author: O’Gormar, J. By the Court.—Sedgwick, Ch. J.

text:
    CHARLES WICHMAN, Respondent, v. MARTIN ASCHPURWIS, et al. IN MATTER OF THE PETITION OF PATRICK ROCHE, et al., AS PURCHASERS, Appellants.

      Publication onground of non-rcsidence, sufficiency of affidavit for—Sale of right, title and interest of a lessee, as to the subject of sale, and encumbrance thereon—Non-allowance of liens, effect of a purchaser's motion to be relieved.

      Affidavits showing that the party to be proceeded against as a non-resident, was a man with a wife, leaving real estate in the city of New York; that he had been indicted in the county of New York for the crime of rape; that he gave bail to appear for trial; that he did not appear; that the police had searched for him vainly; that he had not communicated with his bondsmen; that he had not demanded payment of rents due him; that he could not be found at his house; and other-facts of a like significance, present facts tending to show that he had become and was a non-resident, and give the judge to whom they are presented, jurisdiction to grant an order of publication on the ground of non-residence, which order is conclusive as to such non-residence in the proceeding in which it was granted; and if granted in an action to foreclose a mortgage, equally conclusive in a proceeding by a purchaser to be relieved from his purchase.
    Where the terms of sale, under which premises are put up for sale at auction, refer to an annexed advertisement for a description of the premises to be sold, and that description describes the property to be sold as, “all the right, title and interest which (naming the lessee) had on the 2d day of December, 1886, of, in and to a certain indenture of lease,” etc., the subject of sale is the lessee’s right, title and interest on that date.
    The word “ premises ” in a clause in terms of sale, providing “ that all incumbrances which, at the time of sale, and liens or incumbrances upon said premises, will be allowed out of the purchase money,” refer to the subject of sale.
    A mortgage made by a lessee, and a judgment recovered against him, prior to the date as of which his right, title and interest in the lease is sold, are not incumbrances'upon the subject of sale, and neither the principal thereof, nor the interest thereon, whether accrued before or after such date, can be allowed out of the purchase money, under a clause in the terms of sale similar to that above given.
    The fact that although the terms of sale so required, yet certain taxes, liens on the premises sold, are not allowed to the purchaser out of the purchase money, by a referee who conducts a judicial sale, does not call for the reversal of an order requiring the purchaser to complete, on an appeal therefrom, but only for a modification; and such modification does not call for a refusal of costs to the respondent, it appearing that the attention of the referee was not specifically called to that particular matter, as a claimed defect.
    Before Sedgwick, Ch. J., Freedman, and Ingraham, JJ.

      Decided January 3, 1888.

      Appeal by the purchasers at a sale, conducted by a referee, under a judgment in foreclosure, from an order denying the prayer of their petition to be relieved from the purchase ; and another appeal, by the same persons, from an order compelling them to complete the purchase.
    Upon the decision of the motion, from the orders entered on which the appeals are taken, the court at special term, delivered the following opinion :
   O’Gormar, J.

Roche and Timothy Roche were purchasers at a foreclosure sale of the interest of the defendant Aschpurwis in a lease of certain real estate in this city.

They have refused to take the deed offered to them by the referee, and petition to be relieved on the grounds:

1st. That the court had not acquired jurisdiction of Aschpurwis, the mortgagor and defendant in this. foreclosure suit.

2d. That the premises which they claim to have purchased, were not free from incumbrance.

The plaintiff also moves that the purchasers be compelled to complete their purchase.

The first objection made on behalf of the purchasers is not sustained. The facts disclosed in the complaint, and in the affidavit on which the order for service by' publication was granted, were sufficient to justify the order under sections 438 and 439, Code Civ. Proc. There was evidence that after diligent search, the plaintiff was unable to ascertain whether or no the defendant Aschpurwis was a resident of the state. The propriety of making the order of service by publication was a question for the judicial discretion of the court, and the decision will not be set aside in a collateral proceeding. Denman v. McGuire, 101 N. Y. 161.

x As to the second objection, the contention has arisen by reason of the use, by inadvertence or mistake of the auctioneer, of a printed form of “ terms of sale,” which was not applicable to the subject of this sale, or to the circumstances of the case. In the fourth section of the printed form of “terms of sale,” used by the auctioneers and signed by the referee, the following words occur : “ All taxes, assessments and other incumbrances which, at the time of the sale, are liens or incumbrances upon said premises, will be allowed by the referee out of the purchase money upon proof of such liens, and duplicate receipts for the payment thereof.” Immediately after the reading of these terms of sale, the auctioneer, at the request of the referee, announced to the persons there present at the auction, including the said purchasers, that the sale was merely “ a right, title and interest sale;’’that the sale was made subject to a mortgage of $4,500, and about six months accrued interest, and to all other liens and incumbrances; and that the bid should be over and above all liens and incumbrances; and that the ground rent was $300 per year.

There is evidence on this motion that the said purchasers heard this statement of the auctioneer, and understood its import and effect at the time they bid at the auction and became the purchasers.

The purchasers contend that they are bound only by the terms set forth in the said printed form of “ terms of sale,” and that the oral statements of the auctioneer do not, in any way, affect their rights or obligations.

In the said “ terms of sale,” reference was made to the “ annexed advertisement of sale,” from which advertisement it appeared that the property-sold was only the “ right, title and interest ” which Martin Aschpurwis had on December 28,1886, in the premises, and that the sale was made by a referee in pursuance of a judgment of foreclosure in this suit. The statement of the auctioneer was consistent with this “ advertisement of sale,” and gave only a more particular description of the nature of the property sold and its necessary incidents ; and in so far as it was inconsistent with the section 4 of the “ terms of sale ” above set forth, it was a revocation of that section, not objected to, and tacitly assented to by all bidders present, including the purchasers. The mistake made in reading that section was manifest and was cured by the auctioneer’s statement. It did not mislead any one. The memorandum of sale signed by the referee, and by the purchasers, referred to the said advertisement of sale and must be regarded as subject to the declaration of the auctioneer contemporaneous with the sale, and the revocation of the said clause in the printed terms of sale.”

Michael J. Mulqueen, attorney and of counsel for appellants, (purchasers), on the questions discussed in the opinion argued:

I. The court never acquired jurisdiction over the defendant and mortgagor, Martin Aschpurwis. He was never served with the summons in this action, personally or otherwise, and has not appeared herein. The affidavits for the order of publication were insufficient to authorize the granting of said order. [Here counsel made an elaborate criticism on the affidavits, and cited Belmont v. Carman, 82 N. Y. 257; Howe v. Pettibone, 74 Ib. 71; Kennedy v. Life Ins. Co., 101 Ib. 487; Wunneberg v. Geraty, 7 Civ. Pro. 93; Greenbaum v. Doyer, 4 Ib. 276.] The defendant, having an established residence, as admitted, in the city of New York, the presumption is that he is still a resident. This presumption cannot be overthrown by a conclusion of the plaintiff’s attorney that defendant is not now a resident of the state. The residence of the defendant can only be lost by his own open, notorious and unequivocal act of the defendant. Abbott’s Trial Ev., 106; DeMeli v. DeMeli, 15 Week. Pig. 398; Jamis v. Surrogate, 16 Abb., N. C. 24; Dupey v. Wurtz, 53 N. Y. 557. The only acts of the defendant set forth in the affidavits in this case at bar, to deprive him of his residence, are : 1. Failure to appear and plead to an indictment. 2. Failure to call at his tenement house to collect rents due him; and 3. His absence froni home when Mr. Vose called upon him to serve the summons and complaint herein. This is not sufficient.

That such was the intention of all the parties to the contract of sale is apparent from the facts as they appear on this motion.

The purchasers were not entitled to the rents of the premises between the time of their purchase and delivery of the deed to them. Cheney v. Woodruff, 45 N. Y. 98-101.

Other objections made by the purchasers are not urged in their brief, and are without merit.

The application on behalf of the purchasers to be relieved, is denied, with ten dollars costs—the purchasers to have ten clays from date of entry of order to complete their purchase.

The motion in behalf of the plaintiff, that the purchasers be compelled to complete the sale, is granted, with ten dollars costs ; order to be settled on notice.

II. The purchasers at the foreclosure sale are entitled to a marketable title free from all reasonable doubt. Fleming v. Burnham, 100 N. Y. 1; Jordan v. Poillon, 77 Ib. 518; Denman v. McGuire, 101 Ib. 161; Herring v. Berrian, 55 Super., Ct. 110. The question as to whether the order of publication, and the publication thereunder, were sufficient to bar the owner of the equity of redemption, being not free from reasonable doubt, the purchaser is entitled to relief under this head.

III. The referee refused and still refuses to give title to the premises free and clear of all incumbrances, as provided for by the terms of sale. (a). It is not pretended by the plaintiff that the referee can or will give the purchasers such a title to the premises as the terms of sale call for. But it is sought to contradict the terms of sale by alleging that other statements and announcements were made prior to the execution of the contract. (b). The language of the contract is that they will sell all the right, title and interest of Martin Aschpurwis to the premises in question, free and. clear of all incumbrances. This clear, plain and unambiguous language cannot be varied or contradicted by oral evidence of announcements or conversations prior to its execution. Colwell v. Lawence, 38 N. Y. 72 ; Curtis v. Howell, 39 Ib. 211; Cater v. Beuman, 45 Ib. 547 ; White v. Ashton, 51 Ib. 280; Van Bokelew v. Taylor, 62 Ib. 105; Corse v. Peck, 102 Ib. 513; Snowden v. Guion, 101 Ib. 458; Brady v. Cassidy, 104 Ib. 147. (c.) The announcements made by the auctioneer before the property was put up for bidding and before the contract herein executed, cannot work a revocation of the contract, or any part thereof. Nor can the written contract be effected by any conversations alleged to have taken place with the purchasers after the sale of the premises in question. (d). Besides, no oral announcement can be considered, as by the statute the contract must be in writing.

