author: By the Court. Slosson, J.

text:
    John Webster v. Bryan K. Stevens and John A. Stevens.
    When the owners of adjoining lots, by agreement, construct a wall partly on each lot, for the common support of their buildings, the wall so constructed, if used as such for twenty years, is a party-wall, in the legal sense of the term, and the owner of each house has an easement, for its support, in that portion of the wall which stands on the adjoining lot.
    So, when the owner of two adjoining lots erects a building on each, with a wall partly on each lot, for their,common support, a conveyance, by him, of either lot, conveys, with the building, an easement for its support on that part of the wall which stands on the other lot.
    In all cases where such an easement exists, neither owner or occupant can interfere with the wall, to the detriment of the other, without his assent.
    But where such a common wall is erected by tenants for years, although it may be a party-wall, as between themselves, it creates no easement binding on the owner of the reversion in fee, that can prevent such owner, when the term expires, from dealing with his property, as if no such wall had been erected.
    The legal rights of a grantee of a reversioner are exactly the same.
    Judgment for defendants, with costs.
    (Before Hoffman, Slosson and Woodruff, J.J.)
    Heard, April;
    decided, May, 1856.
    This was an action to recover damages for the wrongful taking down, by the defendants, and their servants, of a party-wall, which was alleged to be the common support of a building occupied by the plaintiff, under a lease, and an adjoining building, owned by the defendants.
    The defendants, in their answer, claimed that they had a legal right to take down that part of the wall in question which was on their own lot; that it was this right only that they had exercised, and that, in its exercise, they had acted with all proper care and diligence, and after notice to the plaintiff of their intended proceeding.
    The cause was tried before the Chief Justice, and a jury, in November, 1855.
    When the evidence on both sides was closed, the Chief Justice instructed the jury that the defendants were, in law, entitled to their verdict, and directed them to find a verdict accordingly.
    To this instruction, and direction, the counsel for the plaintiff excepted.

      A verdict for the defendants was then entered, but liberty was given to the plaintiff to make a case, containing the proceedings and evidence on the trial, and the exceptions then taken were ordered to be heard, in the first instance, at General Term, and judgment, in the mean time, to be suspended.
    The following are the material facts which, it appears from the case made, were proved upon the trial:
    The plaintiff is lessee, under Daniel Stanton, of .No. 40 Warren street. His lease is dated 15th February, 1850, and is- for seven years from March, 1850, and consequently not yet expired.
    The 'defendants are owners of No. 42, adjoining on the westerly side.
    Both lots were originally owned by Trinity Church. No. 40 was leased by the Church, in May, 1810, to William Cutting, for forty-two years from the 25th March, 1811. The term expired on the 25th March, 1853.
    No. 42 was leased by the Church, in April, 1810; to John Juhel, for forty-two years from the 25th March, 1810. The term expired on the 25th March, 1852, one year before the lease of No. 40.
    In each lease was contained a covenant, by the lessee, that he would erect upon the lot demised to him a three story brick house, within three years from the date of his lease, under the penalty of a forfeiture of the lease; and the right was reserved to the lessee, and his assigns,. “ within ten days after the expiration of the term, but not at any time thereafter, to remove and carry off the materials and all or any buildings to be erected on the demised premises, the fences which should enclose the same only excepted.”
    The lessees each erected a building on his lot, in- pursuance of the conditions of his lease; but the wall between the two houses was constructed, one half on each lot, so as to constitute a party-wall, in the sense of a wall for the mutual support of each house.
    In 1812, Trinity Church conveyed the two lots in fee to St. George’s Church, subject to the two leases aforesaid.
    On the 3d June, 1850, St. George’s Church conveyed, in fee, No. 40 to Julia - Stanton, (the wife of Daniel Stanton, under whom plaintiff claims,) subject to the lease to Cutting, and reciting in the deed the clause of the lease which gave him the privilege of removing the buildings on the lot, within ten days after the expiration of the term.

      The lease to Cutting must have been vested in Daniel Stanton before the conveyance to his wife, as his lease to the plaintiff is dated 15th February, 1850; and as his lease to the plaintiff was for a term of seven years, it was, at the time it was made, a demise of a term extending some four years beyond the term of the Cutting lease.
    In February, 1852, St. George’s Church conveyed, in fee, No. 42 to the defendants in this action, subject to the lease to Juhel, with a covenant that the premises were free from all charges and incumbrances, &c., “ saving and excepting all claims lawfully to be made under or by virtue of said lease, and the provisions and stipulations thereof.’’
    The defendants became the holders of this lease, in their own right, by intermediate assignments from Juhel, and thus the term was merged in the larger estate.
    It will thus be seen, that the deed to the defendants of No. 42 was made a little over a year before the expiration of the Cutting lease of No. 40.
    Assuming that the rights, as to the removal of the buildings, reserved by the original leases, was not affected by the subsequent conveyances, the defendants would have a right, under the Juhel lease, to have removed their building within ten days after the 25th of March, 1852, and Stanton, under the Cutting lease, as respects the defendants, within ten days after the 25th of March, 1853.
    In November, 1855, some eight months after the period within which Stanton’s right of removal had expired, and eighteen months after their own right of removal had expired, the defendants took down their building, and in doing so undertook to remove that portion of the common wall which stood on their lot. But finding this impracticable, after progressing to some length, without endangering the plaintiff’s house, the whole wall was taken down by order of the public authorities.
    On the trial the question of negligence in the manner of removing the wall was, by plaintiff’s assent, withdrawn from the jury, and the case turned wholly on the question of law.

      John Graham, for the plaintiff,
    contended that the Chief Justice had erred in directing the jury to find a verdict for the defendants, and that, npon the pleadings and evidence, the plaintiff was entitled to a verdict, and that the case ought to have been submitted to the jury to assess the damages which he had sustained. He insisted that as the buildings were not removed at the expiration of the leases, they came into the possession of the reversioners and their grantees, subject to the same rights and easements as when held by the tenants before the expiration of their leases. He cited Eno v. Del Vecchio, (4 Duer, 53; United States v. Appleton, 1 Turner, 500.)

      D. Lord, for the defendants,
    insisted that they were clearly entitled to retain the verdict that had been given. Keither of the tenants, he argued, could, by any act or agreement, encumber the reversion of the lot demised to him, or to an adjoining tenant, by creating an easement or otherwise. The easement created by the tenants could last no longer than during the continuance of the term common to both. When that term expired there was an end of the easement as to the reversioner, who was under no obligation to continue the old wall and not to improve his property by new buildings.
   By the Court. Slosson, J.

It is undoubtedly true that where the owners of adjoining lots construct, by mutual consent, a wall, partly on the lot of each, for the common support of the buildings erected by them on their respective lots, and the same is used as a wall for common support for twenty years, such wall is strictly a party-wall, within the legal meaning of that term, and the owner of each house has an easement in the portion of the wall standing on his neighbor’s land for its support.

So also where the owner of two lots erects a building on each, with a common wall for the support of the two, standing partly on each lot, a conveyance of either lot by the original lines of the lot, conveys with the building itself an easement for its support in the portion of the wall standing on the other lot; and it is equally true, that where such easement of support exists, neither owner or occupant of one freehold can interfere with the wall to the detriment of the other, without his assent. (Eno v. Del Vecchio, Superior Court, October term, 1854; 4 Duer, 53.)

In the one case the owners of the lot have, by common consent, at the time of the erection of the wall, and by its subsequent uses, appropriated the same as a párty-wall and have thus estopped themselves as against each other, and consequently as against the grantees of either from denying the easement; and, in the other case, the common owner of both lots having expressly appropriated the wall as a party-wall, is equally estopped, as against his own grantee of one lot, unless, indeed, by the terms of his grant, the covenant is expressly or impliedly taken away.

So, as between the lessees of Trinity Church, in the present case, Cutting and Juhel, neither could, during the term common to both, claim a right to interfere with the easement of the other in the wall, which they had, by common consent, erected, as a party-wall, between them. The only query is, whether this right of easement continued beyond this common term.

It certainly could not, by reason of any assent of the lessees, at the time of its erection, for they had no more right to encumber the reversion than to convey it; and it is equally certain, that there is nothing in the case to warrant the presumption of a grant of such an easement, on the part of the defendants, since the expiration of the term. They remained passive, it is true, eighteen months after the expiration of their lease, but no adjudicated case would justify the holding of such a period sufficient to raise the presumption of a grant.

The period during which this wall was used as a parly-wall, anterior to the expiration of the Church leases, has nothing to do with the question, as against the reversioners.

The case is not to be treated as though St. George’s Church had conveyed the fee, after the expiration of these leases, and of the ten days allowed for the removal of the building. I do not intend to say that, even then, a conveyance, by that Church, of either lot, “ with the appurtenances,” would necessarily have conveyed the easement in question. I incline to the contrary opinion.

It is enough, to say that the conveyances were, in fact, made before the expiration of these leases, and, therefore, before the Church had ever succeeded to the possession, of the reversion of either lot. The question, therefore, of the effect of the union of the two reversions, in possession, in one owner, as affecting the rights of his grantees, does not arise. Each grantee, under the deeds of St. George’s Church, took the reversionary right, as Trinity Church, if she had never parted with her title, would have taken it, clear of every incumbrance created by the lessees.

It must be borne in 'mind, that there is" nothing, in the terms of the original leases, which authorized, or contemplated, the erection of a party-wall; each lessee was bound to build on his own lot, but no right was given to encroach on his neighbor’s lot. The scheme of a party-wall was one of their own contrivance, and for their mutual convenience only.

