author: Freedman, J.

text:
    THE FLORENCE SEWING MACHINE CO., Plaintiffs and Respondents, v. WILLIAM K. WARFORD and HENRY VANDERVEER, Defendants and Appellants.
    The object and intent of the act, passed April 16, 1830, entitled “An act for the amendment of the law relative to principals and factors or agents,” is to protect innocent persons who may purchase or become pledgees of property intrusted by the owner to the exclusive possession—separate and distinct from the owner’s—of an agent •for the purpose of sale. As against such innocent persons the agents contemplated by the statute will bo deemed to be the true owner's of tire property.
    But the legislature did not design, in passing the said statute, that n purchaser or pledgee, who takes property with full and actual knowledge that the vendor or pledgor is only an agent, shall have the right to deem or believe such agent to be the true owner.
    Goods in the possession of an agent, who has charge of the store of his principal, and is authorized only to sell in the name and for the account of his principal specific goods manufactured by the principal, are in law in possession of the principal. If such agent, by means of false representations that he received orders for goods induces the principal to forward the said goods from the manufactory to the store in charge of said agent and addressed to said store, and the agent thereupon intercepts the goods before they reach the store and pledges them for his own benefit; or if such agent takes goods from the store without the knowledge or consent of the principal, and not in the usual course of the business intrusted to his m anagement, and pledges them for his own benefit—he is, in either case, guilty of larceny, provided he entertained the intent ah initio to deprive his principal of the possession of and right of property in the goods, and the principal had no intention to part with his right of property in and title to the goodsr as well as the possession of the same, to the agent.
    The •distinction between larceny and obtaining goods by false pretences explained.
    No title to goods can be acquired through the commission of a larceny, although the rule is otherwise where goods have been obtained by means of false pretences.
    The true owner of stolen goods may maintain an action to recover the possession of the same against any person in whose possession they may be found, and is not bound, as a condition, to his right to sue, to first pay or tender the amount of storage due thereon for the period of time that he was deprived of the possession thereof.
    Before Barbour, C.J., Fithian and Freedman, JJ.

      [Decided July 2, 1869.]
    This case was tried before Mr. Justice Jones and a jury.
    Appeal from judgment entered upon the verdict of the jury in favor of the plaintiffs, that the plaintiffs have possession of one hundred sewing machines, and assessing the value thereof at $7,000, &c., &c.; and, also, from an order denying the motion made by the defendants upon the Judge’s minutes for a new trial. The facts fully appear in the opinion of the Court.

      Mr. Joseph H. Choate for appellants.
    In the true construction and application of the Factor’s Act, the test of the pledgee’s right to hold the goods as against the consignor or principal is in the very words of the statute, whether the factor or other agent has been intrusted with the possession of the merchandise for the purpose of sale, and whether the pledgee made his advances in reliance upon the factor’s possession in good faith and without notice. It is wholly immaterial by what motives or persuasion the principal was induced to intrust the agent with the possession, or what design the factor or agent had in soliciting or obtaining the consignment; and as to the supposed necessity of an intent on the part of the principal to part with his property in the goods to the agent, at the time he intrusts the possession to him, the very relation of principal and factor or agent negatives the possibility of such an intent, which therefore could not be within the contemplation of the act (Zachrisson v. Ahman, 2 Sand., 68; Cook v. Beal, 1 Bosw., 497; Pegram v. Carson, 10 Bosw., 505 ; Cartwright v. Wilmerding, 24 N. Y., 521).
    That Buell as factor or agent of the plaintiffs was intrusted by them with the possession of the machines in question was undisputed. Their deposit by him in a warehouse where they remained subject to his control, so that he could issue or procure to be issued negotiable storage receipts for them, constituted the possession contemplated by the act (Cartwright v. Wilmerding, 24 N. Y., 521; Pegram v. Carson, 10 Bosw., 505).
    That such possession was intrusted to him for the purpose of sale was equally undisputed. He ordered them for that express purpose. They were made up and sent to him for that express purpose. He was the general agent of the plaintiffs, to receive orders, to exhibit, and to sell. His authority to that extent was recognized, and if it had been questioned or were open to question, it should have been left to the j ury to determine. The offence, if any, of Buell against the company in obtaining the eighty-three machines by means of the false representations contained in his orders, was obtaining goods by false pretences, and not larceny, and neither as to these nor as to the seventeenmachines sent out of the store was there any “feloniously taking and carrying away the personal property of another,” which is necessary, to make out a case of stolen goods.
    The right of a factor to place goods on storage 'in his own name, so as to give the warehouseman a lien for his storage, cannot be questioned; it is within the ordinary scope of his employment and power; and this action should therefore have been dismissed, because there was no payment or tender to the defendants of the amount of their charges for storage before suit brought (2 Kent Com., 626).

      Mr. Henry L. Clinton for respondents.
    A bona fide purchaser from a person in the possession of property who has no title to it, and no authority from the owner to sell or dispose of it, cannot acquire any title against the true proprietor (Williams v. Merle, 11 Wendell, 80; Ely v. Ehle, 3 Comstock, 506, see p. 509; Everett v. Coffin, 6 Wendell, 603 ; Everett v. Saltus, 15 Wendell, 474; same case on error, 20 Wendell, 269; Wheelwright v. Depeyster, 1 John., 471).
    No one can obtain title to goods through a felony (Hoffman <o. Caron, 20 Wendell, 21; same case on error to Court of Errors, 22 Wendell, 285; Conlan v. Latting, 3 E. D. Smith, 353; and see Brower v. Peabody, 13 N. Y., 121).
    The' undisputed facts clearly prove that George B. Buell, plaintiffs’ clerk, obtained the machines in litigation by means which amount to a larceny.
    The question whether the defendants or those whom they represent were bona fide purchasers, has nothing to do with this ease.

