author:
McCunn, J.
      Monell, J. (dissenting.)

text:
    The Mechanics Banking Association, plaintiff and appellant, vs. The Mariposa Company, defendant and respondent.
    1. Where stock is, by the terms of the certificate thereof, “ transferable only in person or by attorney,” on the books of the cotnpany issuing it, upon the surrender of the certificate, the company is not obliged to allow a transfer to be made upon its books except upon the application of the owner, in person or by attorney.
    2. Thus, where the defendant issued a certificate in the above form, to M. of 473 shares of its capital stock, and a transfer of the stock was demanded by the plaintiff, M. not attending in person or by attorney, but the plaintiff simply presented a power of attorney, signed by M., appointing F. his attorney to transfer to D. & C. 100 shares, and to J. 373 shares of the stock, and certificates from D. & C. and from J., stating that they had no interest in the shares, and that they consented that such shares “ be transferred to the person or persons entitled theretoS'eld that the defendant was justified in refusing to permit the transfer to be made to the plaintiff. Monell, J. dissented.
    (Before Barbour, Monnell and McCunn, JJ.)
    Heard November 13, 1865;
    decided December 30, 1865.
    This action was brought to recover damages for a refusal by the defendant to allow a transfer to the plaintiff, upon the defendant’s books, of 473 shares of the capital stock of the defendant, a mining corporation incorporated under the general act.
    The stock stood in the name of John H. McDowell, as his property, and a certificate to that effect had been issued by the company to, and was held by him. The stock was transferable only in person or by attorney on the books of the company at their office, and only upon the surrender of the original certificate. In June, 1864, a transfer was demanded. McDowell did not attend in person, nor ask nor offer to transfer the stock. The plaintiff simply presented a power of attorney signed by McDowell, appointing J. H. Ferdon his attorney to transfer unto Dibblee & Cambios 100, and to P. & F. Jaudon 373 shares of the stock j and the person making the demand also presented a certificate of P. & F. Jaudon, that they had no interest in the shares, and that they consented “ that the said shares be transferred to the person or persons entitled thereto,” and' a similar certificate of Dibblee & Cambios. The company .refused to allow the transfer to the plaintiff.
    The action was tried before Justice Moncrief and a jury. On the trial, the above state of facts appeared. After the plaintiffs rested, the defendant’s counsel moved to dismiss the complaint, upon the grounds, 1st. That the principal, or his attorney, did no’t demand the transfer. 2. That the plaintiffs showed no valid title to the stock. The motion was granted, and the plaintiff appealed.

      John E. Burrill, for the plaintiff, (appellant.)
    I. The issuing and delivery of the certificate in question by the company to McDowell was admitted, and no evidence was offered by the defendant to. disprove the fact established by the certificate, that McDowell was the ■ owner of, and entitled to, the shares in question.
    II. The assignment and delivery to the plaintiff of the certificate, with the assignment and power attached thereto, executed by McDowell in blank, operated as an assignment and transfer of the shares to the plaintiff, and. according to the terms of the certificate, and the custom and usage, and well established principles, entitled the plaintiff to demand a transfer of the shares to themselves on the books of the company on the surrender of the certificate.
    1. The custom and usage set up in.the complaint, and the knowledge of it on the part of the company, are not denied. (Com. Bank of Buffalo v. Kortright, 22 Wend. 348. S. C., 20 id. 91.)
    2. Eo evidence was introduced by the defendants to show ■ that they had any lien or claim on the stock, or that any equities existed, as between "themselves "and McDowell,- which could justify a refusal to permit McDowell to transfer the stock. *
    3. The delivery of the certificate and assignment executed by McDowell vested the plaintiff with all the title of McDowell to the shares ; and in the absence of any equities existing in favor of the company, such title was perfect, and entitled' the plaintiff to demand a transfer. (Com. Bank of Buffalo v. Kortright, 20 Wend. 91. S. C. 22 id. 348. Leavitt v. Fisher, 4 Duer, 1. Fatman v. Loback, 1 id. 354.)
    4. The cases which go farthest to restrict the negotiable character of stock certificates, concede that they are transferrable by indorsement and delivery ; and that, as between the transferor and transferee, the title of the latter is perfect; but that it is subject to all the rights of the corporation existing against the assignor. (Ang. & Ames on Corp. 7th ed. §§ 353, 354, 564, 565. New Haven Railroad cases, 13 New York Rep. 628, 629.)
    5. Here, as has been said, the defendants did not assert any such rights or equities against McDowell or any one else.
    III. Under the circumstances established, the plaintiff or the company were entitled to, and would have been justified in striking out the names of Dibblee & Cambios and P. & F. Jaudon from the assignments.
    1. It was conceded that when the certificate and assignment were delivered by McDowell, the latter .was in blank.
    2. It was conceded that the names of Dibblee & Cambios and P. & F. Jaudon were inserted for the purpose of making a transfer, which was not made.
    3. There was no evidence to show that the certificate and assignment had ever been delivered to, or gone into the possession of Dibblee & Cambios, or that they had ever acquired any interest therein; but, on- the contrary, it is proved that they.disclaimed any interest therein.
    4. All the interest of P. & F. Jaudon in the shares was transferred to the plaintiff,
    5. The execution and delivery of the assignment by McDowell, in blank, authorised the holder to insert the name of any party to whom the shares might be sold. (Com. Bank v. Kortright, 20 Wend. 93. S. C. 22 id. 364. Leavitt v. Fisher, 4 Duer, 20.)
    6. The certificate never was delivered to Dibblee & Cam-bios, and the insertion of their names, accidentally or erroneously, did not prevent the holder from striking out their names and inserting others.

      IY. Whether or not the plaintiffs were entitled to strike out the names of Dibblee & Cambios and P. & F. Jaudon from the assignment, they had the right to demand from the • company a transfer of the shares to those parties, in accordance • with the assignment, and the defendants were liable for having refused such demand. Such demand was made and refused, although, as the company were assured, Dibblee & Cambios and P. & F. Jaudon were present to receive the transfer and make a re-transfer to the plaintiffs.
    Y. The demand made by the plaintiffs was in all respects sufficient, and made in such manner as to cover all contingencies. (Com. Bank v. Kortright, 22 Wend. 353.)
    YI. The defendants made no objection to the form or sufficiency of the certificate, assignment or transfer, or to the form of the demand; and by such omission, and the refusal to permit a transfer of those shares to be made by any person, or to any person, have precluded themselves from making any objection to the sufficiency of such demand, or of the papers on which it was based. (Peacock v. N. Y. Life Ins. Co., 1 Bosw. 338. See particulary Hill’s Points, iv. in Bumstead v. Dividend Co., 2 Kern. 90; Allen’s opin. S. C. pp. 96, 97.)
    YII. The transfer clerk of the defendant, who was the attorney named in the assignment to make the transfer, was . ready and willing, and was about to make the transfer, but was prevented by the vice president of the company.
    YIII. The grounds upon which the motion for a nonsuit was asked are wholly untenable, and it is difficult to perceive their force or accuracy.
    1. The two conditions mentioned were both complied with; moreover, the attorney was the transfer clerk and agent of the defendant, who was prevented by the defendant from doing the act required.
    2. The plaintiff was the principal, for the purposes of demand.
    3. If not, then Dibblee & Gambles and the Jaudons were, and a demand was made by all.
    4. The defendants are precluded from objecting to the sufficieney of the demand by the admissions in the pleadings. (Sixth point.)

      5. The plaintiff’s title did not depend upon the two papers called consents, executed by Dibblee & Cambios and P. & F. Jaudon, and the language of which was so uniformly criticised, but upon -other independent facts. (See second point.)

    IX. Under any circumstances it cannot well be said that the evidence was insufficient to go to the jury.
    X. The exceptions taken at the trial to the exclusion of evidence are well taken.
    1. The plaintiff was not restricted to what took place at the time of the demand of 20th June, but was entitled to show a demand at a different time, and what then occurred.
    2. The time mentioned in the complaint was wholly immaterial, and the plaintiff was not restricted to that date.
    3. We were entitled to show either a prior or subsequent demand, and what took place, for the purpose of showing what objections, if any, the defendants made on each occasion, and how we obviated them.