There is but one aspect of the case which‘seems plausible, and that is, that, as-"the lessees could not remove their buildings after ten days from the expiration of their leases, the buildings, after that period,- if not-removed, became a part of the freehold,- and that the grants-of the Church must be construed as having passed this chance, or possibility, of the non-removal of the buildings, and, with it, -the easement in question, as a necessary “ appurtenant,” in case -the buildings should not be removed. In other words, that the grants, though made anterior to the expiration of the leases, are to be- construed as though made after the ten days had expired, and as- having passed the title to the respective houses, as they then stood, with the mutual easement of support, as one of the appurtenances.

■ The answer to this is, what has been already suggested: the deeds conveyed only the reversionary right, and if that right was not itself-subject to the easement, the mere conveyance of the right, “ with the appurtenances,” would not create the easement.

The plaintiff made a point, that the wall was not removable, by either lessee, as against the reversioners, inasmuch as it was the lateral fence of the respective lots, each half of the wall being the fence of the lot on which it stood.

■- The leases, certainly, in the privilege of removal, excepted the fences enclosing the lots; but to say that either wall of the building was to be left standing, as a fence, while the building itself was to be removed, would be giving, to the clause in question, a latitude of construction quite too broad to be seriously entertained. And, moreover, it is difficult to see what right the plaintiff had to complain-of -the defendants’ breach of their covenant, in this respect. If there is no right of party-wall, the wall, in plaintiff’s theory, constitutes, as respects -the reversioners, two independent fences, and if either reversioner removes his fence, the rights of the other are in no wise affected, and neither has a remedy for it.

The defendants must have judgment, upon the verdict, with costs.


source: Caselaw Access Project

author: By the Court. Woodruff, J.

license: Public Domain

text:
    John Marquart, respondent, v. John La Farge, appellant.
    An appeal from a judgment to the General Term only brings under review the questions of law raised at the trial, and the exceptions there taken. It brings the facts and evidence under consideration, no further than is necessary to raise the questions of law.
    Such an appeal will not present, for review, an order of the Special Term, denying a motion for a new trial, made on the ground that the verdict is against evidence. If the party wishes to raise that question in the General Term, he should appeal from the order denying a new trial
    When a person is in the quiet and peaceable possession of premises, with the knowledge and acquiescence of the owner, for upwards of a month, and has taken such possession under a purchase from one who claims to have a parol lease from such owner, and was in actual possession for two months, he is to be deemed rightfully in possession, so far as to entitle him to occupy till the 1st of May then next, or, at least, until the tenancy be terminated by notice. The owner may not forcibly eject him, and defend the act by showing that such alleged parol lease was not binding upon him.
    Still less was the owner justified in closing the entrance, and refusing to permit such tenant to remove his goods.
    In an action for damages, in such case, the owner is liable for the value of the goods detained, and for the injury done by breaking up the business of the ten- . ant, who kept a refreshment saloon within the purlieus of a theatre.
    In such case it is not erroneous to allow evidence that “ the plaintiff did a pretty large business”—that “ the business was good and profitable,” and that “ one half the receipts were clear profit,” to be given to the jury, among other testimony, to aid them in fixing the amount of damages.
    (Before Hoffman, Siosson and Woodruff, J.J.)
    Heard, April;
    decided, May, 1856.
    Appeal, by defendants, from a judgment in favor of plaintiff for $979.43 damages and costs.
    The action was brought to recover damages for the unlawful and forcible entry, by the defendant, into a refreshment saloon in the Metropolitan Theatre, then possessed and occupied by the plaintiff, and, also, for taking and converting to his own use, a num"ber of articles of personal property, enumerated in the complaint, then owned and possessed by the plaintiff, The damages were laid at $5,000.
    The answer averred that the defendant was the owner of the saloon, and justified his entry as such, and denied the conversion of the goods and chattels mentioned in the complaint.
    The cause was tried before Bosworth, J., and a jury, in June, 1855.
    It was proved, on the trial, that on the 8th or 9th of January, 1855, the defendant caused the saloon in question, which was then, and had been for more than a month, in the possession and occupation of the plaintiff, to be closed, and the doors to be fastened, so as to exclude the plaintiff and all other persons therefrom; and that the • liquors, provisions, and other articles mentioned in the complaint, belonging to the plaintiff, were, at that time, in the saloon, and that the defendant had refused to permit the saloon to be opened, so as to enable the plaintiff to remove them.
    It also appeared in evidence that, in the month of September or October, 1854, one Simon Steinfret had taken possession of the saloon, and had continued in the occupation thereof, in the business of selling liquors, confectionary, and refreshments generally, until the 4th of December following, when he sold out to the plaintiff, for the sum of $1,100. Steinfret, who was examined as a, witness for the plaintiff, testified that he hired the saloon of one Henry Willard, who was in possession of the Metropolitan Theatre, under a lease, it was alleged, from the defendant, who. was the owner of the building; that he paid Willard, as rent, $25 per week, until the saloon was finished, and afterwards $100 per week, and that the plaintiff was to pay Willard the same rent until the first of May following. This witness further testified that, whilst he was in the occupation of the saloon, the defendant was frequently there, and inquired of him about his business, and asked what rent witness paid, and thought that the business would be better by and by, when everything was finished.
    Another witness, on the part of the plaintiff, swore that the defendant was in the saloon when occupied by the plaintiff, and talked with the plaintiff, but that he did not hear what was said. This witness was asked, what was the extent and amount of the plaintiff's business. The counsel for the defendant objected to the question; the objection was overruled, and the counsel excepted to the decision.
    The witness answered, that the business was good and profitable, but that he could not tell the amount of the receipts.
    The witness was then asked, what proportion of the receipts was profits ?
    To this question, also, the defendant’s counsel objected; the objection was overruled, and the counsel excepted.
    The witness answered that he knew that onc-half of the receipts was clear profit. This witness also testified that the saloon was closed by building a brick wall in the door-way, and that the defendant would not permit the wall to be taken down, so as to enable the plaintiff to get his property, which was in the saloon.
    Another witness, for the plaintiff, swore that he saw the defendant in the saloon on the 2d or 3d of January, and heard him ask plaintiff how his business was ? Plaintiff replied, he was doing very well. They talked about repairing a steam pipe, and defendant said that he would attend to it; that his men had been backward.
    The plaintiff then proved that, on the 4th of February, the defendant caused Willard to be dispossessed, under .the statute for the non-payment of rent, and that, in the proceedings, the premises in the occupation of Willard, as tenant, were described as the Metropolitan Theatre.
    Other witnesses were examined, on the part of the plaintiff, but it is not deemed necessary to state their testimony, as it had no bearing on the questions of law decided by the court.
    When the plaintiff rested, the counsel for the defendant moved, upon several grounds, for a non-suit. The motion was denied, and the counsel excepted to the decision.
    Evidence was then given on the part of the defendant, tending to show that he had never rented the saloon to Willard, and that Willard had no authority from him to rent it to others. He also proved, that on the 12th of February, he had given a notice in writing to the plaintiff, to remove his property from the saloon-; that some of the goods were covered by a mortgage for $480, and that those, with his consent, had been taken possession of by the mortgagee.
    When the testimony was clósed, the motion for a nonsuit was renewed. It was again denied, and the defendants’ counsel excepted to the decision.
    The Judge charged the jury, in substance, as follows:—That if the defendant was in possession of the premises, without right, as against the defendant, there was no doubt as to the rule of law, that he could not recover for an entry made by the defendant. After stating the rules by which the jury were to determine whether the plaintiff had a right to be in the premises and continue, the court further charged, that if the jury should find that he had a right to be there, then the defendant was liable. In estimating the damages, if you find for the plaintiff, you may take into view the breaking up of the plaintiff’s business, and give him such damages therefor as you may think he has sustained. But they must bear in mind that the same was uncertain, and must have terminated by the dispossession of Willard on the 4th of February, 1855. In regard to the personal property, if you find for the plaintiff, the defendant is liable for the value of it at the time he deprived the plaintiff of it. But the amount or value taken by the mortgagee should be deducted, and the balance plaintiff is entitled to recover for, in addition to the damage from breaking up his business.
    The jury rendered a verdict for plaintiff for $806.25.
    Leave was given to the defendant to make a case, upon which he moved, at the Special Term, for a new trial, upon the grounds that the verdict was against law and evidence. The motion was denied, but there was no appeal from the order denying it. The appeal was from the final judgment, and came up upon the case as a bill of exceptions.

      P. G. Clark, for the defendant.
    The motion for a nonsuit ought to have been granted, and we are clearly entitled to a new trial. The defendant was the owner of the saloon, and the plaintiff proved no right of possession; he was a mere intruder, and the plaintiff had a perfect right to enter and turn him out, and was not liable to any action for the exercise of his legal right. (Hyatt v. Wood, 4 John. 150.) Whether such was his right was a question of law which the court should .have decided. The Judge erred in submitting it to the jury. The court also erred in charging the jury, that, in estimating the damages, they might take into consideration the breaking up of the plaintiff’s business, and give him damages therefor, and upon a' motion for a new trial upon a case, any objection may be taken, which, although not raised upon the trial, had it been raised, could not have been obviated. (1 Wend. 180; 4 Wend. 514.) As to the personal property, the plaintiff is not entitled to recover, as there is no evidence of any conversion of, or interference with, the property by the defendant, except to close the door of the saloon, which was a lawful act. The plaintiff had due notice that the saloon was to be closed, and that he must move his goods, and he declined to do so. It was, therefore, by his own neglect that he lost his goods if any were lost. As to the damages, the Judge erred in allowing the questions that were put as to the value and profits of the plaintiff’s business. Finally, we insist, that the verdict was against evidence, and the damages excessive.

