author: By the Court. Slosson, J.

text:
    Freeman C. Chapman v. Henry A. Kent and others.
    Toll & McArdle, merchants in Ohio, by an agreement in -writing, sold to the plaintiff 1Í4 sacks, containing about 80,000 pounds of wool, which they had previously shipped to the defendants, in New York, upon the following terms: The wool to be weighed in New York by a city weigher; the plaintiff to pay all charges for transportation and insurance, and for storage and cartage in New York, and none other; to pay 30 cents per pound for the wool, and 62j-cents a piece for each sack. The plaintiff paid |8,000 on account, and agreed to pay the balance on the delivery of the wool to him in New York. If any of the wool should have been sold by the defendants, before the agreement was presented to them in New York, the sale to plaintiff to be limited to balance, in their hands.

      Held, that this agreement was executory and contingent, and transferred no title to the plaintiff that could enable him to maintain an action for the wrongful conversion of the property.
    Toll & McArdle, being largely indebted to defendants, agreed, in consideration of further advances to be made by defendants, to ship to them wool and property enough to balance their account, and the defendants agreed to this, and made . the advances, with the understanding that the goods to be shipped should be sufficient to satisfy, not only what was then due, but all claims against Toll & McArdle that might subsequently accrue.

      Held, that by virtue of this agreement and understanding, the defendants acquired a lien upon all goods subsequently shipped to them by Toll <fc McArdle from the time of their shipment, and that this lien was not limited to their advances on each shipment, but extended and was available to the satisfaction of the general balance due to them from Toll & McArdle.
    (Before Doer and Slosson, J.J.)
    Feb. 23, 25, 1854.
    This action was brought to recover damages for an alleged wrongful conversion by the defendants of 174 sacks of wool, of which the complaint averred that the plaintiff was the owner, and demanded judgment for $12,000.
    The answer of the defendants denied the title of the plaintiff, and the wrongful conversion charged, and averred, that the wool in question had been consigned to them by the firm of Toll & McArdle, merchants in Ohio, and that the defendants, as consignees and factors, and under an agreement with Toll & McArdle, had a lien thereon,- and on the proceeds thereof, for the purpose of satisfying a balance due to them from Toll & McArdle, exceeding the sum of $10,000, and which arose from the advances made by them upon and against consignments from Toll & McArdle.
    The plaintiff averred in his reply that, for the purpose of satisfying any possible claim or lien of the defendants, he had tendered to them before the commencement of the suit, and when he demanded from them the delivery of the wool, the sum of $6,000, and that they refused to receive the same and deliver the wool; and he averred, upon belief, that the sum so tendered exceeded the amount of the advances, if any, -made by the defendants on account of the wool.
    In January term, 1852, the cause, by the consent of the parties, was duly referred to Alvin C. Bradley, Esq., as sole referee, and in January, 1853, the referee made the following Report:—

      To the Superior Court of the City and County of Hew York.
    I, the undersigned, the Eeferee appointed to hear and determine the matters in controversy in this cause, respectfully report as follows:—
    1st, as to facts:—■
    The defendants were in June, 1850, and for a long time before had been, grocery and commission merchants in the city of Hew York. Toll & McArdle, of Eepublic, Ohio, had, for a long period, been their customers. Their way of doing business was, in substance, thus :—The defendants sold them goods always at four months’ credit, and accepted drafts drawn by them. Toll & McArdle, on the other hand, shipped the defendants property for sale, and made remittances of cash or securities which were, when received, credited to them in general account, without any reference to the question whether the credit for merchandise sold had expired or not, the books being kept correct by the allowances of interest.
    In April, 1850, Toll & McArdle had, in this way, become indebted to the defendants in the sum of $3,324/^%-, then actually due, besides $2,643T°/S in accommodation acceptances of the defendants for them, then outstanding unmatured. This balance they were at that time unable to pay, but they stated that by the defendants advancing them the means to buy wool during the wool season, they could, by paying part in cash for the wool, be able to collect in many of their old accounts, and thus ship to the defendants, during that summer, wool and property enough to balance their account. This the defendants agreed to do, with the understanding between them that Toll & McArdle were to ship goods enough to balance not only what was due, and falling due at that date, but for all claims that might subsequently accrue, and thus balance the accounts.
    In pursuance of this arrangement, Toll & McArdle drew, and the defendants accepted,.between April and 15th June, bills to the amount of $5,602T'yL. The latter then refused to accept further, and suffered a draft for $2,000 to be protested. In the meanwhile, however, Toll & Me Ardle had made remittances to the amount of about $2,300, but had also, in other ways, besides drafts, added to their indebtedness, so that at all times, between the 20th of June and the commencement of this suit (July 5th, 1850), there was a balance against them, including acceptances not yet matured, of not less than $9,000.
    But on or before the 21st of June, 1850, Toll & McArdle had purchased a large quantity of wool, the property in controversy, and had. shipped it from Tiffin and Republic, Ohio, marked as follows, to wit:—47 sacks marked [E.], and the residue marked Toll & McArdle, all to the care of Kent, Poag & Co. (the defendants), New York. On that day they made the following contract with the plaintiff:—■
    “We have this day sold all our lot of wool, about thirty thousand pounds’ weight, to F. C. Chapman, upon the following conditions:—Said wool is contained in one hundred and seventy-four sacks, or upwards, which have been shipped from Tiffin and Republic, Ohio, marked as follows, to wit:—47 sacks are marked [E.], and the remainder are marked Toll & McArdle, all to the care of Kent, Poag & Co., New York. Said lot of wool is to be weighed off in New York by a city weigher, by whose weights we agree to settle. Said Chapman is to pay all transportation charges and insurance, which have or may accrue upon said lot of wool from the time it was put on cars, at the points from starting, until said wool arrives at • New York, and is also to pay the storage and cartage in New York on all that arrives there previous to the 25th of the present month, but is not to pay any commissions, or any other charges on said wool in New York, except as specified above. Said wool has been insured at the office of Kent, Poag & Co., New York. Said Chapman is also to pay us thirty cents per pound for said wool, and sixty-two and. a half cents a-piece for each sack. We have received from said Chapman upon said lot of wool three thousand dollars, and he is to pay, or cause to be paid to us, or our agents in New York, the balance due to us on said wool as fast as weighed off and delivered to him in New York. We also agree to deliver, or cause to be delivered to the said Chapman, so soon as he shall arrive in New York, all the above-named lot of wool that has arrived there at that time, and the balance as fast as it arrives there, or forfeit and pay to the said Chapman the sum of two hundred and fifty dollars, in addition to the money and interest which the said Chapman has paid to us on said lot of wool. The same being for his trouble and expenses in attending to said wool.
    “ In case that any of the above-mentioned wool has - arrived and been sold by Kent, Poag & Co., before this is presented to them, then the said Chapman is to have the balance on the above specified terms.
    “Tom & McAbdle.
    “ Sandusky, June 21st, 1850.”
    Appended to which was an order or request, of which the following is a copy:—
    “ Republic (0.), June 21st, 1850. “Messrs. Kent, Poag & Co., Hew York:
    “ Gent.,—Please deliver over to the bearer, F. C. Chapman, all our wool consigned to you, by his paying to you the balance due to us on said wool, as specified in the annexed writing, and his complying with the terms therein contained, and oblige,
    “Yours truly,
    “Toll & MoAjrdle.”
    The plaintiff paid to Toll & McArdle $3,000, as stated in the agreement.
    The wool subsequently all came to the actual possession of the defendants. On the arrival of the plaintiff in Hew York he claimed from the defendants the delivery of the wool to him in pursuance of the contract and the order. To this the defendants refused to accede, but claimed to hold the property and to sell it for the payment of all their balance due, and to grow due, against Toll & McArdle ; of the amount of this balance, as well as the nature of the claim, the plaintiff was then distinctly informed. Subsequently, and on the 29th of June, 1850, the plaintiff demanded, or caused to be demanded, the delivery of the wool, in pursuance of the contract and order, and tendered at the same time the sum of $6,300 (and offered to pay more, if more were necessary), to coyer any charges, advances, or just liens which the defendants had on the property, exclusive of the previous indebtedness of Toll & Mc-Ardle.
    The defendants declined to accept the tender and to deliver the property.
    The defendants afterwards sold the property at fair market prices, and after applying the proceeds to the credit of Toll & McArdle, the latter were still indebted to them in a small sum,
    . which, after the commencement of this suit, was discharged by the proceeds of other property of Toll & McArdle, received in the latter part of July, and in August, 1850, leaving a balance the other way of about $900, which still stands to their credit.
    On these facts, I am of opinion, and do decide, that the defendants had lawful right to retain the said property as security for all the demands then running in their favor against Toll & McArdle; that they justly refused to deliver the same to the plaintiff on his said demand thereof, and that therefore they have not wrongfully converted the same to their own use, and that the defendants ought not be adjudged to pay any damages by reason of the premises to the plaintiff, but that judgment be entered in favor of the defendants with costs of suit.
    A. 0. Bradlet.
    Flew York, January 21st, 1853.
    The plaintiff in due time filed exceptions to this report, and judgment having been entered thereon in favor of the defendants for the sum of $310 68, for their costs and disbursements, he appealed therefrom to the General Term. Upon this appeal the exceptions to the report of the referee were now argued.

