source: Caselaw Access Project

author: Bosworth, J.

license: Public Domain

text:
    The Mayor, Aldermen, and Commonalty of the City of New York, v. James Price, Robert L. Crooke, and Lyman Candee.
    The corporation of New York may lawfully permit coal, ashes, and rubbish to be dumped on one of several piers, the wharfage of which it has demised, without being liable to deduct from the stipulated rent, provided it allows no more use than is necessary to secure a removal from the streets of the coal, ashes, and rubbish, which are constantly accumulating, and required to be carried off.
    A lessee cannot have a deduction from the stipulated rent, by reason of a cotemporaneous parol agreement, to make improvements during the term, which would render the use of the demised premises more valuable.
    Such an agreement cannot be shown, in a case where there was no fraud in making the lease or in obtaining its execution.
    A judge is not bound to charge pursuant to a request made upon a hypothetical case, which there is no evidence to support
    (Before Sandford, Doer, and Bosworth, J. J.)
    April 6, 7;
    May 8, 1852.
    This action was brought on a bond executed to the plaintiff, by Price, as principal, and the defendants as his sureties, conditioned to pay $9500, the rent, reserved in a lease made by plaintiffs to Price, for one year from May 1,1847, of the wharf-age of any of plaintiffs’ wharves in the North river, from the ferry to Hoboken, at the foot of Hoboken street, excepting certain specified docks and slips. The plaintiffs reserved the end of the pier at the foot of Watts street, “ as a place for depositing manure from the 5th of December, ’47, to the 15th of April, ’48.”
    The lease provided that the plaintiffs, at any time during the lease, might “ set apart to their use any or all such wharves, docks, piers, or slips within the demised premises, as they might require.” That the comptroller should give notice in writing when any of them was to be set apart, and that, in such a case, an equitable deduction should be made, to be determined by the comptroller and the finance committee of both boards of the common council. That Price should not charge any wharfage “ for manure or coal ash boats,” and that “ no demand shall be made, nor any compensation received, for the occupation of the top or surface of any of the public wharves or piers, for any purpose whatever.” The plaintiffs claimed to recover $3275 of the stipulated rent, with interest.
    The answer set up, that the plaintiffs illegally entered on the demised premises, and ejected the defendants; also that the plaintiffs “ stated and promised,” at the time of giving the lease, and afterwards, that in consideration of the rent reserved, they would extend a certain pier within the demised district, which, although requested, they had failed to do.
    The evidence tended to show, that from near the commencement of the lease to the 5th of December following, the end of the pier at the foot of Watts street was used almost constantly as a place of dumping coal, ashes, and rubbish not fit for manure, for the purpose of being carried off in boats at the time actively employed in that business. That this was permitted by the superintendent of streets. That vessels liable to pay wharfage were prevented from coming alongside of the end of this pier by such use of it, and were frequently forbidden to land at said pier.
    The defendant offered to prove that the lease in question, at the time he took, or bought it, was sold at public auction. That Wm. Radford, an alderman, and chairman of the finance committee, was present at the sale. “ That he and the auctioneer publicly represented that the plaintiffs would extend the pier at the foot of Vestry street 300 feet, and that, in consequence of such statement, Price, who had ceased bidding, bid an additional sum of $1500 for said lease ; that although the plaintiffs, on the 8th of May, 1847, passed an ordinance for the extension of said pier said 300 feet, yet they did not, and would not, although often requested by Price, at any time during the term of said lease, make said extension.” This evidence was excluded, and the decision of the court was excepted to.
    The defendants’ counsel requested the court to charge the jury:
    1. That no action would lie at the suit of the plaintiffs, until the amount to be deducted under the lease, and the stipulations therein for the use of the pier at the foot of Watts street, during the time the same was used by them, had been fixed and liquidated by the comptroller and finance committee of both boards of the common council.
    2. That the taking and using the pier at the foot of Watts street was an eviction, and the defendants were entitled to a verdict.
    3. That, a,t all events, defendants were entitled to a pro raid deduction of the rent claimed from the time the plaintiffs had used the pier at the foot of Watts street.
    The court refused to charge in conformity to either request, but charged the jury “ that the plaintiffs were entitled to recover, unless there had been an unnecessary use of the pier by the plaintiffs, but if the jury should find there had been any unnecessary use, they might make such deduction as they should think reasonable.”
    The" defendants excepted to the charge made, and to the refusals to charge as requested.
    The jury found a verdict for the plaintiff for $4102 51, the balance of the rent in arrear, and interest.

      H. H. Burlock, for appellants.

      A. J. Willard, for respondent.
   By the Court.

Bosworth, J.

The appeal brings up for review decisions of the judge at the trial, his refusals to charge as requested, and the exception taken to the charge made. If it be assumed that on the facts proved, the defendants were entitled to a deduction from the amount of rent stipulated, still the judge correctly refused to charge as first requested, that no action would lie for the amount justly owing, until the sum to be deducted was fixed and liquidated by the comptroller and the finance committee of both boards of the common council.

The only case for which it is provided that any deduction to be made shall be so ascertained, is that of the plaintiffs setting apart to their use, during the continuance of the lease, any or all such wharves, docks, piers, or slips within the district ” in which the demised premises were situate. The lease provided that it should be the duty of the comptroller to notify the defendants, in writing, when any part of such district was to be taken. It does not appear that any such notice was given, or that any wharf, dock, pier, or slip, or any part of either, was, in fact, set apart to the use of the corporation. And no request was made to have it submitted to the jury as a question of fact, whether any portion of the district had been so set apart. To give to the request made any point, the judge, as a part of the request, should have been desired to have submitted such question of fact, and to have instructed the jury if they found the fact to exist, then that no action would lie, until the deduction had been fixed and liquidated as provided in the lease. And there should have been sufficient evidence of such a fact, to justify the jury in finding it to exist before such a proposition could be raised for consideration. The request assumes a fact to exi£t, not appearing by the bill of exceptions, and whether the request was a proper one or not, in case the fact assumed had existed, the form in which it was presented justified the judge in refusing to charge in conformity with it.

The defendants also requested the judge to charge the jury, that the taking and using the pier at the foot of Watts street, was an eviction, and that the defendants were entitled to a verdict.” The judge refused so to charge, and the defendants’ counsel excepted.

The evidence was not such as to prove incontestably a total or partial eviction by the plaintiffs, and in the absence of such evidence, it would be error to charge that, as matter of law, the plaintiffs had done that which amounted to an eviction, and therefore the defendants were entitled to a verdict. The most that could have been justly required by the defendants was, an instruction to the jury, that if they were satisfied that the plaintiffs had wrongfully taken, and so used the end of the pier at the foot of Watts street, as to virtually and practically prevent the' defendants from using it for the purposes demised, then such taking and use amounted in law to a practical eviction, and would exonerate the defendants from all liability to pay rent even for the part, of which they retained the enjoyment: the defendants were not entitled to an instruction in such terms as they requested it should be given, and there was no error in refusing to make it.

The third request assumes that there was proof of such a use by the plaintiffs, of the pier at the foot of Watts street, as wrongfully deprived the lessee of the full enjoyment of the premises demised, and as matter' of law entitled the lessee to an abatement of rent, and that the proof of such use was so clear that a verdict to the contrary would be set aside as against evidence. Unless there was such proof, the judge correctly refused to charge as requested. The lease reserved to the plaintiffs “ the end of the pier at the foot of Watts street as a place of depositing manure from the 5th of December, (then) next to the 15th of April, following ; and further (declares) that no demand shall be made, nor any compensation received (by the lessee) for the occupation of the top or surface of any of the ■ public wharves or piers for any purpose whatever ; and also, that no wharfage is to be charged or demanded (by the lessee) for manure or coal-ash boats.”

There is no just ground of pretending that the evidence established, that the end of this pier had been used by the plaintiffs as a place of “ depositing manure,” at any other period during the lease, than that authorized by it. The evidence tended to show that it was almost constantly used from the commencement of the lease to the 5th of December following, as a place of dumping coal ashes, and rubbish not fit for manure, to be carried thence in boats, at the time steadily and actively employed in that business. That vessels liable to pay wharfage were prevented from coming alongside of the end of this pier, by such use of it. If the boats taking off rubbish took that which is not described by the words “ manure, or coal ashes" as used in the lease, they were liable to pay wharfage, and the lessee cannot complain that dumping it on the end of the pier to be taken off by boats as fast as it could be reasonably carried away, was a violation by the plaintiffs, of the rights granted by the lease; any and all boats employed in the business, might lawfully be loaded at the end of this pier, with manure, coal ashes, or rubbish, and the plaintiffs might lawfully authorize it to be taken thei e, to be put on board of such boats. The terms of the lease contemplate that boats would take coal ashes from the end of this pier, and of course would fasten to it to be loaded, and expressly provide that the lessee should not demand nor collect wharfage from them, nor make any charge for the occupation of the top surface of the pier, for any purpose whatever.

The appellant’s fourth subdivision, of his third printed point on the argument of this appeal, is that, “ the boats that took away the rubbish, fyc., were not free of wharfage, they were not coal-ash boats, but rubbish boats, the majority of stuff taken away on them being other than coal ashes.”

If this proposition be well taken, then it follows that the largest part of the business done by boats coming to the end of this pier, was done by boats actively employed, and subject to wharfage. If it was not collected, it was the defendant’s fault.

