author: Freedman, J.—

text:
    ALEXANDER Z. ZEISLER, Appellant, v. SIEGMUND B. STEINMANN, et al., Respondents.

      Partnership.—Agreement to share in profits of one partner. — Costs—When two Mils taxed^
    When money is given by A. to B. to be used in the formation of a copartnership between B. and a third person, and the money is given for such purpose upon the agreement that in consideration therefor, A. should have one-half of B.’s profits, it is an agreement only to share in B.’s profits when ascertained and paid over, or at least set apart by the firm; and no action upon the .agreement can be maintained against the firm, because as such, the firm is in no wise a party to it or affected by it. Neither the fact that B. .is insolvent, nor the fact that a portion of the business in which the firm engaged against the wishes of A. is illegal, can make any change in this rule.
    Walker v. Russell (16 How. 91), followed as to the allowance of two bills of costs where'defenses are different, though both defendants appear by the same attorney.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided May 3, 1886.
    Appeal from judgment dismissing complaint.
    The facts appear in the opinion.

      Wm. N. Loew, attorney, and Jno. L. Lindsay, of counsel, for appellant.

      S. D. Sewards, attorney and counsel for respondents.
   By the Court.

Freedman, J.—

This action was brought for a dissolution of an alleged copartnership between the plaintiff and the defendant Zeisler, of which the defendant Steinmann was not a member, and for an accounting, and to that end the plaintiff demanded that the defendants be enjoined from carrying on the business of the copartnership existing between them under the firm name of C. B. Steinmann & Co., of which firm the plaintiff was and is now a member, and that a receiver be appointed of the property of both copartnerships.

Upon the trial it appeared that the plaintiff had given money to his brother, the defendant Zeisler, to be used as the latter’s own money in the formation of a partnership with Steinmann, and that the money was given for such purpose, upon the agreement that in consideration therefor the plaintiff should have one-half of the profits of his brother. This was an agreement to share in his brother’s profits when ascertained and paid over, or at least set apart, by the firm of Steinmann & Co. Upon this agreement he can maintain no action against the firm of Steinmann & Co., because the firm as such was in no wise a party to it or affected by it. The principles laid down in Burnett v. Snyder (76 N. Y. 344, and 81 Ib. 550) are decisive upon this point. Neither the fact that the defendant Zeisler is insolvent, nor the fact that a portion of the business in which the firm engaged against the wishes of the plaintiff, is illegal, can make any difference. The complaint, therefore, had to be dismissed as to the defendant Steinmann; and the conditional dismissal as to the defendant Zeisler, unless the plaintiff amend his complaint so as to change the action to one for money had and received, of which privilege the plaintiff did not, however, avail himself, was more than the plaintiff had a right to claim.

The general exception taken by the plaintiff to this final disposition of the case as to both defendants, who had interposed separate answers, does not properly present the question whether costs were or were not rightfully awarded to each of the defendants. Moreover, upon the facts of this case the allowance seems to have been proper within the rule laid down in Walker v. Russell (16 How. 91), which does not appear to have been changed by the provisions of the Code of Civil Procedure.

The judgment should be affirmed with costs, but only one bill of costs should be allowed upon the present appeal.

Sedgwick, Oh. J., and Ingraham, J., concurred.


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    ARTHUR B. WINTERBOTHAM, et al. v. ROBERT T. PAINE.

      Contract of sale—deviation by vendor from order as given—loss of goods in transit.

    Defendant, a dealer in carriage cloths in this city, sent to the plaintiffs, who were manufacturers of cloths in England, a written order for fourteen pieces of goods of thirty to forty .yards to a piece. Plaintiffs sent thirteen pieces, of which twelve contained over fifty yards each, and one contained thirty-nine and one-half yards,- in all one hundred and eighteen and three-quarter yards more than the greatest number which defendant had ordered in fourteen pieces. Plaintiffs sent the invoice and bill of lading to their agent in New York, with instructions to present them to defendant, and insure performance of his agreement to pay cash on receipt of invoice. After the goods were taken from the vessel, and while upon the dock, and before the invoice and bill of lading wore presented to defendant, the goods were destroyed by fire. In an action to recover the purchase price of the goods the complaint was dismissed.

      IIeld, that the dismissal was correct; that defendant had a right to stand upon his order as given, and in sending pieces which did not comply with the order, without defendant’s assent to the change, plaintiffs sent them at their own risk.
    Before Sedgwick, Oh. J., Freedman and Ingraham, JJ.

      Decided May 3, 1886.
    Exceptions ordered to be heard at general term in the first instance.
    The facts and exceptions appear in the opinion.

      Mitchell & Mitchell and Herbert W. Grindal, for plaintiffs,
    on the question considered in the opinion, urged: I. The goods shipped by plaintiffs were in accordance with the requirements of' the contract. 1st. The goods were ordered to be sent “ as samples.” 2d. The only direction as to length was the expression, “ Say, thirty to forty yards to a piece,” and these words were words of expectation and estimate only;
    II. The correspondence set out in the complaint shows that the defendant had not before purchased this sort of goods of plaintiff, and ordered these goods as samples. He was not familiar with the usual weights, widths or prices, and in his first letter asks for information on these points. He says nothing about lengths, however, and it is everywhere evident that he did not consider that element as important or of the essence of the contract. The plaintiffs’ order was for “pieces” of the goods. It appears by the complaint that pieces of West of England cloth, of the quality ordered by defendant, always average from forty to fifty-six yards a piece, and are always sold by the piece. If the plaintiffs were to send “ pieces ” of goods “as samples” they were surely to send them of the lengths which they were always manufactured. It appears that they did send the shortest that they had. This was the only thing that they could do. Had they sent goods of any shorter lengths they would not have been 1 c sample pieces ’ ’ but only part of pieces.
    III. The words “ Say thirty to forty yards to the piece ” were words of expectation and estimate only (Gwillim v. Daniel, 2 C., M. & R. 61; McConnell v. Murphy, 21 W. R. 509 ; Pembroke Iron Works v. Parsons, 5 Gray, 589 ; Robinson v. Noble’s Admrs., 8 Peters, 181; Brawley v. United States, 96 U. S. 168).

      George C. Be Lacy, attorney, and Joseph Fettretch, of counsel, for defendant.
   By the Court.

Freedman, J.

The action is brought to recover the price of goods alleged to have been shipped by the plaintiffs pursuant to defendant’s order. The plaintiffs are copartners engaged in the manufacture and sale of cloths in England. The defendant is a dealer in carnage cloths in New York. The plaintiffs shipped the gc ds by steamship from Liverpool and by the bill of lac. ng consigned the goods to the defendant at New York. But instead of sending the bill of lading to the defendant with the invoice, they sent both the bill of lading and the invoice to their agent in New York with instructions to present the same to the defendant and to insure the performance by the defendant of his agreement to pay cash on receipt of the invoice. After the arrival of the goods at the port of New York, they were taken from the hold of the vessel and placed upon the dock. While there, they were destroyed by fire before the bill of lading and the invoice were presented to the defendant, and consequently before the defendant could get possession of them.

At the trial, the compiamt o^ une plaintiffs was dismissed, and their exceptions were ordered to be heard at general term in the first instance.

Upon this disposition of the case the first and fundamental question which presents itself, is whether the plaintiffs complied with the order of the defendant as given.

It clearly appears that in the course of a lengthy correspondence the defendant ordered the plaintiffs to send fourteen pieces of goods of thirty to forty yards to a piece. The plaintiffs sent thirteen pieces, of which twelve contained over fifty yards each, and the thirteenth of which contained thirty-nine and one-half yards. The total number of yards amounted to six hundred and seventy-eight and three-quarters, or one hundred and eighteen and three-quarter yards more than the greatest number of yards which the defendant had ordered in fourteen pieces. For this deviation from the order the plaintiffs present reasons which would be quite satisfactory if the defendant had in some way assented. But they must be disregarded because they were never made known to the defendant in any way, and he in no wise sanctioned the deviation. His order was in writing, it was clear and explicit, it spoke for itself, and he had a right to stand upon it, whether the goods were or were not ordered as samples. In sending pieces which did not comply with the order, without having procured defendant’s assent to the change, the plaintiffs sent them at their own risk. This is fatal to plaintiffs’ action in every aspect of the case, and renders a consideration of the other questions unnecessary.

The exceptions taken by the plaintiffs should be overruled, and judgment should be ordered for the defendant, with costs.

Sedgwick, Oh. J., and Ingraham, J., concurred.


text:
    CHARLES W. TARBELL, Respondent, v. THE ROYAL EXCHANGE SHIPPING COMPANY (limited), Appellant.

      Bill of lading—delivery by ship, what constitutes under special provisions. —Assignment by vendee ofpropen'ty of claims arising after sale against third persons in respect of the property sold, effect of.—Assignment by one to whom part of the merchandise covered by a bill of lading has been sold, effect of.

    Defendant issued its bill of lading at Singapore, India, to Katz Bros., whereby it undertook to transport one thousand seven hundred and three slabs of tin to London, and thence to the port of New York by a steamer of the Monarch Line. The bill of lading provided, among other things, that the merchandise shipped should be delivered from the ship’s deck (where the shipowner’s responsibility shall cease) at the port of New York, and be received by the consignee immediately the vessel is discharged, or otherwise it would be landed and stored under special provisions made relating to such storage ; and also providing that the contract for transportation should be subject to exceptions for losses arising through pirates, robbers, thieves, . . . during the voyage or at the port of discharge ; Katz Bros, sold the tin to Mayer Bros. & Co., and indorsed the bill of lading over to them. On the arrival at the port of New York of the vessel carrying the tin, Mayer Bros. & Co. entered the tin at the custom-house, and obtained a free permit. They then paid the freight to the consignees of the vessel and obtained a delivery order for the tin. This they indorsed: “ deliver against our order only,” and presented it to the delivery clerk of the vessel; on the same day they sent weighers to weigh the tin, at the defendant’s regular wharf, in five-ton lots. The weigher found that some of the tin had been discharged. He returned the next day, November 28, and found about thirty tons discharged and in good order. This he weighed, dividing it into six lots of five tons each, numbering them from one to six, both inclusive, and piled each lot by itself, and about noon of that day sent returns of the weights to Mayer Bros. & Co. One return was of four hundred and ninety-eight slabs, and covered lots one to five, both inclusive. This return, with a bill and delivery order for the four hundred and ninety-eight slabs, were sent, about one o’clock the same day, by Mayer Bros. & Co. to Peter Hayden, to whom they had sold them, who, between one and three the same afternoon, indorsed the delivery order and delivered it with the weigher’s return to Lucius Hart & Co., to whom he had sold the same. On the next day, Lucius Hart & Co. sent a double-horse and single-horse truck to remove the tin. One of their employes accompanied the trucks, who delivered to and left with the contractor of the wharf the delivery order for the four hundred and ninety-eight slabs contained in said five lots as they had been set apart, and assumed the control thereof. The trucks took away that day about six tons. The next day (Thanksgiving day), November 30, none of the tin was removed, although the day was fit and proper, and the wharf was open for business, and other merchants sent for and took away goods. On the morning of December 1, sixty-three of the four hundred and ninety-eight slabs were missing. The cause of the loss did not appear.