      A. Child, for the plaintiff, appellant,
    contended that upon the facts found by the referee, the plaintiff was entitled in law to recover the value of the property in dispute, and rested his argument upon the following points and authorities.
    I. The title to the property in question, it having been purchased by Toll & McArdle, was, on the 21st of June, 1850, in them. It was never transferred to the defendants, nor delivered to a carrier for them, but was shipped by Toll & McArdle, as their own property, marked with their own names, except forty-seven bags marked L, and was simply consigned to the care of the ‘defendants. It was then all of it in cars or boats between Ohio and Hew York, none of it having arrived. Toll & McArdle then had the right to control it, and to sell it.
    II. Toll & McArdle having, the right to control and sell this property, did in fact sell it to the plaintiff, on the 21st of June, 1850, who thereby, and by his subsequent tender and offer, acquired a title to it. 1. The contract was specific as to the property sold. It was not a quantity to be ascertained of a larger parcel, but an entire certain parcel. “ All our lot of wool,” &c., “ contained in sacks,” &c., “ which have been shipped,” &c. 2. It was absolute as to the terms of sale,—three thousand dollars of the purchase money being paid, and a specific agreement being made as to the time and mode of settlement for the remainder of the price, and an express direction in pursuance of it being given for its delivery. The title passed to the plaintiff. (2 Black. Com. 446; Portland Bank v. Stacey, 4 Mass. 661; Putnam v. Dutch, 8 Mass. 287; Ingraham v. Wheeler, 6 Conn. 277 ; 2 Kent Com. 492.) 3. The ascertaining of the amount by a city weigher in Hew York, was merely an agreed mode of settling for the purchase price, and not an act to bé done by the seller to complete the contract, within the class of cases where title has been held not to pass in consequence of the incompleteness of the contract by the seller. There was nothing to be done on his part; he sold the property, and the offer and tender of the plaintiff was tantamount to a performance by him, and his right to the possession became perfect. (Crofoot v. Bennett, 2 Com. 249; Burk v. Davis, 2 M. & S. 397; Olyphant v. Baker, 5 Den. 379; Downer v. Thompson, 2 Hill, 137; Bates v. Conklin, 10 Wend. 389; Fitch v. Beach, 15 Wend. 221.)
    HI. The defendants had no lien on this property which entitled them to retain it and convert it to their own use.'-1. As to any particular lien, if there was any, it was discharged by the plaintiff’s offer and tender.. 2. As to any general lien, it could only be for a debt due from Toll & McArdle, and upon property in the defendants’ hands, belonging to them, but it could not attach to this property, which had been conveyed- to the plaintiff, before it came into their hands. If Toll & McArdle bad no title, the defendants could have no lien. • 3. Assuming that the defendants, from their course of business, might have had a right to retain any property of Toll & McArdle in their, hands, for a debt due to them, no lien could attach to other property of theirs before coming into their hands, nor deprive Toll & McArdle of their right to dispose of their property while in their own hands or under their own control, at pleasure. 4. There was no custom shown, as the .foundation of a general lien,.nor was there anything in the defendants’ dealings with Toll & McArdle, which give them such a lien, (the only two legal grounds, except by express contract, for the existence of a general lien), on any property, for the debt due in April, 1850, or their acceptances then unmatured, or for their subsequent acceptances. They trusted the personal credit of Toll & McArdle, and had no right of lien on property which had or thereafter should come into their hands. (2 Kent, 634, 637; Houghton v. Mathews, 3 Bos. & Pav. 485-494; Bleadon v. Hancock, 4 Car. & Payne, 152,19 C. L. 317; Bushforth v. Hadfield, 7 East. 224.) 5. There was nothing in the understanding of April, 1850, as to acceptances, which gave them any such right of lien; on the contrary, whatever- was the import of that understanding, it was broken and discharged by the defendants’ refusal- to abide by it. There was never any contract giving them a lien on this .property or any right to the possession of it".
    TV". If the defendants were entitled to retain the property at all, they were not entitled to retain it, for the full amount, and the plaintiffs should have had judgment for the excess of the. value of the property over and above the amount for which they were so entitled to hold it, which should have been ascertained.'

      C. Jones, for the defendants (respondents), claimed an affirmance of the judgment with costs, and argued as follows.
    It being conceded that the referee correctly found the -facts in this case, the only question raised by the appeal, is, whether he committed any error in his conclusions of law.- It is submitted that he did not, because—

      I. The respondents were commission merchants, and factors of Toll & McArdle. By the course of business, and the relation existing between them, the former had not only a lien upon the wool for their advances, but could also hold it for the balance due them. (Story on Agency, § 376 ; Paley on Agency, 128-9; 2 Kent Com, 640; Hudson v. Granger, 5 Barn. & Ald. 27; Knapp v. Alvord, 10 Paige, 205.)
    H. The respondents also had a right to hold the wool, by virtue of the agreement entered into between them and Toll & McArdle in the month of April, preceding its shipment.
    IH. The wool having been shipped to and having actually come into the possession of the respondents, under the agreement entered into between them and Toll & McArdle, and the agreement having thus been executed, Toll & McArdle had no title to the wool, or at most could only demand its delivery on paying the amount of their indebtedness to the respondents, which was over $9,000.
    IY. Ho title passed to the appellant by the contract made by him with Toll & McArdle. 1. The contract under which he claims title was executory merely, and was never executed. 2. The offer of the appellant to perform, did not operate as a transfer of title, or as an execution of the contract, but at most only places the appellant in a position to bring an action against Toll & McArdle, on the contract itself for its breach. (McDonald v. Hewitt, 15 Johns. R. 349 ; Rapelye v. Mackie, 6 Cow. 250; Outwater v. Dodge, 7 Cow. 85 ; Russell v. Nicoll, 3 Wend. 112; Ward v. Shaw, 7 Ib. 404; Hanson v. Myor, 6 East. 614.)
    Y. The remedy of the appellant is against Toll & McArdle. If the respondents violated their duty in refusing to execute the contract, they are responsible to Toll & McArdle, their principals, and not to the appellant.
   By the Court. Slosson, J.

The contract of sale between Toll & McArdle and the plaintiff of the wool in question was executory merely, and an absolute right to the possession of the property was not by it transferred to the plaintiff. That this was the true character of the agreement is manifest from several of its provisions. The delivery of the wool was to take place in the city of Mew York, on the arrival of the goods, and the price was then to be paid. The wool after its arrival was to be weighed for the purpose of determining the amount of the price. Moreover, the quantity sold could not be ascertained until the arrival of the plaintiff in Mew York, for if, in presenting the order for its delivery to the defendants, any of it should appear to have been sold by them, the sale to the plaintiff was to be reduced to the balance which might remain unsold. All these were things to be done and ascertained before the right to the property became perfect in the plaintiff, and are made, in express terms, conditions of the contract. That the parties perfectly understood that an actual delivery in Mew York might not be possible, and that the whole transaction was contingent in its character, is further manifest from the fact of their expressly providing for the event of a non-delivery, in which event the defendants covenant to forfeit and pay to the plaintiff the sum of $250, besides refunding to him what he had paid on account of the price agreed upon and interest. Were there no other ground of defence, we do not see how the plaintiff can, under such an agreement, and by virtue of it only, none of its conditions being complied with, be said to have acquired such a right to the possession of, or such a title to, or property in the wool in question, as will enable him to maintain this suit. (Rapelye v. Mackie, 6 Cow. 250; McDonald v. Hewett, 15 J. R. 349; Russell v. Nicoll, 3 Wend. 112.)

But we are clear that the defence must prevail on another ground. The defendants having, under the agreement between themselves and Toll & McArdle, of April, 1850, made advances to that firm, and the wool in question having been actually shipped to them, as we must intend, in pursuance of that agreement, acquired a vested interest in the property from the moment of its shipment, which the subsequent sale to the plaintiff could not divest. It was a part of the understanding upon which the advances were to be made by the defendants, that Toll & McArdle were to ship goods enough to balance not only what was due from them to the defendants at that time (April, 1850) on account of their previous transactions, and what was falling due at that date, but for all claims that might subsequently accrue, and thus balance the accounts; in other words, goods were to be shipped to cover the entire advances and claims of defendants, accrued, accruing, and to accrue, and until this was accomplished every shipment to them by Toll & McArdle, not specially restricted or qualified, was a shipment, in effect, to meet their debt to the defendants, and the title became perfect in the latter, as qualified vendees, from the moment the goods were put in the hands of the forwarders. The Referee has found that at the date of the sale to plaintiff (21st June), and up to the commencement of this suit, the balance due defendants from Toll & McArdle was about $9,000. The tender, therefore, by the plaintiff of $6,300 was not énough; indeed, it was expressly made to exclude the previous indebtedness of Toll & McArdle, and was intended to cover only such advances, charges, and lien as defendants might have, or claim, in respect to the wool itself.