      0. Schaffer, for the plaintiff.
    The judgment, we submit, ought to be affirmed, with costs. Whether the plaintiff was lawfully in the possession of the saloon, so as to render the entry of the defendant unlawful, was a question which, upon the evidence, it belonged to the jury to determine. They have determined it in favor of the plaintiff upon competent proof, and their verdict cannot be disturbed. (1 Greenl. on Ev., p. 55, § 44; Starkie on Ev. 664.)
    Then as to the personal property, the question of its conversion has also been found by the jury in favor of the plaintiff, and upon very sufficient evidence. Even if the breaking into the saloon during the absence of the plaintiff and walling up the door with brick so as to bar the access of the plaintiff, was not a conversion, the refusal of the defendant to allow the plaintiff to remove his property, undoubtedly was. The verdict is fully sustained by the evidence, and the damages, so far from being excessive, were lenient.
   By the Court. Woodruff, J.

This is an appeal from a judgment, and yet-the points submitted by counsel for the appellant on the argument, relate chiefly to the evidence, and the facts which he conceives were established thereby, and tend to show that the verdict is against the weight of the evidence.

That question does not properly arise upon an appeal from a judgment on the verdict. By section 348 of the Code, an appeal upon the law only lies from a judgment entered at Special Term, unless the trial be had before the court or referees. When the trial is by a jury, their finding can only be reviewed by a motion for a new trial, under section 349, and if the moving party, having made such a motion at Special Term, is not satisfied with the decision there made, he should appeal from the order denying such new trial. An appeal from the judgment does not bring such an order under review, except so far as the consideration of the questions of law raised at the trial, and the appellant’s exceptions there taken may have that effect. So far as the facts are involved, the finding of the jury must, upon such an appeal be taken as conclusive and final.

The appellant in this case was, therefore, in error, in supposing that his appeal brought before the General Term the broad question whether a new trial ought to be granted.

It may, however, be satisfactory to the parties to say, that wc have looked into the evidence, and are satisfied that the verdict ought not to have been set aside as against evidence, and that, in this respect, the order denying a new trial was right, and so we should feel constrained to say if an appeal from that order had been regularly before us.

The questions were whether the plaintiff was in the rightful possession of the saloon from which he was forcibly ejected or excluded by the defendant, and whether he had a right to continue in such possession; whether the defendant, on entering and excluding him from the saloon, took and detained the plaintiff's property against his will, and what damages did the plaintiff sustain by reason of such entry, exclusion, and detention.

There was evidence that Steinfret the assignor of the plaintiff, under color of a hiring from Willard, the lessee of the theatre, entered into possession of the saloon, stocked it with liquors, furniture, materials for refreshments, &c., and kept it for about two months. That defendant was there frequently during that time; inquired about the business; expressed the opinion that the occupant would do better by and by, when every thing was finished; recommended him to fit up the saloon somewhat more attractively; inquired into the amount of rent he paid; and, by his acts and conversation, warranted the belief that he orally at least assented to Steinfret’s occupation, and to his payment of rent to Willard, which Steinfret testifies he did pay. At about the end of two months Steinfret sold out to the plaintiff; he took possession and occupied, without objection, for a month or upwards; the defendant was also there, and knew of the plaintiff’s occupation, and apparently acquiesced; inquired also of him how business was, and promised to have some repairs done, which the plaintiff required for uses connected with the saloon.

Doubtless there is evidence in conflict with this testimony, and tending to show that the defendant had not let the saloon to Willard with the theatre; but the jury were warranted in finding that this was such an acquiescence in the hiring by the plaintiff, or his assignor, as would entitle him to occupy till the first of May then next, or at least such as would have made the plaintiff a tenant at will or by sufferance, (1 Rev. Stat. 744, § 1 and § 7,) and, in either case, the defendant could not terminate the tenancy by a forcible expulsion of the plaintiff from the premises; still less did it justify the defendant in closing the entrance to the saloon with masonry, and refusing to suffer the plaintiff to remove his property therefrom, which there was evidence tending to show, and which we think proved, the defendant did.

This view of the subject also disposes of the exception taken to the refusal of the Judge to order a nonsuit, for although the defendant, more than a month afterwards, notified the plaintiff-to remove his goods, this, if it had any proper effect upon the plaintiff’s rights, which I doubt, after the defendant’s previous refusal, could only affect the amount of damages and not the right of action. '

The only other exception taken to the rulings of the court on the trial, relates to the admission of evidence of the extent of the plaintiff’s business; the amount of business done, and what proportion of the receipts were profits.

The plaintiff was engaged in keeping a restaurant or refreshment saloon. The defendant forcibly bricked up the entrance and broke up the business. For this the plaintiff was entitled at least to a full indemnity. The good-will of that business was wholly destroyed. Now it was certainly competent to prove, in some manner, the nature and extent of the injury, and the value of the business was a proper subject of estimate by the jury. It may be that a calculation of possible or probable profits, in view of the ordinary uncertainties of business, would not be allowable. If the question objected to seemed to call for such a calculation, it was not so answered; all that was testified was, that the “plaintiff did a pretty large businessthat “the business was good and profitable,” and that “ one-half the receipts were clear profit.”

This general testimony to the value of the business, though not specific enough to form a very clear guide to the value of the good-will, unless followed by other proof, was, in its nature, competent. In judging of the extent of the injury, the plaintiff had a right to place the jury, as nearly as possible, in a situation to know all the facts and circumstances attending the transaction, and the condition in which he was before the injury, and the effect of that injury, as fully as if they had been actually cognizant of these facts and circumstances as they transpired.

The judgment must be affirmed, with costs.


author: By the Court. Hoffman, J.

text:
    John G. Gottsberger, Jr., and John F. O’Neil, administrator, &c., of Francis O’Neil, v. George J. Smith, James B. Taylor, and Charles B. Swords.
    A. was appointed, by a Surrogate, administrator, ad colligendum, pending a contest upon a will. He employed B., as his agent, to collect the moneys of the estate. Subsequently, B. was appointed administrator, ad colligendum, in the place of A. At that time, B., as agent, had a sum of money in hand, collected for A. Upon passing the accounts of the latter, he was charged with such sum, and B. gave him a receipt for the same; whereupon, A. was credited such amount. B., upon being appointed, gave the usual bond, with the defendants Taylor and Swords as his sureties, conditioned, among other things, to account for all money, property, and things in action, received by him as such collector, whenever required, &c.

      Held, that the sureties were responsible for the money thus collected by B., as agent, and comprised in his receipt to the former collector, A.

      Held, by Hoffman, Justice, that if the moneys had been in his hands, as a debtor to the estate, when he was appointed collector, the sureties would have been responsible, reserving to them the right to prove that the debt of the principal— the collector—was desperate, as he could have proven that the debt of a stranger was not collectable.
    (Before Oaklet, Ch. J., Hoffman and Slosson, J.J.)
    May, 1856.

      Appeal from, a judgment, entered, upon the direction of a Judge at Special Term trying the cause without a jury, with a stay of proceedings until the decision.
    The action is brought by the plaintiffs, as administrators, with the will annexed, of Francis O’Neil, deceased, to recover the sum of $1,397.97, and interest from February 17th, 1853, alleged to be due to the estate of said O’Neil, from George J. Smith, the defendant, a former administrator, ad colligendum, of the estate. The action is upon the bond given by said Smith, upon his appointment as such administrator, with the other defendants as his sureties. Such bond has been duly assigned to the present plaintiffs, administrators, with the will annexed.
    Pending a contest before the Surrogate of New York, as to the will of one Francis O’Neil, Thomas S. Henry, was appointed administrator, ad colligendum, on the 1st of May, 1847. He continued in such office until the 16th of February, 1850; during all which time George J. Smith, the defendant, was employed by him, and acted as his agent, in the collection of the rents of the leasehold property, of which the estate principally consisted.
    On the 15th of February, 1850, these letters to Henry were revoked, and special letters, ad colligendum, issued to the defendant Smith. Thereupon, such defendant executed a bond to the people, with Swords and Taylor, the other defendants, as his sureties, in the penalty of $10,000, conditioned as follows: “That if he, the said George J. Smith, should make a true and perfect inventory of such of the assets, of the said deceased, as should come to his possession or knowledge, and return the same, within three months, to the office of said Surrogate, and should faithfully and truly account for all property, money, and things in action, received by him as such collector, whenever required by the said Surrogate, or any other court of competent authority, and faithfully deliver the same to the persons who should be appointed the executors or administrators of the said deceased, or to such other persons as should be authorized to receive the same by the said Surrogate, then the said obligation should be void; otherwise, to be in full force and virtue.”
    Smith continued to act as such collector until the 11th of January, 1851, when letters of administration, with the will annexed, were issued to the present plaintiffs.