      Wm. M. Evarts, for the defendant, (respondent.)
    I. This is an action strictissimi juris, and cannot be maintained, except upon the clearest legal right of the plaintiff, made evident to the defendant by regular and authentic documents of title, at the time when the demand and refusal of transfer, relied upon, took place.
    1. The defendant had recognized and accepted John H. McDowell as the owner, of these 473 shares of its stock, and had issued an obligatory certificate to that effect. John H. McDowell, and he alone, was the party to call upon the defendant to allow him to exercise his jus disponendi over this stock.
    2. But John H. McDowell himself, by the very conditions upon which he held these shares, and expressed in his certifiof property and title, could demand of the defendant its concurrence and aid in the exercise of his jus disponendi, only upon the surrender of his own certificate, and by his own execution of an act of transfer upon the books of the defendant at its office.
    3. The act of transfer, however, might be executed (both on general principles and by the rules of the company) by procuration. In such case, before the company could be required to recognize the right of the attorney, the attorney needed to present an authentic document from his principal, empowering him to execute the act of transfer upon the books of the company. It was further requisite for the attorney to offer the surrender of his principal’s certificate of stock and the deposit of his power of attorney, and to require from the company, in behalf of his principal, the means and opportunity to execute the act of transfer authorized in and by the power of attorney. A refusal to the attorney, thus empowered and thus demanding, would place the company in the same position of responsibility for a denial to the principal of the exercise of his jus disponendi, as if made to the principal attending in person.
    II. It is apparent, on the proofs, that the plaintiff’s demand of the transfer of these shares to itself was not attended with the requisite right, either in form or substance, to subject the defendant to this action for a refusal of the transfer.
    1. The only authority for the required transfer which the defendant could recognize, was John H. McDowell, and (in his personal absence) the only evidence of such authority which it could respect, was his written power of attorney.
    2. The plaintiff neither had nor produced any authority from McDowell, upon which it could require a transfer of these shares to itself.
    3. The plaintiff in . fact exhibited the authority and direc- ' tion of McDowell for the transfer of these shares to other persons than the plaintiff, viz : 100 shares to Dibblee & Cambios, and 373 shares to P. & F. Jaudon.
    4. The attorney of McDowell, J. H. Ferdon, did not demand or require permission to make the transfer, nor in any manner insist upon the right of his principal to make the same.
    III. These essential defects in the plaintiff’s position are not cured by the circumstances given in evidence by the plaintiff in that hope.
    1. The certificates of Dibblee & Cambios and of P. & F. Jaudon, that they had no interest in the shares, and their consent that they might be transferred to the “ person or persons entitled,” conveyed no authority, or implication of authority, from McDowell, to transfer to any other person than themselves. These certificate's only served, pro tanto, to annul the power of attorney presented by the plaintiff.
    2. The request, assent or'wishes of Dibblee & Cambios, and of P. & F. Jaudon, as to any transfer of these shares, following a repudiation of any interest in them, were wholly immaterial to the defendant. It is the requests, assents and wishes of those who have an interest in the shares, not of those who have not, that are important to the company.
    3. Notwithstanding all this evidence, the transfer permitted by the company to the plaintiff, upon the only document from McDowell offered to justify it, would have been without authority, irregular and void.
    IV. The evidence shows that a dispute as to the title to these shares had arisen and been brought to the notice of the defendant, by the service of an injunction against any transfer of them. It was the plaintiff’s misfortune, or folly, to take an equitable claim upon these shares, severed from a regular and authentic legal title. In this predicament it cannot throw upon the defendant any enlarged duty or responsibility in the premises, or mulct it in damages for an adherence to its own rights. The remedy of the plaintiff is by suit in equity, to which McDowell, Dibblee & Cambios, P. & F. Jaudon and the defendants are parties, to have its equitable interest in the stock executed by a transfer of the legal title.
   McCunn, J.

It is evident this action cannot be maintained except upon the clearest legal right of the plaintiff, made evident to the defendant by regular and authentic documents of title at the time when the demand and refusal of transfer relied upon took place. The evidence clearly shows that McDowell was the owner of these 473 shares of its stock, and that the company had issued an obligatory certificate to him to that effect; it must, therefore, follow that he, and he alone, was the party to call upon the defendant to allow him to exercise his jus disponendi over this stock ; nay, more, McDowell himself, by the very conditions upon which he held the stock, could demand of the defendant its concurrence and aid in the exercise of his right to dispose of the stock only upon the surrender of his own certificate, and by his own execution of an act of transfer upon the books of the defendant at its office. It is quite true the act of transfer might be executed by procuration. In such case, before the company could be required to recognize the right of the attorney, the attorney needed to present an authentic document from the principal, empowering him to execute the act-of transfer upon the books of the company, and this was not done in this case ; on the contrary, Perdón, the attorney named, being present, did not demand the stock. The only authority for the transfer which the defendant could recognize was McDowell’s, and in his absence his written power of attorney; and it is very clear the plaintiff failed to prove authority from McDowell upon which it could require a transfer of the shares to itself ; on the contrary, it is in evidence that he had ordered the transfer of these shares to other persons than the plaintiff, viz. 100 shares to Dibblee & Cambios, and 373 shares to P. & F. Jaudon, and the certificates of Dibblee & Cambios and of P. & F. Jaudon, that they had no interest in the shares, conveyed no authority from McDowell to transfer to any other person than themselves. The certificates only served pro tanto to annul the power of attorney presented by the plaintiff.

Moreover, on examining the proof, I find there was a dispute as to the title of these shares ; the defendants knew this, because they had been enjoined against any such transfer.

I therefore hold, upon the evidence in the case, that a recov- . ery would have been without authority, irregular and void.

The judgment below should be affirmed, with costs.

Bakboub, J. concurred.

Monell, J. (dissenting.)

It does not appear upon which, of the three objections the learned justice dismissed the complaint ; but if any one of them is sufficient, the nonsuit cannot be set aside. The evidence established that the plaintiffs were the owners of the certificate in question, and were entitled to a transfer of the stock. The Jaudons and Dibblee & Cambios, the transferees named in the assignment and power of attorney, had transferred all their interest in the stock to the plaintiffs, and were present and consented, both orally and in writing, to the transfer to the plaintiffs. The plaintiffs had paid a valuable consideration, and were the holders and owners, and had the certificate in their possession, ready to be surrendered on the transfer being made. These facts dispose of the second and third objections.

As to the first, the plaintiffs were entitled to the transfer, if a transfer was demanded in a sufficient and proper manner. (Commercial Bank v. Kortright, 22 Wend. 348.) No reason appears to have been stated for refusing to allow the transfer to be made. No objection was made to the form of any of the papers, nor was it claimed that the plaintiffs were not the owners of the stock, or that any other person or persons had any interest in it. It seems to have been a mere arbitrary refusal, without assigning any reason whatever therefor. The only issues required to be proved by the plaintiffs were, their ownership of the shares, and their right to have them transferred. Those issues were proved by the testimony of the president of the plaintiffs’ company, and by the production of the consents of the Jaudons and Dibblee & Cambios to the transfer.

As between all the parties to the transaction, the plaintiffs had a complete title to the stock ; and as the case stood when they rested, no question had been raised touching such title, or right to a transfer.*

The duty of the defendants was simply to allow a transfer to be made on their books by the principal or his attorney, on a surrender of the certificate.

It does not appear by whom, nor when, the name of Ferdon, the attorney, was written in the power; but it does appear that he was the transfer clerk of the defendants, and that he was present when the transfer was demanded, and was about to do it, when the defendants’ vice-president objected to. it.

It was claimed on the argument that Ferdon, the attorney, did not demand the transfer, and that the defendants were not authorized to allow the transfer to be made by any person other than the principal or his attorney. No one, I think, can read the evidence, and fail to believe that Ferdon was ready to act. He was about to do so, when he was directed by the defendants not to. He was an employee of the defendants, and subject to their direction and control. The transfer books were the property of the defendants, and Ferdon could not execute the act of transfer against their objections. It seems to me the objection stands upon too narrow ground. The only interest the defendants had was to see that the transfer was made conformable with their by-laws. If the principal or his agent made the transfer, and surrendered, the certificate, no responsibility whatever devolved upon the defendants. They owed no duty to see that the true owners got the stock, but were simply required to open their books and allow the transfer to be made. If, without right, the defendants refused of prevented the transfer from being made, they rendered themselves liable. (Commercial Bank v. Kortright, supra!) In the case cited, it was held that the assignment and power transferred the legal title to the stock to the holder, although not registered in the transfer book of. the corporation, notwithstanding a statutory provision that no transfer shall be valid unless so registered. Aud this court, in Purchase v. N. Y. Exch. Bank, (10 Bosw. 564,) decided the same way. The .condition requiring the transfer to be made on the books of a corporation is merely for the convenience of the bank, in paying dividends and ascertaining who are legal voters, and possibly, to prevent escape from liability of such as ought to contribute.

The condition is not for the protection of the corporation. As between the vendor and purchaser, the title is perfect, and the transfer can be made at any time ; until made, the corporation is at liberty to treat the vendor as owner, and their dealings with him would be protected..

The position of the respondents involves the idea that the defendants had the right to object to the transfer being made. They had no such right. If the condition named in the certificate was complied with, they were bound to permit the transfer. No considerations of ownership or of value, or of good faith, could authorize the defendants to withhold their transfer book, or to refuse to transfer ; and I apprehend the error of the learned justice arose from a mistaken view of the duty of the defendants in regard to transfer of stock.

The defendants interposed, and prevented the transfer. It appears to me to be hypercritical to say the demand was not sufficient, because it was not made by Ferdon, the attorney named in the power. The plaintiffs owned the stock. Their title was perfect, and they merely desired to comply with the condition named in the certificate. The certificate had been executed in blank, and the name of the defendants' transfer clerk had afterwards been written in by some one. The plaintiffs presented the certificate, assignment and power to the same transfer clerk, and demanded that the shares be transferred to them. The transfer clerk was about to do it, when he was prevented by the defendants. This was all, it seems to me, the plaintiffs were required to do. It was all they could do, and the action of the defendants clearly, in my judgment, put them in fault.