It also follows that the minor part of the articles dumped at the end of the pier, by the authority of the superintendent of streets, was coal ashes, and as it was lawful for the plaintiffs, as between them and the lessee, to allow this to be done, and as-allowing it to be done did not prevent other boats liable to pay wharfage, from coming to the pier, it cannot be said that as matter of law, upon the evidence given, there was such a taking and use of the end of the pier, by the plaintiffs, as entitle the defendants to a “ pro raid deduction of rent.”

The judge submitted to the jury the question whether the plaintiffs had made any unnecessary use of the pier, and charged them that if they should find there had been any unnecessary use, they might make such deduction as they should think reasonable. The jury found there had been no unnecessary use.. Such, at least, is the just inference from their verdict, as they made no deduction.

It is not so obvious what was intended or understood, at the time, to have been meant by “ any unnecessary use of the pier by the plaintiffs.” If it was meant to thereby submit the .question, whether the plaintiffs had allowed the coal, ashes, and rubbish to be dumped on the pier in greater quantities than had been customary, or faster than it could have been expected that it would be removed, and thus to be unmeasurably accumulated, so as unnecessarily to interfere with the plaintiffs’ right and opportunity to earn wharfage, I do not see that the charge made was prejudicial to the defendants. If it was intended and understood to be a direction that if the plaintiffs had made or allowed more use of it than was necessary to secure a removal from the streets of the coal-ashes and rubbish, which are constantly accumulating and required to be carried off, a reasonable deduction for that cause should be made, there was no error in it to the prejudice of the defendants. Those who contracted for the coal-ashes and rubbish, or to remove them from the city, had a right to carry them on this pier, and there place them in boats, to be thence taken away. The boats that carried rubbish, for aught that appears, were liable to pay wharfage, and if the defendants failed to collect it, it is their fault. Those who took off manure or coal-ashes, were, by the terms of the lease, exempt from wharfage. It is conceded that most of the boats were engaged in carrying off rubbish, and that the great bulk of matter dumped at the end of the pier was neither manure nor coal-ashes, but rubbish. If the boats taking this away were so frequently coming to the pier, as to preclude other boats from fastening to it, then it follows that the use of the pier, which for a time was almost exclusive, was one which furnished, for months, constant occupation to boats not exempted from the payment of wharfage. Those taking away rubbish had as perfect a right to use the surface of the pier, and have their boats alongside of it, as those transporting other freight. There is nothing to show that the wharfage of the rubbish boats was less than would have accrued from other boats, had the pier been at all times unobstructed to their approach.

The charge, as made, was excepted to, but for what reason, the bill of exceptions does not disclose. Whether the fact, on the finding of which the jury were directed to make a deduction, would or would not authorize one to be made, the lessee cannot complain that the jury were instructed it would. If it would, the charge to that extent was correct; if it would not, then it was more favorable to him than that aspect of the case warranted. If it was not full enough, it was his own fault that he did not request such other, or more specific instruction, as the evidence given justified him in demanding. The judge correctly refused to charge as requested, and the part of the charge excepted to did not exclude from the consideration and government of the jury, the application of any principle of law to the evidence, on which the defendant can insist upon any right to a deduction from the stipulated rent.

The only other exception presented by the bill, is one to the ruling of the judge, excluding evidence to show, “ that the lease in question was sold at public auction ; that at that time, William Radford was one of the aldermen of the city of New York, and chairman of the finance committee ; that he was present at the sale; that both he and the auctioneer represented publicly at the sale, that the plaintiffs would extend the pier at the foot of Vestry street three hundred feet, and that, in consequence of such statement, the defendant Price, who had ceased bidding, bid an additional sum of $1500 for said lease ; that although the plaintiffs, on the 8th of May, 1847, passed an ordinance for the extension of said pier, said three hundred feet, yet they did not, and would not, although requested by the defendant Price, at any time during the term of said lease make said extension.”

It was doubtless intended by this offer, to raise the question, whether it is competent for a lessee, in an action against him for rent, to show that he was induced to agree to pay a higher rent by reason of assurances and representations, made at the time of the letting, on which he relied, that improvements would be made on the demised premises during the term, which would render their enjoyment more valuable to the tenant, and that such improvements were not made during the continuance of the lease, as the offer embraces.

The answer does not pretend to as much. It avers that the lease was sold at public auction, and admits that the stipulated rent was agreed to be paid, “ in consideration of the said lease and its covenants,” but also avers, that at the time of the sale the plaintiffs did state and promise, and at several times afterwards, that, in consideration of the amount of rent agreed to be paid, they would extend a certain pier in said district, No. 3 of public docks and slips, part of the demised premises, which they have wholly refused to do, to the damage of the defendants of $5000. The answer does not aver when, or to what length, the extension was to be made, or that the defendant was induced, by the alleged promise, to take the lease, or .pay a higher rent for the demised premises. So far as it seeks to incorporate a eotemporaneous promise into the lease, it seeks to vary its terms and legal effect by parol. So far as it seeks to set up a subsequent promise, it presents one made by parol and without consideration.

The lease is an instrument apparently perfect in itself, and purports to contain the agreement of each party. There are no ambiguities in the terms of the lease, requiring explanations to make it intelligible. In such a case, it cannot be shown that there was a promise of either party different from, or in addition to those contained in the executed contract.

The cases cited by the- defendants, from 2d Cowen & Hill’s Notes, 1473, where parol proof was allowed, were cases of agreements imperfect on their face, or as in 3 Hill, 171, Batterman v. Pierce, contained only the promises of one party. If the matter offered to be proved, had been contained in the lease, and a covenant to extend the pier during its continuance had formed part of the consideration to pay the amount of rent agreed upon, then the defendants might have claimed a deduction, by reason of the non-performance.

No fraud is imputed to the plaintiffs, either in the answer or proof offered, nor is it pretended that the defendant, Price, would not have taken the lease, if the alleged promise, or assurance, had not been made. There is no pretence of any fraud in its execution, nor that its terms and provisions, and the force and effect of them were not perfectly well understood by the defendants, at the time it was executed ; the evidence offered, in any aspect in which it could be presented, was inadmissible, and was properly excluded. A new trial must be denied, and the judgment appealed from, affirmed, with costs.


text:
    William P. Furniss v. Hudson River Railroad Company.
    Where the H. R Railroad Company has proceeded, in conformity to its charter, and the acts amending it, to vest in itself the title to land requisite to be taken in constructing its road, and the right to injuriously affect other lands, the assessment made, presumptively, embraces all damages of every kind, naturally consequent to the owner, upon those acts.
    The proceedings, assessment, payment of it, or a tender and deposit of the amount, are a bar to an action to recover such damages; if access to the river has been cut'off, but can be had by the means contemplated by § 16 of the act of 1846, and the company is in fault for not providing them, the remedy is by an action for neglect of duty, or to compel a performance; if it cannot be had by such means, and this was not foreseen, and the damages were not estimated, the remedy is an appraisal under § 28 of the same act. Whatever damages would naturally result to any rights of the plaintiff, appurtenant to the land taken, or injuriously affected, were in judgment of law foreseen by the appraisers, and included in their estimate; the plaintiff, as riparian owner, had no such title or right to the land below high water mark, as would enable him to maintain trespass for an entry on it, without his consent.
    (Before Sandeord, Duer, and Bosworth, J. J.)
    April 12, 13;
    May 29, 1852.
    The complaint alleges that plaintiff was the owner of certain lands, on the east side of the Hudson river, extending to high water mark, on which is a dock. That as such owner he was entitled to grants of the land under water in front. That defendants entered upon, and commenced using part of the land above and below high water mark, for the construction of their railroad, and entered upon and appropriated part of the land above and below high water mark, for the same purpose, and by digging embankments, cuts, and building a wall, destroyed the usefulness of the dock, and prevented passing from plaintiff’s land to the river, impaired the value of the right to water grants, and also of the upland, by taking part of it for the road, • and cutting off access to the river, and claimed damages to $46,437.

      Defendants, in their answer, set up regular proceedings under their charter, vesting in them the title to so much of the land as they appropriated, and the right to injuriously affect other parts, which became perfected on the 9th of July, 1848, and denied any entry prior to that date, or any damage to any other lands. The reply avers, that the lands, lots, water rights, and dock described on the complaint, as injuriously affected, are not described in defendants’ proceedings. The action was tried before Justice Duer, in May, 1851.
    The evidence showed that there was no entry on any land above high water mark, before the 9th of July, 1848. That there was opposite plaintiff’s land, a dock, so called, which was not itself injured; that a circuitous road once ran down his bank, (which was very steep) to this dock ; that the road had been disused for several years, but might with difficulty be travelled with empty, or very lightly loaded waggons, when the defendants entered ; that a wall having been made some two and a half feet high, to support the bank where this road joined the line of the railroad, one could not drive from the old road across the railroad.
    Plaintiff offered to prove that his lands lying eastward, were depreciated in value, by the cutting off of access to the dock, and excepted to the decision of the judge excluding the evidence.
    The judge ruled that the proceedings were a bar to an action for any damages to any entry on, or injury to the land, subsequent to the 9th of July, 1848, and the plaintiff excepted to his decision.
    The judge submitted to the jury the question, whether there was any entry on any part of the land above high water mark, previous to the 9th of July, 1848, and instructed them, if they found there was, to render a verdict for the plaintiff, with nominal damages, “ which was all the damages claimed by plaintiff’s counsel.” The jury found a verdict for the defendants. The cause was now heard upon an appeal from the judgment entered upon this verdict. The questions discussed related solely to the correctness of the decision mades at the trial.

      Edw. Sandford, for plaintiff.