IV. As this motion of the purchasers to be relieved from their purchase, and the counter-motion on the part of the plaintiff to compel the acceptance of deed were heard on the same papers and at the same time, only one bill of costs should be allowed.

Bailey & Sullivan, attorneys, John J. Sullivan, of counsel for respondent, in the questions considered in the opinion, argued:

I. The objection urged by the purchasers, “that the court has not acquired jurisdiction over the defendant and owner of the equity of redemption, Martin Aschpurwis, he never having been duly served with the summons herein,” etc., is not good, for the reason that the allegations contained in the verified complaint, and the facts set forth in the affidavits of John J. Sullivan and Samuel J. S. Vose, on which the order for publication of the summons herein upon said defendant, Martin Aschpurwis, was made, show plainly that at the time the said order for publication was made, the said defendant, Martin Aschpurwis, was not a resident of this state, and that he had good reasons for not being one. Sufficient facts are thus shown to authorize the granting of the order for publication under sections 438 and 439 of the Code of Civil Procedure. Belmont v. Cornen, 82 N. Y. 256; Donnelly v. West, 66 How. Pr. 428; Walker v. Reiff, 13 Week. Dig. 31; Staples v. Fairchild, 3 N. Y. 46; Carlton v. Carlton, 85 Ib. 314; Steinle v. Bell, 12 Abb's Pr., N. S. 171; Donnelly v. West, 66 How’s Pr. 428 ; Von Rade v. Von Rade, 2 T. & C. 491; Miller v. Brinkerhoff, 4 Den. 418; Howe Machine Co. v. Pettibone, 74 N. Y. 68; Donnelly v. West, 66 How. Pr. 428; Van Wyck v. Hardy, 4 Abb’s Ct. App. Dec. 602; Schraeder v. Lear, 17 Week. Dig. 574; Denman v. Maguire, 101 N. Y. 161; Kennedy v. N. Y. Life Ins. and Trust Co., 101 Ib. 487; Seiler v. Wilson, 12 Civ. Pro. P. 267. The facts set forth in the verified complaint and in the affidavits on which the order for publication was granted, and the argument therefrom that the probability of Aschpurwis being compelled to undergo a long term of imprisonment as punishment for said crimes, was an inducement for him to leave this state, with the intention of remaining away permanently, were sufficient to justify the judge who granted the order of publication in concluding that the defendant Aschpurwis was at the time a non-resident, and he therefore had jurisdiction to make the order. The evidence is sufficient to uphold the order in any event, and more especially where it is attacked collaterally.

II. The purchasers knew that they were buying merely the right, title and interest which the defendant Martin Aschpurwis had on the 28th day of December, 1886,'of, in and to the leasehold premises described in the complaint. The “ notice of sale ” as published was annexed to and formed part of the terms of sale ” and conformed to the judgment, and was read at the sale and before any bids were made. The fact that by inadvertence or mistake there was read at the sale and used, a printed form, “ terms of sale,” which was not applicable to the circumstances of this case, by reason of the fact that it contained the following clause : “ All taxes, assessments and other incumbrances, which, at the time of the sale, are liens or incumbrances upon said premises, will be allowed by the referee out of the purchase money upon proof of such liens and duplicate receipts for the payment thereof ”—did not mislead the purchasers, and they were in no wise injured, for the reason that immediately after said printed u notice of sale ” and said “ terms of sale ” were read, and before any bids were made, the auctioner distinctly announced that the sale was merely “ a right, title and interest sale,” that the property was sold subject to all liens and incumbrances, and that the bids would be over and above all liens and incumbrances then existing thereon, the knowledge of which fact is not denied by the purchasers. The statement of the auctioneer was consistent with the “ advertisement of sale ” and gave only a more particular description of the nature of the property sold and its necessary incidents; and so far as it was inconsistent with section four of the “ terms of sale,” it was therefore a revocation of that section, not objected to and tacitly assented to by the purchasers and all other bidders. The mistake, therefore, was cured by the auctioneer’s announcement. It did not mislead any one. The “ memorandum of sale,” signed by the purchasers, referred to “ the premises described in the annexed printed advertisement of. sale ” and must be regarded as subject to the statements of the auctioneer made at the time of sale, and as a revocation of section four of the printed term of sale.” The referee derives his authority from the judgment, and he can make no contract inconsistent with the provisions thereof. He therefore had no right to make any allowance whatever to the purchasers out of the purchase money.

By the Court.—Sedgwick, Ch. J.

This decision is confined to the objections of the purchasers, made upon the argument of the appeals.

The first objection was, that the defendant, the mortgagor, had not been duly served with the summons by publication, etc. The validity of this depended upon the tenor of the affidavits upon which publication was ordered. If the affidavits stated facts that tended to show that the mortgagor had become and was a nonresident, the judge had jurisdiction to grant, or refuse to make the order, and his determination that the defendant was a non-resident is conclusive in this proceeding. There was such a jurisdiction. The defendant was shown to be a man with a wife and having real estate here. He had been indicted for the alleged crime of rape. The plaintiff here became his bondsman 'to appear for trial. He did not appear. The police had searched for him vainly. He had not communicated with his bondsman. He had not demanded payment of rents due him. He could not be found at his house. There were other facts of a like significance. The question was therefore presented to the judge whether he was in this state, temporarily concealed, or had he made himself as safe from arrest as the case showed he desired to make himself, by departing from the state and remaining out of it permanently. On this latter point, the judge had the right to consider that there was no probability that the things which formed the motive of the defendant’s flight would change.

The affidavits also showed diligence in trying to serve the summons.

The affidavits stated some things upon information and belief. In this respect, they were within the permission that the law gives to make allegations upon information and belief, under some conditions.

The other objection argued was that the referee refused to give an unincumbered title, as stipulated for by the terms of sale, in that said premises were incumbered as follows: By a mortgage on said property, made by Martin Aschpurwis to Elias Neumann, for $4,500, dated May 13, 1885, and recorded in liber 1636 of mortgages, page 336; by all interest due on said mortgage from the 28th day of December, 1886; by a judgment obtained by Gibben Spicer against Martin Aschpurwis for the sum of $193.45, with interest from the 11th day of September, 1884, a transcript of said judgment having been filed in the office of the clerk of the city and county of New York, on the said 11th day of September, 1884; and by the sum of twenty-three dollars for unpaid Croton water rent for the year 1887, and twelve and 65-100 dollars unpaid Croton water rents for the year 1884.

The terms of sale were in writing and were prefixed to the memorandum of sale, signed by the purchasers, and that memorandum expressly referred to them.

If the obligations of the purchasers depended upon the declarations of the auctioneer, at the sale, I should think there was little doubt that they should complete the purchase. It is however, more satisfactory to hold that the testimony of what the contract was, is to be found, in the writing alone.

The terms of sale had this clause “ all taxes, assessments and other incumbrances, which at the time of sale are liens or incumbrances upon said premises, will be allowed out of the purchase money, provided the purchaser,” etc. What were the “said premises ?” The terms of sale begin by the sentence, “The premises described in the annexed advertisement, will be sold,” etc. The advertisement annexed to the terms and to the memorandum signed by the purchasers, was that pursuant to the judgment in foreclosure,” etc., the premises mentioned in said judgment and thereby directed to be sold, which are described as follows: All the right, title and interest, which Martin Aschpurwis had on the 28th December, 1886, of, in and to a certain indenture of lease, etc. This correctly referred to the judgment. In the printed case, by a mistake, the date is given as 28th December, 1866.

Take it altogether, the premises, in the terms of sale, mean the right, title and interest of the mortgagor as it existed on the day named. So far as title and right is concerned, the purchasers would, by the referee’s deed, have acquired what they agreed to buy. They cannot demand a perfect or unencumbered title, unless the terms of sale call for that. Mott v. Mott, 68 N. Y., on page 250. The terms of sale do not call for a payment of incumbrances on the lease, and which existed before the 28th December, 1886, for they were incumbrances on the interest as it had existed before that date, and had in a true sense lessened his interest to what it became and was on that day, namely, something in the nature of, if not exactly, an equity of redemption.

Interest on the incumbrance may have accrued after December 28, 1886, but that was not, of itself, an incumbrance and cannot be separated from it. It was in its legal nature, accessorial to the principal, and follows the latter in all its conditions.

I therefore think that the terms did not call for a payment out of purchase money, of liens created before December 28, 1886, and that they were not incumbrances upon what was sold. On the other hand, I think the unpaid Croton water rents for 1887, formed under the terms of sale, a lien upon the interest described, and that the referee should pay this out of the purchase money. Perhaps this cannot be done, under the terms of the judgment. If it cannot, the plaintiff may pay, or allow the referee to pay, as at least so much of the purchase money when paid will belong to the plaintiff.

The orders appealed from should be affirmed, with $10 costs, in each instance, after being modified as to the Croton water rents. This modification does not call for a refusal of costs to the respondent, for it seems that no specific attention was asked to that particular, the purchaser’s claim being general as to all liens.

Freedman and Ingraham, JJ., concurred.

       The question of allowance out of the purchase money for the Croton water rents, did not appear to have been specifically called to the attention of the referee who conducted the sale.—Reporters.


source: Caselaw Access Project

author: By the Court.—Sedgwick, Ch., J.

license: Public Domain

text:
    WILLIAM H. WOOD,. Appellant, v. THE MAYOR, &c., OF NEW YORK CITY, Respondents.

      Public officer, removal, effect on suit for salary—Retirement operating as removal.

    The plaintiff had been a foreman in the Fire Department of the city, and having been tried on a charge of some violation of duty, was found guilty and sentenced to be retired from service on an annuity, and he was accordingly so retired. Held, that the retirement operated as a removal from office, and that to entitle him to salary, it was necessary that he should have been in fact, reinstated by legal proceedings, or otherwise.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided January 3, 1888.
    Appeal by plaintiff from judgment dismissing complaint, entered upon order made at trial term before a j'ur7-
    The facts sufficiently appear in the opinion.