The case might be otherwise, had the defendants placed their refusal upon some objection to the sufficiency of the papers, or of the demand. They might have said, we can allow the transfer only on the request of McDowell, or of his attorney, neither of whom make the request. Such objection, had it been made, might have been removed by producing McDowell and his making the request, or by getting his attorney, then present, to make it, It is too late now to make the objection for the first time, and the silence of the defendants, when they might have spoken, must conclude them.

I am of opinion that the plaintiffs made out a prima facie right to recover, and that it was error to dismiss their complaint.

Judgment affirmed.


source: Caselaw Access Project

author: By the Court, Monell, J.

license: Public Domain

text:
    George Greer, plaintiff and respondent, vs. The Mayor, Aldermen and Commonalty of the City of New York, defendants and appellants.
    1. When, in an action by a tenant for life of real estate, against a municipal corporation to recover damages for injuries to buildings on such land by a mob, during a riot, a jury adopts, as part of the measure oí damages, the value of such life estate, they are bound to add by way of damages interest upon such value thereto, from the time of the final demand upon the financial officer of such corporation.
    2. Whether if the jury ascertain the value of the plaintiff’s interest in any other way than by estimating the value of the buildings, the plaintiff can claim interest as a right 1 Qumre. Fer Monell, J.
    (Before Monell and Garvin, JJ.)
    Heard October 9, 1865;
    decided December 30, 1865.
    Appeal from a judgment and an order denying a motion for a new trial.
    The action was instituted by the' plaintiff under the act of 1855, to recover damages for injury to property by a mob, during a riot. The case was tried by Mr. Justice Moncrief, and a jury. The plaintiff having proved his damages, the justice instructed the jury, that they should find interest upon the amount of the plaintiff’s damages, from the time of the second demand upon the comptroller. To this direction the defendants excepted. The jury found a verdict for the plaintiff for damages, $26,270, and interest, $3003.53.
    From the judgment entered upon the verdict in favor of the plaintiff, and from the order made at special term denying a motion for a new trial, the defendants appealed.

      J. K. Sachett, for the appellants.
    I. It was error to allow the plaintiff to recover interest upon the amount of his damages,

      (a.) It is a general rule, and one which is supported by abundant authority, that interest is not recoverable upon unliquidated demands. (Sedgwick on Damages, 3d ed. p. 396, and cases cited.) The case at bar is clearly within this rule.
    (5.) The injustice of allowing interest in actions for damages, under the provisions of the act of 1855, is apparent. The defendants would not be liable at all but for the statute. The statute is penal in its character, and makes them liable for damages sustained by the injury or destruction of property. In cases of destruction of property, those damages are fully compensated by the value of the property at the time of its destruction. In cases of injury, by the cost to the plaintiff of restoring his property to as good a condition as it was in, prior to the injury. The allowance of interest, therefore, was in addition to the damages given by the statute. The interest was not due to the plaintiff by virtue of any contract. It ought not to be imposed upon the defendants as a punishment for the damages sustained by the plaintiff,, for the reason that the defendants had no part or agency in occasioning those damages, and were powerless to prevent them. The refusal of the defendants to pay the damages upon demand being made, cannot create any right in the plaintiff to interest. The amount demanded was $45,000, while the amount- recovered, exclusive of. interest and costs, was only $26,270. Until the amount of the plaintiff’s damages was definitely ascertained by the verdict of the jury, the defendants could not possibly know what sum to tender the plaintiff in discharge of his claim. In this respect the case is analogous to that of McLaughlin v. The Washington Co. Mutual Ins. Co., (23 Wend. 525,) which was an action upon an. insurance policy, and the amount of the loss being uncertain, the court held that interest could not be recovered.
    II. The judgment appealed from should be modified so far as the allowance of interest is concerned, with costs of the appeal.

      L. B. Woodruff, for the respondent.
    I. The charge of the judge was in accordance with the law.
    1. The statute gives the party injured in such case an action for the damages sustained by the destruction or injury complained of. (Latos of 1855, ch. 428. 3 N. Y. Stat. at Large, 321. 3 Rev. Stat., 5th ed. 874.)
    (a.) “ The'damages sustained ” necessarily include the loss of interest till satisfaction is made ; as truly, in this case, as when the damages arising from a breach of contract are assessed, (e. g. in an action for not delivering goods sold to be delivered at a future day,) or damages for an unlawful conversion. (Dana v. Fiedler, 12 N. Y. Rep. 50. Affg. Dissenting Opinion, 1 E. D. Smith, 483. Havemeyer v. Cunningham, 35 Barb. 515. Clark v. Dales, 20 id. 65. Bissell v. Hopkins, 4 Cowen, 53. Dillenback v. Jerome, 7 id. 294. Hyde v. Stone, 7 Wend. 354. Baker v. Wheeler, 8 id. 504. Stevens v. Low, 2 Hill, 133.)
    (6.) The idea that there can be no recovery of interest where the damages are unliquidated (in the ordinary sense of that term) has been long since exploded. (Suydam v. Jenkins, 3 Sandf. 614, 621. Van Rensselaer v. Jewett, 2 Comst. 135. Campbell v. Woodworth, 26 Barb. 648.)
    (c.) The idea that interest, by way of damages, is discretionary with the jury, is equally erroneous. (Same cases, ut supra.)

      2. Whether interest is or is not to be recovered, is a question of law, with which the jury has nothing to do. {a.) When the amount of damages to be recovered can be ascertained by mere computation, upon a given state of facts, then the damages are not unliquidated in the sense that they do not bear interest, {b.) The true distinction is this": In actions in which the rule of damages is not definite and certain, (e. g. in assault and battery, slander, libel, case for fraud and deceit, and the like,) in which, even after proof of all the facts, there is no definite rule of damages to be applied by mere computation to the facts proved, and in which the amount of damages is said to rest, in a sense, in the discretion of the jury, interest is not allowable, as such, (c.) In most actions for willful wrongs, the jury may give exemplary damages according to the degree of aggravation of the defendant’s conduct, and, in such actions, the whole case, with all its circumstances, is submitted to the jury, and they are to apply thereto their own judgment, not to apply a legal rule, and make computation thereby. Even in such cases, the delay to which the plaintiff has been subjected in obtaining compensation, by the litigation to secure it, may be taken into consideration by the jury, (d.) But where the facts are ascertained or undisputed, and upon them a precise amount becomes instantly due or payable, whether such amount is determined by stipulation, or is ascertained by reference to the market, interest is allowed from the day when the amount becomes payable, because indispensable to complete compensation. (Van Rensselaer v. Jewett, ut supra. McMahon v. N. Y. and Erie R. R. Co., 20 N. Y. Rep. 469.)
    3. The design and object of the statute was indemnity to the party injured, and without the allowance of interest there is no indemnity, (a.) The title of the act indicates its purpose. It is an “ act to provide for compensating parties whose property may be destroyed in consequence of mobs or riots.” To compensate is “ to give equal value to,” to “ recompense to “return that which makes good a loss.” (Webster’s Dict. Suydam v. Jenkins, 3 Sandf. 620, 621.) (b.) To carry this purpose into effect, it accords to the party the “ damages he has sustained.” The value of the property destroyed, the expenditure requisite to replace it, constitutes the measure of the injury, at the time of its occurrence. And the actual loss or damages increase with every day the making of compensation is delayed, and so the party can only be indemnified by the allowance of interest. (Oases, supra.)

    4. The statute of April 14th, 1860, (Laws o/1860, eh’. 379,) provides for the liquidation of all claims against the city, and places it in the power of the city to ascertain and adjust the amount of its liabilities, (a.) The neglect and refusal of the comptroller to adjust the' amount which on such adjustment "would forthwith become legally due and payable, made the city liable for interest after such refusal, if not so liable from the time of the loss, as above insisted, (b.) It would be a violation of the plainest right to permit the claimant to suffer by reason of this refusal. The loss of interest afterward would be an aggravation of his damages, and to impose it would be to offer to the defendants a premium for causing delay by forcing the party injured to a protracted litigation, (c.) The case of McMahon v. the Erie R. R. Co. above cited, while it approves the doctrine of Van Rensselaer v. Jewett, adopts the principle now under consideration, as the ground of its decision. (d.) The language of the Court of Appeals; in Dana v. Fiedler, (12 N. Y. Rep. 50,) is apt to both the preceding points : “ If the plaintiff is hot entitled to interest as matter of law, this contradictory result follows, that while indemnity is professedly given, the law adopts such a mode of ascertaining [measuring] its amount, that the longer a party is delayed in obtaining it, the greater shall its inadequacy become.” m
   By the Court, Monell, J.

As far as we are able to un- . derstand from the very meager statement of the facts in the printed case, the jury gave the plaintiff a verdict for the value of his life interest in the property injured or destroyed, with interest upon such value, from the time of the final demand upon the comptroller.

In determining the value of the plaintiff’s interest, the jury probably ascertained the value of the property actually destroyed, and the extent of the damage to such as was merely injured. If, therefore, the jury adopted as the measure of damages in part, the value of the property injured or destroyed, then the instruction of the court, excepted to by the defendants, to add interest to such value, was not erroneous. The case cannot, we think, be distinguished from Dana v. Fiedler, (12 N. Y. Rep. 50,) which must now be regarded as having changed the rule of damages in cases of this nature. The same principle is involved in the decision in Potter v. Merchants’ Bank, (28 N. Y. Rep. 641,) which was an action for the conversion of a promissory note, and interest was allowed as part of the damages.