      Chas. O Conor for defendant.
   By the Court.

Bosworth, J.

—The regularity of the proceedings, on the part of the defendants, to ascertain the compensation to be made to the plaintiff for so much of his land as was actually taken, or physically affected by any operation connected with the construction of their road, or for the purpose of its maintenance, is not questioned. No departure from, or want of conformity to the provisions of the act of incorporation, and of the acts amendatory thereof, in any of the things done to vest in them the title to the part taken, or the right to .injuriously affect other parts not taken, has been pointed out, or is apparent. The title to the former, and the right to injuriously affect the latter, became perfect on the 8th of July, 1848. There is no error in the decision made at the trial, that those proceedings were a complete justification for any entry, after the 9th of July, 1848, on, or injury to, the lands taken for the road. It is not pretended that any was actually taken which the petition did not describe as lands intended to be taken, nor that any land was physically injuriously affected, except such as the petition described that it was necessary to injuriously affect.

It was submitted to the jury to find whether there had been any entry prior to the 9th of July, 1848, on any land of the plaintiff, lying above high water mark, by the defendants, or those who had contracted to construct any part of the road for them, or by- the men in their employ ; and they were instructed, if they found there had been, to find a verdict for the plaintiff, and if they found there had not been, that the defendants were entitled to a verdict. The jury found a verdict in favor of the defendants. This portion of the charge was correct, and the verdict was justified by the evidence.

The plaintiff requested the judge to charge the jury, that he was entitled to recover for any entry, prior to the 9th of July, 1848, on any part of the premises described in the complaint in this action, or in the proceedings of the defendants for the ascertainment of compensation to be made, as parcels No. 26 and 28, lying between high-water and low-water mark. The judge refused to so charge, and to such refusal the plaintiff excepted.

The judge did not err in refusing to charge as requested.

The complaint states the western boundary of the plaintiff’s land to be the high-water mark of the Hudson river. It does not state that he owns the fee of the strip between high-water mark and low-water mark, or that he has any estate in it; or right to the possession of it, or that he was ever in the occupation of it. But it does state “ that on a portion of said land is a dock, of which he has been seized and possessed for the time aforesaid ” (the time he became seized of the land, which is alleged to have been in July, 1835); “ that as the owner of the aforesaid lands, he is entitled to grants of the land lying under water, and in front of the lands above described.” That the operation of the defendants in constructing their road, “ has prevented the said plaintiff from passing from his said real estate to the river in front thereof, and has rendered thereby the plaintiff's right to the aforesaid water-grants valueless, to a great degree, and has thereby greatly injured the real estate in the two aforesaid closes, fronting on said (12th) Avenue, by reducing the price of a great part thereof, and taking from the plaintiff another larger part thereof for said road.”

The deeds given in evidence by the plaintiff, and under which he claimed title to the closes described in his complaint, bound them, northwesterly, “ the Hudson river.” He shows no right to grants of the land lying under water and opposite to the two closes, except such as results from ownership of the land bounded by the Hudson river. Whatever right he may have had, appurtenant to his lands described in the complaint, if in judgment of law, it would be injured by the construction and maintenance of the road, it must be presumed that the commissioners took such injury into consideration, and included in their assessment a sum which they deemed a compensation for it.

If any such right has been rendered less valuable, by reason of access to the river from his other lands having been cut off, and if access to it cannot be had by any of the means contemplated by the act, and if such a result was not foreseen, and for that reason the injury was not estimated, the remedy of the plaintiff is an appraisal under § 28 of the act of 1846. (Laws of 1846, p. 283.)

If access may be had to it through any of the means pointed out in \ 16 of the act, and if the company is in fault for not having provided them, the obvious remedy is an action to recover damages for not having performed a duty enjoined by the act, or to compel its specific performance.

The hypothetical question put to the witness Richard Oakley, was properly excluded. The question was thus : 2. “ Suppose a lot extending east from the dock and having a connection by the road spoken of with such docks ; state whether or not such lot was injured in value by the construction of the railroad, and cutting off any access to the dock ?” The judge refused to allow the question to be put, and the plaintiff’s counsel excepted to the decision.

The complaint does not allege as a specific ground of damage, that access to the dock from the land east of it has been cut off, and that the value of the lands thus situated has been diminished by that cause. It alleges that the usefulness of the dock has been destroyed. Of this there was no proof. Indeed there could not well be, as its utility at more remote periods is entirely fabulous, and during more recent times has been almost impossible. The complaint also alleges that the plaintiff has been prevented from passing from his lands to the river in front thereof, whereby his right to the water-grants has been rendered to a great degree valueless, and thereby his real estatq fronting on the river has. been injured by reducing the price of a great part thereof, and taking another larger part thereof for the road. The ground of complaint therefore is, that the real estate fronting on the 12th Avenue, has been, as to a part of it, depreciated in value, by rendering worthless the right to water-grants, and as to other parts of it, by actually taking them for the road, and not that the general value of the lands east of the road has been reduced by rendering access from them to the dock difficult. The judge properly decided that the proposed inquiry was irrelevant to any issue formed by the pleadings.

Any contingent and consequential depreciation of the value of the portion of the land not taken, in consequence of the construction of a railroad in a proper manner, and according to its charter, whether reference be had to its market value, or its desirableness as a residence, or for general or any particular use, cannot be made the basis of an action to recover damages beyond, or in addition to the compensation awarded for taking so much of the land as was properly taken. If the usual access to the river cannot be conveniently had by reason of the low supporting walls, the obvious remedy is an action for the nonperformance of the duty enjoined by § 16 of the act of 1846, p. 280, and not an action of trespass, for an unauthorized entry upon the plaintiff’s lands.

If the injury which the question assumes has been occasioned, was one obviously to result from the construction of the road, and foreseen by the appraisers, I do not see that the party has any remedy by action to recover for the damages resulting from it. The proceedings before the appraisers cannot be reviewed collaterally in such an action, nor can any supposed errors there committed, be thus redressed.

If the road has made access to the river, through any of the means pointed out in § 16 of the act of 1846, impracticable, and this was not foreseen by the appraisers, nor taken into the estimate on the first appraisal, the consequential damages, if any, are to be appraised as provided by § 28 of that act. The presumption is, that every injury, which, in judgment of law, would result to the other adjacent property of the owner, from taking a part of his land for the construction of the road, and from the use of it in a proper manner when constructed, was foreseen by the appraisers, and included in their first estimate. If it was foreseen and not estimated, it is not obvious that any collateral remedy remains to the owner of the land to recover for it.

If access has been cut off, but could be had if the duty enjoined by § 16, was preferred; the appropriate remedy is an action to recover damages for non-performance of this specific duty, or to compel it to be executed.

But the excluded question only asked for an estimate of damages to a “ supposed lot” of no particular character or area; “ extending east from the dock, and having a connection by the road spoken of with such dock, * * by the construction of the railroad, and the cutting off access to it.” It was not asked, what the damage to these particular lots of the plaintiff, or to either of them, would be from such a cause. If it had been, the question would have been an improper one, independant of any objections to it, arising from the character of the issues formed by the pleadings. All damages resulting from the construction of the road to any portions of the land not taken, and being the natural and ordinary consequences of it, for which an owner can claim compensation, are covered by the estimate of the appraisers. If non-access to the dock cannot be obviated, and if such a result was not foreseen nor estimated, a specific remedy is provided by § 28. If it can be obviated in the manner provided by § 16, and the company is in fault for not having done the duty enjoined by that section, and if the omission produces a damage ; the owner, in a suit, stating and establishing such a cause of action, will be entitled to relief. The complaint in this action does not state facts on which a claim to recover for such a cause can be made. We are of the opinion that no error was committed in any decision made, or refusal of the judge at the trial, to charge as requested, and that there is no case made by the evidence given, entitling the plaintiff to recover. Judgment must be entered in favor of the defendants upon the verdict rendered.


author: Duer, J.