      Held, that under the bill of lading the four hundred and ninety-eight slabs were duly delivered by the ship before the sixty-three slabs disappeared.
    The interests of Mayer Bros. & Co. and Peter Hayden in the sixty-three slabs having terminated by their respective sales, nothing passed by subsequent assignments made by them of all claim against the defendant in respect of said sixty-three slabs.
    In case of a general assignment for benefit of creditors by one to whom part of the merchandise covered by a bill of lading has been sold, the assignor never having held or been entitled to hold the bill of lading, his assignment only passes a title to the merchandise, with no rights against the issuer of the bill of lading as carrier.
    Before Sedgwick, Oh. J., Freedman and Ingraham, JJ.

      Decided May 3, 1886.
    Appeal by defendant from judgment entered in favor of the plaintiff upon the decision and findings of a judge at special term.
    The action was brought to recover for a non-delivery of sixty-three pigs or slabs of tin, part of a consignment of one thousand seven hundred and three slabs shipped by Katz Bros., to whom defendant issued its bill of lading.
    A jury trial having been waived, the issues were tried by a judge of this court, who found, as matters of fact, that the defendant had not delivered the sixty-three slabs of tin in question ; that it did not safely carry and deliver the same in' accordance with the terms of its agreement or bill of lading ; that defendant kept the control, possession, and exclusive supervision over said consignment of tin, except such parts as it delivered and took receipts specifically for, and until after its failure to deliver the tin in question; and that defendant had wrongfully failed and refused to deliver the same. It further found that defendant was negligent in its care of the consignment of tin ; that plaintiff and his assignees were not negligent in the matter of its removal; that the tin in question was not lost by pirates, robbers or thieves; that its value was $1,481.22, and that defendant was not the shipowner referred to in the bill of lading; that Katz Bros, sold the whole consignment to Mayer Bros., and indorsed over and delivered to them the bill of lading ; that Mayer Bros. & Co. sold twenty-five tons of said consignment to one Peter Hayden, who in turn sold the same to Lucius Hart & Co.; that said sixty-three slabs were part of said twenty-five tons ; that Lucius Hart & Co. made a general assignment of their property to John L. Hill, for the benefit of their creditors ; that Mayer Bros. & Co., in March, 1883, assigned to said Hill their claim against defendant for said sixty-three slabs; that Peter Hayden, in March, 1883, assigned to said Hill any and all claims to said sixty-three slabs as well as against the defendant; that on August 8, 1883, the said John L. Hill, as assignee of Lucius Hart & Co., sold to the plaintiff, Charles W. Tarbell, for value received by the said assignee and paid by the said plaintiff, all his right, title and interest as such assignee, by reason of the assignments executed to him by Mayer Brothers & Co., Peter Hayden and Lucius Hart & Co:, and assigned, transferred and delivered the same and including the cause of action involved in this suit, over to the said plaintiff, who continued to own and hold the same.
    And as matter of law, the judge found that plaintiff was entitled to judgment against defendant for $1,481.22, with interest.
    The learned judge wrote in support of his findings, this opinion :—
    “ O’Gormar, J.—There is no dispute as to the material facts in this case, and but little uncertainty as to the rules of law which are applicable to the facts.
    “The action is brought by the plaintiff as assignee of the claim of Lucius Hart & Co., of the city of Hew York, to recover $1,506.60, being the conceded value of sixty-three slabs of tin which the defendants, common carriers of merchandise, were, by their bill of lading, bound to deliver to said Hart & Co. in the port of Hew York, and did not deliver but converted to their own use.
    “ The defendants answer, that they made good delivery of the slabs on their dock to Hart & Co., and that while there, after such delivery, the slabs were abstracted, but by whom or in what manner they do not say, and the evidence does not disclose.
    “ The material facts are these ; The bill of lading provided that the goods should be delivered to the consignee from the ship’s deck in the port of Hew York in good order and condition, and be removed by the consignee immediately the vessel was ready to discharge, or otherwise they would be landed and stored at the sole expense and risk of .the consignee in warehouse or public store, &c.
    “Mayer Brothers & Co., of Hew York were the consignees of a shipment of seventeen hundred and three slabs of tin, weighing about eighty-five tons, which the defendants agreed to carry from Singapore to the port of Hew York, and deliver there to the consignee or his order.
    “ The tin arrived in the port of Hew York on Hovember 25, 1882, in the steamship ‘York City,’ which was then employed and controlled by defendants. This ship, on her arrival, went to defendants’ dock at Jersey city to discharge. This was a private dock, owned and used by defendants in their own special business.
    “Mayer Brothers had previously sold ‘to arrive,’ twenty-five tons of tin out of this shipment of tin to one Hayden of Hew York city, and he had sold the same ‘ to arrive ’ to Lucius Hart & Co., Hew York city. The sixty-three slabs of tin in suit weighed altogether six thousand six hundred and twenty pounds, and each about one hundred and ten pounds, and were part of said twenty-five tons so sold to Hart & Co.
    “ Hart & Go., so far as their right to have these sixty-three slabs delivered to them is concerned, had all the rights, and were subject to all the obligations, which Mayer Brothers, the consignees, were possessed of, or were subject to, and, for all purposes of this action Hart & Co. may be regarded as the consignees.
    “ On November 27, 1882, Mayer Brothers received from the agents of the defendants notice of the arrival of the steamship ‘York City,’ with the shipment of tin on board, and received, also, an order for the tin when discharged. They at once directed their weigher to weigh the tin. On the same day, November 27, an employee of the weigher went to defendants’ dock at Jersey city, and found that the tin had not yet been discharged from the hold. ' On the next day, November 28, he again went to the defendants’ dock—found some of the tin discharged, and he weighed the twenty-five tons setting them apart on the dock and separating the tin into five lots or piles weighing five tons each, the piles being numbered respectively 1, 2, 3, 4 and 5.

      “ In the evening of November 28, Hart & Co. received notice of the discharge of the tin, together with an order for the delivery to them, and they at once directed their cartman to proceed with all dispatch to haul the twenty-five tons of tin from the dock in Jersey city to their store in Burling slip, and to employ all the carts he could get.
    “Their cartman started for defendants’ dock on the next day, December 29, before seven a. m., with two trucks, one a double, the other a single truck, and hauled tin from the said piles’ numbered 1, 2, 3, 4 and 5, talcing three loads on that day. Two loads were taken in the double truck, carrying about fifty slabs in each load, and one load in the single truck, carrying twenty slabs. These slabs averaged in weight one hundred and ten pounds each, and seventy slabs, weighing nearly four tons, were taken away from the defendant’s dock on account of that twenty-five tons on that day, November 29.
    “There is evidence that the whole twenty-five tons could not have been removed in that winter season with less than twelve loads, or in less than three days, at the usual rate of hauling.
    “ The cartman of Hart & Co. did not haul any tin on November 29 after two p. if.
    “At the time of hauling this tin, the streets were rendered difficult of travel, by reason of ice, and were full of holes, and there was a great rush and block of trucks on the defendant’s dock, by reason of the ships discharging cargo on the dock, and of numerous carters hauling merchandise on behalf of the various consignees, who were twenty-two in number.
    “ The carter of Hart & Co. was never used to haul tin later than two P. M. from that dock in that season.
    “ He was required by the delivery clerk of defendants to sign, and did sign, a receipt for each load of this tin hauled by him from the dock, and such was the rule of defendants on the dock. This rule, however, was not regularly enforced, and it was in evidence that carters were frequently allowed to remove merchandise from the dock without giving any receipt therefor at the time.
    “The carter of Hart & Co. testified, that when proceeding to haul his second load on November 29, he remarked that some of the piles had been disturbed in his absence, and some slabs removed from them. Heat once informed the delivery clerk of the defendants on the dock, of the loss, who, at the time, gave the matter no attention. The recollection of the carter, however, is not clear as to whether he observed this abstraction of the tin from these piles at that time (November 29), or at a later occasion, viz., on the morning of December 1. The delivery clerk, a witness on behalf of the defendants, testified that his attention was first called to the matter on the talcing of the first load on December 1.

      “It is, however, certain that the sixty-three slabs were abstracted from these piles and were never received by the cartman of Hart & Co., and that their loss took place either before the afternoon of November 29 or before the morning of December 1.
    “ The intervening day, November 30, 1882, was Thanksgiving Day, and a legal holiday. The carter of Hart & Co. did not haul any tin from defendants’ dock on that day, although the defendants’ dock was kept open, and two out of the twenty-two consignees of the cargo hauled some goods from the dock on that day.
    “ On the morning of the next day, December 1, he resumed the hauling, and continued from day to day until he had taken all the tin composing the five piles, numbered 1, 2, 3, 4 and 5, less the missing sixty-three slabs which were abstracted from the piles, and were never actually received by him or by the consignee.
    “The cause, time and manner of the loss of these sixty-three slabs are unexplained by any evidence in the case, and that question is left to mere conjecture and surmise. There is no evidence to warrant the court in finding, either that these slabs were stolen, or that they were, by mistake, delivered to or taken by carters than those of Hart & Co., and there is no evidence that they were not retained by the defendants, and that they are not now in possession of defendants. Plaintiff claims in this action that they were converted by the defendants to their own use. Defendants contend that they were delivered to Hart & Co. before the loss took place, and after all responsibility of the defendants, as carriers, had ceased.
    The whole field of consideration as to time is confined to the period between the morning of November 28, when the twenty-five tons of tin were discharged on the dock and weighed by the weigher of the consignee, and the morning of December 1, when the carter noticed and called the attention of the defendant’s delivery clerk to the abstraction of the tin from the piles.