I am not disposed to go farther than to allow interest in those cases where injury to, or destruction or conversion of property, is the subject of the controversy or in those other cases where the value of the subject must be ascertained, to fix the measure of damages. Such, as I understand them, is the extent of the decisions. It is not intended to allow interest, as a matter of course, in every action for the recovery of unliquidated damages.

If, in the case before us, the jury ascertained the value of the plaintiff’s interest in any other way than by assessing the value of the buildings, it- is doubtful if the plaintiff could claim interest as a right. All presumptions, however, are in favor of the correctness of the verdict, and the plaintiff must have the benefit of them in this case.

A motion appears to have been made at special term for a new trial, and denied, but we are not furnished on this appeal with any of the evidence, and we cannot therefore look into the case to see if the verdict is supported by proof.

The only exception being to the allowance of interest, the judgment and order, for the reasons assigned, must be affirmed.


text:
    The Hartford and New Haven Railroad Company, plaintiffs and respondents, vs. The New York and New Haven Railroad Company, defendants and appellants.
    1. A contract, by the owners of a railroad to be made under an act of incorporation, with the owners df a rival railroad, not to continue such road beyond a certain point, is void as contravening public policy.
    2. Such a contract does not affect a prior agreement between the owners of such road, who also owned another railroad, and the owners of another rbad adjoining the latter, to divide the through fares of passengers on such continuous* road in a certain proportion 5 although the former contains a provision to deduct an additional sum monthly from such through fares ás a consideration for entering into such new illegal contract; and such through fares must be divided as though such second and illegal contract had never been made.
    3. The division of the through fares of passengers upon a connected line of railroad consisting of two adjoining railroads, owned by two different owners, between such owners, according to certain rules and in a certain manner, for six years, without objection, operates as a Construction or modification of any previous contract, if not a new contract between such owners, and is binding upon them, and must be presumed to continue until formally annulled or rescinded.
    4. The failure of a referee to find any facts, is not a ground of exception, unless requested to find them.
    6. Where there is a conflict of evidence, the court will not disturb a referee’s conclusions of fact.
    (Before Moncrief, Monell and McCunn, JJ.)
    Heard December 4, 1865;
    decided December 30, 1865.
    Appeal from a judgment entered upon the report of a referee.
    The action was for an account of moneys received by the defendant for through fares on the railroad from New York to Boston. The plaintiffs owned a railroad from New Haven to Springfield; and the defendants a railroad from New York to New Haven. Other companies owned a railroad from Springfield to Boston; such railroads formed a continuous line of railway from New York to Boston.
    In April, 1849,- the plaintiffs and defendants entered' into an agreement that passengers should be ticketed through between New York and stations upon the plaintiffs’ road ; that in conjunction with the roads from Springfield to Boston, a day line should be stationed between New York .and Boston, charging such through fare as should be agreed upon by all parties; that when the through fare was five dollars or more, the portion between New York and Springfield should be divided between the plaintiffs and defendants in proportion to their local fares, viz. to the plaintiffs one dollar and seventy-five cents, and to the defendants one dollar and fifty cents. When the through fare was four dollars or less, the portions of the plaintiffs and defendants were to be divided equally between them.
    Under this agreement, a daily morning through line, for passengers between New York and Boston, was established on said railroads, and subsequently an evening daily and a Sunday line. All these lines have since been kept in operation. Passengers were ticketed through, the defendants receiving the entire through fare.
    In March, 1850, the parties entered into another agreement, whereby it was agreed that in the division of the fares of passengers passing on the road of said parties, the defendants should receive from the plaintiffs the sum of one thousand dollars -per month, from March, 1850, to July, 1869, on and above the amount the defendants might be entitled to receive out of the fares under the agreement of April, 1849.
    The agreement of March, 1850, as was found by the referee, and conceded by the defendants’ counsel, was void as contravening public policy. The accounts between the parties were adjusted and settled monthly, upon the basis of division fixed by the first agreement, down to August, 1856. From that time to the commencement of the action, the defendants retained, out of the portion of through fares belonging to the plaintiffs, the monthly sum of one thousand dollars, for every month between the periods before stated. This sum was retained, under the agreement of March, 1850.
    In September, 1856, the plaintiffs, in advising the defendants of a draft by them for the monthly balance stated by the defendants to be due the plaintiffs, advised the defendants that the plaintiffs had “ further and other claims ” on the defendants, not covered by the draft, for which they should make further demands, before admitting a settlement of accounts with the defendants. In March, 1857, notice was given by the plaintiffs to the defendants, saving all the rights of the plaintiffs respecting the accounts rendered, from month to month, by the defendants, and for the admitted balances in which the plaintiffs drew monthly drafts on the defendants.
    It was claimed by the defendants, that the agreement of April, 1849, did not provide for or fix the division of the through fares upon the evening or the Sunday lines, and that there was no agreement, express or implied, by which the division of these fares was regulated.

      There was evidence given, on both sides, of negotiations and interviews designed on the part of the defendants to fix a different rate of division of the through fares on the night and Sunday lines. But there was no evidence that any new agreement was made, or that the plaintiffs assented to any change.
    The cause was tried by a referee, who found the facts and his conclusions of law thereon ; whereupon judgment was entered in favor of the plaintiffs against the defendants for $40,242.97..
    It was proved that during a portion of the period embraced within the action, the through fare for passengers from New York to Boston was six dollars. „
    The night and Sunday trains were established and run over the several roads by mutual consent, commencing in the spring or summer of 1850. The through fares collected on these lines were, until August, 1856, divided between the several parties in the ratio provided in their first agreements ; the portions belonging to the plaintiffs and defendants being in the ratio of their local fares.
    To all the through trains run over the roads,' as well the morning as the evening and the Sunday trains, the referee applied the rule of division fixed by the agreement of April, 1849, and to the six dollar fare, the rateable proportion that the local fare of each road bore to the whole fare.
    A motion was made to dismiss the complaint, which was denied, and the defendants excepted. -The defendants also excepted to several findings of fact, and to some of the conclusions of law.
    Upon the argument of the appeal, the defendants abandoned all exceptions taken to the admission or rejection of evidence.

      Wm. Tracy, for the appellants.

      W. M. Evarts, for the respondents.
   By the Court, Monell, J.

The real question in controversy in this case is, whether the defendants could retain, out of the portion of through fares belonging to the plaintiffs, the monthly sums agreed to be paid by the plaintiffs, to the defendants, under the contract of March, 1850. All the other questions are of minor importance, as they relate solely to a small diminution of the recovery.

It is conceded by both parties that the contract of March, 1850, is void, as being opposed to public policy. An inspection of the contract, satisfies me it is so. It is a compact between the parties, intended to affect the facilities for public travel,over a route of railroad, which had been, or might be authorized by law. The defendants were lessees of the New Haven and Northampton railroad, then in part constructed. The lessors had covenanted not to extend the road northerly beyond Granby station, (a point a little north of the Connecticut line,) without the consent of the defendants, and had given over to the defendants all the franchises and corporate powers of such lessors, for the purpose of locating or constructing any railroad or extension of any railroad northerly from Granby station. By the agreement with the plaintiffs of March 16, 1850, the defendants covenanted to hold the franchises and . corporate powers conveyed to them by such lease, until the 1st of July, 1869, and during such time, not to' extend such railroad north of Granby station. Such an arrangement was intended to prevent the extension of the New Haven and Northampton railroad, to any .point north of its terminus at Granby ; and to prevent any competition in travel, detrimental to the interests of the plaintiffs’ road; which had a monopoly of the carrying trade from Springfield and points north of Springfield via the Northampton and Springfield road, which such extension might afford. The completion- of the New Haven and Northampton railroad to Northampton, would open a new line for travel southward, and would be a competitor and rival of the road of the plaintiffs. Such competition and rivalry it was not lawful for these parties to prevent, or attempt to prevent ; and any contract to effectuate such a purpose is void. Public policy is opposed to any infringement of the rights of travel, or of apy of the facilities which competition may furnish; and the law will not uphold any agreement which does, or may injuriously affect such rights or facilities. (Doolin v. Ward, 6 John. 194. Hooker v. Vandewater, 4 Denio, 349. Stanton v. Alten, 5 id. 434. Shrewsbury and Birmingham R. R. Co. v. Lond. and N. W. &c. R. R. Co., 21 Eng. L. & E. Rep. 319. State v. Hart. and N. H. R. R. Co., 29 Conn. R. 538. Hood v. The same, 22 id. 502.)

The contract of March, 1850, being void, none of its stipulations can be enforced by either party. Ex turpi contractu actio non oritur.