text:
    Donald Mann v. George B. Morewood, John R. Morewood, and Marshall Lefferts.
    A complaint must state the facts upon which the plaintiff relies, as establishing his right to maintain the action, not, instead of those facts, the inferences which the pleader may deem to be conclusions of law.
    It belongs to the court to draw the legal conclusions from the facts which are alleged to constitute the cause of action, and to enable the court to perform that duty, all those facts must be stated in the complaint.
    A pleading under the code must be so expressed as to be plain, that is, intelligible to those who understand the language, and hence the words are to be understood in their ordinary and popular sense.
    When a complaint alleges an overpayment, and claims judgment for the sum overpaid, the averment will be construed to mean an overpayment in money, and can only be sustained by proof of that fact.
    The satisfaction of a debt by the delivery of stock is not necessarily equivalent to a payment in money, computing the stock at par.
    The relief, to which a plaintiff may be entitled, who in such a ease has delivered by mistake, more stock than the defendant ought to have received, must depend upon the nature of the transaction, ns a settlement by compromise, or full satisfaction, and upon the value of the stock, at the time, or when its return was demanded.
    Hence to enable the court to judge of the relief that ought to be given, the transaction, in all its material circumstances, must be set forth in the complaint.
    Judgment dismissing complaint, affirmed, with costs.
    (Before Sandfokd, Duer, and Bosworth, J. J.)
    April 19 ;
    May 15, 1852.
    This was an appeal from a judgment entered at special term, upon the report of a referee, dismissing the complaint, with costs.
    The following were the pleadings in the case.
    The plaintiff, Donald Mann, complains :—
    1st. That the defendants do now, and have for a long time, composed a firm, as partners, doing business in the city of New York, under the name and style of Geo. B. Morewood & Co.
    2d. That one Henry O’Rielly had large dealings with said' defendants prior and up to the 26th day of September, 1850, during which period the said defendants furnished telegraph wire for said O’Rielly, and also, the said defendants held certain promissory notes against said O’Rielly; that on the said 26th day of September said defendants rendered their account with said O’Rielly, which account showed an indebtedness to the defendants of $16,150 55 ; that said O’Rielly believing said account to be correctly stated, paid the said amount to the defendants, but that he, O’Rielly, subsequently learned that in said account he had been overcharged, and had overpaid the sum of $1990 34, charged in said account as due said defendants, for a note which they rendered as due them by the said O’Rielly.
    3d. That since the said over-payment as aforesaid, the said O’Rielly has stated the said error to the said defendants, and demanded of them a re-payment of said $1990 34, which the said defendants have refused to repay.
    4th. That on the 16th day of December, 1850, and since the demand of repayment as aforesaid, the said O’Rielly, under his hand and seal, for a good and valuable consideration, duly assigned his claim against the said defendants for said over-payment to the plaintiff in this action. Í
    Wherefore, the plaintiff demands judgment against the said defendants for one thousand, nine hundred and ninety dollars and thirty-four cents, with interest thereon, from the 26th day of September, A. D. 1850.
    The defendants, George B. Morewood, John R. Morewood, and Marshall Lefferts, answer the complaint of Donald Mann, plaintiff, as follows, viz. :—
    That it is true and they admit that the said Henry O’Rielly was indebted to them before and on the 26th day of September, 1850, in a large sum for certain telegraph wire sold and delivered to him for the construction of the line of the New York State Telegraph Company, and also in seven promissory notes made by him to them for value received, and that the defendants had rendered an account to the said O’Rielly charging him as follows, viz.:—
    1850, Sept. 10th. To balance of acct. for the N. Y. State Telegraph Co., - - $11,473 25 “ 16th. To H. O’Rielly’s Notes per acct., 4642 10 To 16 days' interest on $11,473 25 at 7 per c., - 35 20 $16,150 55
    And the defendants upon information and belief further say, that the said O’Rielly on the said 26th day of September, 1850, proposed to these defendants to transfer to them in satisfaction of said account and demand, which was settled and admitted by the said O’Rielly, stock of the corporation called the New York State Telegraph Company, at the rate of ninety dollars for each share of one hundred dollars, and these defendants did then agree to receive, and did receive, for their said account, an.assignment or order of the said O’Rielly upon the said New York State Telegraph Company for one hundred and seventy-nine shares of the capital stock of said company, which order was accepted by the officers of said company, and certificates for said one hundred and seventy-nine shares were issued to these defendants, and these defendants deny that said account or any part of it was ever paid by said O’Rielly in any other way than by said order for stock received as aforesaid.
    And these defendants further upon information and belief deny that the sum of one thousand nine hundred and ninety dollars and thirty-four cents, or any other sum, was ever charged in said account for a note as alleged in the complaint; but they upon such information and belief admit that in the charge for telegraph wire in said account was included by mistake, and not otherwise, a charge for one hundred and nine coils of wire, amounting to one thousand nine hundred and ninety dollars and thirty-four cents,which was for certain wire sold and delivered for the construction of the same telegraph line to one L. W. Jerome, and justly chargeable to him, and not to the said O'Rielly, which, by a mistake, had been charged in the said O’Rielly’s account.
    And they further upon information and belief deny that the said O’Rielly ever discovered or stated to them the said or any error in their account, but on the contrary, they aver that the said error was first discovered by them after the receipt of said stock, and communicated to said O’Rielly with an offer to return to him the proportionate excess of stock transferred by him, and afterwards and before the commencement of this action, and before and on the 14th December, 1850, the defendants transferred back to the said O’Rielly on the books of the said telegraph company, twenty-two shares of said capital stock, and procured a certificate in the name of said O’Rjelly for said twenty-two shares, and tendered to said O’Rielly said certificate for twenty-two shares, and ten dollars and thirty-four cents in cash, which said O’Rielly refused to receive, arid, thereupon, they gave notice to said O’Rielly that said certificate and stock and cash remained ready for him at any time, and the same ever since have been, and now remain in their hands ready to be surrendered and paid and delivered, and they deny that they ever refused to return the same.
    And the defendants further answer that they have no knowledge or information sufficient to form a belief whether the said O’Rielly assigned his claims to the plaintiff in manner and form as is alleged in the complaint, and they therefore deny the said allegations, but they say, upon information and belief, that they have not any information or notice of any such assignment, (if any there has been,) before the commencement of this action.
    The .plaintiff to the defendants’ answer replies :
    1st. That said Henry O’Rielly did not offer to give, or give, either stock or any order for stock in the New York State Telegraph Company, but did give and the defendants did receive in full payment of their claim, a certificate or instrument entitling defendants to claim one hundred and seventy-nine shares in the New York State Telegraph, then being built by said O’Rielly, when an incorporated company should be organized, and should receive said telegraph and empower their officers to issue stock.
    2d. Plaintiff has no information sufficient to form a belief whether said New York State Telegraph Company ever issued stock upon such or any order, but if any stock was issued, it was without authority by the officers of said company.
    3d. Plaintiff has no information sufficient to form a belief whether any stock has been transferred to said O’Rielly on the books of said company and now stands in his name.
    4th. Plaintiff states that defendants never offered to return said certificate or instrument delivered to them as aforesaid, or any part thereof.
    5th. Plaintiff insists that from the time said O’Rielly made payment to the said defendants of their claim as aforesaid, to the time when they offered to deliver to said O’Rielly stock to refund the amount so overcharged as aforesaid, the said stock and the certificate or instrument delivered to them was greatly depreciated in value, and as much as fifty per cent, of the par value thereof, as plaintiff verily believes.
    Upon these pleadings, the cause was brought to a hearing before Alexander S. Johnson, Esq., sole referee, and upon the trial, after the assignment of his claim to the plaintiff was proved, Henry O’Rielly being sworn as a witness on the part of the plaintiff, testified as follows :—
    The defendants, George B. Morewood & Co. had an account against me in September, 1850, for about $20,000. I paid them in an order, of which this paper is a copy. The following is a copy of such order :
    New York, Sept. 26,1850.
    This certificate entitles George B. Morewood & Co. to one hundred and seventy-nine shares of stock in the New York State Telegraph Line, for value received by me, at $100 per share on settlement of account to this date.
    Henry O’Rielly.
    I have their receipt, taken by me at the time.
    The receipt was then read in evidence by the plaintiff’s counsel, and the following is a copy thereof.
    New York, Sept. 26th, 1850.
    Received from Henry O’Rielly, Esq., his order on the New York State Telegraph Co., for one hundred and sevqnty-nine shares of $100 each, to be issued to us ; also his order on the Boston and Portland Line Telegraph Co., for sixty-two shares of $100 each, to be issued to us, which is in full for all demands to date—being for wire furnished, and certain notes amounting to $4642 10, beyond the bills of wire.
    Geo. B. Morewood & Co.
    The assignment of this claim was given by me at or about the date of the assignment.
    The witness, on being cross-examined, testified :■ This assignment had nothing to do with my general assignment—the deeds of trust of the 10th and 26th December, to Mr. Mann.
    This was to pay Mann money I owed him on account of the construction of the New York State Telegraph Line.
    The direct examination of the witness being resumed, the plaintiff’s counsel asked the witness the following question :
    What was the value of the certificates you gave them ?
    The defendants’ counsel objected to the question.
    The referee sustained the objection, and the plaintiff’s counsel excepted.
    The plaintiff’s counsel then rested his case, whereupon the defendants’ counsel moved for a non-suit, which was granted.
    To which decision the plaintiff’s counsel excepted.
    Upon the report of-the referee, judgment was entered for the defendants for their costs, adjusted at $111 69.

      J. H. Rodman, for the plaintiff.
    The referee erred in dismissing the complaint, since, upon the facts proved, the plaintiff was certainly entitled to some relief, if not to a judgment for the whole sum demanded by the complaint ; but I contend that we were entitled to judgment as demanded, and that our complaint was fully sustained by the evidence. The order or certificate for the stock having been given and received in payment as money, must be treated as money for every purpose. The sum of $1990 having been overpaid in this manner by mistake, O’Rielly was entitled to recover it back. As the law formerly stood, the,whole sum might have been recovered back in an action of assumpsit, and it is the form of the action, not the right of action, that the code has changed. It has even been held that the value of land taken as money may be recovered as money paid, or had and recovered—a fortiori the value of stock, which for so many purposes, is money and circulates as such. I rely upon the following authorities— Bardsley v. Root (11 John. 464), Waite v. Leggett (8 Cow. 195), Ainslie v. Wilson (id. 662), and Tinslar v. May (8 Wend. 561). Nor has any real defence been set up to our demand. The only defence in the answer is the tender of 22 shares and of a small sum of money in addition. But O’Rielly was not bound to receive the shares three months after the settlement, when they may have greatly depreciated. He had given an order, and was not bound to receive certificates. He was entitled either to receive back the order which he gave, or the value of the excess of shares which it embraced, according to the valuation put upon them by the parties in the settlement.