      The evidence introduced by plaintiffs was sufficient to show a wrongful possession on defendants’ part, and to warrant the jury in finding a verdict for the plaintiffs.
   By the Court:

Freedman, J.

The first question to be determined is whether George B. Buell was a factor or agent of the Florence Sewing Machine Company -within the meaning of the so-called Factors’ Act. This act, passed April 16,1830, is entitled “An act for the amendment of the law relative to principals and factors or agents ” (Laws 1830, p. 203; Edmond’s. Statutes at large, vol. iv, p. 461).

It is necessary only for the present purpose to consider the effect and meaning of the third section of said act, which is as follows:

“ Sec. 3. Every factor, or other agent, intrusted with the possession of any bill of lading, custom-house permit, or warehouse-keeper’s receipt for the delivery of any such merchandise (meaning the merchandise referred to in the first section of the act, consisting of merchandise shipped in the name of the factor or agent), and every such factor or agent not having the documentary evidence of title, who shall be intrusted with the possession of any merchandise _for the. purpose of sale, or as a security for any advances to le made or obtained thereon, shall be deemed to be the true owner thereof, so far as to give validity to any contract made by such agent with any other person, for the sale or disposition of the whole or any part of such merchandise, for any money advanced, or negotiable instrument, or other obligation in writing given by such other person upon the faith thereof.”

A bare inspection of the act 'shows that the legislature did not intend thereby to provide a remedy for all those hardships which have accrued to innocent persons by dealing with people having the apparent ownership of goods, as if they were the real owners; but the intention of the legislature was only to deal with cases in which innocent persons had been taken in, in .such dealings, by the factors -or agents of the owners of the goods, and such factors and agents must have been intrusted with the possession, &c.

The words factor or other agent” refer to agents employed to sell goods or merchandise consigned or delivered to them by or for their principals, for a compensation commonly called factorage or commission, who may sell for their principals in their own names, as well as in the name of their principals, who are individually intrusted with the possession, control, and disposal of the goods to be sold, and who have a special property in and a lien upon the goods.

Now the facts in the case under consideration are as follows:

The Florence Sewing Machine Company had their manufactory and chief place of búsiness at Florence, Mass., and from September, 1865, to the time of the trial in this action, kept a store for the exhibition and sale of their machines at No. 505 Broadway, in the City of New York. George B. Buell had charge of the New York store from September, 1865, until about the month of April, 1867. During that time he had the entire management of the business of said store, tinder the supervision of the company’s officers, and subject to such instructions as the said officers saw fit from time to time to give him; he was called the Principal Agent of the Company for the State of New York; minor agencies in other parts of the State reported to him and transmitted their orders through him to the company; he was permitted to hire the clerks and other employes necessary for carrying, on the business of the store, and for his own services received from the company a salary of three thousand dollars per annum.

The business at the store, however, was carried on in the name of the plaintiffs and under the supervision of plaintiffs’ officers; the plaintiffs’ sign was over the store; all goods sent to the store from the manufactory were directed to the Florence Sewing Machine Company, No. 505 Broadway.” The sales were made in the name of the company; the bill-heads had the company’s name upon them as the name of the person selling the goods; the expenses of the store were paid with money derived from sales; a regular account was kept between the principal establishment at Florence and the store in New York, and the proceeds from sales not used in defraying the expenses of the store in. New York were to be remitted to the Florence establishment.

It cannot, therefore, be said that the machines sent to the store in New York were consigned to or delivered to George B. Buell personally, or that the plaintiffs intended so to consign and deliver them. Buell did not receive any documentary evidence of title to them, which, by the established usages of trade or otherwise, gave him the entire and exclusive control of the delivery of the machines, upon arrival, to himself as the person holding such documentary evidence, nor had he the possession, actual or in law, of them. lie had not even a right to the possession in himself; he had no special property in or lien upon the machines for his services; he was a salaried officer; he had no right to dispose of them as his own in any manner, and no authority to exercise even ostensible acts of ownership over them. On the contrary, the machines, while at the store in New York, were just as much in the possession, and under the direct control of the company as they would have been if said store had constituted only an exhibition room inside the walls of their manufactoiy. Buell was, in effect, a mere employe, a clerk, and as such had only the charge and custody of the goods for the special purpose of exhibiting them and selling them in the name of the Florence Sewing Machine Company, as an article manufactured by said company specially, and for the account and benefit of said company, while the possession and property remained in the company. Upon this state of facts it is to be determined whether Buell should be considered as a factor or agent, intrusted with the possession of the goods within the true intent and meaning of the Factor’s Act. It is true, a factor empowered to sell is always an agent. For whenever any person competent to do an act employs another person to do it for him, the latter is an agent (Story on Cont., secs. 277, 295). But there are many kinds of agents who are not factors, and there is a broad distinction between factors and agents to sell.

First—Factors are entitled to á general lien for all advances and charges upon oil the goods of the principal in their hands, while mere agents have, as such, only a special lien, and no general lien, unless by usage in a particular trade or business, or by force of some special agreement (id., 327).

Second—By the common law a factor may vend the property, or pledge it for advances actually made in his own name or in that of his principal, as he may elect; and he is compensated, usually, by a commission or percentage upon the gross proceeds of sales. But -an agent sells in the name of his principal, and charges for his services such sum as they may he worth, or, by agreement, may have a salary, a percentage, a specified sum, or nothing (id.).