But the defense is, ■ that the defendants had the right to retain the monthly sum, agreed to be paid, and apply it as a payment. If it had been so retained and applied with the assent of the plaintiffs, the position of the defendants would be sound. Had the plaintiffs voluntarily paid the sum, no action would lie to recover it back. So the plaintiffs would be concluded, if they assented to the retention and application of the money. Such, however, is not this case. The plaintiffs’ action is not upon the void contract, but upon another and entirely different contract. They sought to recover moneys received by the defendants to the use of the plaintiffs. Such moneys did not come to the hands of the defendants under, by reason, or in pursuance of the illegal agreement;. Under a perfectly legal contract, the defendants sold through tickets, over the connected roads of both parties ; and for the portion of the passage money which the plaintiffs are entitled to receive under such contract, it seems to me, the defendants are clearly liable.

The finding of the referee, that the plaintiffs did not agree, to the retention or application of the monthly sum, is, I think, fully sustained by the evidence. The notices from the plaintiffs to the defendants of September, 1856, and March, 1857, were sufficient to preserve the right of the plaintiffs to object to the allowance. The deduction, therefore, of the monthly sums, being without legal justification, it is no defense to the action of the plaintiffs.

It being conceded that the contract of March, 1850, is void, I have not deemed it necessary to examine the allegation in the complaint, or the evidence relating thereto, that the defendants had failed to perform such contract.

' A further defense is, that the contract of April, 1849, is also void; and the parties being in pari delicto, no action lies upon it by either party. That contract was formed for the mutual benefit of the parties, as well as for the convenience of the traveling public. The object was, to establish through connected railroad lines from New York to Boston. To effect that, it was agreed the parties should make suitable connections at New Haven; that passengers should be ticketed through between New York and stations upon the road of the plaintiffs ; and that each party should receive its local rate of fare. Such an arrangement was calculated to facilitate travel; quicken the transit from New York to Boston ; lessen the expenses, and increase the receipts of the respective companies ; and prevent delays.

Although the contract contains many other provisions, not relating to the establishing of through lines of railway travel, yet I am unable to discover in any of them any thing which contravenes public policy. Besides, I am not prepared to say, that the part of the agreement concerning the through' lines may not be upheld, although the other provisions may be void. The consideration for that part being, as I think, independent of the consideration for the others. (Pepper v. Haight, 20 Barb. 429.)

There were also two other contracts between the defendants and the Northampton and New Haven Railroad Company, dated respectively in January, 1848, and January, 1849 ; and it was contended by the appellants’ counsel, that all the contracts as well those between these parties, as those between the defendants and the Northampton and New Haven Railroad Company, were to be taken as one contract, and that all were void. There is no force in the suggestion. The contract of April, 1849, is independent of all the other contracts. And the several other agreements are as distinct from each other as language, and the clear intent of the parties, could make them. They were executed at different times, and designed to effect different purposes ; and either may and must stand or fall, without resort to the other. I can, therefore, see no difficulty in enforcing the provisions of. the agreement of April, 1849. Nothing in that agreement contravenes public policy; and any vice inherent in either of the other agreements, can in nowise affect the former, nor relieve the parties from its obligations.

So far as the rule adopted by the referee in making the division of the fares, relates to the day line of through travel, there is no disagreement, except as relates to the pro rata division of the increased through fare beyond the rate named in the contract. The difference arises in respect to through fares on the night and Sunday lines.

For a part of the period the through fare was $6. In dividing that sum, the referee has given the plaintiff the proportion which $1.75 cents bears to $5. This I think was right. The agreement is clear. It says, “ When the through fare is five dollars, or more, that portion which is due to that part of the line between Springfield and New York, shall be divided between the parties, in proportion to their respective local fares, to wit, one dollar and seventy-five cents between New Haven and Springfield, and one dollar and fifty cents between New Haven and New York.” It is manifest that the parties did not intend to divide ratably in proportion to the number of miles in their respective roads ; but that they meant the division should be upon the rate which $1.75 and $1.50 bore to the whole amount due to that part of the line between Springfield and New York. They were to receive “in proportion” to their “local fares” not in proportion to the miles of road.

The night and Sunday lines were established and operated several years prior to August, 1856, and up to that time the fares had béen divided between the parties.

It is claimed for the defense, that as respects those lines, the pro rata division as fixed by the contract of April 30,1849, has no application. Without any express agreement, the parties established an evening and Sunday connected through line, and continued to operate it for several years, dividing the passage money in a ratio mutually satisfactory. This arrangement was terminable at' the pleasure of either party. The defendants could discontinue the evening or Sunday train, or both, and end the connection.

There was evidence given that the defendants did seek to alter the ratio of division, and claimed that they were entitled to a larger proportion of the through fares than they had previously received. But the referee has found that the plaintiffs did not assent to such change, but insisted that if such lines were continued to be run, it should be upon the previous and existing basis of division. Under such circumstances, the continuance of these lines by the defendants, was an affirmance of the arrangement then existing, and was binding upon them. The declarations and acts of the parties put a construction upon the agreement, by which they must abide.

The referee committed no error in dividing the through fares on the night and Sunday lines, upon the basis of division which the parties had previously adopted and sanctioned.

The referee has found all the facts necessary to sustain his conclusions of law. He was not bound to find any other. I cannot discern that any of the findings are wholly unsupported by evidence ; and where there is a conflict of evidence, this court will not disturb the conclusions of the referee. (Hoogland v. Wright, 7 Bosw. 394. Ball v. Loomis, 29 N. Y. Rep. 412.)

There were no requests made to the referee to find otherwise than he has found ; and his failure to find certain facts, which the defendants now insist he should have found, is not ground of exception. (Ashley v. Marshall, 29 N. Y. Rep. 494.)

The views which I have above expressed, (and which, possibly, I may have expressed too generally,) cover, it seems to me, all the objections pf the defendants. If they are sound, no error was committed by the referee.

I am for affirming the judgment with costs.

Judgment affirmed.


text:
    Charles Spear, plaintiff and respondent, vs. Julius Hart, defendant and appellant.
    1. Under an allegation in a complaint that on a certain day the plaintiff and defendant entered into an agreement, signed by the defendant, setting forth its terms,-and an admission in the answer, that the defendant “ signed and executed a contract for the sale, ,&c. as alleged in the complaint;" no further proof of a contract is necessary. Its introduction on the trial becomes, therefore, supererogatory.
    2. If, in such case, the plaintiff rested his case without producing any written agreement, no question could arise, under the statute of frauds. The averment that the parties had made an agreement, was a sufficient averment of a valid contract.
    3. The statute of frauds does not require that both parties should sign one paper containing the contract; but only that each party must subscribe it. The subscription may be upon two separate papers, by the parties separately.
    3. Upon a sale of stock, deliverable at a future day, at the option of the seller, a dividend declared before the sale, but not payable until after the day fixed for the delivery of the stock, belongs to the seller, and does not pass to the buyer, under the contract.
    5. Custom may be incorporated into a contract, and become a part of it, where it appears, on its face or by its nature, to have been the intention of the parties that it should be, and when it can fairly be inferred therefrom that the parties contracted with reference to it.
    6. So custom may control or vary the meaning of words, and, when long established, may add to the terms of a contract. But under a contract to sell 100 shares of stock, a custom that something more passes to the purchaser, cannot he allowed. It would he an addition to the agreement, and not merely an explanation or interpretation of it.
    (Before Barbour, Monell and McCunn, JJ.)
    Heard November 16, 1865;
    decided December 30, 1865.
    Appeal from a judgment entered upon the report of a referee.

      The action was to recover damages for a breach of contract to deliver 100 shares of the stock of the Chicago and Rock Island Railroad Company, deliverable, at seller’s option, in ten days. The contract was made March 28, 1865, and matured on the 7th of April, on which day the plaintiff demanded the stock of the defendant. The latter refused to deliver. On the 23d of March, the railroad company declared a dividend of five per cent, payable on the 10th of April, and closed their transfer books on the 31st of March.
    A motion was made for a nonsuit, which was denied, and the defendant excepted. The referee gave judgment for the plaintiff for the difference between the contract price and the value of the stock on the day the stock was demanded, and also for the five per cent dividend. The defendant excepted to the recovery of the dividend.
    E. P. Clark, for the appellant.
    I. The contract not being signed by .both parties to it, is within the statute of frauds, and void, and a nonsuit should have been granted. (Justice v. Lang, 2 Rob. 333. See also opin. of Hoyt, J. in the case of Dykers v. Townsend, 24 N. Y. Rep. 59; Brabin v. Hyde, 32 id. 519.) To avoid this objection, apparently so fatal, the counsel for the plaintiff relies upon chap. 134 of the Session Laws of 1858, which, in sub- « stance, provides that “ no contract for the sale or transfer of stock shall be void for the want of consideration, or because the vendor, at the time of making such contract, is not the owner or possessor of the stock sold.” This statute, the learned counsel claims, dispenses with the necessity of a consideration in stock contracts, and that the reason why this court decided, in Justice v. Lang, that a contract is not binding unless signed by both parties, was because of want of consideration. Therefore, such decision has no application to the contract in suit.
    1. If it can be said that the act does away with the necessity of a consideration in that class of contracts, it is void as an act against equity, justice and natural principles. It virtually takes A.’s property and gives it to B. without consideration. Such an act is contrary to first principles of right'. When an act of the legislature violates the natural, unalienable rights of man, the same is void, even though there is nothing in the organic law that forbids it. (4 Hill, 156. 18 Wend: 56. Vattel, b. 1, ch. 4, § 51. Lock’s works, vol. 5, ch. 11, p. 416. And see the opinion of Justice Chase, in the case of Colder v. Bull, 3 Dallas, 386 ; 16 N. Y. Bep. 374, 393.)