      H. S. Dodge, for the defendants.
    The plaintiff was rightly non-suited. He gave no evidence whatever, in support of his demand as stated in the complaint. As stated, it is a money demand upon contract, not for an over-delivery of stock, but an over-payment of money. Hence, the evidence given, had it, in other respects, made out a case, was not admissible in this action. (Code, § 275, id. § 129.) Nor is the plaintiff helped by his reply, for the reply is a complete departure. It sets up a new case, and gives up the case made by the complaint. Yet even if we look to the reply, it shows that the plaintiff has no right to maintain an action. It admits that the defendants offered to return the excess of shares, and does not aver that any demand either for the original order or the stock that it covered, or for the excess of shares, was ever made by the plaintiff. Yet it is plain, that to enable the plaintiff to recover at all, such an averment was indispensable, and the proof, so far from supplying the defect, is directly the reverse. There was, in fact, no demand. We further contend that in no form of action could the plaintiff convert the defendants’ liability to return the excess of stock received by mistake (admitting that such a liability legally exists), into a contract to pay any price therefor, either its actual value or the valuation at which the defendants agreed to take the residue for a debt, otherwise desperate. (Wilt v. Ogden, 18 John. 56; Battle v. Rochester City Bank, 3 Corns. 88; Lewis v. Lozee, 3 Wend. 79.) Upon every ground, therefore, the judgment at special term should be affirmed, with costs.
   . By the Court.

Duer, J.

Although in compliance with the wishes of the plaintiff’s counsel, we reserved this case for further consideration, our conviction, as expressed upon the argument, is unchanged—that the referee, had he refused to dismiss the complaint, would have committed a grave error, which we should have felt it our duty to correct. There was an entire failure of the proof that the plaintiff was bound to give.

A complaint must, in all cases, be so framed and expressed as to convey to the mind of the defendant full information of the facts which are relied on as the ground of the action, and in judging of its meaning the words used are to be understood in their ordinary and popular sense. It is this that the code evidently means in requiring that the complaint shall be “ a plain and concise statement of the facts constituting the cause of action.” A plain statement is one that may be readily understood, not merely by lawyers, but by all who are sufficiently acquainted with the language in which it is written.

The plain and obvious meaning of this complaint, that which its words immediately and naturally suggest, is that O’Rielly settled the account rendered by the defendants by paying to them, in money, the whole amount they claimed to be due, and that it is a sum of money which he then over-paid, in consequence of an over-charge in their account, that the plaintiff, as his assignee, now seeks to recover. The evidence, however, shows, and the plaintiff’s reply, in effect, admits, that no money whatever was paid, but that the settlement between O’Rielly and-the defendants was wholly effected by an order given by him for the delivery of stock. The variance between the complaint and the proof is, therefore, manifest and fatal, unless we are bound to give a construction to the former widely different from that which, it is not denied, its terins plainly import.

That we are so bound is the argument on the part of the plaintiff. The argument is, that a payment in stock is, in judgment of law, a payment in money,and may consequently, with entire propriety, be described as such in the complaint; and in support of the argument, we were assured that the supreme court has recently decided that a mode of pleading which substitutes a legal interpretation of the facts constituting the cause of action for the facts themselves, is not only reconcilable with the provisions of the code, but is that which, in all cases, it is desirable should be followed. According to this argument, therefore, and the decision or decisions to which we were referred, this complaint would have been good, and would have been sustained by the proof actually given, had it merely stated that the defendants were indebted to O’Rielly for the sum demanded, as money had and received by them to his use, and that this claim had been assigned to the plaintiff, since it is quite certain that money over-paid by mistake in a settlement of accounts, is, in judgment of law, money had and received by the creditor to the use of the debtor.

We cannot, however, without renouncing entirely the exercise of our own judgment, assent to the argument of the counsel, or follow the decision upon which it seems to have been founded. The language of this court, and I believe of all its judges, from the time the code has been in operation, has been uniform, that a complaint must set forth all the material and issuable facts which are relied on as establishing the plaintiff's right of action, and not the inferences from those facts, which, under the advice of his counsel, he may deem to be the conclusions of law. To draw the proper conclusions from the facts which are relied on as constituting a cause of action, or a valid defence, is the exclusive province and duty of the court, and to enable the court to discharge that duty, the facts themselves, not the conclusions that are supposed to flow from them, must be stated in the pleading, without prolixity, but with reasonable fulness and certainty. Every pleading under the code must be so framed as to raise upon its face the question, whether, admitting the facts stated to be true, the plaintiff or defendant is entitled to judgment, instead of leaving that question to be raised and determined upon the trial, as it necessarily must be left in all cases where the facts are concealed, and their legal construction, or supposed legal construction, alone is stated. > There can be no demurrer to a count for money had and received, and if such a complaint is good, every pleading under the code may be so framed as to leave the adverse party in total ignorance of the facts meant to be proved, and yet be safe from a demurrer. Thus, the manifest design of the code in compelling parties to plead specially, by requiring the facts to be stated, would be completely frustrated, and a system of pleading be introduced which, as universal in its application, would be far more obscure and deceptive than that which has been abolished.

We deem it needless to pursue the discussion. We believe that the construction to which we must adhere, is not only necessary to carry into effect the principal and governing intent of the code, but that there is no other construction that can be reconciled with its language. The “ facts ” which are required to be stated as “ constituting the cause of action,” can only mean real, traversable facts, as distinguished from propositions or conclusions of law, since it is the former, not the latter, that can alone, with any propriety, be said to constitute the cause of action. It may be true, that the code has not carried out its own principles to their legitimate result, by requiring the parties, in all cases, to conduct their pleadings to a definite issue, but this is certainly no reason for violating those principles in the construction of the pleadings that are required. We are not to repeal the code, by judicial construction, because we may believe it to be imperfect.

In affirming, as we must, the decision of the referee, that the evidence given, was not admissible in support of the complaint, we are not to be understood as assenting to the rule of law, by which alone the complaint, in its actual form, was sought to be justified. We can by no means admit, that a delivery of stock is, in all cases, equivalent in law, to a delivery of money, corresponding in amount with the agreed value of the stock, when received. So far as the mere satisfaction of a debt is concerned, it is so, but whether it is so, as the measure of a liability, which the delivery creates, must depend entirely upon the nature of the transaction, and the actual intentions of the parties. If the settlement between O’Rielly and the defendants, was in truth, as has been alleged, nothing more than a compromise of a very doubtful debt, the application of the supposed rule might lead to the greatest injustice, since its effect might be to compel the payment, by the defendants, of a sum of money, perhaps exceeding the whole real value of the stock which they received. The shares which they consented to receive at ninety per cent., may not have been worth five, perhaps, may not have been convertible into cash at all.

We shall not now express any opinion upon the nature or extent of the relief to which the plaintiff, as the assignee of O’Rielly, may be entitled. It is sufficient to. say, that the dismissal of this complaint will be no bar to any relief, legal or equitable, to which his title in a future suit may be established.

The judgment, upon the report of the referee, is affirmed, with costs.

       In Nightingale and others v. Davisson, (5 Burr. 268-9,) it was held by Lord Mansfield and his brethren, that East India stock, which the defendant, as against the plaintiffs, was not entitled to retain, could not be treated as money, in an action for money had and received; the proper remedy was in equity.


text:
    Downing W. Graves and Henry A. Merrill v. Herman Friend.
    Where a creditor took from a debtor owing him $392 31, a note for $322 83, made by a third person, payable to the order of, and indorsed by the maker, and by him only, and gave a writing, stating that' the note was received “ on account, without recourse,” and on the maker’s failing to pay the note, brought a suit against his debtor, on the original indebtedness:

      Held, that the writing imported an acceptance of the note as absolute payment, and that a contemporaneous verbal agreement to accept it as a conditional payment, could not be shown.
    The rule allowing parol evidence to vary or explain a receipt, is limited to a technical receipt, in the strict sense of that term, and not to a clause in the nature of the contract.
    The party may avoid such a writing, by showing mistake, fraud, or imposition in obtaining the execution and delivery of it.
    (Before Sakdfoed, Dvee, & Bosworth, J. J.)
    April 19 ;
    May 15, 1852.
    The plaintiffs, from time to time, sold merchandise to defendant. On the 11th of March, 1851, he was owing them, on account, $392 31, and passed to them a note made by one Isaac H. Clark, payable to the order of, and indorsed by the maker, for $322 83, payable at bank 6 months from its date, and at the time of transferring it, took a receipt reading thus, viz. :
    “ New York, March 11th, 1851.
    “ Received from Mr. H. Friend, Isaac Clark’s note, Feb. 6, 1851, at 6 months, for three hundred and twenty-two dollars and eighty-three cents, on account, without recourse.
    “ $322 83'. D. W. Graves & Co.
    “Per P. Bissell.”
    The defendant subsequently paid $69 50, the balance of the account, “ claiming it as in full for balance,” the plaintiffs “ refusing to receive it as a balance,” and insisted, when receiving it, that they took it “ on account.” This action is brought to recover an alleged balance due on the first of July, for merchanclise, being the portion of the account covered by the note described in plaintiffs’ receipt. The defendant pleads the delivery and acceptance of this note, in satisfaction, pro tanto, of the indebtedness of §392 31, on the 11th of March, and a subsequent payment of the balance in cash. The evidence shows that Bissell was a clerk of the plaintiffs, but had no authority to receive or receipt notes in satisfaction of accounts owing to them. That Graves was absent when this note was offered, that Bissell told the defendant he had no authority to take it, and Mr. Merrill, who was in the store, on being referred to, refused to take it without the assent of Graves. Defendant then said, if they would take the note, he would leave it for Graves’s decision, and that if it was not satisfactory to Graves,. he would take it back, and tear up the receipt. On these terns the note was taken. Merrill authorized Bissell to give the receipt under that agreement. The day after Graves returned, Bissell handed him the note, saying it was left for him to decide about. The next day defendant called on Bissell, to know what Graves said about it, and was told that he had not as yet said anything. Defendant spoke immediately of Clark’s having failed, and then Bissell told him, if that was the case, he might as well take the note back. A day or two after, when he came in the store, it was offered to him, and it was subsequently taken to his place of business and tendered to him, and he refused to take it back.
    The court ordered a verdict for the plaintiff for $336 22, subject to the opinion of the court at general term, on the question of law on a case to be made, with liberty to either party to turn the same into a bill of exceptions.