Whether the defendants could have retained the wool, by virtue of their general lien as factors or commission merchants, it is not necessary to decide. It is enough that their right to retain the property was perfect under the agreement of April, 1850.

The refusal of defendants to make further acceptances for Toll & McArdle, after 15th June, and their allowing one of their drafts for $2,000 to return protested, does not alter the legal rights which they had acquired under the agreement of April, by virtue of their advances previous to that date, and which amounted to nearly $6,000. The amount of acceptances, under which they were to come, had not been determined by the agreement of April, and it was necessarily a matter of discretion with defendants; they were not bound, in the absence of an agreement to that effect, to accept indefinitely as to amount, and without respect to the amount of the accruing shipments to meet their acceptances. It is enough that they agreed to accept, and did accept to a large amount, to give them an absolute right in, and right to retain, the goods shipped to them by Toll & McArdle, until the whole amount due them was paid. (Grosvenor v. Phillipps, 2 Hill, 147.)

The claim for the balance due to Toll & McArdle, now in the hands of the defendants, is manifestly groundless, since it appears, from the report of-the Eeferee, that this balance is from the proceeds of goods subsequently sold, not of those claimed by the plaintiff. Had it been otherwise, the balance could not have been recovered in this action, which turns solely upon the question of a wrongful conversion.

The judgment entered upon the report of the Referee must be affirmed with costs.


source: Caselaw Access Project

author: By the Court. Campbell, J.

license: Public Domain

text:
    Isaac A. Hopper v. Samuel H. Adee impleaded with John Tilton, Executors, &c., of F. Weber, deceased.
    Executors having a naked power to sell the real estate of their testator, and not authorized to make repairs, cannot charge the personal estate in their hands with the cost of repairs, although made under a contract with one of them, as an executor. The executor making the contract may he personally liable, but not those who were not parties or privy to the contract.
    Judgment for defendant affirmed with costs.
    (Before Oakley, C. J., Campbell and Hoffman, J.J.)
    March 9, 1854.
    Appeal from a judgment for the defendant upon the report of a referee.
    The complaint charged that the defendants, as executors, &c., of F. Weber, deceased, had employed the plaintiff to furnish materials and make certain repairs upon a house belonging to the estate of their testator; that the value of the materials furnished and repairs made by him was $370 53, of which there remained due and unpaid $170 53, for which sum judgment was demanded against the defendants, as executors,
    The answer admitted that the defendants were executors, as alleged, but denied that they had employed the plaintiff to furnish the materials and make the repairs in question. It also denied that the house, mentioned in the complaint, . belonged to the estate of the testator.
    The cause was referred to Philo T. Euggles as sole referee.

      It appeared from Ms report that the plaintiff had made repairs, &c., upon a house which belonged to the estate of the testator, at his decease, and that the repairs, including the materials wMch he furnished, exceeded in value the .sum of $500. It also appeared that, in making these repairs, he acted under an order or contract in writing signed by Tilton, one of the defendants, as executor, &c., of F. Weber, but there was no evidence that the defendant Adee ever assented to this contract, or indeed, had any knowledge of its existence.
    The will of F. Weber, which was proved and read before the referee, is as follows.
    In the name of God, amen. I, Frederick Weber, of the city and county of Hew York, gentleman, weak in body but of sound mind, memory, and understanding, do make this, my last Will and Testament. After the payment of all my just debts, funeral expenses and testamentary charges, I do give and devise and bequeath unto my affectionate and lawful wife, Caroline Cecilia, the daughter of William Fawsett, the rents, issues and profits of my real estate, and the income or interest of my personal estate, during her widowhood, for her own support and maintenance, and the education, support and maintenance of my four children, Frederick Augustus Weber, Matilda Frances Weber, William Theodore Weber, and Caroline Bruner Weber, and in case my said wife should marry again, then, in lieu of the above provision made for her during her widowhood aforesaid, I do give and bequeath unto my said wife the sum of three hundred dollars yearly, during her natural life, which I direct my executors, hereinafter named, to allow and pay unto her on her separate receipt, half yearly, out of my estate, and upon the termination of the widowhood of my said wife, by marriage or death, • then I do give, devise and bequeath unto my said children, before named, their heirs, assigns, and, the survivors or survivor of them, the residue and remainder of my estates, real and personal, with all the accumulations thereof; I do hereby appoint my said wife the guardian of my said children during their respective minorities; I do authorize my executors, hereinafter named, in case it shall be necessary, to borrow" money to pay assessments that may bp imposed, to mortgage my estate to secure such loan or loans, and to sell, with the consent of my widow, if living, if not, at their option, at any time they may think proper, any part or all of my real estate to advantage and not a loss, and invest the proceeds of the same in stock or in mortgage on real estate as they may think most safe and secure, for the benefit of my widow and children before named. I do hereby give to my executors hereinafter named, five per cent, on the annual rents, income, and interest of my said estate, as a compensation for their trouble for receiving as well as paying, besides all necessary expenses and disbursements in the management of my estate.
    Lastly, I do nominate, constitute, and appoint John Tilton, of New York city, Samuel H. Adee, merchant, and William Richmond, minister of the gospel, executors of my will.
    Jh witness whereof, I have' hereunto set my hand and seal, the fifth day of November, one thousand eight hundred and forty-nine,—hereby revoking all previous wills by me made.
    F. Weber, [l. s.]
    The defendant, Tilton, died during the progress of the reference, and before the referee made his report.
    The referee reported that the plaintiff had failed to establish any cause of action upon the reference, and that the defendants were entitled to judgment against him for their costs. Judgment in their favor was accordingly entered.
    The cause, upon the appeal from this judgment, was now submitted by the attorneys of the parties upon printed points.

      Radcliffe & Whedon for appellants.
    The plaintiff brings this action against the defendants, as executors of the last will and testament of Frederick Weber, late of this city, deceased, to recover $170 53, a balance due for materials furnished, and for work, labor, and services done in and about repairing a certain building in this city, on the Bloomingdale road, known as the Abbey Hotel, belonging to the estate of the said Frederick Weber, deceased.
    The defendants admit that they are such executors; and then simply deny:—1. That they requested the material to be furnished, and employed the plaintiff to do the work. 2. That the Abbey Hotel belongs to the said estate. And 3. That any materials were furnished for, or work done to, the said Abbey and premises.
    The plaintiff should have recovered.
    I. The employment of the plaintiff by the executors clearly appears in the case, and is not attempted to be gainsaid.
    H. The work was done in every respect in good faith, under the employment, and to the value far exceeding the plaintiff’s claim.
    IH. The Abbey Hotel was part or. parcel of the estate of Frederick Weber, deceased. The acts, and the written contract, of defendant, Tilton, show the fact.
    IV. The repairs made were necessary and proper, and a benefit to the estate, and were authorized by the executors under .the will; and having been made in good faith, the plaintiff should have recovered.
    The action is properly brought, and we ask only for, and are entitled to, judgment against the defendants, de honis testatoris. (Story on Con. (2d ed.), 219.)
    V. Executors not only represent the testator, but may, be considered trustees under the will. An executor’s duty as to an estate, is the same as that of a trustee to a cestwi que trust. (Story on Con. (2d ed.), 229, and cases there cited; 1 Story’s Eq. Jurisp. §§ 465,1269 ; Story on Con. (2d ed.), 231.)
    VI. Trustees are bound to perform all acts proper and necessary for the execution of their trusts. In their fiduciary capacity they should exercise the same care a prudent man would of his own property. This being done, they are protected. (Boynton v. Dyer, 18 Pick. R. 6, and cases there cited; Thompson v. Brown, 4 John. Ch. 619.)
    VH. The report' of the referee is defective in not stating sufficiently the grounds or reasons for the report.
    We submit that the plaintiff was entitled to recover upon the evidence'; and that the, judgment should be reversed with costs.