      Ambrose H. Purdy, attorney and of counsel, and
      Vedder Van Dyck, of counsel for appellant, on the questions considered in the opinion, argued :
    I. If the retirement of plaintiff did not operate as a removal from office he is entitled to recover under the authority of O’Leary v. Board of Education, 93 N. Y. 1, which holds that “ When the salary of a public officer is fixed, such officer is entitled to his salary, and it cannot be taken away except for good and sufficient cause. While sickness in some cases may furnish sufficient reason for the removal of such officer, yet, where the evidence shows, that his absence on account of the same has been permitted, no valid reasons exist why he should not be entitled to compensation until some action is taken on the subject.”
    II. Changing the plaintiff from active service, and retiring him on an annuity of $150 per year, does not. work a removal from office ; and is not a removal within the terms of the provision authorizing removal from office. Riley v. The Mayor, 96 N. Y., 331; 72 N. Y., 445; 96 N. Y. 672. It merely operated to excuse him from the non-performance of active service. Being so excused, he is entitled to recover, under the authority of O’Leary v. The Board of Education, supra.

      E. Henry Lacombe, counsel to the corporation, and D. J. Dean, of counsel for respondents, on the question considered in the opinion, argued:
    The powrer of the commissioners to discharge tile plaintiff is not contested; but it is contended that their order that he be retired from service is not a discharge. The defendants argue that retiring the plaintiff from service was an effectual discharge. The retiring was absolute, unconditional, and unlimited. The plaintiff was thereby relieved from the control and discipline of the Board of Commissioners, and could no longer be commanded or assigned to duty by them. He ceased to be a fireman, and could no longer exercise authority in the department. He was at liberty to engage in other employment, and was completely released from any claim of the Fire Department to his time or service. No element of discharge was wanting when he was unconditionally retired from service.
   By the Court.—Sedgwick, Ch., J.

plaintiff had been a foreman in the Fire Department. He was charged with some violation of duty, was tried on that charge by the committee on discipline appointed by the Board of Fire Commissioners, found guilty, and on September 11,1872, sentenced to be retired from the service of the department, on an annuity of $150, to date from the 12th instant, and thereafter, on September 11, 1872, by resolution of the Board he was retired from active service in the department, on an annuity of $150, to date from the 12th inst.” He acquiesced in this until May 21, 1873, when he applied to be assigned to duty, “in my former position,” in the department. In March, 1873, he applied to the board for a part of his annuity, and was informed that the law did not justify his having, or being paid any annuity.

He now claims for his salary, during his retirement, excepting as to two months following September 12, 1872, for which he was paid. The circumstances of his being paid for these two months do not appear.

The claim is founded upon the assumption that for the time for which he asks, he was an officer, and therefore entitled by law to the salary attached to the office.

I am of opinion that he was not an officer in fact. Rightly or wrongly he had been removed from office. To entitle himself to the salary, it was necessary that in fact, by legal proceedings or otherwise, he should have been reinstated.

Judgment affirmed, with costs.

Freedman and Truax, JJ., concurred.


author: Sedgwick, Ch. J. Ingraham, J.

text:
    THE MERIDEN NATIONAL BANK, Appellant v. PETER W. GALLAUDET, Respondent.

      Vendor of note purporting to be made by a firm, when not liable to vendee by reason of matters arising out of its making—Implied warranty— Breach of contract—Misrepresentation.

    A vendor who, without indorsing it, sells and delivers a note purporting to be made by a firm, payable to the order of the payee, and indorsed by the payee, incurs no liability to the vendee, by reason of there .being no such firm, or by reason of an individual, who, from the firm name signed to the note would appear to be a partner, not being such in fact; he (the vendor) making no representation as to there being such a firm, or as to its members, and it not appearing that he had any knowledge on those matters, other than such as was derivable from the face of the note. There is no implied warranty, or breach of contract of sale, or deceit or misrepresentation from which a liability of the vendor can flow.
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided January 3, 1888.
    Appeal by plaintiff, from judgment entered on verdict for defendant, and from order denying motion for a new trial made upon the minutes.
    The facts sufficiently appear in the opinion.

      Arnoux, Rich & Woodford, attorneys, and William II. Arnoux, of counsel for appellant, on the questions considered in the opinion, argued:
    I. A warranty of the genuineness of the note in suit arose by necessary legal implication from the fact of the purchase and sale of the same. Herrick v.Whitney, 15 John. 240; Shaver v. Ehle, 16 Johns. 201; Holt v. Ross, 54 N. Y. 472 ; Terry v. Bissell, 26 Conn. 23; Littauer v. Goldman, 72 N. Y. 509; Whitney v. The N. Bank of Potsdam, 72 N. Y. 303; Corn Exchange Bank v. Nassau Bank, 91 Ib. 79.
    II. There was no evidence in the case which warranted the submission to the jury of the question whether William M. Babbott had authority to sign the note in question with the firm name of Franklin Farrell & Co. On the contrary, the express testimony of defendant’s own witness shows that he had no such authority. 1. There was no partnership agreement, expressed or implied, shown by the evidence. Salter v. Ham, 35 N. Y. 327; Parkhurst v. Kinsman, 1 Blatchf. 489; Pitts v. Hall, 3 Ib. 201; Hinman on Patents, 67; Porter v. McClure, 15 Wend. 187. 2. The formation of a partnership without the adoption of a firm name gives no authority to one partner alone to devise and use a firm name. Lind, on P’ship (Ewell)* 212 ; Kirk v. Burton, 9 Meeson & Welsby, 284. 3. The arrangement contemplated between Farrell and Babbott (whatever its character) was only inchoate—never was consummate. 4. The contemplated arrangement would, at the most, have amounted to only a non-trading partnership (if a partnership at all), and Babbott, as a member thereof, would have had no implied authority to execute notes or devise a firm name. Pease v. Cole, 3 N. Eng. Rep. 647. 5. There was no attempt to prove that Farrell ever held himself out as a partner; and it was not shown that defendant knew of, or acted upon the representations which some of defendant’s witnesses swore he made. It is only upon the ground of estoppel that one not a partner can be held liable as a partner. 1 Randolph on Com. Paper, § 395; Cassidy v. Hall, 97 N. Y. 171. This evidence of Farrell who was a disinterested and unimpeached witness was conclusive upon the court and upon the jury. Moran v. McLartny, 75 N. Y. 28.

      Fraser & Minor, attorneys, and C. Elliott Minor of counsel for respondent, on the questions considered in the opinion, argued:
    I. There was no warranty, express or implied, on the sale of the note in question. The sale was consummated entirely by letter.
    It was admitted on the trial that the letters contain no express warranty. It being conceded that there was no express warranty, the. question remains did the1 defendant on the sale of the note impliedly warrant that it was genuine ? We may admit the law to be as laid down by Judge Freedman in his charge to the jury, that “ on the sale of negotiable paper, ordinarily, the seller warrants the genuineness of the paper sold by him, but if the circumstances point the other way, then the implication does not arise.” Bell v. Dagg, 60 N. Y. 530. There was abundant evidence in the case to leave it to the jury to say, from all the circumstances of the sale, whether the defendant intended to warrant the note sold as genuine, (a). The wording of the letters by which the sale was consummated, shows clearly that the defendant did not intend to warrant, and in fact avoided every expression which would tend to show a warranty on his part. (6). The defendant acted as broker in the transaction, and the plaintiff knew it. (c). The defendant did not indorse the note sold, (d). The contract being wholly in writing and the writing containing no express warranty, nothing outside of the writing can be implied. Van Ostrand v. Reed, 1 Wend. 431; Pierce v. Fuller, 36 Hun 179; Whittemore v. Farrington, 76 N. Y. 452.
    II. The main issue in the case is, whether in point of fact, at the time the note in suit was made, Franklin Farrell, of Ansonia, Conn., and William M. Babbott were partners, or, in other words, whether William M. Babbott, who issued the note, had a legal right to issue the same as the partner of Franklin Farrell. It is a rule laid down and established by a long line of cases that where two or more persons engage in an enterprise together, upon any basis or arrangement they please, and stipulate between themselves that profits as such shall be divided between them, they are partners as to third persons, and are liable as partners for losses. Greenwood v. Brink, 1 Hun 227; Haas v. Root, 16 Hun 526; Burnett v. Snyder, 81 N. Y. 555; Manhattan Brass Co. v. Sears, 45 Ib. 797 ; Mason v. Partridge, 66 Ib. 633 ; The Ontario Bank v. Hennesy, 48 Ib. 545; Leggett v. Hyde, 58 Ib. 272. It is also well established that partnership is a question of fact for the jury to find, from all the circumstances of the case, and from the evidence, and that representations, conduct, deportment of the parties, and circumstances calculated or likely to induce the belief that the parties are partners will render them liable to persons doing business with them under the impression so created. Eager v. Crawford, 76 N. Y. 97 ; Butler v. Finck, 21 Hun 210; Burns v. Rowland, 40 Barb. 368; Vibbard v. Roderick, 51 Ib. 616; Stiles v. Meyer, 7 Lans. 190. The recent decision of the court of appeals, on this subject, in the case of Cassidy v. Hall, 97 N. Y. 159, does not change the law upon this subject. Under these principles of law the evidence clearly established a partnership between Farrell and Babbott.
    III. The partnership between Farrell and Babbott, being' established by the verdict of the jury, it follows as matter of law that Wm. M. Babbott had implied authority to use the firm name of Franklin Farrell & Co. which honestly designated the firm, and to issue the note, there being no restriction on his right so to do, in the agreement between Farrell & Babbott, more particularly as the money thus raised was used in the very business for which the partnership was formed. Bank of Chittenango v. Morgan, 73 N. Y. 593. As to the right to form partnership name, where none is agreed upon, see Drake v. Elwyn, 1 Caines, 184; McGregor v. Cleveland, 5 Wend. 478; Parsons on Partnership, 3d ed. pp. 125, 137, and n., and page 279; Aspinwall v. Williams, 1 Hamm., 38 ; Ripley v. Colley, 3 Foster 443 ; Lekon v. Johnson, 2 Peters 176, 186. Again we contend that if in the agreement between Farrell and Babbott there had been a positive restriction against the use of the firm name of Franklin Farrell & Co. such restriction would not be binding upon third parties dealing with the firm who had no knowledge of such restriction. Bank Rochester v. Monteath, 1 Den. 402; Whittaker v. Brown, 16 Wend. 505.
    IV. The text-books and cases declare the law to be well settled that any copartnership which requires capital and credit and is a trading concern, impliedly gives each and all of the members thereof the right to issue commercial paper. Daniels on Neg. Instr. § 358a; Kinbro v. Bullet, 22 How. U. S. 256, and cases cited,
   Sedgwick, Ch. J.