      E. W. Stoughton, for plaintiffs.

      F. Tillou, for defendant.
   By the Court.

Bosworth, J.

The first question properly arising on the case made, is this : Is the writing of March 11th a receipt, open as such to explanation and contradiction in all respects, or does it contain clauses of contract which cannot be varied by evidence of cotemporaneous verbal agreements, by which, in a certain event, the contract was to be inoperative and of no effect ? If the latter be its true character, a new-trial must be granted. It cannot be pretended that the want of authority in Bissell to sign the receipt, or that the transfer of the note, under a fraudulent concealment of the failure of the maker, is so incontestable as to justify the court in withdrawing either of these facts from the consideration of the jury, and determining them in favor of the plaintiff.

There can be no question that by the law, as settled in this state, the taking of a note made by á third person, on account of a precedent debt, is no payment unless it be so agreed at the time, and that it is payment when transferred and accepted under this agreement. Does the payment of March 11th import that the plaintiffs, took the note described in it unconditionally, at their own risk ? Unless it means that, no force at all can be attached to the words “ without recourse.” The defendant’s name was not on the note, he could not be charged as a party to it, or made liable for the payment of it. These words, therefore, could not refer to any actual or apparent contingent liability of his as a party to the note. In no conceivable circumstances could there be any recourse to him as a party to the paper. The only thing to which they can apply is the “ amount ” of his account for which the note was received. The words, “ without recourse,” when added to the payee’s indorsement of a promissory note, have acquired a fixed legal meaning, and the effect is to exonerate him from all liability as a party to the note. (Chitty on Bills, 254-255.)

The fair and natural meaning of the words, “without recourse,” as here used, is,.that the note is taken at the risk of the plaintiffs, and, consequently, as payment. Having contracted to take it as payment, it is not competent to prove a cotemporaneous verbal agreement, that it was taken as a conditional payment, or, in other words, that they agreed to take it as payment, unless, on inquiry, they were dissatisfied with it, and that, in such an event, it was to be no payment, but they might return it. An instrument in the form of a receipt, may also contain clauses of contract. In such a case, so much of it as is in the nature of a contract, falls within the general rule that it cannot be varied by proof of verbal instructions- given, or of a verbal agreement made at the time, inconsistent with its terms (3 Sand. S. C. R. p. 7, Wolfe v. Myers) or with its legal effect. (Cherry v. Holly, 14 Wend. 26; Niles & Richmond v. Culver & Foote, 8 Barb. S. C. R. 205; 6 id. 458, Egleston v. Knickerbocker.)

If the construction here put upon the words, “ without recourse,” is correct, Kellogg v. Richards (14 Wend. 116), is an authority in point, that their legal effect cannot be obviated or varied by proof of a verbal agreement, made at the same time, inconsistent with it, or operating as a defeasance of it: where a written contract is made by the parties, the writing is the sole evidence of the contract, and in intendment of law, all cotemporaneous conversations and verbal agreements are merged in it, and cannot be proved to restrict, enlarge, or defeat it.

House v. Low, 2 J. R. 378, is not in conflict with Kellogg v. Richards. In the former, so far as appears from the report of the case, it was simply a receipt “ in full,” and an issue was joined and tried without objection, whether it was given on a condition which had never been performed : the court affirmed the judgment of the justice, on the ground that such an issue had been formed and tried without objection, and added “ and a receipt may be explained by parol.”

It has been held that a receipt, stating in terms, that the thing received is received “ in full,” is not in legal effect a declaration that the party expressly agreed to take it at his own risk, or absolutely as payment; and that such a receipt does not preclude the party giving it, from showing that the thing received was in part the note of a third person, who became insolvent before its maturity, and failed to pay it. In this case the precedent debt was larger in amount than the note received. If it was merely taken “ on account,” and to be a payment pro tanto if paid, the receipt would naturally have terminated with those words ; but in addition to that, the further words ‘‘ without recover,” were added. Suppose the added words had been at our own risk,” would the meaning or legal effect of the paper have differed in any respect from the present one? Would it not clearly have imported that the plaintiffs took it absolutely as payment ?

There was no pretence, or offer at the trial, to show that the words “ without recourse,” when thus used, have acquired and are treated among merchants, as having a specific meaning well understood, and incompatible with the idea, that the thing thus received, was taken unconditionally as payment, (4 Hill, 104, Goodyear v. Ogden; Ed. 107, Dawson v. Kittel.) On the case as presented, effect must be given to these words, according to their natural and obvious meaning.

We think the obvious meaning and legal effect of the writing in question, are as above stated, and that the verdict must be set aside, and a new trial ordered..

On a new trial it will probably be open to the plaintiffs, to show mistake, fraud, or imposition, in obtaining the execution and delivery of the receipt, (McKinstry v. Persall, 3 J. R. 318.)

The receipt or contract, when set up as an item of evidence, will undoubtedly be impeachable, upon any ground which would have been a good reply to it, had it been set up in the answer, as a bar to the action. A new trial must be granted, with costs, to abide the event.


author: Sandford, J.

text:
    Peter Scott v. George W. Pentz.
    When upon the trial of a cause, it is doubtful upon the evidence, whether a written contract for the sale of goods, signed by the vendor, and delivered to the purchaser, was delivered absolutely or conditionally, the question, as a question of fact, must be submitted to the jury. When a condition outside of the contract is annexed to its delivery, the purchaser must be allowed a reasonable time for its performance, and if within that time he tenders a performance, the agreement becomes absolute.
    When a part of such a written contract is torn off by violence, by a party who had signed and delivered it, he is presumed to have destroyed it, and parole evidence of its contents may therefore be given without notice to produce it.
    New trial granted with costs to abide the event.
    (Before Sandfokd, Ddek, and Bosworth.)
    April 20;
    May 29, 1852.
    This was an appeal from a judgment at a special term, and a motion for a reversal, and a new trial, was now made, founded upon a bill of exceptions.

      The action was for the "breach of a contract, by which the defendant held and agreed to deliver to the plaintiff, at a certain price to be paid on delivery, 200 salted hides.
    The defendant, in his answer,- alleged that no written contract had been delivered, and that the agreement, if any had been made, was rescinded.
    The proceedings on the trial appear in the bill of exceptions, which is as follows ■:—
    Afterwards, that is to say, on the 24th day of December, A. D. 1851, the said action came on to be tried before the Honorable Judge Mason, one of the judges of the said court, and a jury, whereupon the plaintiff, to maintain and prove the said issues on his part, called to the stand Michael O’Connor, who being duly sworn, testified :
    That he knows plaintiff and defendant; was present at a transaction between them on the third day of July last; it took place at the office of the defendant Pentz, in South street; accompanied plaintiff Scott to the office. Witness on behalf of Mr. Scott, asked defendant what he would take per pound for 200 dry salted hides which he had to dispose of. Defendant asked cents per pound, cash. After some conversation, he agreed to sell them at 6 cents per pound, which Mr. Scott accepted, or which witness accepted on his behalf. Witness suggested that a memorandum of sale should be made. After conversation with some third party in the office, Pentz consented ; a memorandum was made, signed by Scott, and handed to Pentz ; Pentz having examined the memorandum, passed it to a young man in the office, and requested him to make a copy of it; this being done, the copy was passed to Pentz for his signature; Pentz signed it, and gave it to Scott, and remarked that as he did not know Scott or witness, he should require to have a deposit for amount of hides ; witness said that though they were willing to give a deposit, a reference might do as well, and named Denniston & Wood, bankers, Wall street, as Reference ; Pentz said that would do, or in substance, that the reference was satisfactory : witness and Scott were about to depart, when witness suggested, to obviate trouble of calling upon the said parties referred to, Denniston & Wood, that as he had some fifty or sixty dollars about him, he would give it to Pentz. On making this offer to Pentz, he said he would require $400 as a deposit; witness tried to reason him into the belief that that was an unbusinesslike request, inasmuch as the entire amount was not so much ; as Pentz on reference to his invoices or correspondent’s advices had found that the gross weight of the hides averaged about 30 pounds each ; witness judged from that fact that the hides would not amount to $400, and tried to reason him, Pentz, into the belief that it was inconsistent to demand $400 ; Pentz became suddenly obstinate, and seemed not to be pleased with anything else than $400 as a deposit; witness then said that as nothing else would please him, (Pentz,) he would go and bring $400 on behalf of Scott, and told Scott to remain while witness was doing so ; just as witness said that, Pentz attempted to take the memorandum out of his (witness’s) hands, saying, “ leave this witness resisted this, and in Pentz’s attempting to take the contract, and witness’s resistance, the contract was torn ; it was not all torn ; witness remonstrated with Pentz on the impropriety of such a proceeding, and told him his conduct was not gentlemanly, but said nothing to give offence ; Pentz then replied in substance, that he did not desire to follow up the contract; witness went away and returned with the $400, which he offered to Pentz.
    Plaintiff’s counsel here handed a paper to the witness, who testified : The paper now shown to me, is the memorandum signed by Pentz, which he tried to take from me, or at least, as much of it as remained in my possession; I had read it before it was torn, and knew at that time its contents ; I framed the original memorandum; another paper was at the same time placed in the witness’s hands, which he stated to be a copy of the torn agreement, made by him in about 20 minutes after the occurrence above mentioned.
    Plaintiff’s counsel here proposed to read said torn agreement, and the said copy thereof, but the reading of the same, or a copy thereof, was objected to by defendant’s counsel, on the grounds:
    1st. That there was no sufficient delivery proved of the original contract, and second, that secondary evidence of the original was not admissible, and that notice to produce the portion-of the memorandum in defendant’s possession had not been given.