      C. J. & E. De Witt for respondents.

      The opening points submitted by the appellant appear to us singularly inapplicable to the questions raised by the case, and on which the cause was decided by the referee. A simple statement of the case will sufficiently show the court the defence, and the ground of the referee’s decision.
    Frederick Weber, by his will, devised to his wife, Caroline Cecilia, the rents, issues, and profits of his real estate during her widowhood, for her own support and maintenance, and the education, support, and maintenance of his four children, náming them ; and in case of marriage of wife, he, in lieu of said provision, gives his wife $300, yearly, during her life, to be paid by the executors ; and on marriage or decease of wife, he devises the whole of his estate, real and personal, to his children. There was no trust or power vested in the executors as to the real estate, except a power to sell for certain purposes, with the consent of widow, and in event of such sale to invest proceeds. The testator appointed defendants, John Tilton and Samuel H. Adee, and William Richmond, executors. John Til-ton, one of the executors, instructed certain repairs or alterations to be made oh the Abbey Hotel, and to recover for these repairs or alterations this suit is brought.
    John Tilton, one of the defendants, died while suit was pending.
    There was no evidence produced showing that the surviving defendant, Adee, gave any instructions or had anything to do with the repairs; nor was there any evidence, except the note of Tilton before referred to, that the premises referred to were under the control or management of the- defendants, or that they received the rents. The referee decided correctly on the point raised by the defendants, and it is the same point upon which the surviving defendant submits this case, to wit:—
    That John Tilton, one of the executors since deceased, could not'charge the personal estate in the hands of executors, with money expended on the real estate which the testator devised to his wife and children. (Admitting, for the purpose of this question, that the testator died seized of the premises mentioned in the complaint, and that no disposition has been made of the premises since testator’s death.)
    There can hardly be any occasion for authorities or argument to sustain this point, but a statement of a few facts-by way of argument will make it appear very clear that there can be no other decision in the case than that made by the referee. Mrs. Weber, the widow of the testator, immediately on his decease, entered into the receipts from the tenants of the rents of all the real estate of the testator, and continued to receive them until her marriage, and has continued from the time of her marriage to receive the rents as testamentary guardian of her children, all of whom are minors.
    John Tilton, the deceased defendant, was, in his lifetime, the only acting executor; he received and managed the personal property, and no part of the personal estate has ever come to the hands of the defendant, Adee; and there are not now, nor have there since the commencement of this suit been, any assets in the hands of the executors, out of which this claim could be paid, if established. The defendants could not plead that there were no assets, because this action is on a contract made by the executor as such, and contracts to pay by executors admit that there are assets, and the effect of a judgment against the surviving executor, Samuel H. Adee, would be, that he would be compelled to pay the judgment without having assets, and without an opportunity to show that there were no assets, and without having any recourse on. any other person.
    The only person liable for repairs is the widow of the testator, who was beneficially interested, and who assented to and approved of making the repairs.
   By the Court. Campbell, J.

We are all of opinion that the decision of the referee was entirely correct, and this for the reasons very clearly stated in the printed argument on behalf of the respondent. These reasons are not merely satisfactory, but they scarcely admit of an addition.

As the testator by his will gave to his executors five per cent, on the annual rents, income, and interest of his estate, as a compensation for their trouble, besides their expenses and disbursements in the management of his estate, it is possible that he intended to vest in them his whole estate, real as well as personal, as trustees for his widow and children; but we cannot hold that the words here used, when compared with the other provisions of his will, can be relied on as evidence of his intention to create an estate in his executors, and we have no right to act upon a mere conjecture. The will gives to them a naked power to sell his real estate, but no authority whatever, to make, direct, or pay for, repairs.

It is possible that the defendant Tilton, by signing the paper directing the plaintiff to make the repairs, although he signed as executor, rendered himself personally liable, and that, had he continued in life, a judgment, even upon the pleadings as they stand, might have been rendered against him; but as the defendant Adee is not chargeable as executor, there is no pretence for charging him personally, since there is no evidence that he ever directed, or assented to, the repairs, or even knew that they were made.

The judgment appealed from is affirmed with costs.


author: By the Court. Oakley, C. J.

text:
    William H. Clark v. The Metropolitan Bank.
    When a teller of an incorporated bank or banking association receives in payment a foreign bank note, contrary to the provisions of the act of the Legislature " concerning Foreign Bank Notes, passed 7th May, 1839,” the bank is not liable for the penalty provided by the statute, unless it is proved that the act of the teller was authorized or adopted by its board of directors.
    A general authority, which may be lawfully executed, is never construed to embrace unlawful acts so as to render the principal answerable in a criminal prosecution or action.
    (Before Oaklet, O. J., Campbell and Hoffman, J.J.)
    March 24;
    April 15, 1854.
    This action was brought to recover a penalty of $1000 for an alleged violation, by the defendants, of the act entitled “ An Act concerning Foreign Bank Notes, passed 'Tth May, 1839.” The first section of the act is as follows:
    “ § 1. From and after the passage of this Act, it shall be unlawful for any incorporated banking institution within this State, and for any association, or any individual or individuals, authorized to carry on the business of banking by virtue of the Act entitled, ‘An Act to authorize*the business of banking, passed the 18th day of April, 1838,’ to receive, pay out, give, or offer in payment, as money, to circulate or attempt to circulate as money, any bill, note, or other evidence of debt, issued or purporting to have been issued by any corporation, association, or individual, situated or residing without this State, and which bill, note, pr other evidence of debt, shall, upon any part thereof, purport to be payable or redeemable at any place, or by any person, association, or corporation within this State.”
    For every offence against these provisions the 4th section imposes a penalty of $1000, to be recovered with costs of suit by any person suing for the same in his own name and for his own use.
    The complaint stated that the1 defendants—a banking association only organized under the laws of this State, on the 15th of July, 1851—had received as money in and towards the payment of a certain promissory note then held by them, a bank bill or note issued by a corporation situated without this State, and of which the following is substantially a copy:—■
    “M. 1950. A.
    “Bank of €harleston.
    “ A. Fo. 1150.. Charleston, 8th Feb., 1844.
    “ Cashier of the Bank of the State of Few York Pay on xx. demand Twenty Dollars to A. Morss, Junr., or bearer, payable also at this Bank.
    “ A. G. Rose, Cashier. H. "W. Conner, Presdt.”

    The complaint averred that the Bank of the State of Few York, referred to in the above,, is a Banking Corporation, duly incorporated by the laws of this State, and carrying on business in the City of Few York, and alleged that by means of the premises an action had accrued to'the plaintiff to recover from the defendants the sum of $1000 with costs, and demanded judgment accordingly.
    The answer of the defendants denied that the aforesaid bill or note of the Bank of Charleston had been received by them as money, as alleged in the complaint.

      Upon the trial, which took place before the Chief Justice and a jury in May, 1850, it was proved that on the day mentioned in the complaint, one A. S. James had paid to an officer of the defendants, called the note-teller, the bill of the Bank of Charleston, described in the complaint, and that the same was received by the teller, as cash, in part payment of a promissory note of one B. L. Corss, then held by the Bank for collection ; but it was proved, on the part of the defendants, that the teller had no authority from the directors, president, or cashier of the Bank, to receive the notes of the Bank of Charleston, and that the fact, that they were so received, was unknown to them all.
    A verdict was taken for the plaintiff for the sum demanded, subject to the opinion of the Court at General Term.

      A. L. Jordan, for the plaintiff, moved for judgment upon the verdict, and relied upon the following points and authorities.
    I. The defendants were organized and doing business as an association authorized to carry on the business of banking, under the banking act of April, 1838 ; on the 15th day of July, 1851, they held Byron L. Corss’s note for $320, payable on that day. Their note-teller, on that day, took the $20 Charleston note in question as part payment of the said Corss note.
    II. The Charleston note was a “ bill” or “ evidence of debt,” “ purporting to have been issued ” by a “ corporation or association,” situated at Charleston, “ without this State,” and, upon its face, purported to be payable by the “ Bank of the State of Hew York,” an “ association or corporation within this State,” and was directly within the words of the statute. (Laws of 1839, chap. 355, § 1.)
    III. It was “ received” by the Metropolitan Bank “ as money.”
    IV. The receipt of it by the defendants from James, on the Corss note, and the surrender or delivery up of the Corss note thereupon (there being no dispute about facts) was, in law, a receipt of it “ in payment;” and not for collection, as set up by the defendants.
    V. It was such paper as was contemplated and designed to be prohibited, by the legislature; paper calculated and manifestly designed to pass as a circulating medium.

      It was of the size, form, and similitude of a bank bill, “ engraved and illuminated as a bank note, and on bank note paper.”
    It was, in point of fact, circulated and in circulation as money.
    It was taken by the Metropolitan Bank as money.
    VI. The note-teller, in taking the Charleston bill in question, was acting within the general scope of his employment, and no direct or express authority to do the particular act was necessary to make the bank liable. (Story on Agency, § 452, and cases there cited.)
    VH. The offence consists in the “receiving” such bill “as money.” There is no necessity for any proof of any agreement or previous arrangement to do the prohibited act.

      E. Sandford and D. Lord, for the defendants, insisted that
    I. The bill drawn by the Bank of Charleston upon the Bank of the State of Hew York for $20, was not such paper as the banks of this State are prohibited from receiving by the act of 1839.
    II. The receipt of this draft by the note clerk of the defendants, under the facts proven in the case, did not constitute a receipt of it as money, but as an instrument by means of which the defendants were to obtain payment of its amount in money. It was a bill of exchange drawn upon a bank in this city ; and it was received by the defendants in the same manner as all other checks and drafts, drawn upon banks, which pay their liabilities in this city, were received. It was accepted as all other uncertified bills and cheeks are taken, upon the faith that the drawee will pay in money upon presentation; and upon that expectation and confidence, and not because the paper was money, or was intended to be received as money, the note-teller received it and gave up the note of Oorss. If this confidence that the drawee will pay the draft proves, as it has often proved, to be unfounded, the bank is limited to a claim upon the substituted paper. Although the paper has been received “ in payment,” its character is not changed, nor the motive, or .purpose, with which it was received, by that fact. It was not received as money.