The defendant had sold to the plaintiff a promissory note signed Franklin Farrell & Co., payable to the order of W. M. Babbott, and indorsed by the payee. The plaintiff paid to the defendant $2,756.45.

The plaintiff’s cause of action was based by the argument of the appellant’s learned counsel, upon the proposition, claimed to be sound, that the defendant in transferring the note, ivithout his indorsement, warranted by legal implication, that the note was genuine.

It was claimed upon the trial that the note was not genuine because, as claimed, there was no firm of Franklin Farrell & Co.

I am of opinion that if the facts existed as claimed by the appellant, the defendant was not liable. There was no legal implication that he warranted the genuineness of the note as to its making. -

In general the transferrer of a note by delivery is liable, as upon a warranty of genuineness, although he do not indorse it, if the note be forged. According to some approved text writers it is not certain that this liability exists when the transferrer, having title to the paper, sells it to a plaintiff, as distinguished from transferring it as security for antecedent indebtedness. 1 Chitty on Bills 245, 246 ; Parsons on Notes and Bills, 37, 38, 590; Story on Promissory Notes, § 118.

The cases that have been cited for appellant to maintain a liability, are instances of instruments in the hands of the transferrer, payable to bearer, without any indorsements, and the maker’s name is forged, or of forged indorsement. In the former case the transferrer delivers a nullity to which there can be no title. In the latter case the transferrer has no title.

The present case is of a forged making, at least for appellant, with a genuine indorsement. No case that has been cited ■ presents such a combination of facts. By this indorsement the defendant made a valid title, arid so far as that is concerned, there was no breach of the implied warranty.

The presumption of the law as to the inception and transfer of commercial paper payable to another person, is that after being made it is delivered to the payee; , that after indorsement it is delivered mediately or immediately, through delivery or further indorsement, to the transferrer who does not indorse. It is not presumed that the transferrer has been in communication with the maker, or knows anything of the circumstances of the making. He is not presumed to suspect a forgery, and therefore he is not presumed to have inquired. A forgery is an unusual occurrence. Why has the law made an indorsement to mean in part a contract that the maker’s name is not forged ? It is that there shall be no necessity for the buyer to make inquiries for himself as to whether the m'aking is forged.

When the plaintiff bought from the defendant, it could not believe that the latter knew the signature of the makers, or had made inquiries. They had reason to think, as indeed the fact was, that the defendant relied on the indorsement of Babbott, and presented the paper with the indorsement as a contract as to genuineness. I am, therefore, of opinion that the defendant’s implied warranty applied only to title and the genuineness of the indorsement.

Beyond this, I am not of opinion that a warranty of genuineness is not satisfied by the making being of the kind that appears here. The signature of Franklin Farrell & Company was actually signed by Babbott. He claimed rightly and honestly, or the reverse, to be a partner of Franklin Farrell & Company. The defendant, if he is to be held to the effect of the act of' making, as it was, although he was not connected with it, is entitled to what there is of aid in the facts, as well as of burden. In the ordinary course of affairs a firm signature is made actually by an individual who claims to be a partner, and, as such, an agent to bind whoever is his partner. Every firm signature has such a purport. It had in this case, as much as if it had been Franklin Farrell & Co., per William Babbott. In such form the signature would be genuine and would bind Babbott at least. From the signature that was made, the plaintiff knew that an individual had ' signed, making the claim of authority as to others.

In my opinion, there was no warranty by the defendant that the person signing had the authority to sign the name he did, because such a warranty could be only on the supposition that the defendant should have examined the facts and ascertained the law. A satisfactory and decisive examination of such a matter would be impossible in business. Only impressions and guesses could be made. In this respect, the principle of Littauer v. Goldman, 72 N. Y. 509, is to be applied.

The practical grievance complained of by the plaintiff is that Franklin Farrell, a responsible man, was not bound by the 'note as made. If the defendant had made a representation that Franklin Farrell was a member of such a firm, a question might have arisen that does not arise in this case.

The plaintiff through its cashier, wrote to the defendant, “ You have note of Franklin Farrell, I understand,” etc. The defendant answered, “I still have note of Franklin Farrell & Co.” The plaintiff replied, “ You may send in the note Farrell & Co.” The names were used in these letters as matters of description. Lambert v. Heath, 15 M. & W. 485, commented upon in Littauer v. Goldman, 72 N. Y. 516.

As the case did not disclose any breach of warranty, the appellant is not aggrieved and the judgment and order should be affirmed with costs.

Ingraham, J.

The liability of the vendor of a promissory note, without indorsement, to refund the consideration to the vendee where it subsequently appears that the note was void, has been much discussed by text writers and in reported cases, and some confusion has arisen as to the ground of the liability and the extent of the implied warranty by the vendor.

It has long been settled that where a note, is transferred without indorsement, or by indorsement without recourse, if it should subsequently appear that the note was a forgery, the vendor is liable to refund the money received by him with interest; but this liability is not because of any implied warranty, but because the vendee is entitled .to have an article answering the description of that which he bought. What he buys is a note, and if it should turn out that the thing delivered under such a contract, was a mere piece of waste paper, the vendor has not performed the contract and there is no consideration for the payment of the money, and he should not be permitted to retain it.

Mr. Benjamin in his work on Sales, § 600, quotes, with approval, the remarks of Lord Abinger, in Chanter v. Hopkins, 4 M. & W. 399 : But in many of the cases the circumstances of a party selling a particular thing by its proper description, has been called a. warranty, and a breach of such a contract, a breach of warranty; but it would be better to distinguish such cases as a non-compliance ydth a contract which a party has engaged to fulfill; as if a man offer to buy peas of ¿mother and he sends him beans, he does not perform his contract; but that is not a warranty, there is no warranty that he should sell him peas; the contract is to sell peas and if he sells anything else in their stead, it is a non-performance of it.” Mr. Benjamin says: “ There can be no doubt of the correctness of the distinction here pointed out. If the sale is of a described article, the tender of an article answering the description is a condition precedent to the purchaser’s liability, and if this condition is not • performed, the purchaser is entitled to reject the article, or if he has paid for it, to recover the price as money had and received for his use.” At § 607, the author- says: “Under this head may also properly be included the class of cases in which it has been held that the vendor who sells bills of exchange, notes, shares, certificates and other securities, is bound not by collateral contract of warranty, but by the principal contract itself, to deliver as a condition precedent, that which is genuine, not that which is false, counterfeit or not marketable by the name or denomination used in describing it.”

The liability, therefore, of the vendor to refund the amount paid, depends not upon an implied warranty, but upon a failure on his part to carry out his contract of sale. And this is the view taken by the Court of Appeals in this state in Littauer v. Goldman, 72 N. Y. 514, where it is said: “ The case of a forged indorsement, as we have seen, rests upon a different principle, viz., that there is no note.”

There is also in the case of the sale of a promissory note or negotiable instrument, as in the case of all other personal property, an implied warranty that the vendor has a good title to transfer to. the vendee, and if his title fails, as if an indorsement of the payee was forged, the vendor is liable to refund the money paid by the vendee; but this can be sustained upon the same principle, because by the transfer the vendor, having nothing to transfer, transfers nothing to the vendee, and in this state, since the decision of Littauer v. Goldman, supra, the liability of the vendor of a bill of . exchange is limited to these two cases; for after an examination of the principles applicable to the contract entered into upon the sale of negotiable paper, and the authorities bearing upon the subject, the court says: “The examination we have made of the question shows that the law in regard to the transfer of negotiable bills of exchange and promissory notes, as laid down for a century or more, only accepts two cases as coming within the doctrine of implied warranty, viz., a warranty of title and that the instrument is genuine and not forged.” And in Otis v. Cullum, 2 Otto 448, the Supreme Court of the United States held that on the sale of negotiable paper the seller is liable, ex delicto, for bad faith, and, ex contractu there is an implied warranty on his part that it belongs to him and that it is not a forgery; that where there is no express stipulation there is no liability beyond this; and that a vendor of bonds of a city was not liable, when it appeared that the bonds were void' as not issued as required by law.

To entitle plaintiff to recover in this action therefore, he was required to show that the defendant had failed to carry out his contract, viz., to sell him a note of the firm of Franklin Farrell & Co., either by showing that the note delivered under the contract was forged, or that the vendor had no title to the note delivered.

It appeared in evidence that the negotiations between the parties commenced by a letter written by the plaintiff to the defendant as follows : “ Dear Sir:—You have á note Franklin Farrell, I understand, endorsed, at seven per cent. Please inform me who is the endorser.” In reply to that letter, on the day following, defendant wrote: “I still have note of Franklin Farrell & Co., Ansonia, Conn., endorsed by William M. Babbott, due March 18th, seven per cent.” In reply to this on December 24, the plaintiff wrote to the defendant: “ You may send in the note of Farrell & Co. $2,800,” and in answer to that letter, the note in question was sent to the plaintiff, and the defendant received therefor the face of the note less the interest.

