pleading. (Cooper v. Bissell, 16 John. 146.)

That this was the former rule of pleading, the case of Lovett v. Pell (22 Wend. 369) does not dispute. The fact, then, that a declaration in quare clausum, fregit, containing these words, was nevertheless regarded as good, shows that these words, taken in the connection in which they were used in those declarations, were understood and construed as referring to a conversion by force of the alleged act of trespass in taking them.

True the Code has abolished forms of action, and forms of pleadings, and many of the rules applicable thereto ; but it has not abolished the force and meaning of language. The force and meaning of such language as is used in this complaint has been taken, for a long period, to be such as I have given, and as I regard its natural and obvious import; and it is because such is its natural and obvious import that its force and meaning has always been regarded to be as I expound it.

But it is said that the words “ converted and disposed of to his use” is a sufficient allegation of a cause of action for the conversion of a chattel. When used in certain connections this may be so, as in Decker v. Mathews, (12 N. Y. Rep. 313.) Their force, however, must depend on the connection in which they are used. When that connection shows that they are used simply as alleging “ a conversion and disposition to his own use,” by an act of trespass in taking, then such act of the trespasser becomes an essential ingredient in the cause of action; and if it be not proved, there is a failure to prove the. cause of action in its entire scope.and meaning. (Code, § 171.)

It is, however, suggested that if one or more of the allegations contained in a complaint be proved and constitute a cause of action, such judgment as that cause of action calls for must be given, and the other allegations in the complaint may be disregarded.

As a general proposition, perhaps this is correct. But its application is always subject to inquiry as to what are the allegations contained in the complaint. It is sought to apply this doctrine to the present case thus: It is said the complaint contains the words “ converted and disposed thereof to their own, said defendants’, use.” This is claimed to be an independent allegation, constituting a cause of action for a conversion, distinct from the previous allegation of a trespass in taking the goods. And then it is said there is proof to support this cause of action for a conversion, to wit, proof of a demand and refusal on the 18th of February, and therefore the judgment should be affirmed. I admit the words in question are contained in the complaint, but deny the results claimed to ensue therefrom. These words are but part of an allegation, consisting not only, of these but of many others in connection with them. To ascertain what is alleged, the whole must be taken together. I have already discussed the force and effect of these words, when thus taken in connection, and have arrived at the conclusion that the allegation in the complaint is of a conversion of the goods by means of an act of trespass in taking them.

It must necessarily be conceded that if we are at liberty to pick out of a complaint a sentence here, a seiitence there, a word here, and a word there, and then, disregarding every thing else, mold and weave the words and sentences together in proper sequence and with proper punctuation, arriving, as a result, at allegations sufficient to constitute that cause of action which the testimony has proved, then assuming the allegation “on or about 14th February, 1867,” to be sufficiently comprehensive to cover the 18th of February, a cause of action sustained by the proof of demand and refusal may be framed out of the words and sentences contained in the complaint. But I do not understand it to be contended, or even intimated, that a complaint may be thus dealt with.

Again; it is contended that the defendant had notice by the complaint that the plaintiff meant to endeavor to prove it, and he was bound to be prepared to prove it. Meant to prove what ? A conversion disconnected from the act of trespass in taking ? I deny it. On the contrary, in the view I take of the complaint, the only notice it gave him was that the plaintiff intended to prove a conversion connected with and flowing from the act of trespass in taking the goods.

It is further suggested that the defendant should have moved to make the complaint more definite and certain. I see no ground for such a motion. The complaint is definite and certain as it stands, and can be made indefinite, in my judgment, only by an unwarranted construction.

The last suggestion is that no harm has been done the defendant. I am unwilling to aid in establishing the doctrine that a verdict rendered against a' defendant in spite of his objection duly and properly taken, for a cause of action on which he has been' sued, may be sustained because the court above thinks no harm has been done him. This is carrying the doctrine that immaterial errors on the trial may be disregarded, to a greater extent than I am willing to go.

The judgment in question having been rendered against the defendant, contrary to his objection duly taken, for a cause of action on which he was not sued, should not be permitted to stand.

I am in favor of reversing the judgment and ordering a new trial, with costs to the appellant to abide the event,


author: McCunn, J.,

text:
    Elijah C. Schanck and John Romaine, plaintiffs, vs. John J. Morris, defendant.
    1. An action to recover the amount of the plaintiff’s subscription to the capital stock of an oil company, on the ground that such subscription was made in consequence of the false representations of the defendant, will not lie, where it appears that if the defendant did make false representations, it was without benefiting or intending to benefit himself.
    2. In such a case it is the duty of the purchaser to investigate as to the true
    • condition of the company, and ascertain whether the property is as described, by the person making the representations; and his failing to do so for several weeks, between the time of subscribing and the time of paying for the stock, will prevent him from recovering. In other words, there can, in such a case, be “ concurring negligence” on the part of the purchaser.
    3. If, after discovering the falsity of the representations, the purchasers continue for several years to be a part and parcel of the company, and are among its directors, this will preclude them from recovering.
    4. Where, in such an action, the plaintiffs made the defendant their witness, and his testimony, taken in connection with the other proof, went conclusively to establish a scheme in which all were equally to blame; Held, that it was a proper case for directing a verdict for the defendant.
    (Before McCunn, J., at Trial Term,
    November 13, 1868.)
    This was an action to recover $6000, the amount of two thousand, shares at three dollars per share, of the ÍTew York and Pennsylvania Oil Company, subscribed for and paid by the plaintiffs in 1864. The plaintiffs allege that they were induced to invest the above amount in the aforesaid company through the false and fraudulent representations of the defendant. At the time of the investment •the plaintiffs were partners in the produce business in Washington market, and the defendant was a grocer in University place. The parties had done business together for several years. The oil speculation turned out like many other oil speculations of that period, a losing business both for the plaintiffs and the defendant; and this was one of the many attempts that have been made during the last two years to recover the losses in a court of law. The case occupied the court six days, and a large number of witnesses were examined on both sides. On the one hand the plaintiffs attempted to show that the defendant was one of the originators of the company; that it was a bogus concern from the start, and that those who invested in it did so on the false representations of the defendant; while, on the other hand, the defendant denied having made any false representations about the company, and alleged that he invested his own money in the company; that he received no pecuniary benefit from the plaintiffs’ subscription, and that he made no statements to the plaintiffs about it that he did not himself believe to be true, and made no effort to induce them to invest in it, but merely answered such questions, and gave such information as was asked for by the plaintiffs.

      J. J. Parsons, for the plaintiffs.

      Wm. Morton, for the defendants.
    After the cause had been summed up by the counsel,—
   McCunn, J.,

decided to take it from the jury and direct a verdict for the defendant, on the ground that the plaintiffs had failed to prove such a clear case of fraud as would justify a submission of the defendant’s rights to the speculation of a jury.