Certainly Buell was not a factor of - the plaintiffs. But he was their agent in the sense that he was authorized to do for them certain acts which they could have done for themselves, i. e., to sell machines. He was then within the letter of the act, so far as the mere question of agency is concerned. But was he an agent intrusted with the possession of the goods for the purpose of sale as contemplated by the spirit of the statute? For if he was not, the pledge is not protected by the act. The meaning and scope of the act in this regard seems doubtful, and, of course, that doubt also extends, by necessary connection, to the meaning of the word agent,” as used in the act. For instance, a salesman in a store is an agent empowered to sell, and the goods, in many cases, are actually in his hands when offered for sale. Literally, then, or, in more technical language, by the letter of the act, such a salesman may sell or pledge the goods as owner, and the purchaser or pledgee will take a good title or right of possession as such against the principal of such salesman.

But it is not reasonable to suppose that the legislature designed the act to have that effect, although in letter they may have said so. The act, therefore, must be construed in accord anee with the real wish or intention of the legislature. For, although a thing is within the letter of a statute, it is not the law, unless it be within the intention of the law-makers (Plowden, 18, 88; 2 Just., 64; 5 Tenn. R., 449 ; 3 B. and Ald., 266; 3 Cowen, 89 ; Bac. Abr., tit. stat. I., 5,10; 15 Johns. R., 358;. 3 Barb., 429 ; 1 Kent Com., 463-4). Statutes are likewise to be construed in reference to the principles of the common law; for it is not to be presumed that the legislature intended to make any innovation upon the common law further than the case absolutely required.' In the application of these well-settled rules to the case before me, I have arrived at the conclusion! that the legislature designed to protect purchasers and pledgees who should, in good faith, obtain goods from persons who are—

First—Agents, who again are

Second—Empowered to sell, and

Third—Intrusted with the entire possession and absolute conn trol of the property for the latter purpose; such a possession and control, for instance, as travelling peddlers have, or persons occupying for themselves places of business other than those of the owner of the.goods; in short, such a possession and control as would enable the agent to sustain an action of replevin to recover the possession of the property in case he should be deceived by a stranger.

If that construction is correct, it would seem to follow that the pledgee -in this ease is not protected by the statute. For the property was in the possession and custody of the plaintiffs as owners while it was in their factory, while in transitu to Kew York, and while in their store in this city, although Buell was authorized to sell it. As Buell received a salary as full compensation he had no charges upon the property, nor right of possession, and his actual possession was that of his principal, until he pledged the goods. A mere discharge of Buell from the plaintiffs’ employment would, ipso facto, have divested him of any possession he might have of the goods. FTo proceedings in replevin would be necessary. But such proceedings would be requisite as against an agent in exclusive possession, {hough he was discharged as agent, and even though he had no lien for advances or charges.

But, even if Buell took such possession of the property as to divest the owners of their possession, he did not thereby become possessed (exclusively) of the goods for iliepwrpose of sale within the meaning of the act. The great object and intent of the statute is to protect innocent persons who may purchase or become pledgees of property intrusted by the owner to the exclusive possession, separate and distinct from the owner’s, of an agent for the purpose of sale; not to enable an agent and a purchaser or pledgee to collude and defraud the true owner, by virtue of the letter of the statute. Such innocent persons dealing with such agents as are contemplated by the statute, may “deem” the said agents to be the true owners of the property. But it cannot be that the legislature designed that a purchaser or pledgee who should take the property with full and actual knowledge that the vendor or pledger is only an agent, should have a right to deem or believe him to be the true owner. It appears to me more reasonable to suppose that they intended merely to protect bona fide purchasers and pledgees without notice of property found by them in the exoluswe possession of persons who, in fact, had been intrusted therewith for the purpose of sale. In the case under consideration, S. L. Woodhouse, the original pledgee, was fully aware that Buell was only the agent of the plaintiffs in charge of plaintiffs’ store. When ex amined as a witness at the trial, he testified, in response to the question addressed to him, where he supposed Buell was to get the machines from if he did not get them of the Florence Sewing Machine Company, that he presumed “ that, in his accounts with the company, Buell took the machines from the company with the understanding that they were to be sold to him.”

For these reasons, Buell cannot be considered as a factor or agent intrusted with the possession of the goods within the true intent and meaning of the 'provisions of the Factor’s Act (Stevens v. Wilson, 6 Hill, 512; same case, 3 Denio, 472; Zachrisson v. Ahman, 2 Sandf., 68; Cook v. Beal, 1 Bosw., 497; Cartwright v. Wilmerding, 24 N. Y., 521).

The fact that, either with or without the knowledge and acquiescence of the plaintiff, Buell kept a bank account in his own name in the Tradesmen’s Bank, in which he deposited with his own moneys the proceeds of the sales at the store, and that he paid the rent and all the expenses of the store by checks drawn against said account, can make no difference in this respect. This is an independent question, which does not in any way affect his original powers in regard to the sale and disposition of the goods.

The next point to be considered is whether George B. Buell did or did not commit the crime of larceny in obtaining the machines in litigation from the plaintiffs and converting them to his own use.

On the 31st day of July, 1866, Buell procured, for his own individual use, from one S. L. Woodhouse, a certain promissory note of said Woodhouse for five thousand dollars, bearing date of said day, payable ninety days thereafter, and agreed to protect the said note when due, and to place in the hands of said Woodhouse eight thousand dollars’ worth of sewing-machines as security therefor. This agreement was proved on the trial by the receipt from Buell to Woodhouse, in the handwriting of Buell, and written upon a sheet of paper bearing the caption “Florence Sewing Machine Company, Ao. 505 Broadway, Aew York.” In order to obtain the machines, Buell, on the same day, wrote to the plaintiffs, at Florence, Mass., for thirty machines, and falsely and fraudulently represented to the plaintiffs that he had received an order for said machines from Dodd & Hill, and that the machines were to be’sent to that firm to the West Indies. Upon the same false statement, Buell, on the 2d day of August, ordered twenty-three more machines, and, on the 22d of October following, still thirty more, making eighty-three machines in all. They were accordingly shipped by the company to Aew York, marked “W., care Florence Sewing Machine Company, Ao. 505 Broadway, Aew York;” they, however, never reached the Broadway store, but were converted, on their arrival in New York, by Buell to his own use, and turned over to Woodhouse for Buell’s individual benefit, and in accordance with the previous arrangement between him and Wood-house. It is conceded that the representations and statements upon which Buell obtained the said eighty-three machines were false.