      “The questions of law that seem to me to arise from the facts are these :
    “First.—Did defendants hear towards the consignee of the tin the attitude of common carriers for hire at the time these sixty-three slabs of tin were taken from the piles ? If they did, the defendants were liable for the loss absolutely as insurers, and the plaintiff must recover.
    “Second.—If their liability as carriers and insurers had ceased before these sixty-three slabs were abstracted from the piles by reason of the delay of the consignees in removing the tin, were not defendants still bound to look to the safety of the tin as quasi warehousemen or bailees for hire ?
    “And would they not be liable for the loss unless they proved affirmatively or by necessary inference that they had used such degree of care for the tin as was required by law from warehousemen or bailees for hire—that is to say, ordinary care, or such care as any man of ordinary prudence should give to the care of his own property ?
    “The absolute responsibility of common carriers for the safety of merchandise confided to them for carriage continues until the consignee has had a reasonable time to remove his goods after notice of their arrival; and where there is no dispute as to the facts of the question, what is a reasonable time to remove the goods is a question of law for the court, and depends on the special state of facts in each case. There is no hard-and-fast rule on the subject (Hedges v. R. R. Co., 49 N. Y. 223). The absolute liability of the carrier continues until the goods have been actually delivered, or notice given, and reasonable time to remove has expired (McKinney v. Jewett, 90 N. Y. 267). This obligation rests on the carrier, as carrier, and is part of his original contract as such (Hedges v. R. R. Co., supra; Burnell v. R. R. Co., 45 N. Y. 184; Bank of Oswego v. Doyle, 91 Ib. 32 ; McKinney v. Jewett, supra). The consignee, however, on his part is held to prompt and diligent action, in taking possession and removing the goods, and must seek delivery and continue until it be complete (Hedges v. R. R. Co., supra).

    “In my opinion, the reasonable time for the consignee to remove the tin in the cases at bar, and the liability of the defendants, as carriers, existed and continued during November 28, when the weigher of the consignee was weighing the tin, and during all of November 29, on which day, up to 2 p. I., the carter of Hart & Co. was engaged in hauling the tin, and did in fact haul nearly four tons.
    “If, as the carter at one time testified, the sixty-three slabs disappeared from the piles before 2 p. m. on that day, and while he was engaged in hauling the tin no delay was imputable to Hart & Co., and the defendants were liable for the loss as carriers and insurers. If, however, as the weight of evidence shows, the loss was not discovered by the carter until the morning of December 1, then it might have occurred during Thanksgiving day, or at any time after 2 p. m. on November 29, when the carter drew his last load on that day, and the morning of December 1. The fact that the carter did not haul any tin on Thanksgiving day (November 30) becomes, therefore, important. I am unable to see any valid excuse for his failure to haul on that day.' There was no legal prohibition against his doing work on that day. There was access to defendant’s dock, and the weight of authority seems to deny exemption from any legal duty to labor on that day (Ely v. New Haven, &c. Co., 53 Barb. 201). There is not sufficient proof of a general custom not to haul on that day.
    1 ‘ It seems, however, that even with reasonable diligence and promptitude on the part of the cartman, all the twenty-five tons of tin could not have been hauled from Jersey City to Burling slip, in the city of New York, within two days, at that season, of the year, and with the then existing difficulties to be encountered in travel; so that, even if the cartman had hauled on Thanksgiving day, as well as on the preceding day, at the usual rate of work, he could not have prevented the abstraction of the sixty-three slabs by himself removing them from the dock before the morning of December • 1, and their abstraction cannot, therefore, be attributed to his unreasonable delay.
    “I do not think that the time occupied in weighing the tin, on November 28, should be charged against the consignee as unnecessary delay, or that the consignee was bound to haul on that day, after the action of the weigher had been reported to the consignee. The examination and weighing of the tin might well be a natural and necessary inquiry, preliminary to the acceptance of it by the consignee.
    “It should be remembered that during all this time the tin was not on a public dock, but on defendants’ own private dock, used exclusively by them and for their shipping business, that the tin was in their actual custody and possession, and was removable, and was, in fact, removed therefrom by the carter of Hart & Co., only on receipt given by him to the defendants’ delivery clerk on the dock, for each load, when taken, and as to what was not so taken, it still remained in their possession.
    “In my opinion, under all these circumstances, the reasonable time allowed to Hart & Co., to remove the twenty-five tons of tin, had not expired before the morning of December 1, or before the time when the sixty-three slabs were abstracted, and defendants, as carriers and insurers, were liable for the loss of the missing sixty-three slabs of tin.
    “ But if I err as to the proper application of the law to the facts bearing on the question of reasonable time to remove the tin, and if, as matter of law, that time had expired before the abstraction of the tin, and the liability of the defendants, as carriers and insurers had ceased, the defendants would not, even then, be necessarily absolved of all responsibility for the loss.
    “ Their position would be only altered from that of carriers to that of involuntary bailees for hire and quasi
      warehousemen ; and their responsibility for ordinary care of the tin would arise and continue (Goodwin v. Baltimore, &c. Co., 50 N. Y. 154; Bank of Oswego v. Doyle, 91 N. Y. 32).
    “It should be remarked here that defendants had, under the terms of their bill of lading, a means of relieving themselves of their responsibility as carriers, by warehousing the tin. This they did not do. It was suffered by them to remain on their own dock. It is also worthy of notice that this is not a case of inevitable loss, as where merchandise was destroyed by tire, &c. Here the tin was not destroyed, but was abstracted.
    “Where, instead of being landed at a public wharf, goods are placed in depot, warehouse, or other premises of the carrier, they being in his actual custody, he is bound to take ordinary care of them, notwithstanding the unreasonable delay of the consignee in removing them (Goodwin v. Baltimore, &c. Co., 50 N. Y. 154). Warehousemen are liable not only for losses occasioned by their negligence, but for those which arise from innocent mistakes in delivery of the goods to persons not entitled to them (Bank of Oswego v. Doyle, 91 N. Y. 42). When there is a total, or even a partial failure, on the part of carriers to deliver the bailed goods on demand, the onus of accounting for the default and excusing it, is on the bailee (Canfield v. R. R. Co., 93 N. Y. 532).
    “Defendants having failed to deliver the tin, or to account for its loss, every presumption is in favor of the consignee’s right to recover for the missing slabs ; and defendants, even as warehousemen, are bound to deliver the goods on demand, and failing to do so, must be regarded as having converted them to their own use, unless they prove that they were lost without any fault on their part (Bank of Oswego v. Doyle, supra).

    “The onus of proving absence of any default in the exercise of ordinary care on the part of the carriers, in their altered position as bailees for hire or quasi ware-housemen, rests on them, and in the case at bar they have not only not given sufficient evidence to exonerate them from liability, but, on the contrary, there is evidence of frequent violation by them of reasonable rules made by themselves, and of habitual neglect of necessary precautions against loss of the goods in their charge.
    ‘ ‘ To have allowed the tin to be removed from the dock without receipt being given for it to the delivery clerk might well have led to the loss.
    “The testimony given by defendants of- their general care of the dock, by means of locked gates, watchmen, &c., does not supply the want of evidence of due care by them of these missing sixty-three slabs of tin, allotted to the consignees and never delivered to them.
    “ Other questions have been presented by the learned counsel on both sides, in their arguments, which I do not regard as essential or requiring special attention. They are sufficiently covered by the findings.
    “I hold that, in the absence of sufficient evidence to explain the cause and manner of the loss, or to show that the defendants were free from negligence contributing to it, the defendants, even as bailees for hire, or quasi ware-housemen, were liable to the consignees, although their reasonable time to remove it had expired.
    “In the latter as well as in the former aspect of the case, and for the reasons given, I have arrived at the conclusion that the plaintiff should recover as damages the value of the sixty-three slabs of tin which the defendants failed to deliver, with interest, from December 2, 1882.”
    From the judgment entered on the decision of the judgb, the defendant appealed.
    The most material facts are stated in the opinion of the court.

      Butler, Stillman & Hubbard, attorneys, and William Allan Butler, and Wilhelmus Mynderse, of counsel for appellant,
    argued: I. The tin was duly delivered, and the relation of the defendant to it, as carrier, had terminated before the sixty-three slabs were stolen, even if the rule relating to carriers by rail applies (Hedges v. H. R. R. R. Co., 49 N. Y. 223). If Lucius Hart & Co. did not want to take away goods on Thanksgiving Day, they left them on the dock at their own risk. The United States supreme court has held that a discharge on a fast day is a good delivery (Richardson v. Goddard, 23 How. [U. S.] 28). And the fourth of July is not a holiday in the sense of relieving a consignee from the duty of sending for his goods on that day (Ely v. New Haven Steamboat Co., 53 Barb. 207).
    II. The rule as to the duration of the liability of a carrier by sea is somewhat different from that of a carrier by rail. In the latter case, as already shown, a reasonable time must be allowed to the consignee, after notice of arrival, to remove the goods (Hedges v. H. R. R. R. Co., supra). But the liability of the carrier by sea continues as carrier only till such time, after notice to the consignee, as allows him opportunity to remove the goods, or to put them under proper care or custody. The distinction is carefully drawn by the United States supreme court (Richardson v. Goddard, supra). And the doctrine set forth in that case has been repeatedly affirmed (The Eddy, 5 Wall. 481 ; Ex parte Easton, 5 Otto, 68).
    III. As warehouseman or bailee the defendant was responsible for only ordinary care, and negligence must be proved before a recovery can be had (Degrau v. Wilson, 17 Fed. Rep. 698 ; Hathorn v. Ely, 28 N. Y. 78 ; Whitworth v. Erie R. R. 87 Ib. 413 ; Lamb v. The Western R. R. Co., 89 Mass. 98; Richardson v. Goddard, 23 How. [U. S.] 28 ; Garside v. The Trent Co., 4 Term Rep. 581).
    IV. The bill of lading contains provisions for a more complete protection of the defendant than the defendant would enjoy under a simple contract to transport and deliver. One provision is that the tin was “to be delivered from the ship’s deck, where the shipowners’ responsibility should cease.” As soon as the tin left the deck of the steamer, the liability of the carrier, as such, terminated. We submit that the finding of the trial judge, that the defendant is not entitled to the benefit of this provision is error (The Santee, 2 Benedict, 519).
    V. Another provision of the bill of lading was one exempting the defendant from liability for robbers, thieves, or loss, whether arising “from the negligence, default or error in judgment of the pilot, master, mariners, engineers, stevedores, agents or other persons in the service of the shipowner, and occurring before, during the voyage, or at the port of discharge.” This clause is fully sustained by the courts of this state (Wilson v. N. Y. C. & H. R. R. R. Co., 97 N. Y. 89).