The first question, said the judge”, that presents itself in this case, is whether there were false statements made by the defendant to 'the plaintiffs to induce them to part with their money, and whether the defendant was benefited by such false statements.

Mrst. There is no dispute about the organization of the company.

Second. There is no dispute about the ownership of the land of the company, nor is there any dispute about the company’s owning five engines instead of twenty-eight, nor about there being some wells sunk. So that the only fraud the defendant could be guilty of was in saying the company had more engines than they actually had, and more wells sunk than were sunk, and it is upon these two propositions that the jury must pass, if at all.

Mr. Morris says he made no such representations. He says it was a time of great speculation, and that the plaintiffs were as anxious as he was to embark in such enterprises. ' It is also admitted that Mr. Morris received no pecuniary benefit from the transaction. ’ The stock which Holly set apart for him was set apart months after the representations made to the plaintiffs. How I shall hold that if Morris did tell a lie, and the result of that lie or the intention of Morris at the time was not to benefit himself, the plaintiffs cannot recover. Again, the evidence and the pleadings in this case show that several weeks elapsed from the time the plaintiffs subscribed for the stock before they paid the money; and I hold that it was the duty of the plaintiffs to investigate the true condition of the company, and ascertain whether the property was as' described by the defendant, and their not doing so, or their negligence in this respect, will prevent them from recovering; in other words, there can in such a case as this be ^contributing negligence.” Another reason that would prevent them from recovering is, that according to their own showing, after they had discovered these alleged untruths of Morris, they still continued to be a part and parcel of the company, and were among its directors. How, I hold that their doing so a number of years after they learned these facts, precludes their recovering; and, lastly, three years and a half having elapsed before this suit was commenced, and their efforts to settle with Morris in the meantime, do not recommend them to the court. Under all these circumstances, and in consideration of the fact that the plaintiffs made the defendant their witness, and as his testimony, taken in connection with other proof, goes conclusively to establish a scheme in which all are equally to blame, I must direct a verdict for the defendant, the exceptions to be heard in the first instance at the general term.


author: By the Court, Jones, J.

text:
    Livingston Satterlee et al., plaintiffs and respondents, vs. Ulric De Comeau et al., defendants and appellants.
    1. A default for non-attendance and submitting to an examination may be' waived by the subsequent acts of the plaintiffs’ attorneys, in assigning days for the examination of the defendants, at their office, and postponing such examination from time to time.
    2. Where the plaintiffs’ attorney agreed by parol that if the defendants (against whom a default had been taken) would come to his office and be examined, he would accept such attendance and waive the default; Meld that if the defendants were not in fault in failing to so attend and be examined, the plaintiffs could not insist on the original default.
    3. Where it appeared that on the last occasion when a time was fixed for the examination of the defendants, one of them attended, but the plaintiffs’ attorney being unable to go on with the examination, it was postponed, as to both defendants; no day being fixed to which the examination was to be postponed; but the plaintiffs’-attorney was to give a reasonable notice, when he required the defendants’ attendance; and no such notice was given; Sold that the defendants were not in fault in failing to attend.
    (Before Robertson, Ch. J., and Jones, J.,
    December —, 1868.)
    Appeal from an order striking out the defendants’ answer for not appearing and submitting to an examination.

      G. W. Cotterill, for the appellants.

      T. M. North, for the respondents.
   By the Court, Jones, J.

It is not entirely clear whether this motion is based on the default taken in court on the 8th April, or on the defendants’ default in not keeping the parol agreement made in reference to that default, by attending at the office of the attorney for the plaintiffs for examination.

If based on the > default taken in court, then (throwing out of consideration for the present the parol agreement relating to it) the plaintiffs’ attorneys have by their subsequent acts in assigning days for the examination of the defendants at their office, and postponing such examination from time to time, waived the default.

Viewing the case in .the light of the parol agreement made in respect of the default, and taking that agreement to be as the plaintiffs’ attorney alleges, to wit, “ that if the defendants would come to his office and be examined, he would accept such attendance and waive the default,” then if the defendants are not in fault by failing to so attend and be examined, the plaintiffs’ attorney cannot insist on the default taken April 8th.

The affidavits show that the defendants are not so in fault. The affidavits of Alvar De Comean and of the defendants’ attorney show that on the last occasion, when a time was fixed for examinations, one of the defendants attended, but the plaintiffs’ attorney being unable to go on with the examination, it was postponed as to both defendants. Ho day was fixed to which the examination was to be postponed, but the plaintiffs’ attorney was to give a reasonable notice when he required the defendants’ attendance. Ho such notice has been given.

There is no contradiction to this. The affidavit of the plaintiffs’ attorney does not contradict it.

If the motion is based on the defendants’ default in not keeping the parol agreement made in reference to the default taken in court, then the affidavits show (as above held) no such default.

Order below reversed, and a new order made denying motion, with |10 costs. No costs to either party on appeal.


author: McCunn, J.

text:
    William McKinley, plaintiff, vs. The American Exchange Bank, defendant.
    1. The writing of the words “payment stopped,” upon a note payable at a bank, simply announces the intention of the maker that his funds in that IcrnTc shall not be applied to the payment of the paper, and does not necessarily discredit.the note, nor import that he will not provide for it at some other place; especially when it is taken into consideration that the bank is merely the agent of the maker, and, as such agent, cannot be sued if it discloses its principal.
    2. An indorsement in pencil, of the words “ payment stopped,” upon a promissory note, does not affect the liability of the maker or indorser. Destroying or defacing a written contract does not affect the liability of the parties to it.
    3; Where payment of a note is stopped, previous to its maturity, the character of the note is fixed, on the day it matures, and subsequent purchasers must take it subject to all equities. Writing on its face “payment stopped,” does not in anywise change the condition of the parties to the instrument, or diminish its value.
    4. Good faith and common honesty require the holder of a note to disclose to any purchaser that payment has been stopped, as soon as that fact is communicated to him. Hence a bank, whose teller writes upon a note the words “ payment stopped,” when such is the fact, is not liable in damages to the holder, for giving a notice which common honesty required the holder himself to give.
    6. Where the plaintiff purchased a note, in good faith, before it was due, and thus perfected his right of action against the maker and indorsers, who were perfectly solvent at the time the note became due, and continued so, long afterwards; Held that the plaintiff not haring exhausted his remedy, could not maintain an action to recover damaged for defacing the note.
    (Before McCunn, J., at Special Term,
    December, 1868.)
   McCunn, J.

This is an action for damages for defacing a note,, by the paying teller of the bank writing on ithe face thereof the words “payment stopped,” in pencil, as an answer to a demand of payment on the day it became due.

It is admitted in the complaint, that the writing complained of was made on the day of the maturity of the note, and the evidence is that the day previous to its maturity payment had been stopped; so that we have the undisputed fact that on that day, the day it matured, the character of the note was Axed, and subsequent purchasers must take it subject to all equities. The writing on the face did not in anywise change the condition of the parties to the instrument, or diminish its value. It was the record of a fact which any purchaser had a right to know; and the concealment of which, if it had not been so recorded, would have been a fraud on such purchaser.