The remaining seventeen machines of the one hundred machines, for the recovery of which this action is brought, were in the company’s store in Broadway; and Buell, who, as I have before stated, was in effect a mere employe or clerk, had the special charge and custody of them for the purpose of exhibition and sale in the name of and for the account and benefit of the Florence Sewing Machine Co. In November, 1866, they were taken away from plaintiffs’ store by Buell’s direction, by a cart-man unknown to the other employes in the store, and not in the regular course of business. None of the other employes in the store, consisting of a book-keeper, shipping-clerk, an adjuster, a salesman, a porter, and some ladies to wait on the store, knew any thing about their destination or the purpose for which they were taken out. Buell never gave an account of them, to be put by the book-keeper on the books of the company, as the usual course of business required, but simply ordered the bookkeeper to count them as on hand. It was afterwards discovered that these seventeen machines had also been pledged by Buell to S. L. Woodhouse as security for his personal debt. Buell had previously ordered the book-keeper, whose business it was to know what stock arrived, and who had seen the invoices for the eighty-three machines referred to, to count them as on hand. All the machines obtained by Buell for his own use were thus' put in together, eighty-three packed for shipment and seventeen in skeleton; and the book-keeper, by direction of Buell, reported them as on hand in the store in his reports to the officers of the company at Florence. On being subsequently interrogated as to said machines by officers of the company, Buell made statements in regard to them which it is not necessary to detail here; it is sufficient to say that they were false. It appears further in evidence, that under the arrangement made with S. L. Woodhouse, Buell stored the one hundred machines in the Trinity stores, with Warford & Yanderveer, the defendants in this action; that the warehouse receipt therefor was issued to S. L. Woodhouse; that Buell continued after that time to have transactions on his own account with S. L. Woodhouse, and that the machines remained in the hands of ,the latter as security for the performance by Buell of his personal obligations. In December, 1866, S. L. Woodhouse pledged the same machines to the New York Warehouse and Security Company for a loan of five thousand dollars to himself. To obtain this loan, Woodhouse delivered up his warehouse receipt, and procured another in the name of the company last mentioned. These are substantially the undisputed facts of the case, and upon them it is to be determined whether Buell obtained the machines in question by means which amount to a larceny.

As to the eighty-three machines first referred to, Buell did not even have the special custody of them for the purpose of exhibition and sale; he had no control whatever over them; he made an agreement with Woodhouse to furnish eight thousand dollars’ worth of machines as security for the performance of a personal obligation on his part, and then resorted to a trick to get hold of them from, the plaintiffs; he falsely pretended he had received orders, and on the faith of such representations the company forwarded the eighty-three machines. Mow, if they were thus sent to Buell individually, and, in doing so, the company intended to part, not only with the possession of the goods, but with their right of property in them also, to Buell, the offence is not larceny, but obtaining goods by false pretences; and in such case the action cannot be maintained against the defendants, even if Buell had felonious intent to absolutely deprive the company of their property in the machines at the time he sent the pretended orders. But if the company intended to part with only the possession of the goods to Buell, but still meant and intended to retain their right of property in the same as against Buell, the taking of the goods by Buell, with a felonious intent at the time to deprive the company of their property therein, constituted larceny. If Buell, therefore, had been a perfect stranger to tire company, and as such had procured the machines, and the possession of the same, by means of the trick employed by him, and with the felonious intent referred to by me, ab initio, and then converted the goods, he* was guilty of larceny, if the company, in forwarding the goods, did not intend to part with their right of property in, and title to, the goods to him, as well as with the possession of the same.

Thus, where the prisoner bad induced the prosecutor to let him have fifteen dozen slippers, saying that Tie had an order for them, and both went with them to the place of sale, the prosecutor staying outside of the shop at the prisoner’s request, and the prisoner sold the slippers, but made some excuse for not handing the price over, and then ran away, there was a conviction of larceny (Lyon v. De Bass, 11 Adol. & Ellis, 326).

J., by falsely representing to S.that he had sold for S. a quantity of goods to B. H. & Co., induced S. to send the goods to the store of E. H. & Co. J. then went to the store of B: II. & Co., with whom he had, in fact, no dealings on account of S., and informed them that the goods were sent there by mistake, and induced them by such misrepresentation to deliver the goods to him, and took them away from the store of B. II. & Co., and converted them to his own use. It was held that this was larceny, and not simply obtaining goods by false pretences (People v. Jackson, 3 Bark. Cr. R., 590).

Brevailing on a tradesman to take goods to a place on pretence that he shall then be paid for them, and inducing him to leave them in the care of a third person, and then getting them from him without paying for them, is larceny, if the intent, ab initio, was to get the goods without paying for them (Rex v. Campbell, R. & M., C. C. R., 179; cited in Stephens v. Hart, 4 Bing., 476).

Where the prosecutors owned wheat, which they kept in a storehouse, under the charge of their servant, Eastwick, and Bobins, the prisoner, another of their servants, went to Eastwick, and represented that he had an order to take some of the wheat and convey it to the Brighton railway, and thus obtained five quarters, which he disposed of, and did "not take to the railway, it was objected, on trial, that this merely amounted to obtaining the wheat by false pretences. The joint was reserved, the jury finding the prisoner guilty of larceny. Upon the hearing, the conviction was affirmed (Reg. v. Robins., 29 Eng. Law and Eq., 544).