      Edward 8. Hatch, attorney and of counsel for respondent,
    argued :—I. The plaintiff was entitled to recover damages under the contract, on the ground that the defendant had converted or misappropriated the plaintiff’s tin to its own use, and thereby had broken its contract contained in the bill of lading set out in the complaint and admitted, in the answer (Vyner v. N. Y. &. S. Co., 50 N. Y. 24; Price v. O. &. S. R. Co., 50 Ib. 213; Colgate v. Penn. R., 31 Hun, 297).
    II. Hart &. Co. were not guilty of negligence in the matter of delay in removing the tin from the defendant’s dock. If the alleged negligence on the part of the plaintiff did not contribute in any way to the injury of the defendant in the matter of its negligence, then the defendant is not free from liability to the plaintiff from its (the defendant’s) negligence, on the ground that the plaintiff also was negligent (Zinn v. The N. J. S. Co., 49 N. Y. 442). The time within which the consignee, or its assignees, is to be held responsible for the removal of the goods, could not begin until the whole consignment was placed at the disposal of the consignee or its assignees, which was not until the fifth or sixth of December, and the contract contemplated, by some of its clauses therein contained, that the goods could not and should not be removed prior to the whole consignment being ready for removal (Redmond v. Liverpool Co., 46 N. Y. 578; Dininny v. N. Y. & N. H. R. R. Co., 49 Ib. 546 ; McAndrew v. Whitlock, 52 Ib. 40 ; Condict v. G. T. R. R., 54 Ib. 500; Ostrander v. Brown, 15 Johns. 39). No definite rule has been laid down as to what is the reasonable time within which a consignee must remove goods delivered by a common carrier, but the question has been considered in Gleadell v. Thompson (3 J. & S. 232); Place v. U. Ex. Co. (2 Hilt. 19).

    III. The defendant was negligent and careless, and on that ground was liable to the plaintiff for the value of the sixty-three slabs (Bank v. Doyle, 91 N. Y. 32; Gleadell v. Thompson, 3 J. & S. 232 ; affirmed, 56 N. Y. 194 ; Holsapple v. R. W. & O. R. Co., 86 N. Y. 275 ; Michaels v. N. Y. C. R. R. Co., 30 Ib. 564 ; Condict v. G. P. R. R., 54 Ib. 500 ; Fairfax v. N. Y. C. R. Co., 67 Ib. 11; Guilliaume v. Hamburgh Co., 42 Ib. 212; Burnell v. N. Y. C. R. Co., 45 Ib. 184; McKinney v. Jewett, 90 Ib. 267).
    IV. The defendant is not entitled to a reversal on any of the exemptions contained in the bill of lading. It is not understood that the defendant insists on any of those exemptions referred to in its answer other than the one in relation to theft, and it is not understood that that is insisted upon, other than as connected with the question .of negligence already considered in these points. It is to be noted that the bill of lading is not in the ordinary form, but is what is called or termed a “through bill of lading,” which provides, upon its face, and by its terms protection for more persons than the drawers of the bill. The importance of that point is, that all of the clauses behind which the defendant seeks to hide, are evidently intended for marine losses and as protection to the shipowners, as, for instance, the owners of the “York City,” who, under the maritime laws, are more or less liable for the faults of the defendant, or Thompson & Co., its charterers. The words -themselves, as connected together, for instance, the words “pirates, robbers and thieves,” is a combination of words which are recognized as particularly applicable to marine contracts, and as distinguished from the words “theft, robbery, larceny,”&c., which are words particularly applicable to contracts other than marine contracts, and which are seldom, if ever, included in marine contracts. This point has been considered in an old case at considerable length (Atlantic I. Co. v. Storrow, 5 Paige, 285). In the same way it is to be noticed that the words “ delivery clerks, receiving clerks, watchmen,” and so on, are not mentioned; but instead thereof are mentioned words like “shipowners, pilot, master, marines, engineers, stevedores, agents, or other persons in the service of the shipowners” (Wells v. Steam N. Co., 8 N. Y. 375 ; Rice v. O. S. Co., 56 Barb. 384; Knell v. U. S. & B. S. Co., 1 J. & S. 433). Attention is called to the case of Steinweg v. Erie R. R. (43 N. Y. 123), for the rule either laid down or at least strongly hinted at, that one cannot contract to excuse one’s self of his own gross negligence, and that as a corporation has no existence except practically in its agents, any agent who has discretionary power to represent the company would be a part of the company, and consequently the corporation could not excuse such agent’s negligence, i. e. —that of the delivery clerk. It is thought the question cannot be disputed in any manner, that the decisions agree in one respect, however they may differ in many others as regards liability of common carriers, i. e.—that the court does not favor exemptions on account of negligence, and that any common carrier defending on that ground must prove his case so clearly as not to leave either the contract or the proof liable to any other construction (Mynard v. S. B. & N. Y. R. Co., 71 N. Y. 180 ; Knell v. U. S. & R. S. Co., 1 J. & 8. 423 ; Wells v. Steam A. Co., 8 N. Y. 375 ; Nicholas v. N. Y. O. & H. R. Co., 89 Ib. 370). Proof of non-delivery, without proof of cause, has been held to be no defense in a case like the one at bar (Magnin v. Dinsmore, 56 N. Y. 168).
    V. Bemoving the tin from the “York City,” placing it upon the dock, and receiving the order for the delivery of it, was not such a delivery by the defendant to Hart & Co. as to relieve the defendant of liability for negligence in the care of the goods.
    VI. The onus is upon the defendant to prove, that the loss was by the negligence of the plaintiff or not by the negligence of the defendant, and' that it was a loss that came within the exemptions provided in the bill of lading (Burnell v. N. Y. C. R R., 45 N. Y. 184; Fairfax v. N. Y. C. R R, 67 Ib. 11; Knell v. U. S. & R S. Co., 1 J. & S. 423 ; Steers v. L., N. Y. & P. S. Co., 57 N. Y. 1).
    VII. The defendant is liable to the plaintiffs for the loss of the tin in question, even assuming that the goods were stolen without negligence on the part of the defendant (Thompson v. Liverpool & Gt. Western S. S. Co., 12 J. & S. 407).
    VIII. The defendant’s liability to the plaintiffs is .as common carrier (Sherman v. Wells, 28 Barb. 403 ; Sweet v. Barney, 23 N. Y. 335; Read v. Spaulding, 5 Bosw. 395 ; affirmed, 30 N. Y. 630; Fairfax v. N. Y. C. & H. R. R. Co., 67 Ib. 11; Steers v. L., N. Y. & P. S. Co., 57 Ib. 1; Guilliaume v. H. & A. P. Co., 42 Ib. 212 ; N. Y. C. R. Co. v. Lockwood, 17 Wall. 357).
    IX. Either Lucius Hart & Co. obtained the right to the reasonable time under the contract, contained in the bill of lading, between the defendant and the consignees, within which to remove the tin from the dock of the defendant by the sale of the tin to them, or else, after such sale, the consignees retained the light to demand the reasonable time from the defendant, within which its vendee might remove the same under the contract contained in the bill of lading (Suydam v. Clark, 2 Sandf. 133 ; Kellogg v. Witherhead, 6 T. & C. 525 ; Carrigan v. Sheffield, 10 Hun, 227; Withers v. N. J. S. Co., 48 Barb. 455 ; Bowman v. Teall, 23 Wend. 306). And the fact that Lucius Hart & Co. acquired their beneficial interest in this contract subsequent to its being made, does not prevent them from maintaining their right of action under it (N. J. Co. v. Merchants’ Bk., 6 How. [U. S.] 344 ; Merchants’ Bk. v. U. R. & T. Co., 69 N. Y. 373 ; Chandler v.
      Belden, 18 Johns. 157 ; Putnam v. Furnam, 71 N. Y. 590; Arnold v. Nichols, 64 Ib. 117). It is maintained as a correct proposition of law on the part of the respondent’s counsel, that a sale of a part of the goods covered by the bill of lading in question, operated as an assignment by law of a beneficial interest therein.
   By the Court.

Freedman, J.

On September 7, 1882, the defendant issued its bill of lading at Singapore, India, to Katz Brothers, whereby it undertook, for value received, to transport one thousand seven hundred and three slabs of tin to London, and thence to the port of New York by a steamer of the Monarch Line. The bill of lading provided, among other things, that the tin was to be delivered from the ship’s deck (where the shipowner’s responsibility shall cease) at the port of New York, and that the contract for transportation should be subject to exceptions for losses arising through pirates, robbers, thieves . . . during the voyage or at the port of discharge.

Another provision of the bill of lading was : “ The goods to be received by the consignee immediately the vessel is ready to discharge, or otherwise they will be landed and stored at the sole expense and risk of the consignee, in the warehouses provided for that purpose, or in the public store, as the collector for the port of New York shall direct, and when deposited in the public store to be subject to rent; and the keys of the warehouse to be delivered to and kept in charge of the officer of customs under the direction of the collector, the collector of the port being hereby authorized to grant a general order for discharging immediately after the entry of the ship.”

The one thousand seven hundred and three slabs of tin arrived in the port of New York on board of the steamer “York City.” Prior to such arrival, Katz Brothers, the shippers, had sold the whole of said tin to Mayer Brothers & Co., of the city of New York, and indorsed the bill of lading over to them, and Mayer Brothers & Oo. had sold the one thousand seven hundred and three slabs to various parties. Among these sales was one of a lot of twenty-five tons to Peter Hayden, who, in turn, sold it to Lucius Hart & Co. In the sale of this lot there was no special designation of the tin at the time. The steamer arrived on Saturday, November 25, 1882, and Mayer Brothers & Oo. immediately entered the tin at the custom house and obtained a free permit. On Monday, November 27, Mayer Brothers & Co. paid the freight to Patton, Vickers & Co., the consignees of the steamer, and obtained from the latter the following delivery order, viz. :

“ Monarch Line, 35 Broadway,
“ N. Y. Nov. 27, 1882.
“Deliver to Messrs. Mayer Bros.* goods ex. steamship c York City,’ as follows, when customs permit is in order : HH. 1048 slabs of tin. H. 655 slabs of tin.
“Patton, Vickers & Oo.
“To the Delivery Clerk, Pavonia Ferry, Jersey City.”
This order Mayer Bros. & Co. indorsed as follows : “Deliver against our order only. Mayer Brothers & Oo.” And presented it to the delivery clerk of the steamer.