      2. If it is held that the act is valid, and dispenses with a consideration, there is no pretense that it undertakes to except stock contracts from the application of the statute of frauds. Such contracts must be in writing, and signed by the parties to it, the same as any other contract. The court, in Justice v. Lang, did not rest its decision (that a contract not signed by both parties was void) upon the sole ground of a want of consideration. It also held it void because it was within the statute of frauds ; that the statute of frauds required both parties to sign it; and a contract executed by only one party was an incomplete and unfinished contract. (See Brabin v.Hyde, 32 N. Y. Rep. 519.) The language of the statute is : “ signed by the parties (not party) to be charged.”
    II. The learned referee committed an error in including in the measure of damages the five per cent dividend declared and paid before the stock was (by the terms of the contract) to be delivered. The contract was an executory one—not a sale in presentí—-and all the increase or accretions of the chattel belonged to the vendor. The defendant would have performed all the conditions and complied with all the covenants of his contract, had he (on the day when the delivery was to have been made) tendered to the plaintiff 100 shares of the Rock Island Railroad Company stock, unaccompanied with the dividends. The custom of brokers cannot change the law on that subject. (Wheeler v. Newbuold, 16 N. Y. Rep. 392. Dykers v. Allen, 7 Hill, 497. 25 Wend. 673. 8 N. Y. Rep. 190.)

      A. J. Vanderpoel, for the respondent.
    I. The motion for a nonsuit was properly overruled.
    1. The answer admitted the contract, so that it was not necessary to show that there was a written contract, under the statute of frauds.
    2. But it was not necessary that the contract for the sale of stock should be subscribed by the purchaser, to comply with the provisions of the statute of frauds. (Fenly v. Stewart, 5 Sandf. 101. Worrall v. Munn, 1 Seld. 229, 246. Roget v. Merritt, 2 Caines, 117. 2 Parsons on Contracts, 1st ed. 290. Davis v. Shields, 26 Wend. 341.)
    3. The contract on its face showed sufficient consideration ; but if it did not, the act of 1858, (eh. 134, p.' 251,) says the contract shall not be void, nor voidable, for want of any consideration.
    4. It was not necessary that the plaintiff should prove that he was ready and willing, and had the ability, to perform on the 7th of April, The defendant declared, when demand was made, his inability to perform the contract. (Crist v. Armour, 34 Barb. 378.)
    5. The evidence established the readiness, and willingness, and ability to pay. The money was tendered so soon as the defendant intimated an ability to deliver. On the 7th he said he could not, but would on the next day. • He said he could not give it; the following day was Sunday, and on Monday, the 10th, the tender was formally made.
    II. The correct rule of damages was adopted. It was the difference in value between the contract price and the price on the 7th of April. He refused to give us the advance subsequent to April 7.
    III. The plaintiff bought the stock and was entitled to the dividend, if the contract was performed. It formed, therefore, a part of the damages necessary to indemnify him for his loss.
   By the Court, Monell, J.

The motion for a nonsuit, "on the ground that the contract was void as being within the statute of frauds, was properly overruled»

The complaint alleged that “ on the 28th of Match, 1865, the plaintiff and defendant entered into an agreement, signed by the defendant, whereby," &c., and the answer admitted-that he (the defendant) signed and executed a contract for the sale, &c. as alleged in the complaint.” Under this allegation and admission, no further proof of a contract was necessary, and its Introduction on the trial was superogatory. It was -sufficiently admitted by the answer, and the plaintiff could safely have rested his case, without producing the written "agreement. In that case no question could have arisen under the statute of frauds. The averment that the parties had made ah agreement, was a sufficient averment of a valid contract.

• But the introduction, at the trial, of the paper signed by the defendant only, did not help the defendant to raise the question. There is no averment in the answer that the contract was not signed by both parties, nor was there any proof, on the trial, that the plaintiff had not signed and delivered a similar -paper to the defendant. The statute does not require that both parties shall sign one paper containing the contract, but each party must subscribe, and the subscription may be upon separate papers. An offer and acceptance, and bought and sold notes, are familiar illustrations of this species of contract. The seller signs a paper stating that he has sold to the purchaser, and the purchaser signs another paper, stating that he has bought of the seller. Such contracts are not affected by the statute of frauds.

From any thing appearing to the contrary, the paper introduced in evidence was not a “sold note,” the “bought note ” being in the defendant’s possession.

We think,-however, the referee erred in allowing the dividend as part of the damages. It had been declared before the sale, and, although .not payable until after the day fixed for the delivery of the stock,'belonged to the defendant, and did not pass to the plaintiff under the contract. Dividends are not afl. incident to stock, so as to pass with the" stock. Unlike interest,- they are not earned by the money represented in the stock, but by the corporation.; and are divided among the shareholders, and may he sold or assigned without parting with the stock.

Some evidence was admitted of a custom of brokers, by which dividends, declared but not paid, belong to the purchaser. I do not think such a custom could alter well settled principles applicable to the law of contracts.

Custom may be incorporated with a contract and become a part of it, where it appears to have been the intention of the parties that it should be, and where it can fairly be inferred that the parties contracted with reference to it. So custom may control or vary the meaning of words ; and when long established, may add to the terms of a contract. But under' a contract to sell 100 shares of stock, a custom that something more passes to the purchaser, cannot be allowed. It varies the agreement by adding to it, and it would not be merely an explanation or interpretation of it.

The cases of Dykers v. Allen, (7 Hill, 497;) Bowen v. Newell, (8 N. Y. Rep. 190,) and Wheeler v. Newbold, (16 N. Y. Rep. 392,) are authorities against the admissibility of such a custom.

The judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event; unless the plaintiff stipulates in writing, within ten days from the entry of this order, to deduct from the judgment $507.36, being the amount of the dividend, and interest thereon. Upon so stipulating, the judgment, as reduced, to be affirmed, but without costs.


author: By the Court, Moncrief, J.

text:
    Christian Brand, plaintiff and appellant, vs. Hiram Focht et al. defendants and respondents.
    A parol agreement for the sale of goods, of the value of fifty dollars or more, deliverable at a future day, of which no memorandum in writing has been made, no portion of the purchase money has been paid, and no part of the goods accepted and received by the buyer, at the time, is void by the statute of frauds. The fact that the purchaser, to whom the goods are consigned, subsequent to the making of the contract, accidentally obtains possession of a bill of lading of them on their shipment, but refuses to pay the amount demanded by it, and retains the same without the assent of the vendor, will not take the case out of the statute.
    (Before Moncrief, Monell and McCunn, JJ.)
    Heard Decem5er 15, 1865;
    decided December 30, 1865.
    Appeal, from a judgment of dismissal.
    The following history of the case was submitted on behalf .of the appellant. This case was tried before Judge McCunn, and upon the close of the plaintiff’s case, a motion was made by the defendants’ counsel to dismiss the complaint, on the ground that the contract alleged by the plaintiff came within the provisions of the statute of frauds, and was, for that reason, void. The motion was granted, and an exception taken to the ruling of the judge. Judgment having been entered, the plaintiff appealed.
    The action was replevin, and was brought by the plaintiff, to recover one hundred and seventy-two tons of coal, which were laden on board the barge Ocean Star, lying at one of the piers on the North River, near Hammersley street. The plaintiff did not obtain the possession of the coal under his proceedings, the defendants having interposed a claim of property, and given an undertaking, under the provisions of the Code, for the delivering of the property to the plaintiff, and the payment of such sum as might be recovered in the action against the defendants. The plaintiff’s counsel offered to read in evidence this undertaking, for the purpose of showing that, according to the representation of the defendants themselves, the property in controversy belonged to them. This offer was objected to by the defendants’ counsel. The court sustained the objection, and refused to permit the undertaking to be read in evidence. An exception was taken to this ruling, which is one of the points in controversy here.
    It was proved by the evidence of Christian Brand, the plaintiff, that he made a contract in the month of March, 1863, with Hiram Focht, to purchase from him a boat load of coal. The price agreed upon, between them, was six dollars a ton, and it was to be delivered in from twelve days to two weeks. This agreement was not in writing, but by parol. On the 8th of May, 1863, the coal was brought to New York in the barge Ocean Star, consigned to the plaintiff, and the bill of lading was carried by the clerk of Focht to the plaintiff, and handed to him. The bill for the coal, which was delivered to the plaintiff, called for six dollars and fifty cents' a ton instead of six dollars a ton, the contract price. The plaintiff refused to pay the additional price, but kept the bill of lading which consigned the property to him. He subsequently went to the barge to obtain possession of the coal, but Focht refused to deliver it to him or to his order, and, for that reason, the present suit was instituted.