      Previous to his appointment, the said Smith, as agent of Henry, had collected, from the leasehold premises, rents to the amount of $1,086.90, which he had not paid over to the said Henry, but was his debtor to that amount. After his appointment, and upon Henry’s accounting, Smith, at the request of Henry, gave him a receipt for the said sum of $1,086.90.
    On the 23d of September, 1850, Henry rendered his account to the Surrogate, upon citation, and was, thereupon, decreed to pay over to George B. Smith the assets, remaining in his hands as collector.
    Upon the appointment of the plaintiffs as administrators, they cited Smith before the Surrogate, who rendered his account, in which he charged himself, as such collector, with the said sum of $1,086.90, so collected by him as agent, and as having been received by him from Henry.
    On the 17th of February, 1853, a decree was made by the Surrogate, declaring that the whole amount of assets which had come into Smith’s hands was $3,059.49, in which was included the said sum of $1,086.90, collected by Smith as agent of Henry; that the balance- in his hands was the sum of $1,397.97, and adjudging him to pay that balance, with interest, on such 19th of February, 1853.
    Of these proceedings, the sureties had notice.
    ■ An execution against Smith was returned, unsatisfied, previous to the com'mencement of the present action. The court, at the trial, decided, that the plaintiffs were entitled to judgment, against all the defendants, for the sum of $1397.97, with interest, amounting, in the whole, to the sum of $1,683.37.
    To which decision, the defendants Taylór and Swords excepted; and, thereupon, judgment was rendered for the plaintiffs, for the said last-mentioned amount, with costs.
    The sureties insist, that they are not responsible for the said sum of $1,086.90.

      D. D. Field, for the plaintiffs.

      E. W. Stoughton, for the defendants, Taylor and Swords.
   By the Court. Hoffman, J.

The case has been presented in two aspects. First: That the sureties are clearly bound by the terms of their bond, for the $1086.90, receipted for by Smith, even if the question is an open one. Next: That the decree of the Surrogate, charging Smith with the amount, is conclusive upon them.

First. The obligation of Smith was, to account for all money, property, or things in action received by him as collector. The sureties covenant that he shall do this. The money in question was, in contemplation of law, in Henry’s hands. He was chargeable with it; and, doubtless, was charged with it upon passing his accounts. On his accounting, he discharged himself by the receipt for the amount given by Smith, as the new collector, to him. Henry was adjudged to pay such amount to Smith. The decree, then, on the assumption that Henry had the money, was a chose in action, vested in Smith, for which he was to account. When the receipt was given, the money, legally in Henry’s hands, was received by Smith from him as collector. In legal intendment, it could not have been received in any other capacity.

In Saunders, and others v. Taylor, (9 Barn. & Cress. 95,) the defendant was surety in a bond given by one Hutchins. The latter had been appointed collector of rates by the commissioners of sewers. The bond in question recited, that he would be entitled to receive several rates and assessments; and the condition was, to account and pay over to the commissioners for the time being, all such sums of money as he had already received, or should thereafter receive by virtue of any rates, for, or on account of, the commissioners. The plaintiffs were appointed commissioners on the 3d of March, 1826, and the bond was dated the 20th of May, 1826. The collector had been also collector under an appointment by prior commissioners, and as such, had received rates, which were in his hands at the date of his present appointment. It was held, that the present commissioners were, of course, entitled to the rates collected before their-appointment; the reappointed collector was responsible to them, and that a bond conditioned for the discharge of the duties of a reappointed collector, would not be applicable to the whole duties of his office, if confined to a rate made and collected under the commission in force at the time of his appointment. The language might require, indeed, a more limited construction.

The court then examined the language of the bond, and con-eluded, that it extended to all moneys received by Hutchins as collector, by virtue of any rate fixed by any commissioners of sewers.

It must be noticed, that counsel contended, that the words, already received, were satisfied by covering moneys received between the 3d of March, when the existing commissioners, the plaintiffs, were appointed, and the 26th of May, the date of the bond. The cases of collector’s bonds, which have been referred to by the defendants’ counsel, proceed upon the ground that the term of office being prescribed by law, the obligation of the surety is solely to respond for acts or neglects during that period. It is simply that he hath performed his duties faithfully, that is, from the date of the next preceding appointment to that of the bond, and will perform them faithfully, that is, from the date of the bond to the expiration of the term. (See United States v. Eckford's Executors, 1 How. 258.)

The case of Ketson v. Julian, (30 Eng. Law & Eq. Rep. 329,) is to the same effect. Where the limited period of an appointment appears in a bond, or is shown in a pleading, the responsibility of a surety is restricted to that period, unless otherwise expressly provided.

But no question of a responsibility for former acts as a former collector arises in this case. The question is, whether the acts done, or facts occurring while he was actually collector, make his sureties liable.

In the case of The Governor v. Lee, (4 Dev. & Bat. 457,) claims were put into the hands of a constable, during one particular official year, and remained in his hands uncollected during a subsequent year, for which he was reappointed. In an action against the sureties of the constable on his bond of the second year, it was held, that they were liable. His committing a breach of the prior bond, by neglect to collect, could not exempt his sureties from a liability for a continued neglect during the ensuing year.

Indeed, in my opinion, this case might be rested upon the simple ground, that if Smith had been appointed collector, owing money to the estate, the sureties would prima facie be responsible for the due application of the amount. The debt' would be assets. All that justice would require, would be, that they should have the same right to prove, in their discharge, that the debt was desperate at the time of their bond, as their principal would have to prove that the debt of a third person was not collectable.

In relation to the other point, viz.: the effect of the Surrogate’s decree, our decision renders it unnecessary to pass upon it. Judgment for the plaintiffs affirmed, with costs.


text:
    Nathaniel L. McCready, and others, v. Job Wright, and another.
    The custom, in the port of New York, upon the sale of grain is, that the purchaser selects a measurer, and the measurer so selected is appointed hy the board of measurers to perform the duty.

      Held, that where the measurement is, in fact, made by a measurer appointed by the board, the custom is substantially complied with, and it is immaterial whether the measurer is selected by the seller or purchaser.

      Held, that when the quantity sold has been ascertained by such a measurement, and the purchaser has an order for the delivery of the grain, upon the storekeeper, in whose custody it is, the delivery, so far as the seller is concerned, is com píete.
    (Before Oaklet, Ch. J., Hoffman and Slosson, J.J.)
    May, 1856.
    The action was brought for the'recovery, with interest, of the sum of $859.98, which the complaint alleged was a balance due to the plaintiffs, from the defendants, upon the sale and delivery of 3132f£ bushels of corn.
    The defendants offered to allow judgment to be taken against them for the sum of $782.50, with interest from the 1st of November, 1853. The offer was not accepted. The answer admitted that the defendants had purchased of one of the plaintiffs, P. Neefus, a quantity of corn, alleged tobe about 3,200 bushels, at the price of 84-§- cents per bushel, but averred that only 3,037 bushels had been delivered. It set up a payment of $1,800, and alleged that Neefus was the only person entitled to maintain the action, and that the other persons in whose names it was brought, were improperly joined as plaintiffs.

      The cause was heard before the Chief Justice, and a jury, in October, 1855.
    The cause, upon the trial, turned entirely upon the question, as to the quantity of bushels of corn, in fact, delivered.
    A joint sale, by the plaintiffs to the defendants, of a quantity of corn, in the Atlantic Bond Stores, and supposed to be about 8,200 bushels, was clearly proved.
    . All other material facts, that were established by the evidence, were fully stated in the charge delivered to the jury.
    When the testimony was closed, and the counsel for both parties had summed up, the Chief Justice charged the jury, as follows:
    That the facts appeared to be substantially, that the plaintiffs owned a lot of corn, stored in Chadborne’s store, at Atlantic Dock, Brooklyn; that it was sold to Wright &Losee, (defendants,) and an order for it given by McCready, Mott & Co., which was handed, by the plaintiff Ueefus, to a lighterman, (the witness Conklin.) That the lighterman took the order to the board of measurers of grain. That the practice is for the president of the board to select a measurer, whom he sends to measure the grain. That the first measurer, sent by the president, measured one hundred and seventy bushels. Mr. Langdon, another measurer was then sent, and he measured the corn put on board the lighter Independence, and some put into carts. That, by order of Mr. Heefus, the measurer (Langdon,) measured the balance of the corn, and left it on the floor of the store house. That, for the purposes of the trial, he instructed the jury, that, upon such measurement by Langdon, the delivery to defendants was complete, and the property in the com vested in them. According to the measurement of Cross, it appeared that there were three bushels more in the lighter Independence, than was sent from the store, according to Langdon’s measurement. Another lighter was sent by Conklin, (the lighterman,) which took the balance of the corn. This balance was measured, when delivered at Wilson’s dock, by Mr. Cross, and there appeared to be ninety-eight bushels less than the quantity measured by Mr. Langdon, and left in the store house. That the corn may have been stolen in the store, or from on board of lighter. The question is between the measurements of Langdon and Cross. If the com left in the store house, when Langdon finished his measuring, 65451 bushels, the plaintiffs were entitled to recover the amount they claimed. The custom appears to be, for the purchaser to employ the measurer) and each party pay half his fees, and Ohadborne testified, that, in delivering corn on an order like this, the balance left in the store house was transferred to the purchaser, which seems to be the custom. The inquiry for the jury was simply how much corn was left on the floor by Lang-don—the measurements differ, and the jury must decide the question.
    The counsel for defendants excepted to that part of the charge, whereby the Judge instructed the jury that, upon the measurement, by Langdon, of the corn left upon the floor of the store house, the delivery thereof to the defendants was complete, and the property in the corn had vested in them; and also excepted to that part of the charge, whereby the Judge stated to the jury that it appeared to be the custom that, in delivering corn on an order like that in question, the balance, measured and left in the store house, was transferred to the purchaser.
    The jury thereupon found a verdict for the plaintiffs, for $975.86, being the full amount claimed by them.
    Upon a case containing the proceedings upon the trial, the defendants moved for a new trial at Special Term.
    The motion was denied, and the defendants appealed from the order, and from the judgment.
    The cause was now heard upon this appeal.