The writing of the words “ payment stopped,” upon a note payable at a bank, simply announces the intention of the maker that his funds in that bank shall not be applied to the payment of the paper, and does not necessarily discredit the note, nor import that he will not provide for it at some other place, especially when we take into consideration that the defendants’ bank was merely the agent of the maker, and as such agent could not be sued as'long as it disclosed its principal. This is a well established rule of law. Again, the indorsement, in pencil, of the words complained of, does not affect the liability of the maker or indorser. Destroying or defacing a written contract does not affect the liability of the parties to it. Had the bank even destroyed the note, the remedy of the holder would not have been affected in the slightest degree, and even then the remedy must be against the maker, not against the bank; and, to entitle them to recover, they had only to prove its destruction and contents. This is the doctrine laid down in Edwards on Bills, (302, 303,) and adhered to through all the books.

The instant payment of the note was demanded and refused, it was dishonored, and every purchaser who took it after that time, took it subject, as I have said before, to all equities existing between the antecedent parties and maker.

It was just as valuable for the purposes of assignments as if the words were never written upon it. And as the value of the instrument, or its assignability, was not affected by the act of the defendant in marking on the note, the damage can only consist in giving notice to an intended purchaser that the maker had stopped its payment. How, apart from all other considerations, good faith and common honesty would have required the plaintiff to disclose to any purchaser that payment had been stopped, as soon as- that fact was communicated to him; and it would be stretching the rule indeed, to hold the defendant liable for giving a notice which common honesty required the plaintiff himself to give.

There is another reason why this plaintiff cannot recover. The plaintiff’s testimony is, that he purchased the note in good faith before it was due. This perfected his right of action against the maker and indorsers, who were, upon his own showing, perfectly solvent at the time the note came due, and continued so long after; and the plaintiff not having exhausted his remedy, in this respect this action must fail.

The whole theory in favor of a recovery in this case would seem more like a broad joke than a serious argument, when you reflect that the plaintiff could have removed the marks. They were simply pencil marks, and might have been taken off' in the easiest possible manner. If the defendant had no right to place them there, the plaintiff clearly had a right to remove them.

Judgment must be ordered for the defendant.


text:
    Livingston Satterlee et al., plaintiffs and respondents, vs. Ulric De Comeau et al., defendants and appellants.
    1. A client cannot be punished as for a contempt, for an act done by his attorney without his direction, knowledge, privity or procurement.
    2. To punish one for the act of another, is contrary to natural justice, and the established principles of law. A contempt committed by the attorney cannot, therefore, be treated as a contempt by the client.
    (Before Robertson, Ch. J., and Jones, J.)
    Heard September 3, 1868 ;
    decided December 31, 1868.
    Appeal from an .order adjudging the defendants to be in contempt.
    A judgment having been obtained by the plaintiffs against the defendants, the defendants, on the 29th of May, 1868, procured from the chief justice, ex parte, a chamber order staying all proceedings on the part of the plaintiffs to enforce the judgment, and all proceedings with reference thereto. This order was served on the plaintiffs’ attorney on the 4th of June, 1868, by serving a certified copy. It appears there was nothing in the copy order so served indicating by what judge it was made; and the plaintiffs’ attorney supposed that Judge Garvin, who was then sitting at chambers, was the judge who made the order, and did not know or suppose, until seven days afterwards, that it had not been made by Judge Garvin.
    On the 6th of June the plaintiffs obtained from Judge Garvin an order modifying the order of May 29th. This modifying order was written on the copy of the order of May 29th, which was served on the plaintiffs’ attorney, and so modified that order as to permit the making and service of an order in supp] ementary proceedings for the examination of the cashier of the Fourth ¡National Bank, with an injunction forbidding the bank from paying or transferring any property of the defendants. The modifying order, however, was not served until June 8th, at about 10 o’clock A. m.
    The plaintiffs, however, on the same 6th June, upon ant affidavit, obtained from Judge Garvin an order requiring said cashier to appear and be examined concerning any property held by, or indebtedness due from, said bank to the defendants, and forbidding said bank to transfer or • make any other disposition of any property belonging to the defendants, not exempt' by law from execution, or in any manner to interfere therewith, until further order in the premises.
    This order was served on the bank the same day, (June 6th,) at which time the hank had in its possession $2573 belonging to the defendants.
    On the 8th of June, upon affidavits showing, among-other things, the service on the plaintiffs’ attorney of a certified copy of the order of May 29, and that notwithstanding the stay contained in that order, the plaintiffs had obtained an order from Judge Garvin for an examination of an officer of said bank, the defendants’ counsel procured from Judge Garvin an order requiring the plaintiffs and their attorney and counsel to show cause why they should not be punished for a contempt in violating said order of May 29th, and vacating the order made by him on June 6th, requiring the cashier of said bank to appear and be examined, and enjoining said bank from transferring any property, or paying over any money alleged to belong to the defendants.
    The last order was served on the bank the next day, (June 9th,) and at the same time, or shortly after, the clerk of the defendants presented the defendants’ checks for the whole amount of their deposit, to wit, $2573, which was paid.
    The alleged contempt consists in obtaining from Judge Garvin the order of June 8th, by an alleged concealment from him of the fact that he himself has modified the order of May 29th. To make out such concealment the plaintiffs rely on the affidavit of one of their attorneys, and also on the fact that the affidavits on which the vacating order of June 8th was obtained, state that the order of 6th June was obtained in defiance of the order of 29th May, and contain no allusion to the modifying order.
    In the affidavit of the plaintiffs’ attorney thus relied on, he swears that he is informed and believed (from statements made by the defendants’ attorney, and by Judge Garvin in the course of proceedings in court, and from a copy of an affidavit served on him by the defendants’ attorneys, and purporting to have been sworn to by one of them on the 11th of June) that said defendants’ attorney, after being served with the modifying order, obtained from Judge Garvin the vacating order of June 8th, by stating that the stay of proceedings contained in the order of May 29th had been violated, without stating that that order had been modified by him, Judge Garvin; all of which he, said defendants’ attorney, well knew, and also knew that if the fact of such modification had been brought to the judge’s notice, he would not have granted the order of June 8th; that said defendants’ attorney intentionally concealed said fact of the modification, for the purpose, &c.; and that the order of June 8th was not served until June 12th.
    This affidavit neither gives the statements by which the affiant says he was informed of the facts to which he swears on information and belief, nor is there any affidavit sworn to by one of the defendants’ attorneys on the 11th of June, contained in the papers. The affidavit, however, states in reference to the affidavit of Johnson and of one of the defendants’ attorneys, (both of which were sworn to June 8th,) “ such affidavits state ‘ that said order’ (meaning the stay of proceedings) ‘was duly served on the 4th day of June, 1868; but in defiance thereof, on the 6th day of J une, 1868, the plaintiffs obtained an order from his honor, Judge Garvin, for the examination of an officer of the Fourth National Bank,’ &c.; and I am informed and believe that Judge Garvin was induced to make his order of June 8th by said statement that the plaintiff was proceeding in defiance of the stay of pi’oceedings, made in said affidavits and by the defendants’ attorney verbally, when the said attorney well knew and intentionally concealed the fact that the plaintiffs were proceeding under, and strictly in conformity to Judge Garvin’s own order of June 6th.” The affiant, however, does not give any of the sources of his information, other than the affidavit of one of the defendants’ attorneys, sworn to June 8th, or the substance of any conversation in which such information was imparted.
    The affidavit of one of the defendants’ attorneys, sworn tó June 8th, (thus referred to,) is contained in the papers, and in such the defendants’ attorney swears “that said order (meaning the stay of proceedings) was duly served on the 4th of J une, 1868, but in defiance thereof, on the 6th of J une, the plaintiff obtained an order from his honor, Judge Garvin, for the examination of an officer of the 4th FTational Bank,” &c.