      The judge decided that neither the contract nor the copy should be read. To which decision plaintiff’s counsel duly excepted.
    Same witness in continuation, testified : When witness brought back $400, he told Pentz that was the sum, he, Pentz, required ; Pentz said he would not have it now, and refused to carry out the contract or complete the bargain ; witness then left; he subsequently, in the course of the same day, took a letter from plaintiff’s attorney to Pentz; Pentz said he would give an answer.
    In reply to a juror, witness said : That in the above transaction he acted as the friend of the plaintiff, not as a broker; was not a partner of plaintiff’s at that time, but is a partner now.
    Plaintiff’s counsel was proceeding to examine witness as to the value of the hides, with a view to ascertain the amount of damages, when counsel for defendant objected, on the ground that it was unnecessary to prove the amount of damage until the plaintiff proved a contract, and the judge decided that unless the plaintiff could give some further evidence of a contract, he would not receive evidence of the amount of damage sustained for the breach of a contract unproven ; to which decision plaintiff’s counsel duly excepted.
    Plaintiff thereupon rested his case, and defendant’s counsel asked for a dismissal of the complaint.
    Plaintiff’s counsel opposed said motion, and insisted that he was entitled to go to the jury.
    His honor, the presiding judge, dismissed the complaint, on the ground that no sufficient evidence had been given of the execution and delivery of a contract in writing, to which decision plaintiff’s counsel duly excepted, and his exception was entered.

      O’Gorman for appellant.
    H. A. Cram, for respondent.
   By the Court.

Sandford, J.

When the plaintiff proposed to read in evidence the torn agreement, and the copy of the entire agreement, he had proved presumptively, that the parties had agreed upon the terms of a sale of the hides, a written contract, expressing those terms, had been signed by the plaintiff, and received by the defendant, and a transcript of the same signed by the latter, and delivered to the plaintiff. After this, and before the parties separated, the defendant had dictated a further term or condition of the sale, and then acquiesced, apparently, in a substitute for that. And when the plaintiff was finally leaving, he fell back on the deposit, thus previously dictated, and when the plaintiff returned with the deposit, and offered to comply with his very unreasonable demand in that particular, he repudiated the contract altogether.

It seems to us very clear, that on the evidence thus given, and on the written agreement proposed to be read, the plaintiff was entitled to take the verdict of the jury, on the question, whether the agreement was not delivered absolutely, before the defendant made any remark about the required deposit. It was a question of intention, as to which there might be some doubt in consequence of what was said after he signed the contract and gave it to the plaintiff. The weight of the evidence on that point was decidedly in favor of the plaintiff. Certainly it was such that the court could not, with propriety, withdraw it from the consideration of the jury, and hold it in favor of the defendant.

If the contract were delivered conditionally, that condition was the deposit of four hundred dollars. The plaintiff was entitled to a reasonable time in which to make the deposit, and so far as it appears in the case, he did make it within the requisite time. If he did, the condition was fulfilled, and the delivery of the contract became absolute. It is a mistake to suppose that the delivery on the part of the defendant was revocable, and that the moment the plaintiff left to go after the money required to be deposited, the defendant could revoke the contract and refuse to be bound by it.

There was a full and complete written contract between the parties, signed and delivered, to take effect on the doing of afi act without the contract, which in point of law, no time for it being stipulated, was to be done in a reasonable time. Until that time elapsed, the defendant was not at liberty to withdraw from the contract. He could not recall what had been done. He could rely only upon the condition, and avail himself of its breach as the reason why he should not be bound. If the condition were performed, his engagement became absolute.

If the proof given did not show conclusively that the plaintiff complied, in a reasonable time, with the condition attached to the delivery, it was at least sufficient to go to the jury on that question.

It does not appear for what cause distinctly, the learned judge refused to permit the mutilated agreement and the copy of the entire contract to be read. If it were because the delivery of the contract was incomplete, or was revoked, what we have said on that subject disposes of the point. If it were because no notice had been given to the -defendant to produce the portion of the mutilated paper which he had torn off in his struggle to take it from the witness, we think the decision excluding it was erroneous.

The party against whom the parol evidence of the missing portion was offered, had effected the physical destruction of the instrument to the extent of that portion. He had torn it off by violence, with the obvious intention of destroying the whole. He sought the paper, not to keep it as a valid instrument, but to avoid it. His acts show that if he had succeeded, he could have cancelled it. There is no evidence that he actually kept the fragment which he tore off, and from the circumstances of the act, the court was bound to presume that he did not. As against him, the plain determination to destroy the whole, is sufficient evidence, at least presumptively, that he destroyed the part which he obtained.

It follows that the plaintiff was at liberty to produce the mutilated contract, and to supply the part torn off by parol evidence.

The judgment at the special term must be reversed and a new trial ordered, with costs to abide the event of the suit.


text:
    Bethuel Phelps, Respondent, v. James A. Williamson and James Bishop, Appellants.
    Under a bill of lading in the usual form, the conveyance and delivery of the goods is a condition precedent to the right of the ship-owner or master to the payment of freight.
    Hence, freight paid in advance, if the goods have not been carried and delivered according to the bill of lading, may in all cases be recovered back, unless there is a special agreement to the contrary.
    The rights of the shipper in this respect, are not affected by the exception in the bill of Jading of the dangers of the seas. The effect of this clause is only to exempt the ship-owner from his common law liability for the value of the goods when lost by the perils of the sea.

      Held, that the plaintiff was entitled to recover back the freight which he had advanced, on goods shipped for California, although the voyage had been broken up and the delivery of the goods prevented by the dangers of the sea, there being no evidence of a special contract varying that contained in the bill of lading.
    (Before Sandkokd, Buer, & Boswokth, J. J.)
    April 21;
    May 29, 1852.
    , On the 31st of January, 1848, the plaintiff shipped at New York, in good order, a quantity of merchandise, on board of a barque called the TJndine, belonging to the defendants, bound for California and Oregon. The master of the barque signed and delivered to Phelps a bill of lading in the ordinary form, which acknowledged the receipt of the goods on board in good order, and stated that they were “ to be delivered in like good order, and well conditioned, at the port of San Francisco (the dangers of the seas only excepted) to N. K. Benton, or his assigns, he or they paying freight for the said merchandise, as for merchandise with primage and average accustomed.” The freight and primage amounted to $774 31. After the goods were on board and the bill of lading had-been delivered, the plaintiff paid or advanced the amount of the freight and primage to the defendants. Whether this was advanced in anticipation of the performance by the defendants, of their contract to deliver the goods safely and in good order in California, as is alleged in the complaint, or was a payment of freight in advance upon an agreement on his part to take the risk and dangers of the seas, in consideration of the defendants receiving the goods on board and undertaking to carry them, as is set up in the answer, but denied by the reply, there is no evidence either the one way or the other, except such as is to be inferred from the fact that the amount of the freight and primage was actually paid in advance at New York. No evidence in relation to the fact of the payment being made, or the time when, or circumstances under which it was made, was given. The pleadings show the fact that it was made after the goods were shipped.
    The barque sailed from New York on the 2d of Feb., 1848, and on the voyage the said barque encountered perils of the seas, and became disabled thereby, and was thus prevented from completing the voyage or delivering the cargo. The voyage was broken up and abandoned, and the barque as well as the goods were sold and disposed of by the master. This action was brought to recover back the $774 81, and interest from the time it was advanced. The judge before whom it was tried, decided that the plaintiff was entitled to recover, and directed a judgment to be entered for the plaintiff for $926 14, the amount claimed, to which decision the defendants excepted. The cause was now heard upon an appeal from this judgment.

      Wm. M. Evarts, for the respondents, made and argued the following points.
    I. The defendants contracted with the plaintiff by a bill of lading, to convey, in the barque Undine, certain merchandise, from New York to San Francisco, for freight and primage, amounting to $774 81.
    This sum the plaintiff paid in advance.
    The voyage was never completed, nor the plaintiff’s cargo delivered by defendants, the barque having “ encountered perils of the seas, and become disabled thereby, and thus prevented from completing the voyage or delivering the plaintiff’s cargo.”
    II. The freight money having been paid for the carriage of the plaintiff’s cargo, the consideration of its payment has wholly failed, and it is recoverable back (3 Kent Com., p. 226, 4th ed.; Watson v. Duykinck, 3 Johns. R. 335; Detouches v. Peck, 9 Johns. R. 210; Griggs v. Austin, 3 Pick. 20; Pitman v. Hooper, 3 Sumn. 66; Mashiter v. Buller, 1 Camp. 84.)
    III. The exception in the bill of lading of “ the dangers of the seas,” touches only the liability of the ship-owner in respect of the cargo lost by such dangers. In the frustration of the voyage by such dangers, the ship-owner earns no freight; he has no claim for it, if it has not been paid ; he must refund it, if it has been paid, in expectation of his earning it.
    IV. The judgment below should (be affirmed with costs.