On the same' day, Messrs. Mayer Brothers & Co. employed Waterbury & Force, weighers, to weigh the whole consignment of tin at the defendant’s wharf—the regular wharf of the Monarch Line—in five ton lots, and mark the lots 1, 2, 3, 4, 5, etc. In the afternoon of that day the weigher attended there at the steamer, and learned that none of the tin had at that time been discharged, but was told by the delivery clerk of the steamer that it would be discharged right off. He did not wait, but he returned to the wharf on the morning of Tuesday, November 28, at about eight o’clock, and then found about thirty tons discharged and in good order. He weighed that, dividing it into six lots of five tons each, and piling each lot by itself. Each slab was marked by a stencil number indicating the number of the lot. Thus, each slab in lot 1 was marked 1, each slab in lot 2 was marked 2, etc., etc. The weigher completed his weighing about eleven o’clock, a. m., and about noon sent returns of the weights to Mayer Brothers & Co. One return covering lots 1, 2, 3, 4, 5, was in this form :

“New York, November 28, 1882.
“Return of 498 slabs tin, weighed by order of Messrs. Mayer Bros. & Co.
H.H. H. Ex. ‘York City.’
“Loti. 94—11,258.
“ 2. 94—11,236.
“ 3. 100—11,236.
“ 4. 105—11,238.
“ 5. 105—11,294.
“498 56, 262 lbs.
‘ ‘ WATERBURY & FORCE. ”

At about one o’clock, p. m., of the same day, Mayer Bros. & Co., in fulfillment of their contract with Peter Hayden, sent to the latter the said weigher’s return, together with a bill and a delivery order for the four hundred and ninety-eight slabs of tin thus weighed and set apart, and between one and three o’clock of the same afternoon, Peter Hayden, in fulfillment of his contract with Lucius Hart & Co., indorsed the said delivery order, and delivered it so indorsed, together with the said weigher’s return, to Lucius Hart & Co. During the remainder of that afternoon Lucius Hart & Co. made no effort to take the tin. The next morning, November 29, Lucius Hart & Co. sent two trucks to take the tin, one drawn by two horses, and. one by a single horse. A driver went on each truck, and a third man, William Caughan, an employee of Lucius Hart & Co., and who attended to all the carting to be done for that firm, accompanied them. They arrived at the defendant’s wharf at about eight A. M., and William Caughan then handed to, and left with the custodian of the wharf the order for the four hundred and ninety-eight slabs of tin contained in lots 1, 2, 3, 4 and 5, as they had been set apart, and assumed control over the same. The two-horse truck took two loads of tin to the store of Lucius Hart & Co. before noon, each load being about two, and one half tons. The single-horse truck took only one load, consisting of about one ton. After talcing these loads the trucks did not return to the wharf on that day. The next day, November 30, Lucius Hart & Co. did not send to the wharf at all, that day being Thanksgiving Day, though the wharf was open for business, and other merchants sent for and took away goods, and the day was fit and proper for such purpose. On the morning of December 1, sixty-three slabs were missing from the tin which had been set apart as aforesaid and over which William Oaughan had assumed control. The cause of their loss does not appear.

Upon these, facts it must be held that the twenty-five tons, comprising the four hundred and ninety-eight slabs of tin were duly delivered by the ship, and that the relation of the defendant to the said tin, as carrier, under the bill of lading in this case, had terminated before the sixty-three slabs disappeared, and consequently, that the findings of the learned judge below to the contrary are erroneous.

The fact that the plaintiff comes into court as assignee of the claim of Mayer Bros. & Co., of Peter Hayden and of Lucius Hart & Co., for the sixty-three missing slabs, can make no difference.

Mayer Bros. & Co.’s interest in these twenty-five tons of tin, and in the sixty-three slabs which were part of the same, was clearly terminated. They had entered the goods at the custom house, paid the freight, weighed the tin, set it apart, sold it and issued their order for it upon the delivery clerk. This had been accepted by the purchaser, Peter Hayden, in full performance of the contract of sale and delivery by Mayer Bros. & Co. and he had paid Mayer Bros. & Co. for the tin.

So Peter Hayden’s interest was clearly terminated when he indorsed the papers over to Lucius Hart & Co. He had made his contract of sale to Lucius Hart & Co., price “payable thirty days after delivery on the dock at the port of New York,” and he turned the papers over to Lucius Hart & Co., in fulfillment of his contract of sale.

The plaintiff, therefore, got nothing by his assignment from Mayer Bros. & Co. He got nothing by his assignment from Peter Hayden. And he got nothing by his assignment from Lucius Hart & Co. except a title to the tin, with no rights against the defendant as carrier. They never held the bill of lading, and were never entitled to hold it.

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

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


author: Ingraham, J

text:
    THOMAS C. CLARK, Appellant, v. JOSEPH BLUMENTHAL, et al., Respondents.

      Contract under seal for the sale of real estate—reformation by substitution of one person for another as vendor—liability of one not aparty to contract.

    Where the person executing the contract for the sale of real estate as vendor, is the one in whom the legal title is vested, the facts that the property was purchased with the money of another, that that other person collected the rents, received the money paid on the contract, and was the real principal in the transaction, and that the party signing the contract as vendor held it only as agent of that other, do not warrant the reformation of the contract, by substituting such other person in the contract as the vendor.
    One not a party to such contract cannot be held liable on it, although he was in fact the principal of the party executing it, and the party executing it was in fact his agent, where, on the face of the contract the party executing it so executed it on his own behalf. The case at bar is controlled by this principle, notwithstanding the facts above set forth.

      Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided May 3, 1886.
    Appeal from judgment dismissing complaint on trial before the court, without a jury.
    ■ This action was brought to reform a. contract under seal, for the sale and purchase of certain real estate, and to recover damages for its breach. The contract was entered into between defendant Weinberg, party of the first part, and the plaintiff, party of the second part, and was for the sale by Weinberg to the plaintiff, and the purchase by plaintiff from Weinberg of said real estate. It was signed as follows :
    “Jacob B. Weinberg, [seal]
    Pr Joseph Blumenthal. [seal] Thomas 0. Clark, [seal] ”
    The contract called for the payment of $1,000 on its execution. This sum was paid to, and received by Blumenthal. The reformation asked for was to substitute Blumenthal in the place of Weinberg as the vendor, and the damages were sought to be recovered from Blumenthal.
    Other facts appear in the opinion.

      T. M. Tyng, attorney and of counsel for appellant,
    on the questions considered by the court, argued :—I. Upon the foregoing facts the plaintiff was entitled to judgment reforming the contract, so as make to Blumenthal thp party of the first part therein. The proof is uncontradicted that Clark intended to make his contract with the true owner of the land, a contract behind which there would be some responsibility ; that he was led by Blumenthal’s fraud and concealment to believe the irresponsible Weinberg to be the true owner of the land ; that he was induced by the same fraud to accept and deal with Weinberg as his vendor ; and that he would not have made Ms contract with Weinberg had he known of Blumenthal’s actual ownership thereof (Albany Savings Bank v. Burdick, 87 N. Y. 40 ; Paine v. Jones, 75 Ib. 593 ; Andrews v. Ins. Co., 18 Week. Dig. 192; Barthlomew v. Ins. Co., 41 Hun, 263 ; Story’s Equity, §§ 162, 191). •
    II. But if the contract cannot be technically reformed, yet the defendant, Blumenthal, on the facts above mentioned, was collaterally responsible for its performance. It is conceded that the plaintiff could not sue Blumenthal at law for breach of a covenant made by his agent Weinberg, under Ms own seal (Briggs v. Partridge, 64 N. Y. 357 ; Tuthill v. Wilson, 90 Ib. 423). But equity can afford the plaintiff the same right to pursue the undisclosed principal that the plaintiff would have had by a direct action at law, if no seal had been affixed to the instrument (Story Agency, §§ 160, 162, 191).

      Simson Wolf, attorney, and Joseph Ullman, of counsel for respondent Blumenthal, and Joseph Ullman, attorney and of counsel for respondent Weinberg,
    on the questions considered by the couri, argued: argued: A contract cannot be reformed except between the original parties (Cady v. Potter, 55 Barb. 463 ; Casler v. Sitts, 6 Hun, 659 ; 5 Wait’s Actions and Def. 451, § 8 ; Adams’ Equity, 349 [6 Am. ed., 1873] ; Story’s Equity, § 165). The plaintiff was not in fact deceived or mistaken when he signed the agreement. Evidence of such mistake must be of the very strongest character (Bartholomew v. Insurance Co., 34 Hun, 263).
    II. The contract bemg in the name of Weinberg, and under seal, there can be no recovery against Blumenthal, admitting him to be the real principal (Briggs v. Partridge, 64 N. Y. 357 ; Kiersted v. Orange R. R., 69 Ib. 343 ; Schaeffer v. Henkel, 75 Ib. 378 ; Williams v. Gillies, 75 Ib. 197 ; Squier v. Norris, 1 Lans. 282 ; Tuthill v. Wilson, 90 N. Y. 423). These cases recognize no distinction in this respect between law and equity. The plamtiff has no remedy in such case either at law or in eqffity.
    III. There could be no recovery agamst Blumenthal, even were the contract not under seal. He is admittedly not the legal owner of the property, and no trust results in his favor, though he paid the consideration on its purchase by Weinberg (1 R. S. 728, § 51; 7Ed. Vol. 2, p. 3180). Under the statute, he had no interest whatever in the premises legal or equitable. __ He cannot therefore be said to be a “principal.” To hold him as such would be a clear evasion of the statute (Tuthill v. Wilson, 90 N. Y. 423).
    IV. Blumenthal cannot be held as agent for an undisclosed principal, because the principal was disclosed on the face of the contract (Whitford v. Laidler, 94 N. Y. 145). Hecannót beheld as principal,-because 1. The contract was under seal; 2. He was not a principal.
   By the Court

Ingraham, J

It is very clear that the plaintiff was not entitled to have the contract set forth in the complaint reformed, by inserting Blumenthal’s name in the contract as one of the contracting parties in place of Weinberg. There was no mutual mistake of fact as to the parties to the contract. According to plaintiff’s allegation in the complaint, Blumenthal stated and represented to plaintiff, and caused plaintiff to believe that Weinberg was the true, lawful and equitable owner of said premises, and it was the intention of the parties to make the contract between plaintiff as the purchaser, and the owner of the property as the seller.

It appeared on the trial that the defendant, Weinberg, was the legal owner of the property, and the facts that the property had been purchased with Blumenthal’s money, and that Blumenthal collected the rents of the premises by the permission of Weinberg, did not make Blumenthal the owner.