      The defendants’ attorney positively swears that he exhibited the order of modification to Judge Garvin when, he applied for the vacating order of June 8th, and explained the whole matter to him.
    It appears that the- papers on which the order of June 8th was obtained were prepared prior to that day, and that the orders of modification were not served until about 10 o’clock a. m. of June 8th, just as the defendants’ attorney was going to court to procure the order which he obtained on that day; while the order of injunction on the- bank, which was vacated by the order of June 8th, was served on the bank two days before (June 6th.) Both the defendants, in an affidavit made July 3d, 1868, swear that they had no knowledge of the character of the legal proceedings taken by their counsel with reference to the proceedings against the said bank, and had no connection therewith, directly or indirectly; that they are entirely ignorant as to the process or proceedings by which they were enabled to draw out the money from the bank, further than that an order permitting it to be drawn had been obtained by their attorneys, and that the money so drawn out has been paid over to their customers and creditors.
    One of the plaintiffs’ attorneys makes an affidavit to the effect that on the 18th June, 1868, he called on the defendants, showed them a certified transcript of the judgment, told them he was the plaintiffs’ attorney and authorized to make the demand, and demanded that they should apply to the payment of the judgment the said sum o‘f §2573, drawn as above stated from the bank; that they refused to make such application, but did not deny that they had possession of the money, and did not pretend either that the money was not theirs, or that any other person had any interest therein.
    The motion to punish for contempt was granted, and an order was made adjudging the defendants guilty of contempt in that, by deceit and abuse of the process and proceedings of the court, they wrongfully and in contempt of the court procured the order of 8th June, vacating the injunction theretofore granted against the said bank, and served the same on said bank; and also adjudging the defendants guilty of contempt, in that by deceit and abuse of the process and proceedings of the court, under color of an order which, on the 8th June, 1868, had been wrongfully obtained by their attorney, they required said bank to pay to them said sum of $2573; also adjudging the costs and expenses of the proceedings to punish for contempt to amount to $500, and fining the defendants $3073, (being $2573 for the amount drawn from the bank and $500 for said costs,) to be paid to the clerk of the court and by him to the plaintiffs.
    From this order the present appeal is taken.
    G. W. Cotterill, for the appellants.

      T. M. North, for the respondents.
   By the Court, Jones, J.

I do not. perceive on what principle the client can be punished as for a contempt for an act done by his attorney, without his direction, knowledge, privity or procurement.

The proceedings to punish for a contempt are in their nature quasi criminal. The party adjudged guilty is to be punished either by fine or imprisonment, or both. By his act of contempt he subjects himself to a liability to punishment in either of those modes. If then the client is guilty of contempt for an act done by his attorney without his knowledge, &c., then he becomes liable to be punished by a fine or imprisonment, or both, for an act done by another without .his participation. Thus he may. be imprisoned simply as a punishment for the improper ox* illegal act 'done by another. It is no answer to say that the court has a discretion to impose on him simply a fine sufficient in amount to make good the damage done by the acts of his attorney; for the mode of punishment is discretionary, and if the- contempt of the attorney is a contempt by the client, then the client is liable to the same punishment as the attorney, and if under the circumstances the attorney would be punishable with imprisonment, it follows that the client would be also. This necessarily results from regarding the acts of the attorney as the acts of the client, for the purpose of contempt proceedings. And further, the infliction of a fine of only sufficient amount to compensate the aggrieved party is by way of punishment for the misconduct complained of, and as such imprisonment follows until payment be made. To punish one for the act of another is contrary to natural justice and the established pi’inciples of law. A contempt by the attorney cannot therefore be treated as a contempt by the client. (Harris v. Clark, 10 How. Pr. 427.)

I therefore think the order below should be reversed, and an order made denying the motion, with $10 costs, without prejudice to the right to renew it on further affidavits', if deemed advisable, on payment of said $10, Ho costs to either party on appeal.


author: Monell, J.

text:
    JAMES S. JONES and Others, Plaintiffs and Respondents, v. ALEXANDER FOWLER and Others, Defendants and Appellants.
    A tender of cotton four days after the making of a contract for its sale and delivery (there being no time specified in the contract) is too late, and the purchaser is absolved from all obligation to receive it; what is a reasonable time is a question of law, to be determined from all the facts and circumstances in the case; and there being no facts or circumstances in the case which denoted an intention to allow any but an immediate delivery, a tender after four days was properly refused.
    Before Monell, Jones, and Fithian, JJ.

      [Decided February 12, 1869.]
    The action was to recover the difference between the contract price of certain bales of cotton, and the price obtained on a sale thereof after tender of a delivery and a refusal to accept.
    The plaintiffs proved that the contract of sale was made on the 21st day of November, 1867. The bought and sold notes of the parties were read in evidence. The following is a copy of the sold note:
    “New York, November 21, 1867.
    “ Sold for Messrs. Freeman, Johnson & Co.,
    “ To Messrs. Fowler Brothers,
    “ The following cotton, including sound rebaled, viz.:
    “Marks. No. of bales. Stipulation. Price per lb. •
    “WD “ W
    35
    B/C
    at
    18c.
    “Compressed; to be received from wharf.
    “ Terms cash on delivery. “DAYTON & WALDO,
    “ per H. G. H.,
    “ Cotton Brokers, 129 Pearl st.”
    The plaintiffs then proved that on the 25th of November they offered to deliver the cotton, and it was refused. Subsequently they had it sold, and it brought a less price than the defendants had agreed to pay.
    The cotton, at the time of the sale to the defendants, was on board the steamer “ Zodiac,” reported to be then in the harbor. No offer to deliver the cotton was made previously to the 25th of November.