      EU. Had it been received by the note-teller upon a rebate of any fractional part, and for the same purpose for which it was received and used, we presume it would not have been urged that it was received as money. The price paid or allowed for the paper received in payment does not affect its character. Taking or receiving bills for the sole purpose of making a presentation of them to the parties by whom they are payable, and demanding payment in coin, does not constitute a receiving of them as money, whether they be taken at their nominal value or at a discount; when thus taken they are received as the obligations of parties able and willing to pay them in coin on demand, and with the intention of demanding such payment, and not as the representatives of coin, or with an intention to use them as substitutes for it. The transaction complained of in this action was neither within the letter or spirit of the act of 1839.
    IV. Ho evidence was given on the part of the plaintiff that the defendants aided or assisted in giving any circulation or currency, or had intended to aid or assist in giving any circulation or currency, in any manner, to the draft in question issued by the Bank of Charleston, or any other drafts of a similar character, nor that the defendants had given any currency or circulation to such drafts. On the contrary the proof established that the note-teller of the defendants received the drafts to arrest such circulation by causing them to be redeemed. The Bank of the State of Hew York, to whom he sent them for that purpose, could not re-issue, nor circulate, nor give currency to them.
    V. Ho proof was given, on the part of the plaintiff, of any authority from the defendants to the note-teller to receive in payment the bills of the Bank of Charleston.
    VI. The defendants are a corporation. (The People v. Assessors of Watertown, 1 Hill, 616 ; Willoughby v. Comstock, 3 Hill, 389; Leavitt v. Blatchford, 3 Comst. 19; Gillett v. Moody, 3 Comst. 479 ; State of Ohio v. Leavitt, Court of Appeals, 1852.)
    Vn. To render a corporation liable to'a penalty, under this act, it must be proved that the act was expressly authorized or was ratified by the corporation. 1. An action of trespass cannot be maintained against a corporation, for an act done by one of its agents, unless the act has been directed or ratified with full knowledge of all the facts by the corporation. (Vanderbilt v. The Richmond Turnpike Co., 2 Comst. 479; The Eastern Counties R. W. Co. v. Broire, 6 Excheq. R. 314, 325 ; Angell & Ames on Corp. 4 ed. § 388 ; Ib. §§ 385, 311; Gordon v. Rolt, 4 Excheq. R. 365-67.) 2. To maintain an indictment against a corporation for a misfeasance it must be proved that the corporation, acting by its majority, committed it. (The Queen v. The Great North of England R. W. Co., 9 Q. B. 315, 327.) 3. No proof was given of any authority from the corporation to Halsey, the note-teller, to receive the draft in question. It was proved to have been without the knowledge of the Board of Directors, President, Cashier, and Assistant-Cashier. (Fleckners v. The Bank of W. S., 8 Wheat. 338 ; Hazleton Coal Co. v. Megargel, 4 Barr. 324, 329; Bank of Pa. v. Reed, 1 Watts & Serg. 101, 106.) 4. The note-teller was not authorized to receive this draft, drawn by the Bank of Charleston, by virtue of the general authority under which he acted, if receiving it, in payment of notes held by the defendants, was an illegal act. In such case it is not embraced within any general authority conferred by the defendants to receive payment of notes, because such general authority extends only to receiving in payment coin, or representatives of coin, or bills, or checks, as the defendants had lawful authority to receive. A corporation is not responsible for the unauthorized and unlawful acts of its own officers, although done colore officii. (Roe v. The Birkenhead, &c., R. W. Co., 7 Eng. L. & Eq. R. 546, 549; Fox v. Northern Liberties, 3 Watts & Sergt. 103 ; Hazleton Coal Co. v. Megargel, 4 Barr. 324, 29; Lyons v. Martin, 8 Ad. & El. 512, 14, 15.) 5. It is only where the act ordered to be done, or authorized to be executed, necessarily produces injury or violation of law, that the principal can be made liable under an authority to act in relation to a general subject matter, and without having given authority to do the particular act complained of. All the general authority given by the defendants to the note-teller could have been executed without any violation of law. (Peachey v. Rowland, per Maule, J., Eng. L. & Eq. 442, 43, 44; Thayer v. City of Boston, 19 Pick. 511, 515,15,16 ; Ellis v. The Sheffield Gas Co., 18 Lond. Jur. 146, 47.) 6. If it shall be urged that it is the presumption of law that the note-teller did his duty in receiving this bill, it is also legal presumption that the defendants are innocent of any offence against the law, and that the defendants did not instruct the note-teller to violate the law. These presumptions being equal and antagonistical, there is no evidence in the case, except the naked receipt of the bill by the note-teller to send it to the State Bank for, redemption, and in sending it, and causing it to be redeemed accordingly, without any knowledge, or information of either act, on the part of the directors or any other agents of defendants. No legal presumption of the guilt of the defendants arises from these acts of the note-teller. (4 Barr. 329, per Gibson, C. J.; Clayton v. Wardell, 4 Comst. 230, 237; Rex v. Twyning, 2 B. & A. 386; Greensborough v. Underhill, 12 Verm. 604, 606.) 7. The defendants, through the Board of Directors and officers, intrusted with the direction and supervision of its business, being wholly ignorant of the act of the note-teller in receiving this draft of the Bank of Charleston, and causing it to be redeemed, are not chargeable with the commission of any offence by reason of their having received money from, or a credit with, the Bank of the State of New York, for the amount of the bill, in ignorance of such acts of the note-teller. (Church v. Mansfield, 20 Conn. R. 284-87; Freeman v. Rosher, 13 Q. B. 780, 788; Lewis v. Read, 13 M. & W. 834-37.)

      C. O'Conor was heard in reply.
   By the Court. Oakley, C. J.

We are all of opinion that upon the facts 'proved upon the trial, the defendants are not chargeable with a violation of the provisions of the Act of 1839, and are, therefore, not liable for the penalty demanded.

It may be admitted that the bill or note of the Bank of Charleston was, in its term and purport, exactly such, as the Act describes, and its reception by the teller an offence against the provisions of the statute; still, unless his offence must, in judgment of law, be imputed to the defendants, this action cannot be maintained; and we are satisfied that such an imputation, in a case like the present, is not warranted by any law that we are bound to administer. We are satisfied upon principle, and upon the authorities, that in order to charge the defendants, as an association, with a violation of the statute, subjecting them to the penalty it imposes, it was necessary to be shown that the teller, in receiving the bill of the Bank of Charleston, acted under an authority from the board of directors, or that his act was subsequently made known to and adopted by the board ; and not only was no such evidence given, but it was clearly proved, that there was neither a prior authority, nor a subsequent assent. The counsel for the plaintiff have indeed urged—and upon this argument rested their case—that no such authority or assent was necessary to be proved, since it clearly appears that the teller, in receiving the bill of the Bank of Charleston as a payment, acted within the general scope of his employment and duties. But we think that the argument of the learned counsel was a novel and unwarranted application of the rule, and of the decisions, upon which they relied. It is undoubtedly true, that in many cases a principal is responsible for the act of his agent, which, although an abuse or excess of the authority of the agent, was within the general scope of the business he was employed to transact; but this is only true between the principal and a third person who, believing, and having a right to believe, that the agent was acting within, and not exceeding or abusing, his authority, would sustain a loss, if the act were not considered as that of the principal. It is only true, where the sole question is, by which of two innocent parties a loss resulting from the fraud or misconduct of an agent ought to be borne ? It is plain, however, that no such question arises here. Here, the person who paid the bank bill in question knew that the teller violated his duty in receiving it; for we are just as much bound to impute to him a knowledge of the provisions of the statute as to the teller himself. And the person on whose behalf the bill was presented to the teller, so far from sustaining a loss, derived a benefit from its reception. The case before us, therefore, is not that of an innocent person, not chargeable with notice, actual or constructive, claiming an indemnity for an actual loss, and we repeat that it is to such cases only that the rule, holding the principal to be liable for the misconduct of his agent, has ever been applied, or, in our judgment, can reasonably or justly be applied.

Ñor is this all. The reception, by the teller, of the bank bill, which seems to have been used to entrap the defendants into a violation of the statute, and render them liable to its penalties, was not an act within the general scope of his employment, or which those who dealt with him had any right so to consider. His employment and his duty was to receive payment, in money, of the bills and notes placed in his hands as teller. In the discharge of his duty he had no right to receive any thing but money, in the legal sense of the term, and á fortiori, no right to receive that which the Legislature had declared should in no case be considered as money. There is no room, therefore, for a presumption that he had any authority from the defendants to perform an unlawful act, and we hold it to be quite certain that the authority of an agent, however general, if capable of being executed in a lawful manner, is never to be extended by construction to acts prohibited by law, so as to render his innocent principal liable in a criminal action or prosecution, and it is needless to cite authorities to prove that an action for the recovery of a penalty is, in its, nature, a criminal action. It is, emphatically, an action in which, in order to establish the guilt of a defendant, his knowledge and approval of the commission of the act prohibited are necessary to be proved.

The verdict for the plaintiff must be set aside, and a verdict and judgment thereon be entered for the defendants.