It will be noticed that in this correspondence, the defendant nowhere states that he has a note of Franklin Farrell, or upon which Franklin Farrell is liable, but has the note of the firm of Franklin Farrell & Co. It is nowhere represented that Franklin Farrell is a member of that firm, nor does it follow as a necessary implication that because the firm name was Franklin Farrell & Co., that Franklin Farrell individually was a member of that firm. The use of the name of an individual to designate a firm name, when the individual whose name is used is not a member of the firm, is under certain circumstances, expressly authorized by law in this state, (Chap. 400, Laws 1854; Chap. 144, Laws 1863; Chap. 256, Laws 1868), and a note given by a firm continued under the provisions of these acts could not be held to be a representation that a person whose name appeared in the firm name was a member of the firm. It is therefore clear that it cannot be said that on the sale of a note there is any implied warranty that the person whose name appears in the firm name is a member of the firm or liable upon this note.

So far as appears the only firm of that name was the firm under which Babbott attempted to do business, and assuming that there was no copartnership agreement between Farrell and Babbott, that firm then consisted of Babbott alone. The bill was a valid bill of that firm. Plaintiff assumed that Farrell was a member of the firm ■ because his name appeared, and bought the note on the faith of that assumption; but defendant nowhere represented that Farrell was a member of the firm, and as plaintiff relied on its own assumption of the fact, if it turns out to be an error, there is no reason why the defendant should be responsible for such error. The plaintiff by inquiring of Farrell could have ascertained the fact, or he could have insisted upon a guarantee from the defendant, and refused to buy unless it was given.

The evidence in this case showed that there was a contract between Babbott and Farrell to engage in the manufacture of certain machines, and that Babbott had been advised by counsel that that agreement constituted a partnership between himself and Farrell, and that relying upon that advice he signed the note in suit.

Whether or not Farrell was a member of the firm and was liable depended upon the fact whether or not the contract between the parties constituted him a member of the firm of Franklin Farrell & Company. The note was a valid note of the person doing business under that name, and Babbott by adopting that name as the name under which he was doing business, the note was valid as to him.

The note itself therefore was not a void note; nor was the signature of the firm of Franklin Farrell & Company forged.

In the case of Commonwealth v. Baldwin, 11 Gray. 197, it has been expressly held that where a person has made and delivered a note signed Schouler, Baldwin & Co., and stating at the same time that he and one Schouler composed the firm, and there was no such partnership, that such an act did not constitute the crime of forgery at common law.

By the transfer of the note indorsed by the payee in blank, the defendant became the lawful holder and had a good title and a right to transfer it, and there is no evidence in this case to show that the defendant had knowledge of any fact which proved the paper worthless. The scienter necessary to establish a liability ex delicto, was not proved. (Littauer v. Goldman, supra), and under the authority of that case the rule caveat emptor applies. Peoples Bank v. Bogart, 81 N. Y. 106. The case comes within the illustration put by Lord Campbell in Gompertz v. Barlow, 3 E. & B. 854: “If it had been a foreign bill and there had been a secret defect, the risk would have been that of the purchasers.”

I am therefore of the opinion that plaintiff failed to establish any liability on the part of the defendant, and that the complaint should have been dismissed.

The judgment being in favor of the defendant should therefore be affirmed with costs, and I therefore concur with the Chief Judge in his conclusion.


author: By the Court.—Freedman, J.

text:
    LOUISA KRAEMER, Appellant, v. SAMUEL ADELSBERGER, et al., Respondents.

      Deed absolute on its face, and subsequent agreement making grantee a trustee as to proceeds of sale of the premises—When do not constitute mortgage.

    A., who held title to premises belonging to his firm, conveyed these premises in 1871 to B., a special partner, to whom the firm owed $60,000, the deed being absolute on its face, and reciting that the conveyance was subject to a mortgage of $6,000 which the grantee assumed. The deed was forthwith recorded as a conveyance, and nine days thereafter, B. made an agreement with the members of the firm, reciting the conveyance to him of property, as security for the sum of $30,000, and agreeing, among other things, that whatever he realized above $30,000 from the sale of the premises, which he held as trustee, he would pay over to the others, and if he sold them for less than that sum, without .their consent, he should forfeit his claim on them for the difference. It was also provided that the sale was to be effected in two years. B. died in 1873 and A. in 1880, both leaving wills. In 1882 the agreement was recorded both as a deed and a mortgage. In 1881 the executors of B. assigned all his interest in the agreement to C., who, without malting B.’s heirs parties to the' action, foreclosed the instrument, and on the foreclosure sale conveyed the premises to defendants. Plaintiff contracted to purchase the premises from defendants, but objecting to the title as defective, sued to recover back the money paid and the expenses he incurred on account of the contract.

      Held, That the deed and agreement together are not a mortgage in form, nor did the parties thereby intend that there should be a mortgage ; that B. became the owner of an absolute title in fee, with absolute power of disposition, and a trustee as to the proceeds only; and that upon his death the legal title to the premises vested in his heirs, who could not be affected by any transfer by the executor, and the title of defendants was therefore not only doubtful, but bad.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 8, 1888.
    Appeal from judgment entered upon the report of a referee dismissing the complaint with costs."
    The facts appear in the opinion.

      E. B. Amend, attorney, and E. J. Spink, of counsel, for appellant.

      Emanuel Arnstein, attorney, and Sol. Kohl, of counsel for respondents, urged :
    I. The conveyance and agreement of defeasance, taken together, constituted a mortgage, and hence the title thereto vested in the executor and not in the heirs of Andrew Henderson. Any conveyance intended by the parties to be a security for the payment of money is a mortgage. 2 Washb. Real Prop. 43.. The form of the instrument is unimportant so long as the transfer appears to have been only intended as a security. Thomas on Morts. 13.
    The intent that it shall only operate as a mortgage, need not appear on the conveyance itself, 2 R. S. Title V. Ch. III. (Banks 6th ed.) It will be noticed that the defeasance need not be under seal, all that is required being a writing. Decker v. Leonard, 6 Laws 268. And in this state it is well established that in equity a deed absolute on its face may be shown to be a mortgage by parol evidence. Horn v. Keteltas, 46 N. Y. 606; followed 47 N. Y. 238; 68 Ib. 502; 81 Ib. 316. The instruments in question, to wit, the absolute conveyance from Carr to Andrew Henderson, and the copartnership agreement, both when read together or coupled with the other evidence adduced, not onjy justified, but necessitated the finding of the referee, that Carr only mortgaged, and did not absolutely convey the premises in question to Henderson, and it is submitted that a contrary finding would have been against the evidence, and could not have been upheld. It is scarcely possible to conceive of any case where stronger or more conclusive evidence, on such a point could be given than was offered on the trial herein. The agreement recites the indebtedness to Henderson, and expressly states that he takes the conveyance as security for the sum of $30,000, that any sum realized from a sale in excess of the indebtedness, is to be refunded to Carr & Co., and a deficiency to be made good by the latter, that Carr was to continue to exercise the acts of ownership, for he was to collect the rents, discharge taxes and assessments, and pay interest on the first mortgages. Interest was to be paid moreover, to Henderson on this sum of $30,000, at the rate of seven -per cent, per annum, payable quarter yearly, and the agreement further stated, “that this property is only held by Andrew Henderson as trustee for the sum of $30,000.” Although these instruments were drawn by Susemihl, and not by a conveyancer, no lawyer could more clearly express the true nature of the transaction. The interest was paid, not only during the life of Andrew Henderson, but for years thereafter to Matthew Henderson, the executor. This shows clearly that all parties considered the indebtedness to Henderson still outstanding, and not discharged by the conveyance. The mere fact that the deed contains a covenant to assume mortgages does not affect the matter, as the court looks at the entire transaction. Gurnsey v. Rogers, 47 N. Y. 235 ; Pardee v. Treat, 82 Ib. 385. In all doubtful cases a contract will be construed to be a mortgage rather than a conditional sale. Matthews v. Sheehan, 69 N. Y. 585; Glover v. Payn, 19 Wend. 518; Brown v. Dewey, 2 Barb. 28. The cases of Baker v. Thrasher, 4 Den. 49, and McCauley v. Porter, 71 N. Y. 173, are not alone not in conflict with respondents’ views, but strongly support them. The agreement recited indeed that the sale was to be effected in two years, which perhaps indicates when the indebtedness was to be paid, but nothing is stated as to what would be the effect of a non-compliance with this provision, and that it was considered of no importance, and was waived by the act of the parties, is evidenced by the fact that the two years expired in 1873, yet the rents were collected by Carr & Co., and interest paid to Henderson and thereafter to his executor until 1880, Avhen the foreclosure suit was brought.
   By the Court.—Freedman, J.

This action Avas brought to recover the sum of $500, paid by the plaintiff on account of a contract Avitli the defendants for the purchase and sale of certain real estate in the city of Ñbav York, and the sum of $250, incurred by the plaintiff as an expense in the examination of the title. On the day appointed for the performance of the contract, both parties claimed to be ready to perform and to tendí r performance, but the plaintiff objected to the title as defective. The principal defect claimed, and the only one necessary to be considered upon the present appeal, arises out of the following facts and circumstances:

The title of record to the premises was, prior to March 21, 1871, in Wm. S. Carr. He Avas then a member of the firm of Wm. S. Carr & Co., and the premises in question were in fact part of the copartnership assets, and Wm. S. Carr held the title as trustee for said firm. Upon a dissolution of this copartnership in the early part of 1871, it was found that the firm was indebted to Andrew Henderson, the special partner, in the sum of $00,000. On March 21, 1871, Wm. S. Carr conveyed the said premises to Andrew Henderson by a warranty deed with full covenants, which deed was recorded as a deed March 22,1871. The deed is, on its face, absolute, and it recites that the conveyance is made subject to a mortgage of $6,000, which the grantee assumed and agreed to pay. ' On April 4, 1871—nine days after the record of the deed—the several members of the firm entered into an agreement with each other, by which it is recited that Andrew Henderson, the special partner of Wm. S. Carr & Co., receives and takes from Wm. S. Carr, trustee for the firm, deeds of certain premises (including those in question), of an estimated valuation, over incumbrances, amounting in the aggregate to $31,500, “as security for the sum of $30,000, with the understanding that whatever above that sum is realized by the sale, belongs" to Wm. S. Carr & Co., and Andrew Henderson agrees to pay the difference to them whenever received, and Wm. S. Carr and Tli. Susemihl, composing the firm of Wm. S. Carr & Co., agree to make good and pay over any difference to Andrew Henderson, if that amount should not be realized. The sale to be effected inside of two years......Andrew Henderson gives to Wm. S. Carr & Co., the right to rent and collect the rent for these houses and lots, the same as they have done heretofore, before the deeds were made Gver to him, and in return Wm. S. Carr & Co., agree to see that the taxes and assessments, as well as the interest on the first mortgages, are paid. It is further mutually understood that the property, being only held by Andrew Henderson as trustee, for the sum of thirty thousand dollars, as before mentioned, Andrew Henderson agrees not to dispose of any of this property for a less amount than the deeds made over to him call for, without getting the consent of Wm. S. Carr & Co., or- else forfeit his claim on Wm. S. Carr & Co. in case he should not realize the amount of thirty thousand dollars, for which it is pledged.”