      B. W. Bonney, for the defendants.

      E. W. Stoughton, for the plaintiffs.
   By the Court. Slosson, J.

The only question of consequence is whether the order on the storekeeper for delivery of the corn, having been handed by the plaintiffs to Conklin the lighter-man, instead of defendants, and the plaintiffs having employed him to carry away the grain, instead of leaving that to be done by the defendants, relieves the defendants from the measurement made in the store by direction of the board of measurers. The custom proved is for the purchaser to employ the measurer. That custom, carried out in this instance, would have resulted in the employment of a measurer by the board of measurers in exactly the way in which the measurer was in fact employed. The fact that the order was handed to the president of the board by Conklin, instead of by defendants themselves, is of no practical importance. Then was Conklin the plaintiffs’ agent, and not the agent of defendants, to carry the grain from the Atlantic Docks to Williamsburgh.

The grain was delivered to him at the docks, and defendants paid his lighterage. We think that they adopted his acts, and recognized and ratified his agency.

The measuring off the grain, and leaving it in the store house, was a delivery to the purchaser, according to the custom. All the corn that was left on the floor was delivered on board the lighter.

The difference between the parties arises from a difference between the measurement at the store and that made on the arrival of the grain at Williamsburgh. The question which was correct was left to the jury,- and they have found for the plaintiffs for the whole amount.

We think the question was properly put to the jury, and with proper instructions.

Order denying new trial affirmed, with costs.

Judgment for plaintiffs.


author: By the Court. Duer, J.

text:
    New York and Virginia State Stock Bank v. E. T. H. Gibson, and others.
    Evidence to prove that the acceptance of a bill of exchange was obtained by a false representation of existing facts is admissible, although not accompanied by an offer to prove that the misrepresentation was known to the holder. It is sufficient to cast upon the holder the burden of proving a valuable consideration.
    The stockholders of an incorporated bank, however few in number, are competent witnesses on behalf of the corporation.
    The provisions of the Revised Statutes “ of promissory notes and bills of exchange," embrace all bills, wherever drawn, that are to be accepted and paid within this state.
    To render the drawee of a bill liable as an acceptor upon a promise in writing to accept, under section 8 of the Statute, the promise must be unconditional, and if conditional when made, it is not rendered binding by a subsequent performance of the condition.
    Under section 10 of the Statute, no action can be maintained to recover damages for the refusal to accept a bill, except by the person to whom the drawee had promised to accept it, and who, upon the faith of such promise, had drawn or negotiated the bill.
    The mere fact that the drawee has funds of the drawer creates no obligation to accept a bill which a payee or endorsee can enforce.
    An acceptance procured by a false representation is not rendered valid by the fact that the acceptor was legally bound to accept a former bill of the same amount.
    Mew trial, costs to abide event.
    (Before Doer, Boswobth and Slosson, J.J.)
    Heard, March;
    decided, June, 1856.
    This was an action by the plaintiffs, as endorsees, against the defendants, as acceptors of two bills of exchange for $10,000, eách drawn upon them by one Aaron A. Kagy. The bills were in all respects alike. They were dated on the 23d January, 1854, and were payable thirty days after date, to the order of Arnold Dun-levy & Co., by whom they were endorsed to the plaintiffs.
    The defence, substantially, was, that the acceptances were obtained by false and fraudulent representations, made by Kagy, the drawer, to the defendants, and that the plaintiffs were not bona Jide holders for a valuable consideration.
    The cause was tried before Campbell, J., and a jury, in May, 1855.
    The following are the material facts, undisputed and controverted, upon which the questions of law arose that were determined by the court at General Term.
    Kagy, the drawer of the bills, was a large purchaser of hogs, in the State of Ohio, which, by agreement between him and the defendants, merchants in this city, he was in the habit of consigning to them for sale, on his account; and to enable him to make his purchases, the defendants, in the autumn of 1853, had furnished him with letters of credit, by which he was authorized to draw upon them to the amount of $52,000 and upwards. In the month of December, 1853; this credit, by the drafts which Kagy had drawn, and the defendants had accepted, was more than exhausted, and being desirous to make further purchases, he applied to a Mr. Reber, one of the owners, and president of the bank, the plaintiff in the action, to discount "for him two bills, drawn by him on the defendants, for the sum of $10,000 each, dated Lancaster, Ohio, January 2, 1854, payable thirty days after date,- to his own order, at the office'of Arnold, Dunlevy & Co., N. Y.,- and endorsed by himself and four otber 'persons. Thé application was made on the day the bills bore date, but Reber then declined to make the loan, because he was not furnished with proof that the'defendants had given to Kagy an" authority to draw. ■■ Four or five days thereafter, as Reber and Kagy testified, Kagy produced, and left with Reber, a letter from the defendants, addressed to Kagy, by which they agreed to accept his drafts for $20,000, upon his remitting to them, in currency or bills of lading for hogs, the full amount for which he drew; and Kagy also swore that he received from the defendants a telegraphic dispatch to the same effect. Upon this evidence, Reber made the advance requested, by discounting the bills that were offered, which he transmitted do Arnold, Dunlevy & Co., the agents-of the bank in this city, to be presented to the defendants for acceptance and payment. The defendants refused to accept the bills, upon the ground that they were not furnished with- proper bills of lading, showing that the required number of hogs had been shipped, so as to enable them, from the proceeds of sales, to meet their acceptances at ihaturity. In consequence of this refusal, Kagy came to this city, and, on the 23d of January, obtained from the defendants, their acceptances upon the bills in suit, which he delivered to Arnold, Dunlevy & Co.," to whose order they were made payable, as the agents, and for the benefit of the plaintiff. Arnold, Dunlevy & Co. retained the bills first drawn, and caused them to be regularly protested for non-payment, as well as non-acceptance, but it did not appear that any proceedings had been taken against the endorsers, whose names, there was evidence tending to show, were forged.
    The controverted questions of fact were,

      First. Whether the defendants had written the letter, upon the faith of the contents of which, the bills drawn at Lancaster had been discounted by -Reber. To show that no such letter could have been written by them, the defendants gave in evidence other letters, sent by them to Kagy, early in January, 1854, the contents of which were alleged to be wholly inconsistent with the supposition that they had given him any authority to draw beyond the amount of the original credit.

      Second. Whether any false representations were made by Kagy, by which the defendants were induced to accept the drafts in suit. Upon this question, the evidence, on the part of the defendants was, that Gibson, one of the defendants, had accepted the drafts in the name of the firm, upon the positive assurance of Kagy that he had, at that time, three thousand hogs, which were on their way to New York, and would arrive, and be delivered to the defendants, in the course of a few days; and evidence was given tending to show that no such hogs were ever received by the defendants, and that, not including the bills in suit, their advances to Kagy exceeded, by more than $60,000, the proceeds of the sales of the hogs received by them.

      Lastly. It was insisted, on the part of the plaintiff, that the defendants were in possession, in the month of January, of a sufficient number of hogs to meet the first drawn bills, and which Kagy had consigned to them for that purpose. On this question many witnesses were examined, and there was a serious conflict in the testimony.
    Of the exceptions taken during the trial, it is necessary to mention the following:
    The counsel for the defendants, the case stated, offered to introduce further evidence, tending to prove that the representations made by Kagy to the defendants, upon the faith of which they were induced to accept, and did accept, the bills upon which the action was brought, were false and fraudulent, but the -counsel for the plaintiffs objected to the evidence, unless the facts were brought to plaintiffs’ knowledge, and >the court sustained the objection. The counsel for the defendants excepted to the decision.
    It was proved that the plaintiffs’ bank, which, it was admitted, was incorporated, was wholly owned by the president, Reber, and by Mr. Arnold, of the firm of Arnold, Dunlevy & Co., and both, although their competency was objected to by the counsel for the defendants, were admitted as witnesses on behalf of the corporation. This decision was also excepted to.
    When the testimony on both sides was closed, the Judge delivered to the jury the following charge:—
    This action is brought to recover the amount of $20,000, being two drafts of $10,000 each, drawn by a man named Kagy, and accepted by the defendants, on or about the 27th day of January, 1854. It is contended, by the defendants, that these drafts were accepted by them under fraudulent representations, made by Kagy, and that there was no consideration, for such acceptances, paid by Kagy, and that no sufficient consideration was paid by plaintiffs, and that plaintiffs parted with nothing, and gave no value, so as to entitle the plaintiffs to recover, as loná fide holders. To understand the precise question, it is necessary to recur, first, to the ■precise relations of Kagy and the defendants, on the 6th of January, 1854. The letters of credit had then expired, and there was no obligation, on the part of the defendants, to accept, growing out of these letters. I need hardly observe, that, by the statutes of this state, where a man gives, in writing, an unqualified undertaking to accept, that he is bound by such agreement, and the holder of a draft, obtained in good faith, could recover, even though, after-wards,. on presentation, there should be a refusal to accept.
    To which last proposition, and instruction to the jury, the counsel for the defendants then and there excepted.
    The letters of credit, then, being expired before the 6th of January, when the drafts of date of 2d of January were discounted, it becomes important to see what other new agreement or promise, if any, had been made by the defendants. It is claimed, by the plaintiffs, that the drafts of 2d January were discounted on the 6th of January, on the faith of a letter produced, from the defendants to Kagy, promising to accept further, on receipt of bills of lading of hogs, or on remittance of Ohio currency. Eow, if such a letter, written by defendants, was produced, and shown to Reber, and the draffs of 2d of January were discounted on the faith of it, and if, after the 6th of January, hogs in value equal to the amount of the drafts were sent forward by Kagy, and which were intended and designed to comply with the terms of the letter shown them, then there would be a liability, on the part of the defendants, on the drafts of 2d of January, if the hogs came to hand and were received by defendants, even though the shipping receipts were informal in their terms.
    ■ To which last proposition, and instruction to the jury, the counsel for the defendants then and there excepted.
    If, however, as contended by the defendants, the hogs forwarded after the 6th of January were forwarded specially in fulfilment of previous contracts, then there would not be an obligation, on the part of the defendants, to accept. It is further contended, by defendants, that no such letter, as that claimed by the plaintiffs to have been shown on the 6th of January, was ever written by them; that, if such a letter was" shown, it was not genuine. Of course, you will consider all the evidence bearing on this point, and determine whether or not there was a genuine letter written by defendants, and produced, and shown on the 6th of January.
    To which last proposition, and instruction to the jury, the counsel for the defendants then and there excepted.
    If there was no such genuine letter, then there can hardly be a pretence that the defendants were in any way bound to accept the drafts of date of 2d of January.
    It is important to look at these previous transactions, because, if there was an obligation, on the part of the defendants, to accept the drafts of 2d of January, then that, of itself, would form a good and adequate consideration for the acceptance of the bills now in suit-^-
    To which last proposition, and instruction to the jury, the counsel for the defendants excepted—
    And the plaintiffs would be entitled to recover on them, even though Kagy may have made promises which he did not fulfil, or representations which were false, in order to procure their accept-' anee, if such promises and representations were made by Kagy without any knowledge, notice, or procurement of the plaintiffs, or the agents in this city.
    To which last proposition, and instruction to the jury, the counsel for the defendants then and there excepted.
    If you should be of opinion that there was no obligation, on the part of the defendants, to accept the drafts of 2d of January, then you will consider, further, as to the transactions connected with the acceptance of the bills in suit.
    If there was no previous obligation to accept, and the defendants aeqepted the bills in suit solely upon representations of Kagy, which were false, then the plaintiffs cannot recover, unless the bills were taken by plaintiffs without notice of such fraudulent representations, and they paid value at the time, or gave up other security, or other thing of value, or lost security which they held at the time.