       The above was one of sixty suits brought by the same plaintiff against the Metropolitan Bank, for similar causes of action, and which seemed, from the evidence upon the trial, to be the result of a conspiracy to break down the institution.


author: By the Court. Hoffman, J.

text:
    James McMaster v. William Vernon and Samuel B. Vernon.
    A judgment obtained against one partner, upon notes or drafts made or drawn by him for the purpose of satisfying a debt due from the firm, extinguishes the joint liability of the partners, and is a bar to a recovery in any subsequent action against them for the same debt.
    (Before Oakley, C. J., Campbell and Hoffman, J.J.)
    March 21;
    April 29, 1854.
    This action was brought by Levi H. Gale, the original plaintiff, to recover of the defendants, surviving partners of the firm of William Vernon and Company, the sum of $15,271 33, with interest, for advances and disbursements alleged to have been made by the plaintiff at the request and by authority of the defendants in Hew Orleans, in the year 1831, and the succeeding years to 1835 inclusive, in establishing and putting into operation at that place on their account two brick-making machines.
    The cause came on to be tried before Mr. Justice Bosworth and a jury on the 15th June, 1852.
    After the trial, in April, 1851, Gale died, and McMaster as his successor in interest was substituted, as plaintiff, by an order of the court. (Code, § 121.)
    There are only two questions arising upon the evidence upon the trial, that it is deemed proper to notice, as it was upon these that the decision of the court wholly turned.
    The plaintiff claimed to recover the sum of $250, as money expended by him, at the request of the defendants, in putting up the first machine; and, in support of the claim, a letter addressed to him by W. Vernon & Co. was read in evidence, containing the following passage. “ We request you to permit Mr. Hearsey to set up said machinery in Hew Orleans or its vicinity and work it a week, if he wishes to try it so long, before you require payment. We also request you will, if required, pay the charges necessary to set up said machinery, not exceeding $250.” The judge excluded the proof that was offered to show that this sum had been expended by the plaintiff in setting up the machine, unless the advances were proved to be made in setting up the machine for Mr. Hearsey, as specified in the letter, and to this ruling the counsel for the plaintiff excepted. The firm of W. Vernon & Co. consisted of the defendants and Philip H. Vernon, deceased.
    Ho proof having been given that the first machine had been set up for Hearsey, the claim for $250 was entirely rejected.
    In respect to the second machine, the plaintiff proved that he had made disbursements and advances amounting to more than $4000, for which sum, with interest, his counsel insisted that he was entitled to a verdict.
    In bar of this demand the counsel for the defendants insisted and gave evidence to show: 1. That all the advances made on account of this second machine had been made upon the sole credit of the deceased partner, P. H. Vernon, and that the firm of W. Vernon & Co. had no property or interest in the machine whatever; and 2. That P. H. Vernon, for the purpose of reimbursing to the plaintiff the advances so made, had drawn and delivered to him bills upon his father—not one of the firm—covering the whole balance then claimed to be due; and that these drafts not having been accepted and paid, the plaintiff had brought an action thereon against P. H. Vernon in the Supreme Court of Rhode Island, and in such action had obtained a judgment for the whole amount covered by the drafts. The record of this judgment was produced and read upon the trial, and upon all the grounds so insisted on, the judge held that the plaintiff was not entitled to recover, and directed the jury to find a verdict for the defendants. To this decision the counsel for the plaintiff excepted. "
    The cause was now before the court upon an appeal from the judgment entered upon the verdict so directed.

      E. Sandford, for the plaintiff,
    moved for a reversal of the judgment and a new trial, and rested his argument upon the following points.
    I. The judge erred in excluding the evidence of the amount of the advances made by the plaintiff on the first machine.
    II. The judge erred in admitting in evidence the record of the judgment recovered by the plaintiff against Philip H. Vernon.
    TIT. The plaintiff had given evidence of demands against the defendant sufficient to entitle him to go to the jury.

      IY. The plaintiff was not estopped or precluded from recovering the demands so proved by the judgment given in evidence.
    Y. The judge erred in refusing to submit the case to the jury, and in his direction to them to find a verdict for defendant.
    YI. The verdict should be set aside, and a new trial granted, with costs, to abide the event.

      D. Lord, for defendants, made and argued the following points.
    I. 1. The evidence as to the second machine clearly shows those advances to have been on the credit and account of Philip H. Yernon only; there is no conflict of evidence on the subject. 2. There is no evidence of any ownership by W. Yernon & Co. in the second brick machine, and they could not be made liable except by a writing expressing the consideration. 3. The judgment against Philip H. Yernon, individually, merged the claim for these advances, and no person could be afterwards sued jointly with him for the same.
    H. 1. The evidence is clear and undisputed, that W. Yernon & Co. were not owners of the first machine, and no advances thereupon, or for its owners, can be brought to charge them, unless by writing signed by them. 2. The only writing is the letter of February 6, 1830, assuming charges necessary to set up that machine, to be done by Mr. Hearsey or his assigns. There was no evidence that Mr. Hearsey or his assigns did set it up, or that the charges incurred were with his or their sanction. 3. All the advances claimed could and should, if just, have been introduced and recovered in the suit in Rhode Island against the defendants. The plaintiff cannot lay by, and split up his claim of the same nature into more than one suit. He is precluded by the judgment in the suit he adopted. ( Vendernagle v. Cocks, 19 Wend. R. 207, and cases there reviewed.)
    III. The giving of time by taking the drafts on the owners of the machines discharged the Yernons as guarantors.
   By the Court. Hoffman, J.

The action is to recover the sum of $15,271 33, with interest, for advances and disbursements made at New Orleans, by the request of the defendants, in establishing and putting into operation two brick machines.

Two distinct accounts are produced in evidence. One relates to the first machine for making bricks, the other to the second. The latter will be first referred to.

I. This account, as to the second machine, begins January 3d, 1833, and closes 12th of June, 1833, with a balance of §4,153 3 L of debits, and this is closed by a credit of two drafts on S. Yernon, of Newport, for §4,350 94, exchange and interest being deducted, §198 69.

The account is carried on at folio 172 (a confusing transposition in printing), when the drafts are re-charged under date of July 13, 1836, with interest. Certain other small charges are added of about §226, and the account ends (with §810 96 of interest added) in a balance of §5,290 65.

This account was the subject of an action brought by Gale, assignee of the plaintiff, in Rhode Island, against P. II. Yernon, one of the partners, singly. The judgment was for the exact amount of the drafts, $4,350 94.

It is insisted that the evidence of Knowlton raises a case fit to go to the jury, whether the defendants had not undertaken to pay all expenses attending the trial of the second machine • and Millandon proves expenses (if his evidence is admissible) for the second and third trial, of $1,751.

It is certain, however, that Gale opens an account for this second machine with P. H. Yernon, and brick machines only, and other evidence tends to show that he looked to him only.

The questions are rendered unimportant by the effect which the law gives to the judgment obtained in Rhode Island. This was obtained against Philip H. Yernon, in November, 1833, upon the identical debt incurred for the second machine. Yer-non was a partner, in the firm now sought to be charged on this account; and so the question distinctly arises as to the force of that judgment.

The authorities are decisive that a judgment obtained on a note, given by one partner for a joint liability, extinguishes the demand. If the case of Peters v. Sandford, 1 Denio, 224, is not overthrown, this is unquestionable law. The suit in Rhode Island was upon P. H. Vernon’s drafts on his father, S. Vernon, at Hewport.

The case of Waydell v. Luer, 5 Hill, 448, relied upon by counsel, was a case of a mere note given by one partner. It was held not to extinguish the joint liability. The case of a judgment on such a note is very different.

Roberts v. Smith, 18 John. R. 459, applied the doctrine of extinguishment of a joint responsibility by a judgment against some of the parties to the case of dormant partners. But relief probably could be had in equity. ( Watson v. Owen, 1 Rich. R. S. C. 111; Renny v. Martin, 4 John. C. R. 566.) See also Smith v. Black, 9 Serg. & Rawle, 142 ; Pierce v. Kearney, 5 Hill, 82.

We are clearly of opinion that the verdict cannot be interfered with, so far as this part of the case is concerned.

H. The other branch of the account relates to the expenses and advances connected with the first machine. There is not the slightest evidence to render the defendants liable for any part of this account except as to the item of $250. Indeed, this becomes the only question, in the whole cause, upon which a doubt can arise.

That item is sought to be supported by a letter of the defendants, of the 6th of February, 1830, engaging to be responsible, under certain conditions, for the expense of putting up the first machine, to the limit of $250. Other corroborative circumstances are referred to.

The judge, at the trial, excluded this evidence from going to the jury, unless the advances were proved to be made, in setting up the machine for Mr. Hearsey, as specified in the letter of the 6th of February, 1830.”

We have carefully examined this point, and are of opinion that there was not error in this ruling of the judge, and that the verdict cannot be interfered with .even upon this, the only question, in the case, of any difficulty.

The application for a new trial is denied with costs.


author: Duer, J. Slosson, J.

text:
    John Jamieson v. Diebold Millemann.
    The main distinction between a grant and license to enter upon lands is, that the latter, whether made by parole or in writing, is, in all cases, revocable at pleasure The single exception is where the license is annexed as an incident to a valid grant, and its exercise necessary to a beneficial enjoyment of the grant.
    A parole license that, if held to be irrevocable, would operate as a transfer of an estate or interest in land, is wholly void, except as a justification for acts done under and prior to its revocation.
    In such cases, although the licensee in acting under the license has incurred expenses, a tender of amends is not a condition precedent to a valid revocation.