In Reg. v. Morgan, it was proved at trial that Morgan represented himself to the prosecutrix to be a French sea-captain, and offered to sell her two dresses, one for twelve shillings and the other for twenty-five shillings. The prosecutrix chose the latter, and produced twenty-one shillings, when the prisoner took the money from her hand, she neither consenting nor resisting, and, laying down the cheaper dress, 'went away. Held, by a full bench, larceny (Reg. v. Morgan, 29 Eng. Law and Eq., 543).

The prosecutor, in Begina «. Brown, délivered money to the prisoner Brown to carry to a Mr. Haines, Brown saying that he lived near Haines’ place. Brown’s statement was false, and ne appropriated the money to his own use. He was convicted, the point whether the act done was, in law, larceny, being reserved. The conviction was affirmed. Pollock, C.B., said : “ This conviction must be affirmed. 'There was a case tried at the Old Bailey, in which a very ingenious fraud had been perpetrated on some bankers by their clerk, who induced a customer of the bank to allow him to place some money of his own to his account, and then appropriated the money of the bank to his own use; it was held that he was guilty of larceny ” (Rex v. Hammond, 2 Leach’s C. C., 1083; and see Rex v. Semple, 1 Leach’s C. C., 420). “ The machinery by which a person gets another man’s property out of his possession, with the view of stealing it, makes no difference in the offence” (Regina v. Brown, 36 Eng. Law and Eq., 610).

The cases cited in the books upon the same point are very numerous, and embrace a large variety of circumstances, and .firmly establish the doctrine that where the goods are delivered by the owner, or person having the legal custody or possession of them, and he is induced to part with their possession through artifice or fraud, the right of property still remaining unchanged, the offence is larceny (Reg. v. Johnston, 2 Denison, Crown Cases, 310; State v. Lindenthal, 5 Richardson [S. Caro.], 237; Noah Pearce’s case, 2 East PI. of Crown, 603; Rex v. Davenport, Archb. Peel’s Acts, 4; Russel on Cr., ed. 1865, p. 201; State v. Watson, 41 New Hamp. [4 Chandler], 533; Starkie v. Com., 1 Leigh, 752; Rex v. Aickles, 1 Leach, C. C., 294; Rex v. Wilkins, 1 Leach, Crown Cases, 520 ; Reg. v. Webb, 5 Cox, C. C., 154; Reg. v. Simpson, 2 Cox, C. C., 235; Reg. v. Bromley, 1 Leigh & Cave’s R., 21; State v. Humphrey, 32 Verm. [3 Shaw], 569).

On the other hand, if the company forwarded the eighty-three machines to Buell as their clerk and employé (and the evidence shows that they were addressed to the company’s store in Broadway), Buell, upon receipt of them, either at the store or at the wharf, acquired, by virtue of his employment, the charge or custody of the goods for a special purpose only, namely, to reship them in pursuance of the orders received by him, if he had any, and if he did not have any such orders, then to exhibit and sell them in the name of the company as their manufacture, and for their account and benefit. In either ease there was neither a change of property, nor of possession, but the' legal possession still remained in the plaintiffs. I have already shown that Buell cannot be considered as factor or agent within the meaning of the factor’s act, but that he was in effect a mere'clerk; nor can he be looked upon as a bailee in this ease. Clerks, who have the charge or custody of the goods of their principal for a certain, special, and particular purpose, are not bailees within the rulés as to larceny by bailees, for the possession of the clerk is always deemed the possession of the principal, and if he dispose of the goods to his own use, with a felonious intent, it is larceny (2 Arch. Cr. Pr., 387). It therefore made no difference, in this aspect of the case, whether Buell took the eighty-three machines from the wharf, before they reached the company’s store, or from the store, after they reached there; in either case he took them out of the legal possession of the company. The same remarks apply to the seventeen machines taken subsequently -from the.store. It consequently follows that, even if Buell had not procured the shipment of a part of the machines by trick or device, but honestly, and the eightyythree machines had been sent and received at the store, marked and addressed as they were, for the purpose of being shipped to the West Indies, and Buell had taken them, together with the other seventéen, from the company’s store, without the knowledge and consent of the plaintiffs, with an intent at that very time to convert them to his own use, and to deprive the company of their property in them, he committed larceny (People v. Wood, 2 Park Cr.R., 22 ; People v. Call, 1 Denio, 120; Walker v. Commonwealth, 8 Leigh [Va.], 743; cases in 2 East. P. C., 564 to 567 inclusive; State v. Self, 1 Bay. [S. Carol.], 242; 1 Hale, 506 ; 1 Hawk., ch. 33, sec. 6; P. v. Mane, 1 Mood. C. C., 368). The questions to be determined by the jury in this case, upon the point of larceny, therefore, were, in regard to the eighty-three machines, as well as the seventeen, whether Buell obtained the possession of them Avith a felonious intent at the time he took them, and whether at the same time the company intended to part, not only with the possession, but also with their right of property in the machines to Buell, for Avithout a concurrence of both, there was no larceny. These questions were fully discussed by the learned justice presiding at the trial, in his charge, and fairly submitted to the jury in accordance Avith the vieAvs herein expressed. The said justice expressly charged the jury that, if they should find either that there was no such felonious intent on the part of Buell, or, there being such a felonious intent, yet the plaintiffs intended to part with their property in the goods to Mr. Buell, the 'defendants were entitled to a verdict. I can discover no error in the charge upon the question of larceny, and as the determination of that question was left entirely to the jury, upon all the facts and circumstances in the case, no ground of complaint can exist upon this point (Wilson v. the People, 39 N. Y., 459).