      It is not pretended that any money was paid at the time by plaintiffs, and, as I understand, it is not claimed that the shipping receipts were of any particular value; but it is insisted that the plaintiffs lost their remedy against the endorsers on the bills of 2d of January. If the bills in suit were treated by the defendants, and the agents of the plaintiffs in Hew York, as extensions of the drafts of the 2d of January, the time for payment would be extended to the defendants, and the endorsers would be discharged.
    To which last proposition, and instruction to the jury, the counsel for the defendants then and there-excepted.
    If they were not extensions, but an independent transaction, then time was not given to defendants, and plaintiffs sustained no loss, as no liability of the endorsers would be taken away.
    Again, if the representations of Kagy were substantially true, then the plaintiffs can recover on the bills, independent of any previous transaction.
    To which last proposition, and instruction to the jury, the counsel for the defendants then and there excepted.
    Or, if defendants accepted the bills, not on the faith of Kagy’s representations, but, relying on Kagy’s promises to furnish the hogs, or upon the sufficiency of the guarantee, the plaintiffs are entitled to recover.
    To which last proposition, and instruction to the jury, the counsel for the defendants then and there excepted.
    And after the charge, so delivered to the jury, a verdict was rendered by them in favor of the plaintiffs, against the defendants, for the sum of $21,779.73, being the amount of the two acceptances sued on, with interest.
    The defendants appealed from the judgment entered on the verdict, and the cause was heard, upon a case containing the proceedings upon the trial.

      W. A. Butler and F. B. Cutting, for defendants.

      E. Pierrepont and D. Lord, for plaintiffs.
   By the Court. Duer, J.

Many exceptions were taken on the trial, to the ruling of the Judge, upon questions of evidence, which the conclusions, at which we have arrived in relation to his charge, render it unnecessary to consider. It is not at all probable that, upon the new trial which it will be our duty to grant, the same questions will again be raised.

There are, however, one or two exceptions which it will be expedient to notice.

We think that the rejection by the Judge of the evidence that was offered to prove that the representations made by Kagy to defendants, upon the faith of which they were induced to accept the bills in suit, were false and fraudulent, was an error. The rejection was upon the ground that it was also necessary to show, that the facts meant to be proved were known to the plaintiffs, but unless the plaintiffs were holders of the bills in suit for value, their knowledge of the facts was unimportant. Had it been admitted, or incontrovertibly proved that they were such holders, the rejection of the evidence would have been proper, but so long as their right to be protected as such holders was controverted, the evidence was clearly admissible. It was admissible for the purpose of proving the fraud of Kagy, and of throwing upon the plaintiffs the burden of proving the consideration upon which they had received the bills.

We think, also, that Reber and Arnold, notwithstanding they were the sole proprietors of the bank in whose names the action is brought, were properly admitted as witnesses. We are unable to see upon what grounds, in consistency with the decision of this court in the case of The Washington Bank v. Palmer, (2 Sandf. S. C. Rep. 686,) and of the Court of Appeals in that of The Montgomery County Bank v. Marsh, (3 Selden, 488,) they could have been excluded. When the action is brought in the name of a bank, the stockholders, however few in number, are not parties to the action, nor is it for their immediate benefit, that it is prosecuted. They have no immediate personal right to the moneys that are sought to be recovered, but in all cases, those moneys belong to the bank as a corporation, and the interest of the stockholders is future and contingent.

I pass now to the charge of the Judge.

He submitted to the determination of the jury the following questions of fact:—Whether the drafts of the 2d of January were discounted by the plaintiffs upon the faith of the letter alleged to have been written by the defendants to Kagy, by which they promised to accept his drafts upon his remittance of bills of lading of hogs, or of Ohio currency. Whether, in compliance with the terms of the letter, hogs, equal in value to the amount of the drafts were in fact sent forward by Kagy, and received by the defendants previous to their acceptance of the bills in suit. Whether their acceptance of the bills in suit was procured by false representations or promises made by Kagy, and whether the plaintiffs, without notice of such false representations or promises, parted with value when they received the bills in suit, or at that time gave up, or lost their remedy upon, any other security. And in instructing the jury as to the law applicable to these questions, the learned Judge, in effect, told them, that if they were satisfied that the letter in question, was, in fact, written by the defendants, and that the plaintiffs had advanced their money upon the faith of the promise that it contained, and that the terms of the letter had been substantially complied with, then the defendants were bound to accept the drafts of the 2d of January, and that this obligation was alone a full consideration for the acceptance by the defendants of the bills in suit, so as to entitle the plaintiffs to recover, even upon the sripposition, that the acceptance of the defendants upon the bills had been procured by fraud, and that the plaintiffs had parted with no value or security when they received them. We have found ourselves unable, after a repeated perusal, to give any other interpretation to the charge than that which has now been stated, and we are satisfied that, if faithfully reported, it was in this sense that it must have been understood by the jury.

If the jury had been required to answer, separately, the questions of fact that were submitted to them, and had found that the acceptances of the defendants were not procured by fraud, or that the plaintiffs were Iona fide holders, for value, their verdict, unless it could have been set aside as against evidence, would have entitled the plaintiffs to the judgment which they claim, but it is a general verdict only that was rendered by the jury, and this may have proceeded upon the sole grounds that the plaintiffs had advanced their money upon the faith of the letter, and that the terms of the letter had been complied with. Hence, if they were wrongly instructed as to the law applicable to these facts, their verdict, whether sustained by the evidence or not, must be set aside for the misdirection of the Judge. That, to this extent, the jury were wrongly instructed, is the conclusion to which our reflections, and examination of the law, have led us.

Conceding, for the purposes of this decision, that the facts relied on, as creating the obligation were fully proved, we are of opinion that the defendants were not bound to accept the drafts of the 2d of January; and if we concede that this obligation existed, we are of opinion that it was not alone sufficient to entitle the plaintiffs to recover in the present action.

If the defendants were liable at all, by force of a promise to accept the drafts of the 2d of January, they were so, either upon the ground that the promise was equivalent to an actual acceptance, or made them answerable, in damages, for their refusal to perform it, and we can see no reason for doubting that it is by the provisions of the Revised Statutes relative to bills of exchange, that the question of their liability upon either ground, must be determined. Those provisions manifestly embrace all bills, wherever drawn, that are to be accepted and paid within this state; and were the terms of the statute less explicit than they are, the general rule of law would lead us to the same conclusion: that the validity of a promise to accept a bill of exchange, depends upon the law of the place where the bill is to be accepted and paid. Such was the express decision of the Supreme Court of the United States, in the case of Boyce v. Edwards, (4 Peters, 111,) and we deem it needless to refer to any other authorities. The bills which the defendants, in that case, had promised to accept, were drawn in Georgia, but were to be accepted and paid in South Carolina, and the court held, that, as the contract was to be executed in South Carolina, the law of that state governed its construction.