      Held, upon these grounds, that the charge of the judge upon the trial, that the plaintiff had a right to revoke a license set up as a defence without a tender of amends, and that the defendant was answerable for all damages done by him after the revocation, was correct.
    (Before Duer, Bosworth, and Slosson, J.J.)
    April 3;
    April 29, 1854.
    This was an action to recover damages for an entry, by the defendant, upon the plaintiff’s close, a lot of ground on Twenty-sixth street in the City of New York, and digging and carrying away the soil.
    The answer of the defendant denied that the plaintiff was entitled to the possession of the lot described in the complaint upon which the alleged trespass was committed, and averred that he, the defendant, was the owner thereof in fee, and that when he purchased the same he received from the plaintiff full license and permission to enter and build an ice-house and smoke-house thereon, and that his entry, and the excavations made by him, were under and by virtue of this license.
    IJpon these pleadings the cause was tried before the Chief Justice and a jury in October, 1853.
    The plaintiff proved that he was entitled to the possession of the premises in question under a lease for five years, .of which more than two were unexpired when the alleged trespass was committed ; that the defendant entered thereon by workmen in his employ, and under his direction, in the month of March, 1853. and made a larsre excavation with the view, as he averred. to the erection of an ice-house; and that he continued the work for some days after he was expressly forbidden by the plaintiff, and until restrained by an injunction.
    The defendant proved that in Hovemher, 1852, the fee of the lot held by the plaintiff under his lease was conveyed to him for a valuable consideration, and that before and after the purchase the plaintiff had said that he, the defendant, might enter and build an ice-house upon the lot if, by so doing, he would not injure the window-lights and alley-way of the plaintiff, and that the entry of the defendant was after this permission had been given, and for the sole purpose of building an ice-house.
    The Chief Justice, in charging the jury, said that the plaintiff had a right to revoke the license given by him without any tender of amends to the defendant, and that for all damages done to the lot by the defendant and his workmen, after such revocation, the defendant was answerable. To this part of the charge the counsel for the defendant excepted.
    The jury found a verdict for the plaintiff, and assessed his damages at $95.
    ■The verdict was taken, subject to the opinion of the court at General Term, with liberty to the defendant then to move for a dismissal of the complaint.

      L. B. Shephard for the defendant.
    I. The complaint in this action should be dismissed. 1. The permission of Jamieson that Millemann might build an ice and smoke-house was a valid license, although by parole. It was not designed to convey any interest in the land, hut merely a right to do an act upon it. It did not absolutely exclude the licensor from the use of his land, nor was the ice-house contemplated by it a permanent structure within the Hew York and Massachusetts cases cited, viz: 3 Kent. Comm. 452; Barnes v. Barnes, 6 Vermont, 388; Ameriscoggin v. Bragg, 11 New Hampshire, 102 ; Woodbury v. Paishley, 7 id. 237; Mumford v. Whitney, 15 Wendell, 380; Houghtaling v. Houghtaling, 5 Barbour, 383; Davis v. Townsend, 10 Barbour, 333; Miller v. The Auburn R. R. Co., 1 Hill, N. Y. R. 61; Stevens v. Stevens, 11 Metcalf, 251. 2. As the question is presented in this case between the grantor and grantee of the license, it is proper as a principle of equitable estoppel, which prevents the plaintiff from setting up aright, inconsistent with his license, to the prejudice of the defendant. (Rerick v. Kern, 14 Serg. & Rawle, 267; 2d Hare & Wallace, American Leading Cases, p. 524.) 3. Millemann having incurred the expense of the excavations previous to the 7th of March, was entitled to a tender of amends upon revocation of the license before he could be stayed from proceeding under it. (3 Kent. Comm. 452; Addison v. Hack, 2 Gill, 221; Ameriscoggin v. Bragg, ut supra; Woodbury v. Paishley, ut supra ; Rerick v. Kern, ut supra.)

      A. Mathews for plaintiff.
    I. The only question in the case is contained in the exception to the charge, and this was correct both as a mere proposition of law and as warranted by the facts in this case. 1. The “license” claimed was to erect a permanent structure for a permanent purpose, was “ an interest in lands” (an easement and not a mere license), and by statute void without a grant in writing. It was even more than an easement, it was a usufructuary right to continual exclusive possession, use, and occupation of the land in question. (2 R. S. 134, § 6,135, § 8 ; Fentiman v. Smith, 4 East. R. 107; Hewlins v. Shippan, 5 Barn. & Cres. R. 221; Bryan v. Whistler, 8 Barn. & Cres. R. 288; Crocker v. Cowper, 1 Cromp., Mees. & Rose, 418 ; Bird v. Higginson, 4 Nev. & Man. R. 405 ; Wood v. Leadbitter, 13 Mees. & Welsby R. 838 ; Philips v. Thompson, 1 Johns. C. R. 145; Thompson v. Gregory, 4 Johns. R. 81; Jackson v. Buel, 9 Johns. R. 298 ; Noyes v. Chapin, 6 Wend. R. 464; Mumford v. Whitney, 15 Wend. 380 ; Miller v. Auburn and Syracuse R. R. Co., 6 Hill R. 62,; Green v. Armstrong, 1 Denio R. 556; Pitkin v. The Long Island R.R. Co., 2 Barb. C. R. 221; Wolff v. Frost, 4 Sand. C. R. 72; Pirrepont v. Barnard, 2 Seld. R. 279 ; Brown v. Woodworth, 5 Barb. S. C. R. 550 ; Houghtailing v. Houghtailing, 5 Barb. S. C. R. 357; Veile v. Osgood, 8 Barb. S. C. R. 130; Brydges v. Purcell, 1 Dev. & Batt. R. 49; Hayes v. Richardson, 1 Gill. & Johns. R. 382; Prince v. Case, 10 Conn. R. 375; Cook v. Stearns, 10 Mass. R. 533; Ruggles
      v. Lesure, 24 Pick. R. 187.) 2. The license was void, for want of consideration, and for uncertainty. (Thompson v. Gregory, 4 Johns. R. 81.) 3. Whether void or not, the license was revocable without tender of amends. (Dexter v. Hazen, 10 Johns. R. 266.)
    H. The plaintiff’s title to the premises in question was older in fact, and in record, and better in equity and honesty than that of the defendant, as claimed under his agreement to buy, and his deed that followed it. (Jackson v. Post, 6 Conn. R. 120 ; Jackson v. Paige, 4 Wend. R. 585; Tuttle v. Jackson, 6 Wend. 213; Jackson v. Post, 15 Wend. R. 588 ; Jackson v. Leech, 19 Wend. R. 339 ; Hooper v. Pierce, 2 Hill R. 650.)
    IH. The verdict should be affirmed,-and judgment awarded for plaintiff, with costs.
    TV. If the verdict is not sustained, the case should be sent back for the plaintiff to have leave to rebut the evidence of license.
   Duer, J.

The charge of the judge upon the trial was, in my opinion, entirely correct. There is this resemblance, and this only, between a grant and a license, that each, while it remains in force, protects and justifies an entry upon the lands to which it relates, but the distinctions-that exist between them are such, and so material, as should prevent them, in any case, from being confounded. A grant passes some estate or interest, corporeal or incorporeal, in the lands which it embraces; can only be made by an instrument in writing, under seal, and is irrevocable, when made, unless an express power of revocation is reserved. A license is a mere authority; passes no estate or interest whatever; may be made by parole; is revocable at will, and when revoked, the protection, which it gave, ceases to exist. It is true, that when a license is annexed as an incident to a valid grant, so that its exercise is necessary to the possession or enjoyment of the property or thing granted, it cannot be revoked. (Wood v. Leadbitter, 13 M. & W. 808 ; Wood v. Manley, 11 A. & Ell. 34; Wettleson v. Sikes, 8 Metc. 34.) But I apprehend, that this is the only exception from the rule, that a license is revocable at pleasure, that the English law and our own admite, and the exception is manifestly not applicable to the present case. Here the permission to the defendant, to enter upon the lot of the plaintiff, was not given for a temporary purpose, but for that of erecting a permanent building, which he was to use and occupy during the residue of the plaintiff’s term; and it is plain that, by holding that this permission could not be revoked, we should give to a mere and verbal authority the effect and operation "of a valid grant, and would in effect decide that an interest in lands may be transferred by parole. Such a decision, however, would be contrary to all the cases in the English reports arid in our own, and, if sustained, would be a virtual repeal of the statute of frauds.

The only authorities' upon which the learned counsel for the defendant relied, in contending that the permission under which the defendant justified, although a parole license, was not revocable at all, or not revocable without a tender to the defendant "of all the expenses, which, upon the faith of the continuance of the permission, he had incurred, were a nisi prius decision of Lord Ellenborough (subsequently affirmed by the King’s Bench), and the case of French v. Kern, 14 Sergt. & Rawle, 269, and other cases in the Supreme Court of Pennsylvania.