Andrew Henderson died in 1873, and Wm. S. Carr died about October, 1880, both leaving wills. The foregoing agreement was not recorded until September, 1882, when it was recorded both in libers of deeds and of mortgages". Matthew Henderson, as executor of Andrew Henderson, about December 29, 1881, assigned all his interest in such agreement to E. C. Delevan. Delev.an, in an action, against the representatives and heirs of Carr and Theo. Susemihl, claiming to foreclose said instrument, procured a decree of foreclosure and sale, and said premises were sold and conveyed by the referee to said Delevan, and by him were conveyed to the defendants. The heirs of Andrew Henderson were not made parties to the action.

At the time of the conveyances to Henderson and the execution of the agreement recited above, the firm of Wm. S. Carr & Co. was solvent and continued solvent until after the retirement of Susemihl iti. 1876.

Upon these facts, as to which there is no dispute, it was claimed and is still claimed by the plaintiff that inasmuch as no conveyance by Andrew Henderson or his heirs, was shown, the legal title presumptively is in such heirs; and that as they were not made parties to the foreclosure proceedings, they are not concluded by them, and are at liberty at any time to assert their title as it appéars on record.

The referee, however, held plaintiff’s contention to be unfounded because, in his opinion, the deed and agreement together were in effect a mortgage; that on the death of Andrew Henderson th'e title to said mortgage passed to his executor; that the subsequent assignment of the mortgage by said executor to Delevan, the foreclosure proceedings instituted thereon” by Delevan, and the purchase by him of the premises from the referee who conducted the sale, were sufficient to invest Delevan with a good title; and that consequently the title derived by the defendants from Delevan, is a sufficiently good title which a purchaser can be compelled to take.

In this I think the referee erred. True, the transaction between Andrew Henderson and the firm of Carr & Co. was such as to give to said firm the right, upon the realization by Henderson of more than ,$30,000, to insist that the deed and agreement together, as between themselves, was in a certain sense in the nature of a mortgage, and that therefore Henderson was bound to refund any excess. But that consideration alone cannot control the title. As matter of fact, the deed and agreement taken together neither are a mortgage in form, nor did the parties thereby intend that they should be a mortgage such as is ordinarily given to secure the payment of money.

The deed and agreement taken together are not a mortgage in form, for the following reasons, viz.: They were not contemporaneous in execution. There is no evidence that at the time of the execution of the deed, or at any time between the execution and the recording of it, the agreement was even contemplated. The deed is absolute on its face, and in the agreement there is no provision for a reconveyance of the premises in any event. There is no agreement by the firm to pay the principal debt, but only any difference or balance which may remain after a sale made with their consent. If a sale is made without their consent, the grantee forfeits his claim on the firm to the extent of $30,000. The sale was to be made in two years. The grantee assumes the payment of the mortgage of $6,000, which was on the premises.

On the question of intent it appears that the considerations recited in the several deeds mentioned in the agreement amount to $31,500, above the incumbrances assumed by the grantee; that they were in the first instance received in absolute payment to that amount; that afterwards a new agreement was made to insure to Henderson a certain sum ($30,000), and to give to the firm the benefit of any excess, and that the manifest intention of all the parties was that the absolute title in fee should vest in Henderson with absolute power of disposition by deed, and that at the same time he should be a trustee as to the proceeds, so that he should pay the proceeds to himself to the extent of 30,000, and the excess, if any, to Carr & Co. That Henderson so understood it, appears from his assuming the payment of the mortgage on the premises and from the fact that he put the deed at once on record as a deed and before the agreement of April 1st was made.

The legal result of all this is, that Henderson did become the owner of an absolute title in fee with absolute power of disposition, and a trustee as to proceeds only, and that therefore, upon his death, the legal title to the premises vested in his heirs, and not in his executor. As a necessary consequence, his heirs could not be affected by any transfer or assignment by the executor not assented to by them.

The legal result being as stated, it further follows that at the trial the plaintiff showed the title to be not' only doubtful, but bad, and that for that reason he was entitled to recover within the rule applicable to actions at law as laid down in O’Reilly v. King, 28 How. 408, and The Methodist Episcopal Church Home v. Thompson, 52 Super. Ct. 321.

The judgment should be reversed, the order of reference vacated, and a new trial ordered with costs to the appellant to abide the event.

Sedgwick, Ch. J., and Ingraham, J., concurred.


text:
    MICHAEL SHERRY, Appellant, v. JOHN G. CARY, Respondent.

      Costs on recovery less than $50.
    To entitle a plaintiff who obtains a verdict for less than $50, to tax his costs under §§ 2863 and 3228 Code Civ. Proc., on the ground that the action was one of which a justice of the peace had no jurisdiction, he must show before the taxing officer, not only that the sum of the accounts of both parties, as set forth, exceeded $400, but also that the sum of the accounts actually proved on the trial was in excess of that amount.
    Where the appeal book, in such a case, fails to show the state of the proof before the taxing officer, his refusal to tax plaintiff’s costs will not be presumed erroneous.
    Before Freedman and Ingraham, JJ.

      Decided January 3, 1888.
    Appeal from two orders.
    The facts appear in the opinion.

      Edward C. Wilder, for appellant.

      G. Washbourne Smith, for respondent.
   By the Court.—Freedman, J.

This is an appeal from an order made at special term denying plaintiff’s motion to vacate the judgment for costs in favor of defendant and to direct the clerk to tax plaintiff’s costs and to enter judgment for such costs. In the notice of appeal the plaintiff gave notice that upon the appeal from said order he would ask for a review of a prior order denying plaintiff’s motion for a new taxation of costs and affirming the clerk’s decision refusing to tax plaintiff’s costs.

The jury having rendered a general verdict of $23.59, for the plaintiff, the clerk refused to tax plaintiff’s costs because the verdict was for legs than $50. It is claimed by the plaintiff, however, that he is entitled to costs because the action is one of which no justice of the peace could have taken jurisdiction.

Section 3228 of the Code of Civil Procedure provides, among other things, that the plaintiff is entitled to costs of course, upon the rendering of a final judgment in his favor in an action specified in subdivision 4 of section 2863. By turning to that section and subdivision, it is found that it refers to an action in which a justice of the peace has not. jurisdiction. The action thus referred to is one where, in a matter of account, the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds $400.

By the pleadings it appears that the plaintiff sued upon seven distinct causes of action amounting in the aggregate to $552.50, exclusive of interest. The defendant interposed a general denial and then set up two counter claims arising out of matters disconnected with any of the claims of the plaintiff and amounting together to the sum of $561.26, exclusive of interest.

To recover costs upon a verdict of only $23.59, in his favor as the result of a trial of all these issues, the plaintiff was therefore bound to show before the clerk as taxing officer, not only that the sum of the accounts of both parties as set forth exceeded $400, but also that the sum of the accounts actually proved upon the trial was in excess of $400. Tompkins v. Green, 82 N. Y. 619, affirming 21 Hun 257.

The motions made subsequent to the taxation and resulting in the orders appealed from, were made to obtain relief claimed by the plaintiff as matter of right. No affidavit could therefore be considered against the objection of the defendant which was not before the clerk. As a further consequence the determination of the appeals now before us depends exclusively upon the state of the proof before the clerk.

From the appeal book it is impossible to determine what proof was given by the plaintiff before the clerk. Even the bill of costs claimed and presented has not been printed. For all that appears no proof was made before the clerk that the sum of the accounts actually proved to the satisfaction of the jury was in excess of $400.

This being so, it is impossible to find that an error was committed either by the clerk or by either of the learned judges who respectively made the orders appealed from.

The orders must be affirmed with ten dollars costs and disbursements.

Ingraham, J., concurred.


author: By the Court.—Freedman, J. Sedgwick, Ch. J. (dissenting)

text:
    ANN CRAWFORD, Respondent, v. THE DELAWARE, LACKAWANNA & W. R. R. Co., Appellant.

      Personal injuries—Damages for future pain and disability, when question of not to be submitted to jury.

    In an action for damages for personal injuries, the only testimony relating in any way to plaintiff’s injuries, was her own, from which it appeared that her leg was broken, her arm fractured, and her scalp torn from her forehead for several inches; that she had suffered pain all the time since the accident; that she had not been able to walk without crutches from the time of the accident to the time of her testifying, viz.: about two years; that the condition of her broken leg interfered with her ability to walk; and that she could not fill any situation.

      Held, that on this testimony alone, it was error to submit to the jury the question of future pain and future disability, with power to award damages therefor.
    Sedgwick, Ch. J., dissented, holding that, while there might be a doubt as to the right of the jury to award damages for future pain, it was competent for them to decide unaided by expert testimony, whether or not her disability to fill a situation ensued from her broken leg, and would or would not be reasonably certain to continue.
    Before Sedgwick, Ch. J., Freedmak and Ingraham, JJ.

      Decided January 3, 1888.
    Appeal from a judgment entered in favor of the plaintiff on the verdict of a jury, and from an order denying defendant’s motion for a new trial.