The only statutory provisions which are applicable to the question, are found in the 8th and 10th sections of the title, in the Revised Statutes, “ Of promissory notes and bills of exchange.” (1 R. S.p. 768.) The 8th section declares that “an unconditional promise, in writing, to accept a bill before it is drawn, shall be deemed an actual acceptance in favor of every person who, upon the faith thereof, shall have received the bill for a valuable consideration,” and the 10th section, in effect, gives a right of action to “ any person to whom a promise to accept a bill may have been made, and who, upon the faith of such promise, shall have drawn or negotiated the bill, to recover damages of the party making such a promise, upon his refusal to accept such bill.” If the defendants were bound to accept the bills of the 2d of January, they were so by force of the provisions in one or other of these sections ; that is, either as actual acceptors, or upon their refusal to accept; and if the evidence shows that these provisions cannot be applied to create the obligation, it is a necessary conclusion that none existed. It is needless to inquire whether the defendants would have been liablé, at common law, for the new statutory provisions, as the terms in which they are expressed, and the original notes of the revisers, plainly show, were designed to supersede the rules of the common law, and to rescue the whole subject of the acceptance of bills, foreign as well as inland, from the difficulties in which conflicting decisions had involved it. (3 Rev. Stat. 2 ed., revisers’ note, p. 609.)

Looking, then, at the evidence in the case, and giving to it that construction upon which the counsel for the plaintiffs have insisted, it seems to us exceedingly clear, that the defendants were not liable to the plaintiffs upon the drafts of the 2d of January, either as actual acceptors, or for their refusal to accept them. They were not liable, as acceptors, under § 8, since their promise to Kagy, although in writing, was not, as the statute requires, unconditional, but was subject to the condition precedent of a timely remittance of bills of lading, or of Ohio currency. Nor can it be said that the nature of the promise was at all changed by the alleged fact, that the condition upon which it depended was substantially performed. To create a liability to third persons, under the statute, it is plainly necessary that the promise, upon the faith of which they advance their funds, shall be unconditional in its original form—not be freed from a condition annexed to it by a subsequent act, or event. Hence, although the performance of the condition annexed may have rendered the promise of the defendants absolute in. respect to Kagy, we cannot hold that it operated to alter or enlarge the rights of the plaintiffs.

Nor can we hold that the defendants rendered themselves liable to the plaintiffs under § 10 of the statute, by their refusal to accept the bills of the 2d of January in conformity to their promise; for although, by the terms of that section, the promise to which it refers is not required to be in writing, or unconditional, yet it is only by the person to whom the promise was made, and who, upon the faith of it, shall have drawn or negotiated a bill, that an action for the recovery of damages, upon a refusal to accept, can be maintained. Here, the promise of the defendant was made, not to the plaintiffs, but to Eagy, and it was not by the plaintiffs that the bills were either drawn or negotiated. It is true, they were endorsed by the cashier of the plaintiffs, but they were endorsed to Arnold, Dunlevy & Go., merely as agents for collection, and not for a valuable consideration; they were not negotiated, within the meaning of the law, for the title remained in the plaintiffs.

It may possibly be said, that, as the defendants were in possession of adequate funds, when the bills of the 2d of January were presented for their acceptance, this fact was alone sufficient to create an obligation to accept them, but the law is well settled, that although the refusal of the drawee to accept, who has funds in his hands which he ought to apply to the payment of the bill, may render him liable in damages to the drawer, there is no such privity between him and the holder of the bill, as can entitle the latter to maintain an action against him.

A bill of exchange, in the proper sense of the term, never operates as an assignment of the fund against which it is drawn, and when there has been no binding promise to accept, and no express agreement by which a trust has been created, it is only by a positive acceptance, in the form which the statute prescribes, that a right of action against the drawee can accrue to the holder. (Cowperthwaite v. Sheffield, 1 Sand. S. C. R. 436, and 3d S. C. Comst. 243; Marine and Fire Ins. Bank v. Jauncey, 3 Sandf. 259; Winter v. Drury, id. 261; S. C. 1 Selden, 525. Vide, also, Williams v. Everitt, 14 East. 582; Yates v. Bell, 3 B. & Ald. 643.)

Had it been possible for us to hold that the defendants were under an obligation to accept the bills of the 2d of Januaiy, we could not have said that this obligation was of itself sufficient to render them liable, as acceptors of the bills in suit, if their acceptances on these were in reality procured by fraud, and the plaintiffs are not entitled to protection as holders for value. Upon this state of facts, we must have held that the acceptances, upon which this action is brought, were vitiated by the fraud by which they were obtained, and that the sole remedy of the plaintiffs against the defendants, is upon the drafts of the 2d of January; that is, either upon the drafts themselves, or upon the refusal of the defendants to accept them. It cannot be pretended that the supposed liability of the defendants, upon these drafts, was the consideration which, in fact, induced them to accept the bills in suit, for the evidence clearly shows that this liability they constantly denied. We cannot, therefore, understand how a liability which, if it existed, was denied, could be urged to invalidate the defence of fraud, that must otherwise have prevailed.

The charge of the learned Judge was, therefore, erroneous, and calculated to mislead the jury, even upon the supposition that he was justified in holding that the defendants were bound to accept the drafts of the 2d of January, if the facts in relation to them were such as the plaintiffs alleged. Hence, whether such was or was not the obligation of thé defendants, we are satisfied that the jury were misdirected as to the law, and consequently that a new trial must be ordered.

The result of the next trial will, in our opinion, depend upon the answers to be given by the jury to the following questions:—■

1st. Were the acceptances of the defendants upon the bills in suit procured by Kagy by a false representation of existing facts, or by promises which he knew that he could not fulfil ?
2d. Were the bills in suit received in good faith by the agents of the plaintiffs, as a substitute for the drafts of the 2d of January, or merely as a collateral security for the ultimate payment of those drafts ? and
3d. Was there any agreement for the extension of credit to the parties on these drafts, drawer or endorsers, by which they were discharged ?

In stating these to be the only questions that, in our judgment, upon the next trial ought to be distinctly submitted to the jury, we are not to be understood as saying, that the evidence given on the former trial, in relation to the drafts of the 2d of January, and the circumstances under which they were drawn and presented for acceptance, ought hereafter to be wholly excluded, since it is obvious that this evidence, or portions of it, may have an important bearing upon the determination of the questions to be submitted as they are now framed, especially upon the questions of actual fraud, and of a parting with value.

Hew trial granted, costs to abide the event.

       Vide Blakiston v. Dudley, ante p. 373.


text:
    Samuel Bilbrough v. The Metropolis Insurance Company, of the City of New York.
    "Where a statement of the amount of the loss in the preliminary proofs was definite, sworn to, certified by two appraisers, but had not the certificate of a magistrate as to the fire, the insurers cannot avail themselves of the defect, for the first time, at the trial.
    A proposition to another company, containing certain representations, was found, upon the evidence, to have been made part of the application to the defendants, and to have entered into the contract between these parties.
    In that proposition the plaintiff answered an interrogation as follows: “During what hours is the factory worked ?” “We run the cards, pickers, drawing frames and speeders day and night; the rest only twelve hours daily. We only intend running nights until we get more cards, &e., which are making. We shall not run nights over four months.”

      Held, that the statement of an intention to cease running upon receiving the cards, then being made, was equivalent to an agreement to cease upon that event. The subsequent clause was an absolute limitation of the time during which they should be at liberty to run at night.
    The doctrine of “ a promissory representation,” and the case of Murdock v. The Chenango Mutual Ins. Company, examined.

      Held, that language in a policy which imports that the assured intend to do, or not to do, an act which materially affects the risk, its extent, or nature, involves an engagement to perform or omit such act. If the assured would reserve a right to change such intention, he must employ explicit language to denote the reservation.
    The terms here used established a positive engagement.
    (Before Hoffman, Slosson, and Woodruff, J.J.)
    Heard, April;
    decided, June, 1856.
    All the material facts are stated in the opinion of the court.

      -Fancher, for the plaintiff.

      -Dyett, for the defendants.
   By the Court. Hoffman, J.

The action is upon a policy of insurance executed by the defendants in favor of the plaintiff, dated the 1st day of December, 1853, whereby they insured the plaintiff against loss by fire, to the amount of $4,125, viz.: $2,250 in marble machinery, and $1,875 in stock manufactured, unmanufactured, and in process of manufacture; all contained in the brick cotton mill occupied by the assured, situate about thirty feet east of the Ogden mill, in the town of Cohoes, Albany county, Few York, as per plan and survey Fo. 102, on file in this office, which is hereby made part of this policy, and to be referred to in case of loss.

A fire occurred on the premises on the 11th of October, and another on the 20th of October, 1854.

All the material facts and points arising in this case may be arranged under three heads.

1st. As to the delivery and sufficiency of the preliminary proofs, in relation to the first fire, which occurred on the 11th of October, 1854.

2d. Whether a certain paper, containing answers to questions, and signed by the plaintiff, is in evidence in the cause ?

3d. If it is, what is the import and effect of an answer to one of the questions contained in it, which is relied upon as a warranty or representation, and stated to have been violated so as to discharge the insurers?

1st. On the 12th of October, 1854, the plaintiff made out and signed a statement, headed loss at Mohawk mill, October 11,1854, in which he sets out in detail the items of the loss by the fire of that day, amounting to $1.030. On the 30th of October, 1854, he makes and signs another statement of the loss by the fire of the 20th of October to the mill buildings, machinery and cotton. At the foot of this statement is added—

Damage on the 11th inst. to machinery, .... $934 00 Do. do. do. to stock,..... 96 00

$1030 00

From which is to be deducted the sum of . . . 382 10 for certain allowances.