    One of the brokers who made the sale testified that he was requested by the plaintiffs to deliver the cotton to the defendants ; that he went on the same day for the cotton, and it was not on the wharf; that he notified the defendants to attend and receive the cotton, but it was not on the wharf, and could not be delivered because it was not to be had; that he went twice for it on Thursday (21st), and again on Friday (22d). On Saturday (23d), defendants said they had filled their orders elsewhere, and refused to receive it. This witness explained the meaning of the words “to be received from wharf” to be, that the cotton was to. be delivered on the wharf by the seller and taken off the wharf by the buyer.
    Another of plaintiffs’ witnesses testified that all the cotton was not on the wharf until the 25th, on which day he took a letter from the plaintiffs to the defendants, notifying them that the cotton was ready for delivery.
    A motion to dismiss the complaint was denied.
    The defendants proved that they demanded a delivery of the cotton on Thursday, the 21st.
    One of the defendants’ witnesses testified that he went, by the direction of the defendants, to the wharf about one o’clock on Thursday (21st), to ask for the cotton; that there was no cotton out; that the brokers, or some one on their behalf, asked permission to let “ the thing ” lie over until the next day (Friday); that he went over to get a delivery of the cotton once or twice on Thursday, and three times at least on Friday; the last time was about four o’clock on Friday evening.
    The action was tried before Chief-Justice Robertson and a jury.
    The Court directed a verdict for the plaintiffs, to which the defendants excepted.
    Judgment was suspended, and the exception sent to the General Term.

      Mr. Henry H. Anderson for appellants.
    The Court erred in excluding the question, put on cross-examination to the broker, whether the memorandum contained all the terms of the contract for the sale of the thirty-five bales. These bought and sold notes were not the contract. They were neither made nor seen by the broker, nor were they signed by him nor by the defendants, but were made up by clerks from the broker’s memorandum, and the defendants had a right to inquire whether this note contained the whole contract (Livewright v. Archibald, 6 Eng. Law and Eq., 286; Hayman v. Neale, 2 Camp. 337; Hawes v. Foster, 1 Moo. and R., 368).
    The Court erred in refusing to dismiss the complaint. The case showed non-performance of the contract on the part of the plaintiffs.

      The memorandum of sale, if it contained the whole contract, imposed on plaintiffs the duty of immediate delivery, or at all events delivery on demand (Thompson v. Ketcham, 8 Johns., 190).
    The question, “Was any agreement made at the time of purchase as to what time this cotton was to be delivered ?” should have been admitted.
    The Court erred in excluding the evidence to prove the contract set up in defendants’ answer, the defendants having denied the contract set up in the complaint, and having given evidence showing that the brokers were acting for the plaintiffs only in making the sale.
    The Court erred in directing a verdict for the plaintiffs, and in directing the amount thereof.

      Mr. Henry Nicoll for respondents.
    The bought and sold notes by which the sale of the cotton in question was made constituted the sole and only evidence of the terms of the contract entered into between the parties (Chitty on Contracts, p. 401; Parsons on Contracts, 5th ed., vol. 1., pp. 541 to 545; Cabot v. Winsor, 1 Allen, 546, cited in full in Parsons on Contracts, on pages referred to; Davis v. Shields, 26 Wendell, 341; Peltier v. Collins, 3 Wendell, 459; Merritt v. Classon, 12 Johnson’s R., p. 102).
    By retaining the bought note without objection the purchaser ratified the contract set forth therein. He could only repudiate it by returning the note at once with his dissent (Parsons on Contracts, 5th ed., vol. 1., p. 543).
    When no time is expressed in a written contract for the performance of a duty, the Court presumes a reasonable time, and it becomes a matter of judicial construction in the light of all the surrounding circumstances; nor will any extrinsic testimony be allowed going to fix a definite term, because that would vary the contract (Parsons on Contracts, vol. ii., pp. 661, 662, and cases cited in notes; Newton v. Wales, 3 Robertson, 453).
    The evidence shows conclusively that under the contract, by the usual practice of the trade, the cotton was deliverable on the wharf when discharged from the vessel, and that immediately the cotton in question was so discharged the defendants were notified that the plaintiffs were ready to deliver the same under their contract.
    Upon the whole case, the plaintiffs having established the contract of sale, as set out in the complaint, which it was not competent for the defendants to contradict or vary by parol evidence, and the plaintiffs having also shown an offer to deliver the cotton within such a time as upon the evidence it cannot be doubted was a reasonable time, the jury were properly instructed to render a verdict in their favor.
   By the Court:

Monell, J.

There were no disputed facts in this case, and therefore no question for the jury. The main facts were sufficiently , established, and the only question to be examined is, whether upon such facts the direction of the learned justice was correct. The contract of sale was made on the 21st of November. On that day, and again on the next day, the defendants demanded a delivery. The cotton was not delivered, for the reason that it had not been discharged from the 'vessel. On the 25th a delivery was tendered and refused.

The contract did not specify any time for the delivery, nor were there any extrinsic facts or circumstances which can materially aid the court in determining upon the time the parties had in which to perform. The case must, therefore, be disposed of upon principles applicable to contracts, which are silent in respect to the time for their execution.

The question resolves itself into this: Did the demand made by the defendants on the 21st and 22d, and the inability, refusal, or neglect of the plaintiffs to deliver on those days, put an end to the contract and discharge the defendants; or, did the plaintiffs have until the 25th to make delivery ?

The general rule is, that where goods are to be delivered, and no time is specified in the contract, it is a presumption of law that the parties intended and agreed that they should be delivered in a reasonable time. What is a reasonable time is a question of law, to be determined upon the facts and circumstances of each case.

There is one fact in this case, which was proven, I suppose, with the view of aiding the Court in determining the question of reasonable time, which was, that at the time of the contract the cotton was on board the steamer “ Zodiac,” then reported as being in the harbor; that on coming up the bay she got aground, and her cargo had to be lightered to the city. That fact does not, however, in my judgment, help us in ascertaining what would be a reasonable' time for delivery, however much it might, under certain circumstances, perhaps, excuse a delivery. It was not contemplated by the parties that any casualty would prevent an immediate execution of the contract, and cannot, therefore, be presumed to have entered into their intentions.

I cannot find any thing in the contract, or in any surrounding-fact or circumstance, to excuse an immediate delivery, or at least a delivery on demand.

The commodity sold was capable of an immediate delivery, and no particular space of time was required to complete the sale by the symbolical delivery usual in such cases. The cotton was to be received by the purchaser upon the wharf. Placing it upon the wharf and giving an order for its delivery to the purchaser, would constitute a delivery, and it, would thereafter be his property and at his risk.

There is nothing in the character of the property sold that would indicate that four days would not be an unreasonable time for its delivery; nor is there any thing in the circumstances of the sale that would lead us to the conclusion that the plaintiffs had the right to tender performance on the fourth day after the sale.