      A. H. Reavey, for the appellant.

      D. Hawley, for the respondents.
   By the Court, Moncrief, J.

The complaint was properly dismissed. The appellant concedes, in his first point, that there was no memorandum in writing, and that no portion of the (so called) purchase money was paid to the defendant at the time of making the alleged contract; and he also concedes that the amount to be paid under the parol agreement exceeded the sum of fifty dollars. Such an arrangement clearly was void, under the statute of frauds, unless the plaintiff (the buyer) “ shall accept and receive part of such goods, or the evidences, or some of them, of such things in action.” No part of the goods were delivered to the plaintiff, and of course none was accepted and received by him. The plaintiff claims, however, that having come into possession of the bill of lading for the coal, the parol contract is relieved of its vice or defect. In this he is in error ; he did not accept or receive that evidence of title at the same time, nor was it part of the same transaction. The parol agreement was for $6 a ton, and was made in March, 1863; the bill,' or invoice, pinned to the bill of lading, is dated April 27, 1863, and claims $6.50 per ton. Besides this, the possession of the bill of lading, by the plaintiff, without the assent of the defendants, and in view of his refusal to accept it upon the terms'demanded (a higher rate per tori than was stated in the parol contract,) if not tortious, conveyed no rights or benefit upon him. The keeping, by the plaintiff, of the bill of lading, without the- consent of Mr. Focht, plainly would not take the case out of the statute of frauds, no more than if it had come into his possession feloniously, or by finding. Again, even if the bill of lading could be used to assist in taking the parol agreement out of the statute, the bill, or invoice, attached to and forming part of the alleged contract, the “ aggregatio mentium” is wanting to perfect it. The plaintiff/ refusing, to pay the amount claimed by the invoice, the agent of the defendants demanded the return of the bill of lading.

There was no error in excluding the undertaking given on behalf of the defendants. It is not suggested what evidence it contained tending to establish his cause of action. As we find no error in the rulings made at the trial, the judgment will be affirmed.


author: By the Court, Monell, J. McCunn, J.

text:
    Caroline Frances McIlvaine, plaintiff, vs. John Kadel, defendant.
    1. By force of the act of April, 1848, for the more effectual protection of the property of married women, as amended in 1849, the disability of a married woman to hold and convey her separate estate is removed; and she is therefore not disabled by reason of her coverture, from disaffirming her voidable deed of such estate.
    2. A deed of trust, executed by a married woman, while an infant, in conjunction with her husband, is voidable by her, on obtaining her majority.
    3. If, after becoming of age, she executes an instrument under seal, revoking and annulling the deed of trust, and thereupon enters upon the premises and continues in possession, this will invest her with a good and complete title to the premises, notwithstanding her coverture.
    4. The execution of the trust deed, and the instrument of revocation by the husband, is immaterial. As he has no estate or interest to convey, the wife’s execution alone, is sufficient.
    The case of Wetmore v. Kissmn, (3 Bosw. 321,) commented on, and distinguished.
    6. A deed executed by an infant, is at least voidable, if not void.
    (Before Moncrief, Monell, and McCunn, JJ.)
    Heard December 15, 1865;
    decided December 30, 1865.
    Submission, under section 372 of the Code of Procedure, upon the following facts.
    On the 14th of April, 1861, the plaintiff, then an infant, was married to John I. Me Ilvaine. On the 13th of April, 1863, while still underage, she ,in conjunction with her husband, executed and delivered to Charles Tracy, a deed conveying to said Tracy, upon certain trusts therein named, for the sole benefit of the plaintiff, certain real estate therein described, belonging to the plaintiff.

    The trustee accepted the trust, and entered upon his duties, and continued to act until the 20th of November, 1863. On that day the plaintiff became of age. She thereupon, again in conjunction with her husband, executed an instrument under seal, revoking and annulling the trust deed to Tracy. The plaintiff then entered upon the premises, and has since continued in possession; the trustee ceasing to act upon the revocation of the deed to him. The plaintiff and her husband, (who is living,) have two children now living. On the 19th of September, 1865, the plaintiff and defendant entered into an agreement for the sale and purchase of the premises in question. On the 1st of November, 1865, the plaintiff tendered to the defendant a deed of the premises, properly executed, in conformity with the agreement, which the defendant refused to receive, on the ground that the instrument of the 20th of November, 1863, was not a legal revocation of the deed, by reason of the coverture of the plaintiff. The plaintiff asks that the defendant may be required to perform his contract by receiving the deed tendered, and paying the consideration money therein expressed. The case was submitted on printed points.

      G. H. Brewster, for the plaintiff.
    I. The contract of an infant is at least voidable, if not void. (2 Kent. Com. 234. 10 Peters, 71. Eagle Fire Co. v. Lent, 6 Paige, 635.)
    II. An infant married woman cannot convey; (Sandford v. McLean, 3 Paige, 117; Bool v. Mix, 17 Wend. 119;) or execute a power as to her separate estate. (Hearle v. Greenbank, 1 Vesey, sen. 299. Stamper v. Barker, 5 Mod. R. 157.)
    III. The infancy of a married woman is a disability distinct from that of her coverture. Each must be considered by itself. (Sandford v. McLean, 3 Paige, 117. Bool v. Mix, 17 Wend. 119.)
    IY. The trust deed of the plaintiff was not a marriage settlement, but a conveyance made by an infant after marriage.
    Y. The weight of authority is, that by the common law the wife has a right to disaffirm a marriage settlement, but is under a disability during her coverture, because the husband has an estate during life, or if issue be born, during their joint lives. The settlement being as much the husband’s as the wife’s, he is not permitted to disaffirm. But since the statutes of 1848 and 1849, a married woman has the same power over her real estate as a feme sole ; therefore her coverture cannot affect her right to disaffirm.

      James F. Chamberlain, for the defendant.
    I. Deeds of infants are voidable only, not void.
    II. The trust deed of the plaintiff, being a marriage settlement, is valid notwithstanding her infancy, and passed the title to her real estate to the trustee in such manner that she cannot disaffirm it during coverture. (Temple v. Hawley, 1 Sandf. Ch. 153. Wetmore v. Kissam, 3 Bosworth, 321, and the cases there cited, particularly Tubb v. Archer, 3 Henning & Munf. 399; Leigh v. Stewart, 2 Leigh’s Rep. 76.)
   By the Court, Monell, J.

The deed of Mrs. Mcllvaine (the plaintiff;) having been executed by her while an infant, is voidable ; not void. Such, I think, is the- clear weight of authority. (Roof v. Stafford, 7 Cowen, 179. Bool v. Mix, 17 Wend. 119. Temple v. Hawley, 1 Sandf. Ch. 153. Wetmore v. Kissam, 3 Bosw. 321.)

The instrument of November 20, 1863, was a sufficient act of avoidance, unless its execution by the plaintiff was restrained during coverture. (Jackson v. Carpenter, 11 John. 539. Jackson v. Burchin, 14 id. 124.)

Independently of the statute, for the more effectual protection of the property of married women, the trust deed could not be avoided by the plaintiff, during coverture. Such seems to be the preponderance of authority on the subject. (Temple v. Hawley ; Wetmore v. Kissam, supra, and the cases there cited and reviewed.)

The act of 1849, (Laws 1849, p. 528, chap. 375,) enables a married woman to hold to her separate use, and to convey any real or personal property, and the rents, issues and profits thereof, in the same manner and with the like effect as if she were unmarried ; and such property and rents are not subject to the disposal of her husband, nor liable for his debts. This act has been held to be constitutional and valid, (Clark v. Clark, 24 Barb. 581. Thurber v. Townsend, 22 N. 7. Rep. 517.)

The effect of the statute referred to is, to deprive the husband of all right toi or interest in his wife’s property during her life. By the unity of persons, the common law transferred to .the husband all the personal property of the wife absolutely, and gave him the usufruct of all her real estate during their joint lives, and after her death, issue being born, an estate for his life. The intention of the legislature was to overturn all these provisions of the common law, which bestowed upon the husband the property of the wife, and confer upon the latter the unrestrained right to, and control over such property, as if the marital relation did not exist.

The reason which founded the doctrine that an infant’s deed cannot be avoided during coverture ■ is, that it might interfere with or in some way affect the marital right of the husband, or defeat the settlement. Lord Ch. Eldon says, in Milner v. Lord Harewood, (18 Ves. 275,) that the husband being seised jure uxoris, would have a right to say that-if she would not settle according to the agreement, he would not give his consent; and Lord Thurlow, in Durnford v. Lane, (1 Bro. C. C. 115,) says, if she did not when of age choose to accede to the engagement, the conscience of her husband was bound not to aid .her in defeating it; and in equity, as he would, not be permitted to do so, it is impossible to permit her act during covérture to be effectual.

It seems, then, that the disabilility of the wife, during coverture, was because of some estate, or right, or interest of the husband jure uxoris, in the property of the wife.

I have assumed that the weight of authority was against the right of disaffirmance, during coverture, of real property conveyed by an infant. It seems to be equally well settled, that the rule does not apply to a settlement of personal estate. (Simpson v. Jones, 2 Russ. & Myl. 371. Temple v. Hawley; Wetmore v. Kissam, ubi supra.) In settlements of personal estate, it is said that it is bound, because it would otherwise become the husband’s, and therefore it is his settlement, not hers ; whereas the real estate of a female infant was not bound, because it did not become the absolute property of the husband, though he took a limited interest in it. • The ambiguity of the distinction, and the uniform concurrence of judges in it, entitles it to much weight. Otherwise, it would be difficult to perceive wherein the distinction lies. In the one case the husband takes all the personal estate; in the other he takes all the usufruct of the real. During his life, she is as wholly deprived of his real, as of her personal estate. The end to be gained by antenuptial settlements was to secure the real or personal estate, or both, of the wife to her future use, with a jus disponendi, by will. Why should a different doctrine be applied to these settlements ? Why can one be disaffirmed during coverture, the other not ?