The third point presented for determination is whether the defendants’ title to the possession of the goods, so far as they represent the lien of Woodhouse and of the New York Warehouse and Security Co. upon the machines, shall be protected, notwithstanding the larceny committed by Buell.

The universal and fundamental principle of our law of personal property is, that no man can he divested of his property without his own consent, and, consequently, that even a T)ona fide purchaser from a person in the possession of property, who has no title to it, and no authority whatever from the owner to sell or dispose of it, cannot require any title against the true proprietor (Williams v. Merle, 11 Wend., 80; Ely v. Ehle, 3 Comst., 509 ; Everett v. Coffin, 6 Wend., 603 ; Everett v. Saltus, 15 Wend., 474,, and same case on error, 20 Wend., 69).

To whatever and however numerous exceptions this rule of our law may be subject, it is unquestionably, in the language of Senator Yerplanclc in the case last referred to, the general and regulating principle, modified only by the absolute necessity or the obvious policy of human affairs. Thus the law will in many cases imply an authority from the owner to sell, and where the owner has conferred an apparent right of property upon the vendor, or an apparent right of disposal, when he has furnished the vendor with the external indicia of such right, and the vendor has sold the goods and delivered the possession thereof, the law will protect a purchaser who has acquired the .property for a fair and valuable consideration, in the usual course of trade, and without any notice of any conflicting claim, or of suspicious circumstances calculated to awaken inquiry or to put him on his guard, although the goods were in fact obtained by the vendor from the true owner fraudulently; but this rule does not apply where the goods have been obtained feloniously by means of a larceny. Ho one can acquire title to goods through the commission of a larceny (Hoffman v. Carow, 20 Wend., 21; same case on error to Court of Errors, 22 Wend., 285; Conlan v. Batting, 3 E. D. Smith, 353; Brower v. Peabody, 13 N. Y., 121).

The cases relied upon by the defendants in this action do not form exceptions to the rule last referred to. In Malcolm v. Loveridge (13 Barb., 372), Bassett v. Smith (23 N. Y., 252), and. Keyser v. Harbeek (3 Duer, 373), the goods were obtained by false pretences, and the owners had not only voluntarily parted with the possession of thé goods, but had intended also to part with the title to them; and for that reason it' was held that a person obtaining goods by false pretences, indictable under 2 R. S., p. 677, sec. 53, can vest a title valid as against his vendor in a bona fide purchaser, but that the title is defeasible and avoidable, at the election of the first vendor, while the goods remain in the possession of his fraudulent vendee, or in that of any person merely succeeding to the rights of the latter or standing upon his title. __

In- Caldwell v. Bartlett (3 Duer, 341) a new trial was -granted for the reason that it appeared from the evidence that the goods were taken by delivery from a foreman, whose business it was to make delivery, and who was assumed to have had authority to bind his principal by a delivery; but at the • same time the Court fully.recognized the "rule,that one who tortiously possesses himself of another’s goods without a delivery from, or the consent, express or implied, of the true owner, can vest no title in even a bona fide purchaser. It follows therefore that the question whether the defendants or those whom they represent were bona fide purchasers or pledgees has nothing to do with this case, and the learned judge was correct in withdrawing this question from the consideration of the jury. One who deals with or disposes of the personal property of another (the same-not being negotiable paper) must see to it that he acts by the authority of some one who has power sufficient to warrant such dealing or disposition (Anderson v. Nichols, 5 Bosw., 121).

Buell, having stolen the machines, could convey no title to or interest in them, nor could he create any lien upon them against the true owner, and the defendants, for that reason, were not entitled to payment or a tender of the amount of their charges for storage before suit brought, and the evidence proposed by the defendants of the previous storage by Buell of the company’s machines, and the payment of the storage thereon, was properly excluded. For the same reason the evidence as to Buell’s acts and false statements to the company in regard to the machines subsequent to the pledge of the same to Woodhouse was competent evidence to be taken into consideration by the jury, together with all the other facts and circumstances of the case, for the purpose of the determination of the existence of the felonious intent on the part of Buell at the time of the taking of the goods by him.

The only remaining question raised by the defendants upon the appeal is,' that it was competent for the plaintiffs to waive the tort by which Buell had obtained the goods from them, and to look to him for the price, and so confirm his title to the machines, and that there was sufficient evidence to go to the jury of such waiver and settlement. Upon that point I also differ with the defendants after a careful examination of the evidence. Buell had committed other defalcations and abstractions of money, amounting to $5,653.98 ; he gave a note to the company for that amount, which was subsequently paid. The two items of $1,500 and $4,153.98 on the check-book constitute payments on account of this note.

In regard to the one hundred machines in suit no settlement was made with Buell, no charge made for them, no credit given, no receipt passed. They were demanded of Buell, and he said that he should return them very soon, and that he would do so. He was required by Hr. Wardell, the General Agent of the Company, to give something to show for them until he did return them, and he agreed to give, and finally did give, to Wardell a note as security for the machines until he should return them, which note was left with the attorney of the plaintiff, with instructions to hold the same as security for the return of the machines, but said note has never been paid. The evidence to this effect is not contradicted, and no fact or circumstances were proven in the case showing, or tending to show, that the plaintiffs charged the machines to Buell, or in any way gave him credit in respect to them. The memorandum from the letter-book of the plaintiffs containing the items of the defalcations and abstractions of Buell, and, among other things, specifying the one hundred machines in question, and putting their value at $5,137.43, was shown to be simply a Memorandum, and not a charge. The evidence upon this point was, therefore, insufficient for the purpose for which the defendants desired to have it submitted to the jury. Again, as Buell never acquired a title of any kind, and could not even transfer a title which was voidable at the election of the plaintiffs, and, as in consequence thereof, the defendants never acquired any title, it is difficult to perceive what title could have been confirmed by the plaintiffs by a settlement with Buell, which the latter failed to carry out. ¡No error was, therefore, in my judgment, committed in excluding that question from the consideration of the jury.