      T. Romeyn, for the appellants, made and argued the following points:
    I. The goods were not delivered through the dangers of the seas, which were excepted from the contract by the bill of lading.
    The complaint does not aver any negligence or unskilfulness.
    The proof showed that the voyage was broken up through perils of the sea?, and that the vessel thereby became disabled (see Schooner Reeside, 2 Sumner 567; 1 Phillips on Ins., 635).
    II The provision in the bill of lading that the consignee or his assigns are to pay freight, does not absolve the consignor from liability, nor oblige the master or ship-owner to look to consignee alone. This provision is intended only for the benefit of the master (3 Kent, 6 ed., 222; Tapley v. Martins, 8 Term. Rep. 451; Shephard v. De Bernales, 13 East. 565; Abbott on Shipping, 415, 416).
    III. The payment by the consignor of freight in advance was absolute and unconditional.
    IV. The freight having been paid in advance, without any agreement to return it, it is a presumption at law that it is not to be returned, if the voyage fails without the fault of the shipowner, and through the excepted dangers.
    1st. Such is the rule of the English law (Anonymous case, 11 Showers 283; De Silvale v. Kendall, 4 Maule and Sel. 37; Saunders v. Drew, 3 B. and Ad. 445).

      2d. It is on principle.
    3d. The rule in the courts of this state is not so settled as not to admit of further consideration (3 Kent, 227, Note C.).
   By the Court.

Bosworth, J.

—The rights of the parties under the contract evidenced by the bill of lading, if they are to be determined by that only, are free from doubt. The conveyance and delivery of the goods by the defendants is a condition precedent to their right to freight. The contract is in its nature an entire contract, and must be completely performed by the delivery of the goods at the place of destination, to subject the shipper to a liability to pay any freight. The cases in which a partial payment may be claimed, upon principles of equity, as applicable to particular circumstances, are exceptions to the general rule, and have no bearing upon this case (Angelí on Law of Carriers, p. 383 ; Abbott on Shipping, 272 ; 3d Kent’s Com., 219). The clause, “the dangers of the seas excepted,” does not affect the question whether freight has been earned or not. The whole effect of that clause is to exempt the carrier from his common law liability to deliver or pay for the cargo when the loss or non-delivery of it results from a peril so excepted.

The defendants’ counsel contends that when freight has been paid in advance, and the voyage is broken up by the danger of the seas, without any fault of those rightfully in charge of the ship, the freight cannot be recovered back, unless it was paid on an agreement that it should be returned on the happening of such an event. He relies on 2 Showers 283, and Blakely v. Dixon, 2 Bos. and Pul., 321; Andrew v. Moorhouse, 5 Taunt., 435; De Silvaile v. Kendall, 4 Mau. and Sel., 37; Saunders v. Drew, 3 Barn. and Ad., 445, and Mansfield v. Maitland, 4 Barn. and Ald., 552, as authorities in support of this proposition.

Neither of .these cases is directly in point, or necessarily conflicts with the decision in Griggs et al. v. Austin et al., 3 Pick., 20, which is an express adjudication upon a state of facts precisely similar to that presented by this case. In Griggs v. Austin, the bill of lading was in the same form as that in this case, except that after the words “he or they paying freight for the said goods,” were,.added the words, “nothing being paid here.” In that case, as in this, the freight was paid in advance, no deduction was made from the usual freight on account of advance payment, and there was no express agreement that freight was to be allowed at all events. The ship was stranded before reaching her port of destination. The plaintiff’s right to recover back the money was opposed, on the grounds that the freight had been paid in advance, and that there was no agreement to refund it in case of such a loss of the- voyage as had occurred, and which, without any fault of the defendants, had made it impossible for them to complete the voyage and deliver the cargo at the port of delivery. All the decisions on which the defendants in this case rely were cited on behalf of the defendants in that. The report of it states that it was argued at much length. Parker, Ch. J., in his opinion, examines those cases and distinguishes them from Griggs v. Austin. The true rule was declared to be “ that freight is the compensation for the carriage of goods, and if it be paid in advance, and the goods be not carried by reason of any event not imputable to the shipper, it is to be repaid, unless there be a special agreement to the contrary.”

In Andrews et al. v. Moorhouse, 5 Taunt., 435; De Silvaile v. Kendall, 4 Mawle and Sel., 37; Mansfield et al. v. Maitland, 4 Barn. and Ald., 582, and Saunders v. Drew, 3 Barn. and Ad., 445, the rights of the parties depended upon the effect and meaning of particular clauses of a charter party of affreightment. The construction put upon the clauses in question was, that by them, the parties had stipulated that the payment of the freight, which had been advanced, should not depend upon the performance of the voyage, but should be made absolutely and unconditionally at the times mentioned in the charter party.

In De Silvaile v. Kendall, Lord Ellenborough, Ch. J., said: “ By the policy of the law of England, freight and wages, strictly so called, do not become due until the voyage has been performed. But it is competent to the parties to a charter party, to covenant by express stipulations in such manner as to control the general operation of law. The question in this case is, whether the parties have not so covenanted by the stipulations of their charter party. If the charter party be silent the law will demand a performance of the voyage, for no freight can be due until the voyage is completed.” The charter party is an instrument inter partes. The ship-owner covenants to do certain things, and the shipper, “ in consideration of the premises,” agrees to pay freight as therein specified. When he covenants to pay parts of it at different periods of the voyage, or the whole of it when the goods are on board, it is not a violent construction to hold that the covenants of the shipper find their consideration in the covenants of the ship-owner, and that where a failure to complete the voyage, or, in other words, of the ship-owner to perform the covenants on his part, results from inevitable accident, the non-performance is excused, and so much of the freight as was agreed should be paid in advance would be the loss of the shipper, and so much as was made payable on performance of the voyage would be the loss of the ship-owner.

The first count of the declaration in Blakely v. Dixon et al. 2 Bos. and Pul., 221, was obviously framed with a view to this distinction, although it was held bad on demurrer. It alleged that the defendants, in consideration that the plaintiff at his special instance and request had received and taken on board certain goods to be carried from London to Surinam, promised to “ pay him the money due to him for freight and carriage of the same on the delivery of the bill of lading thereof to them,” and averred the delivery of the bill of lading by reason whereof the defendants became liable. Lord Eldon, Ch. J., said: “ Nothing could he due on the delivery of the bill of lading but by special contract, for primé facie the freight is not due until the arrival of the goods.”

Chambre, J., said : “ The receiving goods on board to be carried to a foreign port is a good consideration to found a promise to pay the freight immediately. But in this case the plaintiff states a promise to pay the money due for freight on the delivery of the bill of lading. * * * The plaintiff has not stated any special manner in which any thing has become due for freight. I am therefore clearly of opinion that the first' count of the declaration is bad.”

In Griggs v. Austin, Parker, Ch. J., says : “ That a contract of the nature, first supposed by Chambre, J., may be made, so that it will be considered as executed by the mere lading of the goods, we do not doubt; but we cannot think that such a contract can be implied from the mere fact of the freight’s being paid down, because reasons may and often do exist for exacting this, without any intention to vary the legal liabilities of the parties.”

It is undoubtedly competent for the parties to contract upon any terms they may think proper ; and the shipper may agree to pay freight in advance in consideration of the carrier’s promise to receive the goods on board, and to undertake to carry and safely deliver them at some other port. In such a case the carrier is entitled to the freight according to the contract, and if the performance of the promise on his part becomes impossible by the act of God, he is excused from non-performance and the loss falls on the shipper. This would be so on general principles applicable to all contracts where the thing done or money-paid by the one party is the consideration of a promise of the other party to do something on his part. If performance becomes impoxssible through some overruling necessity, and without the fault of the party promising, the other party cannot recover back the money paid, nor for the thing done.

It is also a well-settled principle of law, that where money is paid, or a promise made by one party in contemplation of some act to be done by the other, and the doing of which is the sole consideration of the right to receive payment or require a performance of the promise, and the thing stipulated to be done is not performed, the money may be recovered back, or the promise founded on such consideration may be avoided between the parties to the contract.

In this case, by the settled principles of law, and the legal effect of the contract as evidenced by the bill of lading, the right to freight depended on the performance of the voyage and a delivery of the goods at San Francisco. The goods were not carried to that port. It was no fault of the shipper. After the contract had been made, and the legal rights and liabilities of the parties had become fixed, the shipper advanced the freight. ■ The act, the doing of which entitled the defendants to it, has not been done. The defendants have not performed the acts, the performance of which was a condition precedent to their right-to require payment. The consideration for the advance has failed, and the defendants must refund the money. Story, J., in Pitman v. Hooper, 3 Sumner, 66, comments on the case in 2 Shower R. 283, as one loosely, reported, and not easily reconcileable with strict principle, and declares his opinion of the law to be, that in the ordinary case of freight paid in advance, if the voyage is not performed, the shipper may recover it back, unless it was paid under an express agreement to the contrary.

Ch. J. Kent, in Watson v. Duyckinck, 3 J. R. 335, and in his Com., vol. 3, p. 226, lays down the rule of law applicable to this subject, as it was decided to be, in Griggs v. Austin; Mashiter v. Buller, 1 Camp. 84, is to the same effect. We are of opinion that there is no error in the decision excepted to, and the judgment appealed from must be affirmed with costs.