If any thing is to be gained extrinsically, it is, that in the absence of express stipulations fixing the time of performance, parties intend and mean an immediate performance, provided, of course, the contract is capable of such performance; and it would not be unfair to presume that the parties, in the case before us, contemplated, as well as intended, that the cotton should be delivered on the day of sale. Their acts indicate such intention The plaintiffs and defendants, -through and by their respective agents, went down to the wharf on the 21st, the former to deliver and the latter to receive the cotton. L

As I have said before, the casualty which prevented a delivery on that day cannot enter into the question of reasonable time; for it may very well be, that to the defendants the delivery on the day of purchase was of the very essence of the contract. They might have purchased for immediate re-shipment or re-sale, either or both of which would have been defeated by the plaintiffs’ delay.

I am of opinion, therefore, that the delay of four days in tendering a delivery was unreasonable, and that the refusal or neglect of the plaintiffs to deliver on the demand of the defendants relieved the latter from all responsibility.

The exceptions should he sustained, the verdict set aside, and a new trial ordered, with costs to defendants to abide the event.


text:
    J. NELSON LUCKEY, Plaintiff and Respondent, v. THOMAS GANNON, Defendant and Appellant.

      Held, in an action for the conversion of two policies of insurance, pledged as security for a specified debt, that they could not be retained as security for any.other debt; and that a demand and refusal to deliver, after payment of the debt for which they were pledged, was sufficient evidence of a conversion to allow a recovery.
    If either party claim there is a question of fact for the jury, the request must be made at the trial to submit such question, and it is too late to take the objection for the first time on the appeal
    Before Monell, Jones, and Fithian, JJ.

      [Decided February 12, 1869.]
    This was an action for the conversion of two policies of insurance.
    The complaint alleged, that in August, 1866, the plaintiff procured two policies of insurance—one from the State Insurance Company of Jersey City, and the other from the Security Insurance Company of Philadelphia—upon property consisting of a rosin-oil factory, in Brooklyn, and the machinery and other property therein, each for the amount of $625; that such policies provided that the loss, if .any, should be payable to the defendant, to the extent of any indebtedness which at the time thereof should be owing to him from the plaintiff. The complaint further alleged that, at the time of the insurance, the defendant was in the employment of the plaintiff, and the loss was made payable to him, as security for any indebtedness of the plaintiff therefor; and that it was agreed that the policies should be returned to the plaintiff on demand, and on payment or tender of any amount which he should then owe the defendant; and that if at the time any loss should occur, nothing should be owing by the plaintiff to the defendant, then the policies should be delivered up to the plaintiff.
    It was further alleged, that in January, 1867, the property covered by the policies was .destroyed by fire; that in March following, the insurance companies adjusted the loss under each of the policies at $237.50, which sums the companies were willing to pay, upon production and cancellation of the policies ; that since the loss and adjustment, the plaintiff has demanded the policies of the defendant, and offered to pay him any sum which might he found due him from the plaintiff, but the defendant refused ; that although the plaintiff has offered to pay, &c., yet that at the time of the loss there was not, nor has there since been, any thing due from the plaintiff to the defendant.
    The answer of the defendant averred that the plaintiff was indebted to him, and has been since the time stated in the complaint, in a sum exceeding $475 ; that the plaintiff has not offered to pay any sum of money since the delivery of the policies. The defendant denied the conversion of the policies, and further alleged that the plaintiff was indebted to him in the sum of $1,300.
    Upon the trial before Mr. Justice Barbour and a jury, the plaintiff testified that at the time of the fire he did not owe the defendant any thing, nor had he owed him any thing since; he once owed him about $250, which he had paid him in full. There was further evidence tending to show that the plaintiff was not indebted at the time of the fire, or since, to the defendant.
    A general motion was made to dismiss the complaint without stating any ground therefor, which was denied.
    The defendant testified to the sale of some worms to one Fisher, and the taking of his notes and of a chattel mortgage as security for the purchase-money, and gave other evidence tending to show that the loss under the insurance policies was made payable to the defendant as additional security for such notes. .He was then asked, “ Have you been paid your indebtedness arising out of this transaction ? ” And he answered “No ; ” and that there was still $1,300 due ; that neither before nor after the fire had he had any settlement with the plaintiff ; that the plaintiff had neither paid nor offered to pay him any thing.
    All the evidence of an agreement by the plaintiff to pay the notes of Fisher was, on motion, stricken out by the Court, and the defendant excepted.
    There was other evidence that the defendant had not been paid, but it mostly referred to the non-payment of the Fisher notes, although some of the evidence left it uncertain which indebtedness was referred to.
    At the close of the evidence the Court directed the jury to find a verdict for the plaintiff, and the defendant excepted.

      Mr. A. J. Perry for appellant.
    Luckey was a partner with Fisher in the oil factory, and was liable to Gannon for the whole indebtedness, independent of any promise he had made subsequent to the fact, or any thing he had assumed, and independent of any thing to be concluded from his procuring and delivering the policies of insurance, and this question of fact, it being denied by him, should have been submitted to the jury.
    Defendant’s motion to dismiss the complaint should have been granted. It was Competent for Luckey to do what he in fact did, pledge the policies for any person’s indebtedness, and he is bound by that act; and until there was an accounting and payment, the condition of things was not such as to justify a demand by the plaintiff, for the redelivery of the policies.
    The policies on their face have no value ; there is no proof that defendant has at any time received, or that he can receive, value for them, bio damages for a wrongful conversion of a worthless article can be maintained, and the complaint should have been dismissed.

      Mr. J. C. Conable for respondent
    The directions of the Court to the jury to render a verdict for plaintiff were right—there was no question of fact for the jury.
    The pleadings and bill of particulars set forth that the policies were held as security for a debt due from the plaintiff to the- defendant, while the only debt proved was from Fisher to the defendant.
    Luckey was not liable for the debt of Fisher. The parol promise to pay the same attempted to be proved was void under the statute of frauds (Jackson v. Raynar, 12 Johns., 291; Mallary v. Gillett, 21 N. Y., 412, and cases cited ; Knox v. Nutt, 1 Daly, 213).
    Luckey, by the alleged parol promise, at most was a mere surety for Fisher’s debt, for which Gannon also held the mortgage as further ' security, and the sale of the mortgage property to Gannon without notice to Luckey operated to release Luckey, and entitled him to the policies.
   By the Court:

Monell, J.

The only issue in this case presented by the pleadings was upon the nature and extent of the indebtedness for which the policies of insurance were intended as a security. The plaintiff claimed, and so alleged in his complaint, that at the time of the insurance the defendant was in his employment, and that the loss was made payable to him, as expressed in the policies, in order to secure him for any indebtedness 'that the plaintiff might owe him therefor, and for no other purpose whatever ; and that it was then agreed, between the plaintiff and defendant, that such policies should be held by the defendant only for the purposes of such security, and should be returned to the plaintiff at any time when the plaintiff should demand the same, on payment or tender by the plaintiff of any amount he should then owe the defendant; and that if any loss should occur under the policies, and nothing should be owing by the plaintiff to the defendant, the policies should be delivered to the plaintiff, and all rights of the defendant released to the plaintiff.