The judgment appealed from, and the order denying the defendants’ motion upon the judge’s minutes for a new trial, should be affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    ROBERT P. DODGE and GEORGE F. McCLELLAN Assignees, &c., Plaintiffs and Respondents, v. THE NEW YORK AND WASHINGTON STEAMSHIP COMPANY, Defendants and Appellants.
    Evidence discovered by and within reach of a party, after the close of the evidence, but before the completion of the trial and the submission of the caseto the jury, is not newly discovered evidence, on account of which a new trial will be granted on application ad Special Term.
    In such case the party must proceed by motion before the final determination of the trial for permission to introduce such evidence; and if the justice presiding at the trial, upon the objection of the other side, refuse to give such permission, the question whether such refusal constitutes error, for which a new trial will be granted, is to be tested by the same rules which it would be necessary to apply in the decision of a motion for anew trial upon the ground of the discovery of the same evidence since the trial, if such was the fact.
    Before Barbour, C.J., Fithian and Freedman, JJ.

      [Decided July 2, 1869.]
    This case was tried before Mr. Justice Jones and a jury.
    Appeal from the judgment entered upon the verdict rendered, and from an order denying the defendants’ motion for a new trial on the judge’s minutes, and
    Appeal from an order made at Special Term, denying defendants’ motion for a new trial, on the grounds of surprise and newly discovered evidence.
    The facts are disclosed by the opinion of the Court.

      Mr. W. W. Goodrich for appellants.

      Mr. Theodore M. Davis for respondents.
   By the Court:

Freedman, J.

The motion made at Special Term by the defendants for a new trial, on the ground of surprise and newly discovered evidence, was properly denied. The fact that the witness Ehinehart testified at the close of the trial, that to his recollection no such conversation had taken place as had been' testified to by Thomas Clyde, the president of defendants’ company, cannot have operated as a surprise upon the defendants. Nor can the evidence, which the defendants claim to have discovered, he considered as such newly discovered evidence, on account of which a new trial is sometimes granted. Such evidence must not only be material, but must have been discovered since the trial. In the present case the evidence referred to, if discovered at all, was discovered before the trial had been completed and the case submitted to the jury; and if any error has been committed in excluding the evidence, it was committed during the trial.

The order of the Special Term should therefore be affirmed, with ten dollars costs.

I have also carefully examined the grounds of appeal from the judgment, which are relied upon by the defendants, and am of opinion that no error was committed on the trial which entitled the defendants to a new trial. The action is brought by the assignees of Morgan & Ehinehart to recover a commission of five per cent, on the earnings of the steamer Salvor,” from April 6,1864, to June 15, 1865, claimed by Morgan & Ehinehart as a compensation for their services in effecting, as ship brokers and commission merchants, and acting as agents of the defendants in that behalf, a charter of the said steamer to the United States Government. The questions addressed to Thomas Clyde, the president of defendants’ company, whether Morgan & Ehinehart were paid five per cent, commission for procuring charters of other vessels in which he was interested, were asked on the cross-examination of Mr. Clyde, one of the principal witnesses of the defendants, and it was a matter of discretion with the justice presiding at the trial to allow them or not. Error does not lie for the exercise of that discretion.

The evidence offered by the defendants to prove that there was a third partner in business in the firm of Morgan & Ehinehart, as agents of the company, was rightfully excluded. No such issue had been raised by the pleadings. On the contrary, the answer of the defendants to the plaintiffs’ amended complaint contained an express admission that “ Thomas P. Morgan and George Bhinehart, in the years 1864 and 1865, were doing business in Washington, D. 0., under the firm name of Morgan & Bhinehart, and were the defendants’ agents in said city.”

The second count of the answer contains an admission to precisely the same effect. Under the pleadings, as made by themselves, the defendants cannot be permitted to litigate the question of a defect of parties in the composition of that firm, as alleged.

Another point insisted upon by the appellants is, that the court below erred in refusing to permit the witness, Carlos P. Houghton, to be recalled for the purpose of proving certain admissions claimed to have been made to him by the witness Bhinehart concerning a certain conversation, which the defendants insist had taken place between said Bhinehart and the president of defendants’ company. The evidence had been closed on the day preceding. Thomas Clyde, the president referred to, had testified that on or about the second day of March, 1864, he had a conversation with Bhinehart, in which he informed the latter that the company would not pay any further commissions on charters of vessels out of the line for goverñment service, and that Bhinehart expressed his willingness to accede to it. At the close of the testimony Bhinehart, being called on behalf of the plaintiff, swore that no such conversation took place, to Ms recollection. Both parties thereupon rested; the case was closed and-an adj ournment had until the next day. Before leaving the courtroom, however, Carlos P. Houghton, who had been examined as a witness for the defendants, informed defendants’ counsel, and the president of the company, that he could prove that in the beginning of March, 1865 (he probably meant 1864), and immediately after the conversation between said Bhinehart and Clyde before referred to, Bhinehart stated to him in the office of said Morgan & Bhinehart, at Georgetown, that it was agreed that Morgan and Bhinehart were to have a salary as agents of the steamship company, instead of a commission. The next morning, at the opening of the court, the defendants’ counsel made a motion to be permitted to recall the witness Houghton-, for the purpose of giving this new piece of evidence, claimed to have been discovered since the preceding day, and of the existence of which the defendants claimed to have been ignorant.