There was no mistake of fact, or fraud, that would justify the court in changing a contract made by Weinberg, to convey property he owned and which he only could convey, to a contract by Blumenthal, who could convey no title to the property, and who, from the facts proved on the trial had no title to the property itself. Nor did the facts proved on the trial show any liability on the part of Blumenthal to pay any damage sustained by plaintiff in consequence of a breach of the contract by Weinberg. The contract was between Jacob Weinberg, of the first part, and Clark, the plaintiff, of the second part, and by that agreement, the party of the first part, Weinberg, agreed to sell to the party of the second part six lots of land in the city of New York, for the sum of $72,000, and it was under seal. The contract was the contract of Weinberg, the legal owner of the premises. Blumenthal did not, on the face of the agreement, undertake to sell the property or make any contract with the plaintiff, and the only facts upon which the plaintiff claims that the defendant Blumenthal is liable, is that Weinberg held the property as the agent of Blumenthal, and that Blumenthal received the money for the property and was the real principal in the transaction.

It is settled in this state, that a contract under seal, made by an agent in his own name, for- the purchase and sale of lands, is the contract of the agent only, and no one but the party to the contract is liable to be sued upon it (Briggs v. Partridge, 64 N. Y. 357 ; Tuthill v. Wilson, 90 Ib. 423; Williams v. Gillies, 75 Ib. 197).

It appears from the report of the case of Briggs v. Partridge in the court below (39 Super. Ct. 339), that the action was an action in equity for the specific performance, by defendants, as vendees of a contract for the sale of land, and it appeared that the contract sued on was made by Hurlburd as vendee, and was under seal; that Hurlburd was acting solely for, and under direction of Partridge the defendant, who paid or caused to be paid the first payment under the contract; and that said Huiiburd was the agent and trustee of Partridge in the transaction, and the plaintiff asked in that case, if necessary, for the reformation of the written agreement, to enforce which the action was brought. The court dismissed the complaint, which dismissal was sustained by the court of appeals, the court saying : “We find no authority for the proposition that a contract under seal may be turned into the simple contract of a person not in any way appearing on its face to be a party to or interested in it, on proof de hors the instrument, that the nominal party was acting as the agent of another,” and cites with approval the rule as declared by Chief Justice Shaw in Huntington v. Knox (7 Cushing, 374), “where a contract is made by deed under seal, on technical grounds no one but the party to the deed is liable to be sued upon it, and, therefore, if made by an attorney or agent it must be made in the name of the principal, in order that he may be a party, because otherwise he is not bound by the deed.”

Plaintiff claims, however, that although the defendant Blumenthal would not be liable at law for a breach of covenant made by his agent Weinberg under his own seal, equity can afford the plaintiff the same right to pursue the undisclosed principal that the plaintiff would have had by direct action at law, had no seal been affixed. to the instrument, and cites as authority for such an action, Story on Agency, §§ 160,162. In section 162, the learned author says: “Indeed, it maybe asserted as a general rule that in all cases where an agent has contracted within the sphere of his agency, and the principal is not by the .form of the contract bound at law, a court of equity will enforce it against the principal,” and cites to sustain that proposition, Clark, executors, &c. v. Vanreinsdyk (9 Cranch, 153); and Dubois v. The Delaware & Hudson Canal Co. (4 Wend. 285).

In the case of Clark, executors, &c. v. Vanreinsdyk, the contract sued on was a bill of exchange not under seal, and in the case of Dubois v. The Delaware & H. Canal Co., the contract on its face appears to be a contract of the Delaware & H. Canal Co., and was signed, Morris „ Woertz, agent for Delaware & Hudson Canal Co., and the action was not in equity, but was an action of assumpsit.

Briggs v. Partridge (supra) was an action for reformation of a contract for specific performance and for damages, and was consequently an action in equity like the case at bar, and the court of appeals held in that action plaintiff could not recover.

Williams v. Gillies (supra) was an action in equity for the foreclosure of a mortgage, and where it was proved that the defendant sought to be charged with a covenant in a deed, was one of a copartnership, and that the property was taken in the name of his copartner for the benefit of Gillies, the party sought to be charged. The court reaffirmed Briggs v. Partridge, and held that the oral agreement to enter into a contract to purchase lands, would not bind the principal upon the contract entered into by the agent in his own name under seal. The case of Tuthill v. Wilson (90 N. Y. 423), was an action in equity to foreclose a mortgage where the plaintiffs sought to hold for the deficiency, the real purchaser of the property, the deed to which was taken in the name of the agent, and the action was stated by the complaint as brought against Wilson, as the purchaser from the beginning, and the court held that Wilson could not be held liable upon the original contract of his agent, for the reason that the contract was under seal, signed and delivered by both vendor and vendee, and Wilson could not be made liable upon its covenants.

We are of the opinion that in this state it is now settled that neither in law nor in equity can a contract under seal, made by an agent in his own name, for the purchase of lands, be enforced as the simple contract of the real principal when he shall be discovered.

The case was rightly, disposed of at special term, and the judgment appealed from must be affirmed, with costs.

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


author: Ingraham, J.

text:
    HENRY DAY, Respondent, v. THE AMERICAN TELEGRAPH AND CABLE CO., Appellant.

      Parties.—Postponing Piñal of one action until after determination of another.

    Where an action is based on acts alleged to have been done by the defendant wrongfully as to the plaintiff, and in violation of his rights and the defendant’s duty to him, his rights prior to such acts being unquestioned, persons who claim, or may claim against the defendant a liability arising out of such acts are not necessary parties ; nor is it error to refuse to postpone the trial of such action until after the defendant can procure a determination of his liability to such other parties in an action brought by him in the nature of an action for an interpleader against the plaintiff and such other parties.
    Before Freedman and Ingraham, JJ.

      Decided May 3, 1886.
    Appeal by defendant from a judgment entered after a trial at special term.
    The facts appear in the opinion.

      Dillon & Swayne, attorneys, and Roger Swayne, of counsel for appellant,
    on the questions considered in the opinion, argued :—I. The trial of this action should have been postponed until the interpleader suit had been determined.
    1. Some of the transferees claim title by legitimate transfers, and threaten suits as against the defendant to enforce their alleged rights to dividends on the shares, which dividends Day also claims. Their claims, therefore, are manifestly conflicting, and it is sufficient to maintain a bill in the nature of an interpleader that the defendant is in danger of being molested by conflicting claims (Prudential Ass. Co. v. Thomas, L. R., 3 Ch. Ap. 74 ; Dr. C. Reid v. Commercial Ins. Co., 32 La. Ann. 546 ; Richards v. Salter, 6 Johns. Ch. 445 ; State Ins. Co. v.
      Monks, 1 Conn. 691; Salsbury Mills v. Townsend, 109 Mass. 115 ; Birch v. Corbin, 1 Cox Ch. Cases 144). That Day claims the shares is obvious—that the parties who caused the transfers to be made insist that Day does not own the shares is alleged. This controversy is not a shadowy, but substantial one. If the powers are forged, no title passed out of Day (Davis v. Bank of England, 2 Bing. 393 ; Swan v. N. B. & A. Co., 2 H. & C. 175 ; Taylor v. Midland R. Co., C. Juris. N. S. 595), and if no title passed out of Day, then the parties who caused the transfers to be made are liable to Day (Marsh v. Keating, 1 Bing. N. C. 198), or to the plaintiff (Sims v. Am. Tel. Co., L. R. 5 Q. B. Div. 175 ; Richardson v. Boston & A. R. R. Co., 135 Mass. 473 ; Brownell v. Howard F. I. Co., 42 Md. 384; Hambleton v. C. & O. R. R. Co., 44 Ib. 551; Canal Bank v. Bank of Albany, 1 Hill, 287). That the defendant has an interest, and calls upon the court to define and protect its rights, and to point out what they are, does not affect the status of the action (Charmley v. Dunsaney, 1 Sch. & Lef. 137; 2 Id. 710 ; Mohawk & Hudson R. R. R. Co. v. Clute, 4 Paige, 384; Parks v. Jackson, 11 Wend. 443 ; Bedell v. Hoffman, 2 Paige, 299 ; City Bank v. Bangs, 2 Paige, 570). An injunction goes, as of course, in an action properly framed for an interpleader (Snell Prin. Equity [5 Ed. ch. 12] 591). 2. The suit of interpleader was well brought as one to prevent a multiplicity of suits (Third Av. R. R. Co. v. Mayor, &c., 54 N. Y. 159 ; Story’s Eg. J. §§ 852, 854, 901, and notes ; Howe v. Tenants of Broomgrove, 1 Vern. 22 ; Mayor v. Pilkington, 1 At. 282 ; Carroll v. Stafford, 3 How. [U. S.] 463 ; N. Y. & N. H. B. R. Co. v. Schuyler, 17 N. Y. 573). The defendant’s right to maintain the suit is perfectly made out, notwithstanding this action, and the pendency of this suit adds to the defendant’s equity (McHenry v. Hazard, 45 N. Y. 581). Even if there is a good defense at law by the defendant to this action, that does not prevent nor interfere with the granting of the equitable relief sought by interpleader (Scott v. Onderdonk, 14 N. Y. 14; Ward v. Dervey, 16 Ib. 522; Wood v. Seeley, 32 Ib. 113 ; McHenry v. Hazard, 45 Ib. 580; Fowler v. Palmer, 62 Ib. 534). It has been suggested that the remedy of the Cable Company is in the exercise of the right to give notice to other parties to come in and defend the original action. The reply to this suggestion is, that the right to give' such notice has always been open to the option of a defendant in an original action such as the present ; but the right to file a bill of interpleader, or a bill in the nature of an interpleader, and to restrain the original suit pending a determination of the entire controversy between all the parties, is a right which' cannot now be denied, because another course is, as it has always been, still open to selection. The two rights have existed together too long for one to be now held the exclusive remedy. Besides, the right to give notice to come in and defend, secures merely the negative advantage of estoppel, while we are entitled to ask a decree, affirmatively fixing the rights and liabilities of all the parties (Prudential Assurance Co. v. Thomas, L. B. 3 Ch. App. 74). 3. The bill of interpleader lies to prevent irreparable injury (Brown v. Pacific Mail S. S. Co., 5 Blotch. 525; Doe v. Earl Derby, 1 Ad. & E. 783 ; 2 Smith’s Lead. Cas. Notes* 669 et seq.). If the original transfers from Day are tainted with crime or fraud, there may be a strong presumption that the infection continues, and if it be so, the instruments should be surrendered and canceled. Under such circumstances, equitable relief is granted (Springport v. Teutonia Savings Bank, 75 N. Y. 397 ; Power v. Village of Athens, 19 Hun, 165). Town of Venice v. Woodruff (62 N. Y. 462), is not an authority against the views of the defendant. In that case, there were no claims of different persons to the same right, and it is distinguished in Springport v. Teutonia Savings Bank (supra) Neither is Buffalo Grape Sugar Co. v. Alberger (22 Hun, 349) an authority against the defendant. On the contrary, it is an authority in favor of defendant upon the circumstances exhibited in the interpleader bill. The suggestion that the defendant might call upon those who presented the certificates of Day for transfer, to come in and defend this suit, cannot affect the jurisdiction and right of a court of equity to afford relief in a proper case. Besides, it is a matter of very grave doubt as to whether the giving of notice to a surety will bind him by a judgment unless he has in terms covenanted to be bound by such a judgment upon notice to him to come in and defend (National Fire Insurance Co. v. McKay, 5 Abb. N. S. 448; Thomas v. Hubbell, 15 N. Y. 407).