      Hamilton Odell for appellant, argued :
    There was no proof in this case to authorize the submission to the jury of the question of the plaintiff’s future pain and loss. The only testimony relating in any way to her injuries was given by herself. She testified that her leg was broken, her scalp was torn and her back was injured; that she was three months and upwards in the hospital; that she had suffered pain all the time since the accident; that she had not been able to walk without the aid of crutches; that her limb was not in the condition in which it used to be, that a change of weather affected the broken bone; that the arm was not much use ; that there was a cold sensation all the time in her arm and hand, and that she had been u having pains and sufferings very much lately, especially in the leg and back.” Upon1 such testimony the jury were instructed to determine whether the plaintiff’s injuries were likely to be permanent, and to what extent she would continue to suffer pain and be disabled from earning her own bread. This was plain error. Filer v. N. Y. Central Co., 49 N. Y. 46; Mosher v. Russell, 44 Hun 15; Curtis v. R. &. S. Company, 18 N. Y. 534. The authorities all unite in requiring substantial proof to be made that future pain and disability will result to the plaintiff directly from the original injury, where the claim for damages rests at all upon that ground. Matterson v. N. Y Central Co., 35 N. Y. 492 ; Caldwell v. Murphy, 1 Duer 240; Aaron v. Second Avenue Co., 2 Daly 129; Drew v. Sixth Avenue Co., 26 N. Y. 49 ; Spicer v. C. & N. W. Co., 29 Wise. 585; Fry v. Railroad Co., 3 Reporter 644. The only proper proof by which the fact can be established is the testimony of experts. And they are permitted to testify only to such apprehended consequences “ as, in the ordinary course of nature, are reasonably certain to ensue. Consequences which are contingent, speculative, or merely possible, are not proper to be considered in ascertaining the damages.” Strohm v. New York, &c., Co., 96 N. Y. 306; Tozer v. N. Y. Central, 105 Ib. 617, 659.

      Artemas H. Holmes, for resnondent.
   By the Court.—Freedman, J.

Upon the present appeal but a single exception has been urged, and that relates to the submission to the jury of the question of damages for future pain and future disability.

The only testimony in the case relating in any way to plaintiff’s injuries, was given.by the plaintiff herself, and the testimony thus given contained a description of the injuries sustained, of past suffering and her present condition. Her injuries did not involve a loss of limb, or other loss of so marked a character that from a bare exhibition of it an inference of permanency could be drawn, and no proof was given showing or tending to show that there was any reasonable certainty of future pain or future disability. All this was left to mere conjecture. It was therefore error in the learned judge who presided at the trial to submit the question of future pain and future disability to the jury with power to award damages therefor. Mosher v. Russell, 44 Hun 12.

The judgment and order should be reversed and a new trial ordered with costs to the appellant to abide the event.

Ingraham, J., concurred.

Sedgwick, Ch. J. (dissenting)

The accident happened in August, 1885. The trial was in October, 1887. At that time the plaintiff testified that by the accident her leg had been broken, her arm fractured, and her scalp torn from her forehead for several inches. She had suffered pain all the time since. She had not been able to walk without crutches to the time of her testifying. The condition of her broken leg interfered with her ability to walk. She could not fill any situation.

The court charged the jury: “ It is for you to consider whether from all that she has said, and from the statements of her present condition, and what you have seen of it, there is a reasonable certainty that these pains will continue and impose upon her a disability of earning her own bread.”

It was understood that the learned judge, by the word pains referred to the injuries received as well as to the pain suffered. For, the exception to the charge was, “to the submission to the jury of the question, whether there is a reasonable certainty upon the evidence that these pains and injuries of the plaintiff will continue and disable her from earning her own livelihood.”

The ground of the exception was’ that the jury were not competent to find whether the consequences would last permanently, or for how long they would last, and that they could pass upon this only by the help of a physician expert. If the charge referred only to the continuousness of the pain, there might be a doubt, which does not exist in this case, as I think. The leg of the plaintiff was broken, she walked with crutches, after two years, in which she-had received professional •care. The jury had some means of observation. I think the common knowledge or common sense of the jury would make them competent to say, in the absence of testimony from an expert, whether it was not reasonably certain that the condition of the broken bone would continue to be as it had been, and have in the future the consequences it had had in the past, and that if her disability to fill a situation had ensued from her broken leg, this disability would not continue.

The exception that has been referred to was the only one argued upon the appeal.

I think the judgment should be affirmed with costs.


author: By the Court.—Ingraham, J.

text:
    CHARLES S. CLARKE, Respondent, v. THE MAYOR, &c., OF NEW YORK CITY, Appellants.

      Taxes and assessments—Money paid on tax sale, when cannot he recovered —Sale ivhen not void.

    To entitle the purchaser of property in New York city, at a sale under § 926 of the Consolidation Act, for non-payment of taxes, to recover back the amount paid, he must show that the sale made was void, and it is not enough to show that the certificate given by the clerk of arrears under § 941 of said act did not comply with the statute, or that the lease thereafter made was void.
    It cannot be held that such a sale is void because the books of assessment of property for taxation, required to be kept, by the tax commissioners, “ open for examination and correction, from the second Monday of January until the first day of May.....on the last mentioned day the same shall be closed ”—were not open for correction on May 1, of the year in question. It was not the intention of the statute that corrections should be received after April 30.
    It cannot be held that such a sale is void because the clerk of arrears, when the certificate aforésaid was given, exacted a greater sum for interest than was allowed by law; nor is it void on account of an excessive charge for advertising the sale, made by said clerk.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 3, 1888.
    Appeal from judgment.
    The facts appear in the opinion.

      Morgan J. O’Brien, corporation counsel, and Woolsey Carnalt, for appellants.

      John Townshend, for respondent, on the question considered in the opinion, argued :
    I. The alleged taxes were void because the books of record were closed on April 30 instead of on May 1, and because the commissioners did not in the manner required by law advertise that books open, etc. Laws 1859, Ch. 302, 8, 9, 10, 11; Laws 1881, Ch. 134, § 820 Consolidation Act. Instead of advertising that the books would be open until May 1, the commissioners advertised that the books would be open until April 30, inclusive. Instead of keeping the books open until May 1 they were closed April 30, after which applications for corrections were not received, (a) The meaning of the word until has been the subject of many adjudications, with the result that “until” a certain day named, will be inclusive or exclusive, according to the context. King v. Stevens, 5 East. 244; Kendall v. Kingsley, 120 Mass. 94; Isaac v. Insur. Co., L. R. 5 Exch., 296; Bellhouse v. Mellor, 4 Hurl. & N. 120; Ebeel v. Alexander, 45 Ind. 523; Webster v. French, 12 Ill. 302; Thomas v. Douglas, 2 Johns. Cas. 224; People v. Walker, 17 N. Y. 502. (b) In the statute noAV before the court there is much in the context to show that “ until ” Avas used in an inclusive sense. The books are to remain open until first day of May, on which day they are to be closed; and § 11, before the closing of the books of annual record “ on, the first day of May” in each year. The statute is imperative that the books shall not be closed until May 1. There is nothing in the law of 1881, to show a different intention, (c) The provisions for being heard, being of vital importance to the taxpayer, must be regarded as compulsory, and the strict compliance with them, as conditions precedent to any further step to charge him with a tax. Cooley on Taxation, 267; Thames Co. v. Lathrop, 7 Con. 550; State v. Jersey City, 25 N. J. 308; Sioux City v. Washington Co., 3 Neb. 30; Adriance v. McCafferty, 2 Robertson 153. (d) The court will give effect to the statute without regard to the consequences. Remson v. Wheeler, 105 N. Y. 575; Brevoort v. City of Brooklyn, 89 Ib. 128. (e) The construction of the statute by the commissioners will not control the court. Manhattan Savings Ins., 82 N. Y 144.
    II. Too much interest was charged. The tax for 1877 was not due until October 25, and interést could be computed only from that day.
    III. The charge of $ 3 for cost of sale was excessive. Laws 1882, Ch. 410, § 926.
    IV. The lease being void there was a total failure of consideration for the amount paid, and plaintiff was entitled to recover it from defendant. No lease was given. The void lease was not a lease, it wras no more than blank paper. The contract to deliver a lease has never been fulfilled. One who undertakes to convey undertakes to convey by a good title. Me Adam, Land. & Ten. 170, 2d ed; 1 H. Bl. 280 ; 1 Ib. 123. There being a total failure of consideration plaintiff was entitled to recover the amount paid. Chapman v. City of Brooklyn, 40 N. Y. 372. This case decided the exact point. The case has never been directly questioned or doubted, but has been referred to with approval in Nash v. Mayor, &c., 9 Hun 221; Rochester City v. Rush, 80 Ñ Y. 311; Dewey v. Niagara, 4 Sup. Ct.

      (T. & C.) 611; Strusburg v. Mayor, &c., 45 Super. Ct. 516 ; Com’wealth B’k v. Mayor, &c., 43 N. Y., 191; Newman v. Livingston, 45 Ib. 685 ; B’k of Chemung v. Elmira, 53 Ib. 55; DeGrauw v. Queens Co., 13 Hun 384 ; Newell v. Wheeler, 48 N. Y. 490.
   By the Court.—Ingraham, J.

The plaintiff was the purchaser at a sale for non-payment of taxes of certain property in the city of New York, and brings this action to recover the amount that he paid on account of such purchase, on the ground that the sale and lease delivered under it were void.

The sale was made under provisions of section 926 of the Consolidation Act of 1882. By that section the clerk of arrears is required to cause such lands and tenements to be sold at public auction, for a term of years, for the purpose and in the manner expressed in the advertisement required to be made, viz.: for the lowest term of years at which any person or persons shall offer to take the same, in consideration of advancing the taxes, etc., and interest thereon to the time of the sale, together with the costs and charges of the advertisement, and the clerk of arrears is required to give to the purchaser a certificate of such sale.