In the case before Lord Ellenborough (Winter v. Broderick, 8 East. 308), the land and the possession of the land, to which the controversy .related, belonged not to the plaintiff, but to the defendant himself. It was an open space or area between his house and that of the plaintiffs, which, tinder a parole license from the plaintiff, he had covered by a skylight, a framework of wood and glass. The injury of which the plaintiff" complained was, that, by this inclosure of the area, he was shut out from the light and air, to the enjoyment of which, as an easement annexed to his own land, he was entitled, and by the revocation of his license sought to be restored. Lord Ellenborough, however, was of opinion that the license having been fully executed, the defendant could not be made a wrongdoer, and be deprived of the whole benefit of his expenditure in the erection of the skylight at the mere pleasure of the plaintiff ; and at all events, that the assent given could not be withdrawn without a tender of all the expenses, which, upon the faith of its continuance, he had incurred. In my opinion, this case, admitting the propriety of the decision, has no analogy to the present, since not only was the license fully executed; but its operation was, not to transfer an interest in land, but merely to suspend the enjoyment of an easement. All that the case, therefore, proves is, that by a parole license without a deed, the enjoyment of an easement may be waived or extinguished. The doctrine of the case, properly understood, is, indeed, fully settled by other decisions. It is that where full effect may be given to a license by acts done on the lands of the licensee, although by these acts the enjoyment of an easement attached to the land of the licensor may be defeated, the usual objections to considering a license irrevocable do not apply, and consequently that, in such cases, if the license has been fully executed, it cannot be revoked. (Moore v. Rawson, 3 B. & C. 332 ; Liggins v. Inge, 7 Bing. 682.) But that this doctrine is wholly inapplicable when the acts which the license warrants are to be done by the licensee upon the lands of the licensor, and the effect of holding the license to be irrevocable, would be to give to the licensee a permanent interest or easement in these lands, has been determined in numerous cases in the English courts, in those of our sister States, and emphatically in our own. (Fentiman v. Smith, 4 East. 109; The King v. Inhabitants of Horndon, 4 M. & Gil. 562; Hewlins v. Shipman, 5 B. & C. 221; Wood v. Leadbitter, 13 M. & W. 838 ; Bryan v. Whistler, 8 B. & C. 288; Cocker v. Cooper, 1 Cr. Mees. & R. 418 ; Bird v. Higginson, 4 Nev. & Man. 505; Cook v. Stearns, 11 Mass. 536 ; Hayes v. Richardson, 1 Gill. & Johns. 366; Prince v. Case, 10 Conn. 375; ex parte Coburn, 1 Cow. 568 ; Mumford v. Whitney, 15 Wend. 380 ; Miller v. Auburn and Syracuse R. R. Co., 6 Hill, 61; Houghtailing v. Houghtailing, 5 Barb. 379; Brown v. Woodworth, id. 551.) It is true that in Taylor v. Waters, 7 Taunt. 374, the Court of Common Pleas in England appears to have held that an easement, and every other incorporeal interest or right, may be granted by a parole license, so as to render the license, as coupled with an interest, exempt from revocation; but that this was an erroneous decision has been clearly shown by Alderson, B., in his elaborate opinion in Wood v. Leadbitter, and. by the final judgment in this and subsequent cases, Taylor v. Waters must now be considered as conclusively overruled. It is certain that by the rules of the common law, anterior to and independent of the provisions of the statute of frauds, no incorporeal estate or interest can be created or transferred otherwise than by deed. It may, therefore, be said, with entire confidence, that no proposition of law is more fully established than that a license that, by its terms, would operate to pass an estate, interest, or easement in lands, if not wholly void, is revocable at the pleasure of the grantor and his representatives; and that when such is the character of the license, even its actual execution is no bar to its subsequent revocation. It may not indeed be so revoked as to render the licensee a trespasser ah mitio, but its revocation renders unlawful all subsequent acts, which its terms would otherwise have justified.

It cannot, however, be denied that the Supreme Court of Pennsylvania, in the cases to which we were referred, has held that a parole license may,'in special cases, have the full operation of a grant; but the decisions in Pennsylvania stand alone, and will be found, upon examination,' to proceed upon a doctrine which is peculiar to the courts of that state, and which has arisen entirely from the absence of any tribunal having a jurisdiction to administer equitable relief in the usual mode, and in the proper sense of the term. The decisions in Pennsylvania that have been cited are, doubtless, evidence of the law which there prevails, but as evidence of the law that we are bound to administer, they have no authority whatever. They are not to be reconciled with the principles of the Common Law, and are directly opposed to the long series of controlling decisions that I have quoted.

I do not think it necessary to dwell long upon the next position of the defendants’ counsel, namely, that the license, in this case, if revocable at all, could not be revoked until all the expenses which the defendant had incurred in its partial execution were refunded or legally tendered. I am not aware that the assertion rests upon any other authority than the dici'wm, of Lord Ellenborough in Winton v. Brockwell, and this, we have the authority of the same learned judge for saying, must be understood in a strict reference to the particular circumstances of the case in which it was uttered; that is, as applicable only where the license has been fully executed, and involves no more than the waiver or relinquishment of an easement or other privilege, not where, if held to. be irrevocable, it would operate as a transfer of an estate or interest in land.

In the case of the King v. the Inhabitants of Thorndon, it was held by the Court of King’s Bench—Lord Ellenborough delivering its opinion—that a license affecting the use or enjoyment of the realty, although carried i/nto execution, is revocable at the pleasure of the party by whom it was granted, even when the circumstances are such, that the effect of its revocation must be wholly to deprive the licensee of the fruits of his money or labor; and this principle is distinctly affirmed in the subsequent cases of Hewlins v. Shipman, and Wood v. Leadbitter.

Where a license .is not simply gratuitous, but is founded on a valuable consideration, cases may, doubtless, arise, in which the licensee would have a just claim to be reimbursed for his expenses, and compensated for his labor; but even in such cases, if the license affects the use or enjoyment of the realty by the licensor, by creating an interest inconsistent with his own, I apprehend it has never been decided that the payment or a tender of full amends is a condition precedent to a revocation of the license—a condition that must be performed before it can be recalled. If there is no authority for such a decision, and none has been produced, it does not appear to me that upon principle it ought to be made. I- cannot believe that if the parties should differ as to the amount of the compensation due, the licensee would be justified in continuing his labors and retaining his possession in defiance of the wishes of the owner. It would be his plain duty, in my opinion, to comply with the revocation, and seek his remedy by action.

. We have no right to listen to the defence that was urged for the first time upon the argument before us, that the defendant purchased the fee, under an agreement with the plaintiff, that he should be permitted to enter upon the lot, construct an ice-house, and use and occupy it during the continuance of the plaintiff’s term. This defence is not set up in the answer, nor does it appear that it was meant to be urged upon the tidal; and whether, had it been admitted and proved, it would assist the defendant,, is a question that I decline to consider.

For the reasons that have been given, the plaintiff is entitled to judgment upon the verdict.

Slosson, J.

Had the answer set up as a distinct defence that the defendant purchased the premises upon the understanding or agreement ■ with the plaintiff, that he was to have the privilege of erecting his ice-house, as seems to have been proved by one of the witnesses upon the trial, I should think this a valid agreement between the parties, which, after the building had been commenced, might have been enforced in equity. (2 Story’s Eq. Jurisp., § 751-761.) A sufficient consideration for the agreement, on the plaintiff’s part, was the-preservation of his term under the lease which, but for such purchase by the defendant, would have been put an end to, or destroyed by the foreclosure of a mortgage, which was anterior to his lease. At any rate it would have operated as an estoppel m pads against the plaintiff.

But the defence is put wholly upon the license alleged to have been given by the plaintiff.

The license, which was by parol, was to erect a permanent structure on plaintiff’s land. If operative, it created an interest in the land, and should therefore have been in writing. (2 R. S. 134-5. Cook v. Stearns, 11 Mass. 536 (see 15 Wend. 390.) Mumford v. Whiting, 15 Wend. 380. Davis v. Townsend, 10 Barb. 333.)

It occurred to me on the argument that a license could only be given by the owner of the land, but I see no reason for the distinction, and am of opinion that a lessee for years (whose interest is only usufructuary, and yet must be created by writing), can give a license equally with the owner of the land.

But though the license was void, it was a justification for all acts done tinder it before it was- revoked. (Miller v. Auburn and Syracuse R. R. Co., 6 Hill, 61. Pierrepoint v. Barnard, 2 Seld. 279.)

This, however, is its only operation. It constitutes an excuse for what would otherwise have been a trespass: if it had been a license to do what might properly be done under a license, and had not gone to the extent of creating, or attempting to create, an interest in the land itself, I should incline to the opinion that it could not be revoked without putting the defendant in the condition in which he was before the revocation, that is, making him whole. (15 Wend. S. C., p. 387.) But being absolutely void, except as a j ustification for a trespass,. its operation ceases there, and its revocation gives no right to compensation.

The judge’s charge was, therefore, correct, and the judgment must be for the plaintiff.

Boswobth, J., concurred with his brethren in rendering judgment for the plaintiff, with costs.