      F. B. Lord, attorney, and John E. Parsons, of counsel for respondent,
    on the questions considered in the opinion, argued :—I. The holders of the certificates issued upon the surrender of the certificates belonging to the plaintiff and certificates issued upon their subsequent surrender, were not necessary parties to the suit; nor was the defendant entitled to have the trial of this action delayed until the disposition of a suit brought by the defendant to have those persons interpleaded with the plaintiff. That this is so is res adjudicaba in this court. The defendant did, subsequent to the commencement of this suit, commence an interpleader action. In that action the defendant obtained an injunction restraining the prosecution of this suit. The plaintiff moved to vacate. The motion was denied pro forma by Mr. Justice Freedman at special term; an appeal was taken to the general term. There the order was reversed and the injunction vacated, the general term holding that the interpleader action would not lie (The American Telegraph & Cable Co. v. Day, impleaded, &c., 52 Super. Ct. 128).
   By the Court.

Ingraham, J.

Plaintiff was the owner of seven hundred shares of the capital stock of the defendant corporation, of the par value of one hundred dollars each, and defendant had issued to plaintiff, as such owner, seven certificates of one hundred shares, each of which certified that plaintiff was the owner of one hundred shares of such capital stock, transferable only on the books of the company at its office in the city of New York, by the said stockholder in person, or by attorney, on surrender of the certificate. Between March 1 .and September 1, 1883, the defendant transferred the stock represented by the said certificates to several persons, received and canceled the plaintiff’s certificates, and issued new certificates to the persons to whom such stock was transferred.

Plaintiff asked judgment in this action, that it be adjudged that he is the owner of the said shares of stock; that said certificates or others of the same form and tenor may be delivered to him; and that the dividends that have been declared on said stock may be paid to him with interest. It is not claimed that the plaintiff transferred the stock in person, but defendant produced the seven certificates, and on the back of each certificate is a bill of sale of the stock mentioned in the certificates and a power of. attorney, authorizing a person named to transfer the stock on the books of the company, and which purported to be signed by the plaintiff. Plaintiff claims that the signatures to the powers of attorney were forged, and that the certificates had been stolen from his safe by one Scovil, who was in his employ, and disposed of by Scovil. The question of the genuineness of the plaintiff’s signatures to the powers of attorney was sharply litigated at the trial, and the trial judge found that the signatures to said powers of attorney, purporting to be the signatures of the plaintiff, were forgeries. We have examined the testimony on that question, and are of the opinion that such finding was abundantly sustained by the evidence.

The other question relied on at the argument, by the counsel for defendant, was that there was a defect of parties defendant, and the trial judge erred in not' adjourning the trial of the action until after the trial of another action commenced by the defendant, The American Telegraph & Cable Co., in the nature of an action of interpleader, in which action plaintiff and the person to whom the stock had been transferred, the persons who were the present holders of the stock, and the persons who presented the stock to the defendant for transfer, were parties, and in which judgment was asked that plaintiff be compelled to litigate in that action his claim to the said stock, and if it be adjudged that plaintiff is the owner of the stock, that the persons in possession of the certificates issued in the place of the said shares of stock deliver the same to defendant to be canceled, or pay over the value thereof to Day or to the company.

A temporary injunction having been granted in that action, restraining Day from prosecuting this action, the plaintiff here appealed to the general term of this court, and on that appeal the injunction order was reversed by the general term, the court there holding that although the defendants in that action other than Henry Day would not be liable, unless it appeared that Day’s signatures to the powers of attorney annexed to the stock certificates were forgeries, that fact did not determine such other defendants’ liability to the corporation ; that although the signature of Day was a forgery, it did not follow that the stock in the hands of the persons to whom it had been transferred, or who were then the owners of the stock, and in possession of the certificates issued on the forged signature of Day, was void, or that such defendants were hable either to the company or to Day; that if the stock owned by Day and standing in his name on the books of the company had been transferred by the said company without his consent, he was entitled to maintain his action for the recovery of the stock, and for the dividends declared thereon; that it was perfectly immaterial to Day as to whether or not the company was hable to the persons to whom it had wrongfully issued Day’s stock ; and that Day should not be compelled to wait for the relief that the finding of the court in this case shows he was entitled to, until the company could determine its liabilities to other parties with whom Day had nothing to do.

We have carefully examined the brief submitted by the learned counsel for the appellant, and see nothing therein, or in the cases cited by him, to change the views before expressed by this court. There is a clear distinction between the case of McHenry v. Hazzard (45 N. Y. 580), and like cases, and the case at bar, for in that case the plaintiff claimed that the agreement that was the foundation of the claim made against him by the several defendants, was obtained by fraud, and that he was not liable to either of them, and asked to have the instrument delivered up and canceled; and that case simply held that a court of equity had jurisdiction in such an action to order an instrument obtained by fraud to be canceled. In this case, however, Day’s title to the stock, prior to its wrongful transfer by defendant, is not questioned. On the facts as found by the trial judge, Day never was divested of his ownership of the stock; it still belongs to him, and he is entitled tó it, and the proposition that before he can obtain it he must wait until the defendant, who has committed the wrong, shall try and recover from other wrongdoers the stock or money to pay Day for the wrong it has done him, is a proposition without authority. None of the cases cited by counsel for the appellant authorize such a proceeding.

We do not decide that the action commenced by defendant cannot be sustained, but simply hold that the facts stated do not justify the court in holding that plaintiff can not recover his stock, of which he has been wrongfully deprived by the corporation, until it can be determined who, if any one, shall pay to the corporation the damages it has sustained in righting the wrong it has done to plaintiff. As was said in Robinson v. National Bank of New Berne (95 N. Y. 637), “what occurred, vested in Hope, as between him and the defendant, the entire legal and equitable title in the shares, as perfectly as if the transfer demanded had been made. The defend' ant corporation cannot set up its wrongful act to defeat the title which passed. After as well as before the sale to the Bank of Raleigh, Hope remained the owner, as between him and the Bank of New Berne, and entitled to have and receive the dividends declared upon sixty shares, and what the bank did, or what obligations it incurred to the Bank of Raleigh, in no respect altered its duty and liability to Hope” ; and on page the court says, “The condition the defendant may find itself in, we need not consider. There are always consequences of a wrong to a wrongdoer. ”

We have examined the other objections to the judgment made by. the learned counsel for the appellant, and do not think that they require discussion. The judgment appealed from was right, and should be affirmed, with costs.

Freedman, J., concurred.


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    WILLIAM BAYLISS, Appellant, v. FREDERICK J. STIMSON, Respondent.

      Contract for assignment of lease—action at law on—equity doctrine as to title—implied covenant.

    In an action at law by the vendee, to recover back earnest money paid, and for damages, by reason of the breach of a contract for the assignment of a lease, in that the title offered was not such as he was bound to accept, the doctrine that obtains in equity as to unmarketable title has no application. The plaintiff in such action is bound to show affirmatively that the title offered is not good. Proof that if certain facts exist, or that for other reasons the title is doubtful, is insufficient. This rule has not been changed by the Code.
    In a contract for the sale of a lease there is no implied covenant that the vendor will convey a marketable title; the covenant that is implied is that he will convey a good title.

    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided May 3, 1886.

      Appeal from judgment entered on report of referee.
    This action is brought to recover the sum of $3,000, paid on the execution of a contract whereby the defendant agreed to sell to the plaintiff the unexpired term of a certain lease of premises known as No. 7 West Forty-seventh street in the city of New York.
    The issues were tried before a referee who directed judgment for the defendant dismissing the complaint ón the merits, writing the following opinion :
    Edward Patterson, Referee :■—“The plaintiff sues to recover back a deposit of money paid by him to the defendant, at the time of the execution and delivery of a contract, by which the defendant agreed to sell and convey certain leasehold premises in the complaint mentioned ; and also to recover damages said to have been sustained by him in consequence of the defendant’s default in making a good title within the meaning of the contract. The plaintiff claims to have rescinded the contract for reasonable and proper objections to the title.
    “ The evidence discloses that the defendant, who was the assignee of the term of one Weston, held the premises subject to a mortgage to Gillespie, and contracted with the plaintiff to convey the leasehold free of incuipbrances, except that mortgage. The contract by which the defendant agreed to sell to the plaintiff the leasehold estate and a small quantity of furniture, is dated November 24, 1882, and the transaction was to be completed on December 10, 1882, but the performance was postponed by consent from time to time until January, 1883. The plaintiff employed counsel to examine the title ; and in the course of the investigation it was ascertained that another and junior incumbrance, virtually a mortgage, had been put upon the property by Weston in favor of Nevins for advances of money made and to be made, and the amount actually due on the Nevins mortgage was not a matter apparent and ascertainable from the records. It further appears that Weston’s assignment to Stimson was for a nominal consideration ; that after the contract between Stimson and plaintiff was made, Weston made a general assignment for the benefit of creditors to one Davison ; that judgments were entered up against Weston by certain of his creditors ; that Stimson and Weston were brothers-in-law, and the circumstances and surroundings of the transaction between them as to the transfer of the leasehold were of a character to give rise to a suspicion that such transfer was intended as a mere cover, and was a device to preserve the substantial interest in the property for Weston. These circumstances were considered by the counsel examining the title for the plaintiff serious objections to completing the purchase, and they were in substance brought to the attention of the defendant. Efforts were made to obviate them to some extent. The amount due on the Kevins mortgage was ascertained, and it seems' clear that provision for its payment was made by Stimson with the attorneys for Kevins ; and that was sufficient to dispose of any objection as to the Kevins mortgage being an incumbrance (Pangburn v. Miles, 10 Abb. N. C. 42).