Section 941 provides that the clerk of arrears shall, unless the owners redeem the lots within two years from the date of the certificate, execute to the purchaser a lease of the lands sold.

To entitle the purchaser to recover the amount paid . he must show that the sale made Avas void. It will not do to show that the certificate did not comply with the statute, or that the lease subsequently executed and delivered Avas void. The purchaser buys the right to a certificate which gives him the right to a lease unless the owners of the property redeem within íavo years.

On making such purchase at the auction sale and paying the money, he became entitled to the certificate from the clerk of arrears and he can enforce that right if it is denied him; hut the fact that the. certificate given, and which he accepts in satisfaction of that right, does not comply with the statute, does not avoid the sale or entitle the purchaser to the return of the purchase money paid. The remedy of the purchaser in that case, is to compel the delivery to him of a proper certificate, not the return of the money which he lias paid for the right to have the certificate.

Plaintiff relies upon several grounds to show that the sale was void. First, that the books of assessment of property for taxation were not open, during the year this tax was imposed, as required by § 8 of chapter 302, Laws of 1859. It is there provided that the tax commissioners “ shall keep in their office books.....to be called the annual record of the assessed valuation of real and personal estate.....which books shall be open for examination and correction from the second Monday of January, until the first day of May; but on the last mentioned day the same shall be closed to enable the commissioners to prepare the assessment rolls.”

The closing of the books contemplated by this section, • is not a physical act, but is a simple' limitation of the time during which those interested can apply to have mistakes in the assessments of property for taxes corrected. Putting the book away in the safe at four o’clock on April 30, was not a closing of the book, nor was the opening of the book on the first day of May an opening of the book, and when the statute says that on the first day of May the books shall be closed, it means that on the first day of May applications for the correction of assessments will not be received. T think therefore that this section of the statute was complied with.

The second objection taken is, that when the certificate was given, the clerk of arrears exacted a greater sum for interest than was allowed by law; but this did not affect the sale. The property was sold for the lowrest term at which any person wmuld offer to take the same, in consideration of advancing the tax, etc., and interest, together with the charge for advertising. The amount that the purchaser was to pay was fixed. The term of years that the purchaser was to obtain on the payment of that amount was uncertain, and the purchaser having offered to pay the amount required by the statute to be paid for the term of twenty-nine years, he was entitled to the certificate on paying the amount. If a larger sum was demanded, he should have refused to pay it and insisted upon the certificate being delivered to him on payment of the correct amount. If he paid too much it was paid voluntarily and could not avoid the sale.

The same remark applies to the third reason given by the plaintiff, viz.: that the charge for advertising was excessive.

As before stated the fact that the lease given two years subsequent was void, would not avoid the sale. Plaintiff would be entitled to a valid lease, and if refused might bring an action for damages for the breach of the agreement to give a lease, or for a specific performance of the agreement for a lease; but this would not be such a total failure of consideration as would entitle plaintiff to recover back the amount paid on the bid.

The cases cited by the plaintiff are not in conflict with this construction of the statute. In Chapman v. The City of Brooklyn, 40 N. Y. 375, the court held that the proceedings of the city in making the assessment were utterly and entirely void, on account of the omission to institute and carry on the proceedings as against the owner or occupants of the lands intended to be affected by them. It was not a case of a valid tax or valid sale, but the tax itself was void and consequently there could be no valid sale to enforce the tax and there was no consideration for the payment of the money.

The other cases -cited by the plaintiff have been examined, but in all of them it appears that the tax itself, or the sale under the tax, was void.

The judgment should therefore be reversed, and a new trial ordered, with costs to abide the event.

Sedgwick, Ch. J., and Freedman, J., concurred.


text:
    VALENTINE H. HALLOCK, et al., Respondents, v. PETER MALLETT, et al., Appellants.

      Warranty—Statements of opinion not amounting to—Judges charge.

    In an action for damages for breach of an alleged warranty that a certain warehouse was “frostproof,” proof of statements by the owner that the warehouse was free and safe from frost, and that there was no danger of the bulbs (about to be stored) freezing, is not sufficient to show such a warranty.
    In an acti.on on such a warranty, it is error to charge the jury that if the defendant stated that his warehouse was as frost proof as brick, iron and mortar could reasonably be expected to malte it, and said warehouse was not in fact so frost proof, then plaintiff is entitled to recover; because such a statement is plainly an opinion, and not a warranty.

      A fortiori, it is error so to charge, where either, there is no evidence to show that such statements were made; or no evidence to show that said warehouse was not as frost proof as brick, iron and mortar could reasonably be expected to make it.
    Before Sedgwick, Ch, J., Freedman and Ingraham, JJ.

      Decided January 3, 1888.
    Appeal from judgment in favor of the plaintiffs, and from an order denying a motion for a new trial on the minutes,
    Action for damages for breach of a warranty -that . defendants’ warehouse was “ frost proof,” etc.

      On January 30, 1886, the Clyde Steamship Company discharged on its dock, in Brooklyn, seventy-one barrels and one box of tuberose bulbs, belonging to the respondents ; twenty-five barrels were at once carted away by the respondents, the balance, forty-six barrels and one box, remained on the dock for several hours. The weather was very cold, and respondents, fearful that those left on the dock would freeze unless stored, sent their bookkeeper to Brooklyn with instructions to store the bulbs. The bookkeeper met Mr. Mallett, one of the appellants, who owned warehouses near the dock where the bulbs were, and had a conversation with him with reference to storing the bulbs, which conversation is set forth in the opinion. The bulbs were stored in the cellar of the warehouse, 300 feet from the yard. Twenty-five barrels were removed from the warehouse within four days after they were stored, in good condition, and the remainder, twenty-one barrels and one box, within ten days thereafter, which latter, upon arrival at their destination, Queens, Long Island, were found to be frozen. There was no testimony as to the condition • of the weather while the bulbs were in the warehouse.
    Goodrich, Deady & Goodrich, attorneys, and John A. Deady of counsel, for appellants.

      Wilbur Larremore, attorney and of counsel, for respondents.
   By the Court.—Ingraham, J.

The court charged the jury that the plaintiff must prove a warranty concerning an existing fact, and hence they must prove that the defendants represented in words or in substance at least, that their warehouse was unqualifiedly frost proof.”

We adopt this as a correct statement of the law, and the question that is at once presented is whether there was evidence to sustain a finding of the jury, that the defendants represented in words or substance that their warehouse was unqualifiedly frost proof.

The plaintiffs called as a witness a clerk in their employ, who testified that he asked Mr. Mallett, one of the defendants, if his warehouses were free and safe from frost, and that he said they were; that subsequently, after the arrangement as to the price was effected, reference was made as to the liability of these bulbs to freeze. Witness said to defendants that they would freeze as quick as eggs. Defendants said there was no danger whatever; that they would keep them all right.

This was the only testimony which tended to show that the defendants represented the warehouses were a frost proof.”

There .was no such representation in words in this testimony. The question was “ whether the warehouses were free and safe from frost.” The very form of the question called for the expression of an opinion and not the representation of an existing fact, and if any fact was represented to exist, it was that at the time the words were spoken the warehouses were free from frost. Nothing was said about the time that the bulbs were to remain in the warehouses, or that the warehouse was so constructed and arranged that the bulbs would not freeze if allowed to remain there all winter, in other words were “ frost proof.”

The representation, so far as it refers to the existence of a fact, would be true if at the time the warehouse was free from frost, and there is no proof to show that at that time it was not in that condition. On the contrary, it appeared that the bulbs that remained three or four days after the statements were made, were in good order. It was only the bulbs that remained fourteen days that were found to be frozen.

This case is very near to the safe case, Walker v. Milner, 4 Fost. & F. 745. In that case the statement was that “ the safe in question was thief proof; that nothing can break into it,” and it was held that the words should not be understood in the sense of a warranty or assurance of perfect safety, but merely as representing a high degree of strength and that they were merely promissory.

The case of Hickey v. Morrell, 102 N. Y. 463, recognizes the rule that no man is liable for a mere expression of opinion or judgment, but holds that the statement in that' case that the exterior of the storehouse was fire proof, was not a matter of opinion, for it defines a state or condition, and if part of the exterior was wood it may be properly regarded as a false statement of a fact. But in this case there wras nothing said about the construction of the building that of itself' would prevent the bulbs from freezing. The statements were that the warehouses were free and safe from frost, and that there was no danger of the bulbs freezing. This fell far short of a representation that the warehouse was frost proof,” and was not sufficient to sustain the verdict of the jury.

There was no evidence that the defendant made the statement in bad faith or that he had any doubt about the safety of the bulbs, and I think that the complaint should have been dismissed.

It will be well to call attention to the allegation in the complaint. It is there stated that plaintiffs delivered the bulbs to the defendants upon the express agreement and warranty that the same should be kept in a frost proof place, and should be delivered to plaintiffs when called for, in as good and perfect condition as when delivered to defendants for storage. There was an entire absence of any proof to sustain this allegation, but as the point does not seem to have been taken on the trial, it is perhaps too late to take it on appeal.

Assuming however, that there was sufficient to sustain the verdict of the jury, it is clear that the charge, at the request of the plaintiffs, that if defendants stated as matter of fact that their warehouse was as frost proof as brick, iron and mortar could reasonably be expected to make it, and that said warehouse was not so frost proof, then plaintiffs were entitled to recover, was error. In the first place, there was no evidence that the defendants ever made such a statement. The defendant testified that when plaintiffs’ clerk asked him about frost, he said he did not know anything about that; that the warehouse was as good as brick, iron and mortar could make it. In the second place, such a statement is plainly an opinion as to what could be reasonably expected of brick, iron and mortar, and is certainly not a fact. In the third place, there was not the slightest evidence that the warehouse was not as frost proof as brick, iron and mortar could be reasonably expected to make it, or in fact what could reasonably be expected of these materials.

The judgment must be reversed, and a new trial ordered, with costs to abide the event.

Sedgwick, Ch. J., and Freedman, J., concurred.