All the cases in the books, and there are many, are cases where the court has been invoked to aid parties in annulling their deed of settlement; and the courts have refused, for the reasons already stated. At common law, a feme covert could not alien her lands by deed ; she might, with her husband, levy a fine, or suffer a common recovery; hence it became necessary to obtain the aid of the court. But under our statutes the deed of a married woman is effectual to pass her interest in lands. And I will here remark, in passing, that the execution of the trust deed and the instrument of revocation, by the plaintiff’s husband, was of no importance whatever ; he had no estate or interest to convey, and her execution alone would have been sufficient. (Albany Ins. Co. v. Bay, 4 Comst. 9.)

In the case before us, the trusts created were for the sole benefit of the plaintiff. No other person had any interest, beneficial or otherwise, in either the trusts or the estate. The trustee was required to collect the rents and pay them to the plaintiff; he was invested with power to sell; and upon the death of the plaintiff, he was directed to dispose of the estate according to her will, or in default of a will, to the persons entitled by law to inherit from her.

Under the statute referred to, this conveyance in trust was probably unnecessary. The protection afforded by the law to the property of a married female is quite as effectual as it can be made by the contract of parties.

In leaving this branch of the question, it is perhaps sufficient to say, that the rules respecting the irrevocability of marriage settlements, during coverture, are supported by very slight, if not altogether insufficient reasons, when applied to the facts in the case before us.

The act for the protection of the property of married women has worked a complete radical change in the marital rights of husbands. Their old common law right to the personal estate of the wife and the use of her real estate is gone ; they have no estate, or interest, or right whatever, absolute or contingent, except that upon the death of the wife, after issue born, without exercising the jus disponendi, the husband has an estate for his life as tenant by the curtesy. (Beamish v. Hoyt, 2 Rob. 307. Ransom v. Nichols, 22 N. Y. Rep. 110. Jaycox v. Collins, 26 How. Pr. 496.) A married woman may hold her estate during life, discharged of all control over, or power of disposal by her husband ; and may convey it in his lifetime, or devise it by will, to take effect on her death, to whomsoever she pleases ; and, as we have seen, (Albany Ins. Co. v. Bay, supra,) her husband's consent is not necessary to render the transfer effectual; nor, need her conveyance be acknowledged in the manner required by the Revised Statutes, respecting acknowledgments by married women. (Wiles v. Peek, 26 N. Y. Rep. 42.)

The natural, if not inevitable effect of the statute we are considering is to destroy the reason on which the common law rule of disability during coverture was founded. Hone of the marital rights of the husband are invaded; nor are the courts called upon to aid in the avoidance. In respect to her separate estate, the wife is a feme sale.

There was an apparent reluctance in the courts, at first, to give to the act of 1849 the wide and sweeping effect which, it has since been conceded, was intended by the legislature. It was radical and startling, as it was in plain derogation of a long established common law right.

The court, in Blood v. Humphrey, (17 Barb. 662,) uses this emphatic language : The legislature intended to remove the entire disability which the common law and the statute had thrown around married women, not only as regards their right to take and hold, free and independent of their- husbands, but also, to remove the obstacles which the law had interposed against their conveying both by grant and devise, and to place them, so far as the lands which they held in their own right were concerned, on the same basis precisely-as unmarried females.” And Comstock, J. in Yale v. Dederer, (18 N. Y. Rep. 271,) says: In respéct to estates acquired and held under the protection of this statute, the disabilities of coverture would seem to be removed.” I will extract but from one opinion more. Judge Denio, in White v. Wager, (25 N. Y. Rep. 333,) uses this language : “ By assimilating the case of a wife to that of an unmarried woman, the legislature merely meant to say, that she should have the same power as though she was not under the disability of coverture. Taking away that disability, she would have power to make all such conveyances as were not forbidden by special provisions of law; but such general' statutes are never understood to overreach particular prohibitions, founded on special reasons of policy or convenience.”

Against this strong current of high judicial opinion, running towards a beneficent construction of the married woman’s enabling act, it is in vain for common law doctrines to contend ; and however reluctantly, they must nevertheless yield.

Enough, I think, has been shown to establish the proposition that by force of the act of 1849, the disability of a married woman to convey, her separate estate is removed; and it follows, necessarily it seems to me, that she is therefore under no disability by reason of her coverture, to disaffirm her voidable deed.

It remains to examine the case of Wetmore v. Kissam, in this court (supra,) which is apparently opposed to the view I have taken. In that case, an ante-nuptual agreement had been executed in New Jersey, conveying the intended wife’s property to a trustee. The trusts were to pay the income of the estate to the wife during life, and upon her death, leaving her husband surviving, and no child or the issue of any deceased child, to pay the income to her husband during life. The wife, (who was an infant when the settlement was made,) on attaining her majority, without any act of disaffirmance, sought, by her action, to obtain possession of the trust estate in the hands of the trustee. Her husband was made a party defendant; but it does not appear, (farther than that he did not answer the complaint,) that he consented to the attempted avoidance of the deed of settlement by his wife.

' The learned justice, (Hoffman,) who delivered the opinion of the court, after reviewing at much length the numerous cases' touching this question, dismissed the complaint, on the ground that the court would not assist the plaintiff to defeat her settlement. He says the question was not, whether in a court of law, a deed for a valuable consideration, executed by the plaintiff and her husband, accompanied by án: entry, would supersede the settlement, and pass a valid title, but whether a court of equity would upon her application, while still covert, and after the birth of issue provided for in the settlement, and when such settlement is a just and fair one, lend its aid to annul and cancel it. The statute of 1849 was also commented upon and considered as not changing the common law rule ; and the 3d section, which is in these words, All contracts made between persons in contemplation of marriage shall remain in' full force after such marriage takes place,” it was argued, left the rule where it was before the statute was enacted. Tet Justice Bosworth freely admits that the statute has removed the reason of the rule on which settlements of personal estate, made by a female infant, have been upheld.

But I regard the case of Wetmore v. Kissam, as settling nothing more than that a court of equity will not entertain a suit by a wife to avoid her settlement during coverture. It does not decide that she may not disaffirm it by some distinct and unequivocal act of avoidance of her own. But even if that case stood in the way, the more recent decisions in the Court of Appeals, to which I have referred, are broad enough to cover the views I have expressed.

I have examined and considered this case with great care. The' question is new, not having been directly passed upon by any court that I am aware of, and I am brought to the conclusion, clearly and without doubt,

First. That the trust deed from Mrs. Mcllvaine, having been executed by her while she was an infant, was voidable by her, on her attaining full age ; and,

Second. That the instrument of disaffirmance, executed by her, after she became of age, and her entry under it, invested her with a good and complete title to the premises in question, notwithstanding her coverture.

I concur therefore in the opinion that the plaintiff should have judgment, requiring the defendant specifically to perform his contract, with costs.

McCunn, J.

The question to be determined in this case is, can Mrs. Mcllvaine, by and with the consent of her husband, after she arrives at majority, sell and convey the property mentioned in the trust deed given to Tracy. I am clearly of opinion that she and her husband can. The only effect the trust deed had was to vest in the trustee the legal title to the property in question, subject to be divested by the wife’s disaffirmance of the deed on arriving at full age. (Bool v. Mix, 17 Wend. 119. Sandford v. McLean, 3 Paige, 121.) The deed of November 20, 1863, followed by the plaintiff’s entry, was an effectual disaffirmance within the most rigid meaning of the word. The Chancellor, in the case of Bool v. Mix', and Chief Justice Bronson, in the case of Sandford v. McLean, in very learned and able opinions, dispose of the whole question involved herein. The question under consideration is not at all affected by the plaintiff’s coverture. The statutes of 1848 and 1849 give her the power of a feme sole, as to the acts in question. In disposing of the case, I do not believe it at all necessary to advert to the numerous cases (cited on both sides) arising' upon a marriage settlement of female infants. The trust deed executed in this case, by the plaintiff to Tracy, not being of that character, there is not the slightest shadow of an excuse for setting up such deed as a bar to any conveyance she may make after arriving at years of majority. Much discussion has taken place, and numerous cases have been cited in the. briefs of counsel, upon the point whether a female infant can be bound by her covenant, upon marriage, as to her real property—a point for which there is no room here; I do not, therefore, examine those cases; merely observing that the most eminent judges in England, and in this country, such as Lords Mansfield, Thurlow, Eldon and others, on the one side, and Chancellors Walworth and Hoffman, and Chief Justices Bronson and Bosworth, and others, on the other side, are of the opinion that a female infant could not be so bound ; and I decidedly concur in their views.

- The judgment must be for the plaintiff, with costs, requiring the defendant to specifically perform the contract.