These statements being joined together, the plaintiff made an affidavit that the annexed account was a just and true account of the loss by fire of property insured by policy Fo. 132, in the Metropolis Insurance Company of the City of Few York. But, in this affidavit, he says that the fire which occasioned the loss originated on the 20th of October, 1854, at about half-past one at night, in consequence of a nail getting into a picker while in motion. This affidavit was sworn to on the 3d of November, 1854. Then follows, among the proofs, another paper headed, “ Statement of loss sustained by fire in the Mohawk mill, October 20th, 1854, particulars of which were heretofore specially rendered. In this we find the following:—

“ Damage, per statement rendered, of the fire of October 11, $1,030.00.”

This sum was added to the loss claimed for the fire of the 20th, making, together, $10,709.82, and from this was deducted the $382.10, leaving the whole claim $10,327.72. This was signed S. Bilbrough, and is endorsed: “Received Nov. 3, 1854.”

The certificate given by Mr. Hubbard, a Justice of the Peace, Cohoes, in pursuance of the requisitions of the policy, states only that he has made diligent inquiries as to the cause of the fire of 20th of October.

It may be added, that the witness Dutemple, one of the appraisers of the loss, identifies the statement as signed by him, and particularly swears as to the loss by the fire of the 11th being a true certificate.

Under these circumstances, we think that there is enough to bring the case within the principle of the authority cited. The insurers were bound, upon the presentation of these proofs, to have distinctly objected to their sufficiency. They were apprised of a claim for a loss by the fire of the 11th of October. The state ment was definite; it was sworn to; it was certified by the appraisers ; the great defect was, that it was not in fact certified as to such fire by a magistrate. We do not consider this a fatal objection, when taken at the trial for the first time. (Ætna Ins. Co. v. Tyler, 10 Wendell, 401; and O'Niel v. Buff, 3 Comst. 128).

2d. The next point in the cause relates to the paper which contains the answers of the plaintiff to certain questions. It is insisted by the defendant that this paper was part of the application, and was adopted as part of the policy.

This paper is marked, on the back, No. 102, and the signature is proven to be the handwriting of the plaintiff. Two other papers were produced with this paper, and the three offered in evidence; the two others were read without objection, indeed admitted by the plaintiff’s counsel. He objected to this paper as inadmissible. His objection was overruled and an exception taken. The first paper was merely a plot or diagram of the premises. The third paper is an application to the defendants for insurance, and is hereafter particularly noticed. The second paper is the one objected to; it is headed “Representation of a cotton or woollen mill, on which insurance is to be predicated. Clear and definite answers are expected to each of the following interrogatories.” Then follows a series of questions, in number 46. To these questions answers are given in the document procured, and, as before stated, it is signed by the plaintiff. At the bottom is the following application :—

“ The subscriber requests insurance against fire by the American Insurance Company of Providence, R. L, on the hereindescribed factory. On building and fixed machinery, $3,000; on moveable machinery, $2,500; on stock, raw, manufactured, and in process.
New York, Nov. 23, 1852. S. Bilbrough.”

The third paper is an application to the defendants, and is as • follows:—

“ S. Bilbrough: On moveable machinery, . . . $2,250 00
On stock, manufactured, unmanufactured, and' in process of manufacture,.......... 1,875 00 all contained in the brick cotton, mills occupied by the assured, situate about thirty feet east of the Ogden mills, as per plan and survey No. 102, on file in the office of the --, which is hereby made a part of this policy, and to be referred to in case, of loss. Cohoes, Albany county, New York. Similar insurance in one year from 1st December, 1853. Left by S. Brown, Insurance Broker, November 30, 1853.”

A similar insurance is thus asked to that which had been proposed or effected, according to paper No. 102, at the Providence company, or some other company. Wherever that paper was, it was to be part of the contract.

Is there not sufficient evidence to show, that instead of being in another office it was, in fact, handed, with the application, to the defendants ?

Taking the evidence of De Forest and Ellery together, we are of opinion that this fact is satisfactorily proven. At any rate the jury having, in effect, passed upon it, we see no ground for interfering with the conclusion.

This paper, then, being before the company, and acted upon in making the policy, contained a representation or an engagement, upon which the risk was undertaken. The clause in question admits of two constructions as to the period at which it went into effect, whatever that effect may be.

The paper was dated the 23d of November, 1852, and the question and answer are in the following terms:—“ During what hours is the factory worked?” The answer is: “We run the cards, picker, drawing-frames, and speeder, day and night, the rest only twelve hours daily. We only intend running nights until we get more cards, &c.r which are making; shall not run nights over four months.”

On the 30th of November, 1853, this paper, as before observed, was left by the agent with the company, and adopted as part of the policy. Assuming that it is a renewal of the statements, as if the date had been altered, we are then to examine as to its true construction.

It is the statement of a fact as to their then running certain parts of the machinery, the cards, &c., day and night; the declaration of an intention to cease running at nights, when they get more cards which were then making. Then follows the engagement:—“ We shall not run at nights over four months.”

I think that the statement of an intention to cease running, when they received the cards then being made, was equivalent to an agreement to cease upon that event: Had it been proven what cards were then in hand for the plaintiff, and that they were delivered before the fire, a running at nights afterwards would have avoided the policy.

If this is so, then the subsequent clause is plainly but a precise definition and limitation of this agreement. It is tantamount to saying (when the whole is read together,) this: We will cease running at nights when the new cards which are now making are ready, and the period shall not at the utmost exceed four months.

This seems to us to be the true explanation of the clause in question. The evidence is, that the mill had not been run at nights, from May, 1854, until between the 11th and 20th of October, 1854, when, in consequence of damage by the first fire, they had run the cards and machinery connected therewith, at night, to make up for lost time. If the case of Murdock v. The Chenango Mutual Ins. Co., (2 Comstock, 210.) can be considered as decided entirely upon one ground recognized by Justices Strong and Jewett, it would be perfectly decisive.

There was the following clause in an application for a fire policy upon a grist-mill: “ The building is twenty-eight by thirty-six feet, with three run of stones, two bolts, one smut-mill, and one stove-pipe passes through the window at the side of the building. There will, however, be a stove-chimney built, and the pipe will pass into it at the side.” The application was thus referred to in the policy:—“Reference being had to the application of said Murdock & Garrett for a more particular description, and as forming a part of this policy.”

Justice Strong comments upon the contradiction involved in the term, “a promissory representation,” and holds that there was in the case a positive engagement, which formed part of the policy. The assurers assumed the existing risk, until a reasonable time should have elapsed to make proposed changes, and after that, the proposed diminished risk only. The promised change was, therefore, vital to the continuance of the responsibility. I think that the policy became inoperative by reason of the nonperformance of the promise made by the assured, after a reasonable time to make the proposed change had elapsed.”

Jewett, Ch. J., said:—“That the clause in the application relating to the stove-pipe, amounted to a warranty, but whether such warranty was broken or not, depended on the question whether a reasonable time had elapsed to perform the undertaking.”

It is true, that Justice Cady, who also delivered an opinion, places his decision upon other grounds, viz.: that an action of two persons assured jointly in the policy, could not be sustained, when one of them had transferred his interest to the other before the loss; and next, that the erection of a barn on the premises was a violation of a condition in the policy, as an act done which incurred the risk. Both Justices Jewett and Strong supported these views, and a new trial was granted. The grounds on which the other Judges proceeded are not disclosed.

But at any rate, we have a precise and important point stated by two Judges, and uncontradicted and unqualified by any member of the court; and this, when the counsel on both sides had brought the question" directly before the court. Mr. Reynolds, for the respondent, made the point, that the clause in question was not a, warranty, but a mere expression of an intention, amounting, at most, to a privilege reserved, citing Alston v. The Mech. Mutual Ins. Co., 4 Hill, 29.

I consider that this case has gone far to dissipate the error into which the reasoning of Chancellor Walworth, in Alston’s case, (4 Hill, 329,) and of Mr. Justice Wilde, in Bryant v. The Ocean Ins. Co., (22 Pickering, 200,) undoubtedly leads, and which has been so elaborately examined and refuted by Mr. Justice Duer in his Treatise on Insurance, (vol. ii., p. 749.) It seems to me manifest, that the clause in the application would have been held by those eminent Judges, as nothing but a declaration of an intent at that time to have a stone chimney built, and the pipe to pass it at the side; and, unless the insurers could accomplish the difficult task of proving that the assured had no such intention, the policy would remain in force. But the learned Judges in the Court of Appeals, extracted a positive stipulation from these words. It was a promise, that certain things which they could do, should be done, not a statement or representation that they then had the intent to do it, which they might alter. (See further, Mr. Phillip’s Observations on Insurance, ed. 1854, 551, 553.) After all, and without involving in obscurity by criticism what appears clear, the sound principle seems to be, that language in a policy which imports that it is intended to do, or omit, an act which materially affects the risk, its extent or nature, is to be treated as involving an engagement to do or omit such act. If the assured would reserve a right to change his intention, he must employ explicit, unquestionable language to denote the reservation.

It is plain, we think, that the terms used in the present case are much .stronger to establish an express promise than those em ployed in the case of Murdock v. The Chenango Co.

The view now taken, does not affect the loss arising from the first fire, and the result is, that the plaintiff can only recover the sum of $647.90, with interest, being the loss by the first fire, after deducting the $382.10, which, we understand, is applicable to that loss.

Judgment accordingly.

       Mr. Amould, the author of the most recent work on Marine Insurance, adopts the views and even the language of Mr. Duer, (1 Arnould, p. 602, § 191). The conclusion at which he arrives is, “ That the positive representation of future facts, material.to the risks, mil, if false, avoid the policy,” id. p. 609.