These allegations of the nature of the indebtedness intended to be secured, as well as the agreement between the parties in respect thereto, were not denied in the answer ; the only allegations in the complaint negatived in the answer being those averring payment, or offer of payment, of the alleged indebtedness. So that the case, upon the pleadings, was narrowed to the single issue of payment or offer of payment of any indebtedness of the plaintiff to the defendant, growing out of the employment of the latter by the former.

On the trial it was attempted to show, on the part of the defendants, that the insurance policies were intended to secure ,the payment of a certain chattel mortgage, given to the defendant by one Fisher, upon two copper worms used in the distillation of rosin oil, to secure the payment of thirteen hundred and upward of dollars; and some evidence was furnished that- the mortgage debt had not been paid. But the Court, on motion, struck out all the evidence of an agreement on the part of the plaintiff to pay the debt of Fisher, probably on the ground that no such agreement had been set up in the answer; and also that the agreement set forth in the complaint was admitted by the answer.

I have examined the evidence furnished by the defendant, and cannot find any that is pertinent to the only issue presented by the pleadings.. All the evidence relates to the non-payment of the debt due from Fisher, and was clearly inadmissible. As all evidence showing or tending to show that it was agreed or intended to secure the Fisher notes was excluded, it was immaterial, so far as the plaintiff’s rights were concerned, whether such notes were paid or remained unpaid ; and the evidence could not be made pertinent without an amendment of the answer.

Under this view of the case there was nothing to go to the jury! The debt agreed to be secured by the transfer of the policies was admitted, and the evidence of the payment of such debt was not contradicted by the defendant, although he proved in general terms that the plaintiff had not paid him. Yet it is so evident that he referred to the Fisher debt that it may safely be said that the plaintiff’s evidence was undisputed. But were it otherwise, and the evidence on the subject of payment, or on the other subject of partnership between the plaintiff and Fisher, was conflicting, the defendant should have called the attention of the Court to it by a request to submit such questions to the jury; and it is too late to raise the objection now, that the case should have gone to them upon any' of the conflicting evidence in the case.

The only remaining question is, whether the plaintiff can maintain an action for the conversion of the policies, and that question was properly raised, I think, by the motion to dismiss the complaint.

The policies were taken in the name of the plaintiff, and contained a clause making the “loss, if any, payable to the defendant.” Such words operated to give the defendant the same rights and interests in the policy which he would have had if, without such words, the policies had been assigned to him with the assent of the insurers (Grosvenor v. Atlantic Fire Insurance Co., 5 Duer, 517 S. C., 17 N. Y. Rep., 395 ; Ennis v. Harmony Fire Insurance Co., 3 Bosw., 516). There cannot be a doubt that the assignee, before payment of the debt, could maintain an action upon the policy, for a loss to the subject insured. Before the code an assignee could not, in this State, have brought an action in his own name (Jessel v. Williamsburgh Ins. Co., 3 Hill, 88). It was otherwise in some of the States (Motley v. Manufacturers’ Ins. Co., 29 Maine, 337), and is otherwise now in this State, the Code having provided that the action shall be in the name of the party in interest; and it has accordingly been held that the person to whom the loss is made payable, can sustain an action against the insurers (Frink v. Hampden Ins. Co., 45 Barb., 384). It is equally clear, I think, that after payment of the debt, the right of the assignee to sue, if not gone entirely, could be taken from him by the assignor, who upon discharging the debt is reinstated to all rights which he possessed before the assignment— not by subrogation, but by operation and force of the purposes of the assignment having been fully met and answered.

In the case of Roberts v. The Traders’ Ins. Co. (17 Wend., 631), the question was whether, after judgment in favor of an assignee against the insurers, and payment of the mortgage debt by the assignor, he was entitled to collect the judgment; and the Court said (p. 638) that the assignee took only a collateral interest in the policy, liable to be diverted whenever the mortgage was paid, and that the payment of the mortgage had the effect to bring back to the mortgagor and assignor of the policy the interest which he had assigned, and of course the interest in the judgment which had been obtained upon the policies.

The cases cited establish, that upon payment of the debt the assignor is restored to his interests, and may maintain an action upon the policies, or to compel a re-assignment to himself, if that be necessary for the purpose of bringing suit.

That an action can be maintained for the conversion of a chose in action which has been pledged as a security for a debt, is now well settled (Campbell v. Parker, 9 Bosw., 322; Decker v. Matthews, 12 N. Y. R., 313). An action to redeem is not the only remedy; and where the pledgee has wrongfully disposed of the pledged property, so as to put it out of his power to deliver it, or where, upon payment of the debt for which it was pledged and demand for its return, he refuses to return it, it is a conversion for which an action will lie.

The evidence in this case of the payment of the debt for which the insurance policies were pledged, and of the demand and refusal to return them to the plaintiff, was undisputed, leaving, therefore, nothing for the jury.

' The direction to find for the plaintiff was correct, and the judgment should be affirmed.


author: Jones, J.

text:
    PATRICK O’BEIRNE, Plaintiff and Respondent, v. JAMES T. LLOYD, Defendant and Appellant.
    The commencement and pendency of an action for the recovery of part of an entire demand, does not extinguish the right of action for the balance.
    The pendency of such an action can only be pleaded in abatement to a subsequent action for the recovery of the balance of the demand.
    If, however, such action has terminated in a judgment, that judgment extinguishes the right of action for the balance of the demand, and may be pleaded in bar of a subsequent action for such balance.
    If such plea is interposed to a subsequent action foe the balance of an entire demand, the plaintiff may discontinue the first suit, arid the plea would then fall.
    It is necessary that the pleas to the second action should show whether the pendency of the former action is relied on as an abatement to that existing action, or as a defence in bar to the cause of action.

    An answer pleading the pendency of a former action in bar, presents no defence. Such pendency is not a bar, and the answer will not enure as a plea in abatement.
    A plea in abatement of another action pending is radically defective, if it does not allege such action to be still pending.
    The entry of a formal order of discontinuance is necessary to discontinue an action.
    A mere consent signed by the parties consenting to such discontinuance, and that an order to that effect be entered, is not sufficient.
    The words, “plaintiff’s demand in this action,” in an agreement between the parties to an action entitled in the action, the complaint having been served, and the agreement containing no qualifying words, refer to the demand in the complaint.
    Oral evidence is inadmissible to show that any other demand was intended, there being no fraud, accident, or mutual mistake.
    Before Monell, Jones, and Fithian, JJ.