      “ The other objections were considered insuperable ones to taking the title, and in January, 1883, the plaintiff’s counsel notified the defendant that the title would not be accepted, and the plaintiff elected to rescind the contract. Upon this state of facts the question arises, can the plaintiff recover back his deposit and the several items of damage he has sustained ? There is no doubt that equity will not require a purchaser to accept a really doubtful title, and this has often been decided. Specific performance will not be decreed in such a case ; but it is not every title, obscure or incomplete of record, or in regard to which suspicion is excited by extrinsic facts, that may be said to be doubtful within the meaning of the rule even in equity.
    “ Parol evidence is often admitted to supply the defect, as is illustrated in the recent case of Hellreigel v. Manning (97 N. Y. 56).

      “ But the present action is one on the law side of the court to recover back money paid, &c., on the contract of sale by the purchaser, and there is a very clear distinction between a suit in equity to enforce a contract specifically, where the court exercises a discretion and determines in each particular case, as it arises, whether a purchaser shall take title, and an action at law to recover back money paid on a rescinded contract. In the former case, a court of equity will not declare a title bad, but only that it is subject to so much doubt that a purchaser ought not to be compelled, in conscience, to accept it. But this was peculiarly a doctrine of the courts of equity ; at law the rule was different.
    “ In Sir Samuel Romilly v. James (6 Taunt. 274), Gibbs, Chief Justice, says; ‘It is said the plaintiff will have made out his claim to recover back his deposit if a cloud is cast upon the title. That is not so in a court of law. He must stand by the judgment of the court as they find the title to be, whether good or bad, and if it be good in the judgment of a court of law, he cannot recover back his deposit. I know a court of equity often says, this is a title, which though we think it available, is not one which we will compel an unwilling purchaser to take ; but that distinction is not known in a court of law.’ In 1831, in Boyman v. Gutch (7 Bing. 379), the court held to the same rule, although it was strongly urged by counsel that the purchaser seeking to recover his deposit should not be compelled to take a questionable title, and thus incur the hazard of purchasing a law suit.
    “ Since the adoption of the Code, and notwithstanding the supposed blending of legal and equitable rules, the same distinction has been maintained and applied in this state, and in the court in which this action is pending. In 1864, at the general term, in O’Reilly v. King (2 Robt. 587), in an action to recover back the deposit on a contract of sale, claimed to have been rescinded for doubtfulness of the vendor’s title, the court held that the plaintiff must hold the title to be actually bad, and not merely doubtful. The same distinction has been recognized by the court of appeals. In Murray v. Harway (56 N. Y. 337), the action was to recover back a deposit made on an executory contract for the sale of leasehold premises. In the opinion of the court the rule in equity is considered and cases cited. The court then proceeds to say : ‘ The citation of these authorities is not absolutely necessary in the case in hand, for it is brought on the law side of the court. The plaintiff proceeds on strictly legal rights. He refuses to perform his contract, and sues to recover back the amount of a payment made thereon.’ And the case is disposed of on the ground that the defendant established by parol proof on the trial that he had a good title.
    “ The defendant here has undertaken to show that his title was good, and he has shown that the purchase of the leasehold interest by him of Weston was a bona fide purchase for a consideration, adequate in view of the. liens and incumbrances upon the property; that there was'no ulterior purpose of benefit, or resulting use or trust, for Weston, and that the creditors of Weston could not, upon the facts, impeach the transfer.
    “ There is nothing decided in Schriver v. Schriver (86 N. Y. 575), at variance with the views above expressed. That was a motion to compel a purchaser at a partition sale to complete his purchase, and the court held that the title to one of the lots was unmarketable, because of the uncertainty as to a matter of fact which was not cleared up in that case by proof.
    “In the present case all the circumstances of suspicion are satisfactorily explained, and upon the whole evidence the court would hold that a creditor of Weston, seeking to attack Stimson’s title, must fail on the proof which Stimson has produced.
    “In Schriver v. Schriver the court says: ‘What we hold is that the vendee has brought such facts and circumstances as called upon the vendors to show how they may be met and nullified before they can compel him to complete his purchase.’.

      “Ill the case at bar, even if the equitable view were to apply, the vendor has fully furnished the proof nullifying the suspicious circumstances, and it would appear that such proof was made known to the vendee before the property was rejected, as an offer was made to perpetuate evidence of the consideration of the transfer from Weston to Stimson.
    “ But upon the rule of law as laid down by the general term of this court in O’Reilly v. King (supra), wliich I feel compelled to follow, the plaintiff cannot recover at all on the proof in this case.”

      Adrian Van Sinderen, attorney, and S. P. Nash, of counsel for appellant,
    in the questions considered in the opinion, argued :—I. The circumstances attending the transfer of the lease by Weston to the defendant Stimson rendered the title offered to the plaintiff so doubtful as to be unmarketable, and such as a court of equity would not compel a purchaser to accept. A purchaser is not obliged to take such risks ; not obliged to take a title that may be put at hazard (Shriver v. Shriver, 86 N. Y. 575). In Hellreigel v. Manning (97 N. Y. 56) there was no person claiming the title, nor, so far as appears, could there be. The objection was simply based on a misnomer. In Murray v. Harway (56 N. Y. 337), there was no person to avoid the title except the landlord, and the proof of waiver of the possible forfeiture was complete.
    II. That this action is brought, according to the antiquated phrase, “upon the law side of the court,” does not preclude the plaintiff from relief on equitable grounds (§ 3339 Code; Dobson v. Pearce, 12 N. Y. 157; Crary v. Goodman, 12 Ib. 266 ; Phillips v. Gorham, 17 Ib. 270; Ib. 284, &c. ; Sheehan v. Hamilton, 2 Keyes, 304; Hoppough v. Struble, 60 N. Y. 430). The clearest illustration of the point we are considering is found in the case of Pangburn v. Miles (10 Abb. N. C. 42, 50), cited by the referee in support of his Opinion herein. That action, like the present, was commenced—of course “on the law side of the court ”—to recover moneys paid on account of a contract for the purchase of land; and the court not only denied the plaintiff’s prayer, but rendered an affirmative judgment in defendant’s favor, decreeing a specific performance of the contract—a remedy within the special and exclusive province of a court of equity alone.
    III. On strictly legal grounds, the case at bar is clearly distinguishable from those which have been cited in support of the judgment below.-—Counsel here commented on and sought to distinguish the cases of Pangburn v. Miles (10 Abb. N. C. 42); Romilly v. James (6 Taunt. 262); Boyman v. Gutch (7 Bing. 379); O’Reilly v. King (2 Rob. 587); Hellreigel v. Manning (9Y N. Y. 56); Murray v. Harway (56 Ib. 337), and then proceeded.—In England it seems to have been settled that, even in a court of law, a purchaser may insist on such a title as a court of equity would compel him to accept (Jeakes v. White, 6 Exch. 873; Stevens v. Austen, 107 E. C. L. R. 685), and the question has by statute been put upon the same footing as under the Code (Sugd. on Vend. 332-3 [13th Lond. ed.]). See also McCarty’s Appeal (2 Eastern Rep. 562).

      William PierrepontWilliams, attorney, and of counsel for the respondent,
    on the questions considered in the opinion, argued I. This action is clearly brought on the theory that the plaintiff was entitled to rescind the contract of purchase because of the defendant’s alleged inability to perform, and that, on the rescission being made, there arose an implied- contract on the part of the defendant to return the $3,000 that he had received. Such being the theory of the action, the whole subject of doubtful titles must be excluded from the case. The only question that can be considered is whether the title was good or bad (Murray v. Harway, 56 N. Y. 337). The other leading authorities on this question are briefly and clearly stated in the opinion of the referee.
    II. Even if the principle above contended for were not invoked, yet the title was so clearly free from all reasonable doubt that the plaintiff was not justified in refusing to complete the contract (Hellreigel v. Manning, 91 N. Y. 56 ; Fryer v. Rockfeller, 63 Ib. 268),
   By the Court.

Ingraham, J.

The referee held that io entitle the plaintiff to recover in such an action, the burden of proof was on him to show that the defendant had failed to perform the contract on his part, or in other words, to prove that the defendant failed to convey or offer to convey to the plaintiff a good title to the property purchased.

The authorities in this state that are controlling on this court abundantly sustain the decision of the referee. The exhaustive examination of the question in the opinion of the referee, renders a review of the cases unnecessary except to say that we concur in his opinion (See also Methodist Episcopal Church Home v. Thompson, 52 Super. Ct. 321).

The finding of the referee, that the title of the defendant to the leasehold premises described in the contract of sale was good, was abundantly sustained by the evidence.

There is a plain distinction between an action in equity for a specific performance, and an action at law for the recovery of money paid on the execution of a contract of sale of land. In an action for a specific performance, the rule is stated that equity will not interfere and decree a specific performance unless the plaintiff establishes to the satisfaction of the court that his title is a marketable title ; and it is said in Shriver v. Shriver (86 N. Y. 584), that, as a general rule, a ■ title which is open to judicial doubt is not a marketable title, and that if after the vendor has produced all the proofs he can, a rational doubt still remains, the title is not marketable; that a„ rational doubt may be said to exist when a court of law would not feel called upon to instruct a jury to find that a fact existed, on the existence of which the vendor’s title depends.

In a case where the vendor has failed to show that he had a marketable title, or where other grounds appear which in equity and good conscience require that the contract should not be specifically performed, equity will not interfere, but will leave the parties to their remedy at law (Peters v. Delaplaine, 49 N. Y. 362).

In an action at law, however, the plaintiff seeking to recover either damages for the failure to perform the contract, or the amount paid on the contract, is bound to show that the defendant has broken the contract and that he (the plaintiff), had tendered performance, or was able to perform the contract on his part. That burden is on the plaintiff, the party seeking to recover. He is bound to show that in some way the defendant has failed to perform his contract, and if he fail to sustain this burden, he cannot recover. On strictly legal principles he has failed to prove his cause of action.

The contract on the part of the defendant was, that he (the defendant), “will well and sufficiently convey to the party of the second part (plaintiff), by deed or assignment free of all incumbrances except as hereinafter stated, the indenture of lease described,” and it is settled in this state that in an agreement for the sale of a leasehold, there is an implied undertaking on the part of the vendor that he has and will convey a good title to the lease (Burwell v. Jackson, 9 N. Y. 635).

In no case to which our attention has been called or that we have been able to discover, has it been held that this implied covenant is, that the vendor will convey a marketable title ; but in all the cases that have followed Burwell v. Jackson, it is stated that the vendor has a good title and that he will convey that good title to the purchaser.

A breach of this agreement is not proved by showing that if certain facts exist, the title is doubtful. Plaintiff must show a breach, and to show such breach he must affirmatively prove that the plaintiff had failed to convey or offered to convey a good title.

In this case the referee having found that the defendant had, and offered to convey a good title, plaintiff failed to sustain his cause of action, judgment is affirmed, with costs.

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