      [Decided February 12, 1869.]
    This action was tried before Mr. Justice Barbour and a jury.
    The action was brought to recover the sum of four hundred dollars for services rendered by the plaintiff in drawing a certain sheet or section of a map of the city of Buffalo, in pursuance of a contract made October, 1865, by which contract plaintiff was employed to make maps of Buffalo and other cities in sections of certain dimensions, for each of which sections, when made and delivered, plaintiff was to receive §400. On the 8th February, 1866, plaintiff made and tendered section No. 4 of a map of the city of Buffalo to defendant, who refused to accept or pay for the same.'
    On the 10th February, 1866, plaintiff commenced an action against defendant to recover the price of several sections of maps previously made and delivered by him to defendant under the same contract. That action was not prosecuted to judgment. It was settled and compromised between the parties before judgment.
    Section No. 4 was not included in that action. This action is brought to recover the contract price of section No. 4.
    The defense set rip was that the demand in this action was included in the first action brought by plaintiff against defendant, and was therein settled and paid on the 24th of March, 1866.
    The principal question involved is, whether or not the claim was embraced in or barred by a settlement had between the parties on the twenty-fourth of March, 1866.
    The defendant’s counsel moved to dismiss the plaintiff’s complaint on the ground:
    That the demand in suit had been compromised and settled in the suit commenced February 10, 1866; that the plaintiff’s account had been disputed by the defendant, and that the plaintiff had abandoned the demand in that suit; that a sum fixed had been paid; that this demand was due when the other suit was commenced, and that claim and settlement was a bar to this action.
    The Court denied the motion.
    The defendant’s counsel requested the Court to charge the jury, if they found that the disputed item was not embraced in the former settlement, and that the plaintiff totally disregarded this section and agreed to furnish it for nothing, and that the claim of the plaintiff was due at the commencement of the other suit, and that the parties agreed upon an amount which' was paid by.defendant, that then the plaintiff could riot recover in this action.
    The, Court refused so to charge.
    The jury found a verdict for plaintiff.

      Mr. Robert Sewell for appellant.
    The defendant had a right to show that the settlement embraced all that he owed the plaintiff at the time. It was not an effort to vary or to contradict the written instrument, but to explain it and to show that it embraced the disputed items. Parol evidence is admissible to elucidate a written agreement, and to explain a receipt, and show to what demand it is applicable. The doctrine prevails as to all written acknowledgments and receipts, that the transaction which they are designed to evince, may be proved by the parol testimony of witnesses, without producing the receipts or accounting for the absence of them. Parol evidence is not admitted to explain or, contradict the terms of the written contract, but only to ascertain what those written terms are (Fish v. Hubbard, 21 Wend., 26; Brooks v. White, 2 Metcalf, 283; Speake v. the U. S., Cranch, 28; Southwick v. Hayden, 7 Cowen, 334).
    The Court erroneously refused to dismiss the complaint.

      Mr. Francis G. Salmon for respondent.
    The evidence showed that the demand in suit was not included in the former action, and had not been settled or compromised therein; that the sum so paid was paid in the settlement of the former suit, which did not include the demand in this suit.
    The refusal to charge was correct. There was no evidence whatever in the case that “ plaintiff, on the settlement, totally disregarded this section,” and agreed to furnish it for nothing.
    The amount paid in settlement of the first action was an accord and satisfaction of so much only of the plaintiff’s claim as was included therein (Cashman v. Bean, 2 Hilton, 340).
    The denial of motion for a nonsuit, and the refusal to charge as secondly requested, were correct.
    The first action was not prosecuted to judgment, and is not therefore res adjudicata.

    The settlement between the parties only extinguished so much of the plaintiff’s claim as was included in the action settled (Cashman v. Bean—supra).

    A recovery in a former action to be a to a subsequent action must be a recovery under a judgment of a court (Cashman v. Bean—supra).

    But even if the rule of law be that an action brought to recover only a portion of a, claim arising out of a contract not prosecuted to judgment is a bar to a subsequent action for the remainder of said claim due when the first action was brought, the rule does not apply in this case.
    The section of map in suit was completed under a new and distinct contract, as is shown by the uncontradicted testimony of plaintiff.
   By the Court:

Jones, J.

The commencement of an action for the recovery of part of an entire demand does not extinguish the right of action for the balance.

If such action proceed to judgment, the judgment would be a bar to any action brought to recover the balance of the demand. But the mere pendency of a prior action for part of an' entire demand can be pleaded, in a subsequent action for the balance of such demand, in abatement only (Secor v. Sturgis, 16 N. Y., 548).

If such plea in abatement is interposed to the second suit, the plaintiff therein may discontinue the first one, and thereupon the plea fails (Swart v. Borst, 17 How. Pr., 69).

In the present case the stipulation entered into in the former action, and its full performance, entitled either party to have a formal order of discontinuance entered. But no order of discontinuance has been entered, therefore that former suit must be regarded as still pending (Averill v. Patterson, 10 N. Y. Rep., 500).

If, then, the pendency of that former suit had been pleaded in abatement to this one, this complaint must have been dismissed on the ground of such pendency, unless the plaintiff had, at least, before noticing this action for trial, entered an order of discontinuance of the first action.

But the defendant did not plead such pendency of the former action in abatement. He pleads it in connection with other matters as a bar.

Howliere in his answer does he aver that it.is still pending; on the contrary, he treats it as at an end, and completely disposed of.

Formerly great strictness was required in pleas of abatement, they being dilatory pleas; even under the Code, sufficient strictness should be required, to show whether he relies on the matters pleaded as an abatement to the existing action, or as a, defence in bar to the cause of action.

The answer in this action not only does not show that the pendency of the former suit was relied on in abatement, but shows that he relied on the fact of the commencement of that suit in connection with other matters as a bar; and as a plea in abatement, the answer is radically defective in omitting the material allegation of its still continued pendency.

H he had pleaded said pendency in abatement, the plaintiff would have been put in position to destroy the effect of the plea, by entering a formal order of discontinuance of the first action. As, then, the pendency of the first suit is not a bar, and has not been pleaded in abatement to this action, it forms no obstacle to the plaintiff’s right of recovery.

The remaining question is as to the exclusion of oral evidence offered, to show that the demand in suit was included in the compromise and settlement of the first suit.

The terms of that settlement are evidenced by a written agreement, in which there is no ambiguity or uncertainty. Oral evidence is, consequently, inadmissible to alter or vary that agreement, no fraud, accident, or mutual mistake being shown.

That agreement was entitled in the first action, and commences with the following language: It is hereby stipulated and agreed by and between the parties hereto, that the amount of plaintiff’s demand in this action be and hereby is fixed at the sum,” &c.

It is urged that under this language oral testimony was admissible, to show what the plaintiff’s demand in the action was. His complaint, which was in writing, and which had been served before the settlement was made, showed what the demand in the 'action was.

The demand claimed in the complaint, and that only, is the demand in this action.” That is the only demand to which the words demand in this action” can possibly refer. .What that demand was is shown by the written complaint, and it cannot be altered or varied by parol evidence.

Judgment affirmed, with costs.