The Court, on plaintiff’s objection, refused to give such permission, and proceeded to charge the jury. The question whether such refusal constitutes error, for which a new trial will be granted, should be tested by the same rules which would have to be applied to the decision of a motion for a new trial upon the ground of the discovery of this evidence after the final determination of the trial, if such had been the case. The evidence is undisputed that the Salvor’s charter was effected by Morgan & Rhinehart, on the 6th day of April, 1864, and that the defendants received the charter money from that day. There is sufficient evidence to show that up to May 28, 1864, the defendants paid to Morgan & Rhinehart five per cent, commission on all charters of vessels, in or outside of their regular line, and also upon a vessel chartered to the government by Morgan & Rhinehart on the day preceding the charter of the steamer Salvor. The president of the defendants’ company, Thomas Clyde, testified, on his direct examination, that he had the conversation referred to with Rhinehart on or about the 2d of March; but, on his cross-examination it turned out that on that day a meeting of stockholders took place in New York, where there was some conversation about dismissing Morgan & Rhinehart; that the said president asked the directors of the company to withhold action until he could get an answer from Morgan & Rhine-hart, and that about a week afterwards he went on to tell them of what he calls the “ determination of the company” to tell them that they were going to be dismissed unless there was a change in the programme,” and to induce them, if possible, to accept a salary of $3,000 in lieu of future commissions. It appears, however, sufficiently, upon the whole evidence, that no definite mutual understanding was arrived at for some time. On the 27th of April following, the company'passed a resolution. declining to pay any more commissions, and the matter finally resulted in a new agreement between the company and Morgan & Rhinehart, whereby the former allowed to the latter $3,000 in lieu of future commissions, and bought from them their lease of the wharf, their sheds, engine, and other wharf improvements, for the price of $4,446.90. This agreement, according to the testimony of the same president and the testimony of the secretary of the company, went into effect on July 1,1864, and from that day the company paid all expenses of clerk-hire, &c., &c., which had previously been paid by M. & R.

Up to that time, however, with the exception of an isolated transaction (steamer Rebecca Clyde, May 28), in respect to which the parties agreed specially that no commission should be charged, and which, as Morgan swears, was the first intimation his firm had that the company had actually declined to pay further commissions, the parties must be assumed to have stood upon their old and reserved rights, especially as all the witnesses of the defendants have negatived the idea that still another mode of compensation was ever agreed upon for the period of time intervening between the 2d day of March and the 1st day of July, 1864; and because, as I have before stated, the fact stands out in hold relief that Morgan & Rhineliart effected on the 5th of April, 1864, the day preceding the charter of the Salvor, a charter of the steamer Baltimore for the defendants to the government; and, at the completion of the charter party, to wit, the 28th of May, 1864, were allowed by the defendants a commission of five per cent. The charter party of the salvor did not end until the 15th of June, 1865, and Morgan & Rhinehart, before the expiration of that time, were neither bound nor in a position to claim their commission on her account. Therefore, considering this question in the light most favorable to the defendants—considering Rhmehart as something more than an ordinary witness, as a party whose declarations and admissions are evidence against the assignees of his firm, assuming the defendants’ motion for permission to recall the witness Houghton to have been made in perfect good faith—I cannot perceive how his additional statement could become material. The offer was merely to prove by him that sometime in March, 1865 (probably 1864), Ehinehart stated to the witness “that it was agreed that Morgan & Ehinehart were to have a salary as agents of the steamship company, instead of a commissionbut the proof thus offered fell short in not showing when this new agreement was to take effect, whether it was intended to apply to all charters, or only to the charters of vessels in the regular line, or to what charters in particular, and how it was to affect charters procured before the day upon which it was to go into effect, &c., &c. I therefore do not think that, in consequence of the exclusion of this proposed additional evidence, the defendants were in any wise injured. It was a matter resting in the sound discretion of the justice presiding at the trial, and would afford no ground for granting a new trial as a matter of right on application at Special Term after verdict, even if the said evidence had been discovered since the trial. Moreover, it appears that the defendants on the trial had previously rested three times before making that motion,, that the same witness had been examined at great length upon other very important points; and the affidavit of Thomas Clyde, the president, used on the motion for a new trial at the Special Term, further discloses -that, prior to being reminded by Houghton, he was aware of the nature of the testimony said Houghton was willing to give upon this point, but that the circumstance had escaped his recollection. Under these circumstances, the exercise of the discretion of the justice presiding at the trial, in excluding this proposed additional testimony, should not be interfered with on appeal.

The .remaining points relied on by the defendants being equally untenable, the judgment appealed from, and the order denying the defendants’ motion for,a new trial on the judge’s minutés, should be affirmed with costs.


author: Monell, J.

text:
    GEORGE LIFTCHILD and Another, Plaintiffs and Respondents, v. GEORGE F. JOHNSON, Defendant and Appellant.
    A continuing contract to pay for all the beef which should be sent to a market stand occupied by one McM. cannot be terminated by a mere notice to the vendor that the defendant had nothing to do with the business carried on at such stand. The promise to pay had no connection with the business; and the contract could be cancelled only by notice that the defendant would no longer be liable.
    Before Monell, Jones, and Freedman, JJ.

      [Decided July 2, 1869.]
    This case was tiled before Chief-Justice Robertson and a jury-
    The action was brought to recover for beef sold to defendant. The plaintiffs proved on the trial that the defendant purchased beef of plaintiffs and directed it to be sent to McMann’s stand, in Fulton Market, and promised to pay for all meat that should be sent to that stand. This was denied by the defendant, who also proved that he gave a notice “forbidding all persons giving trust in his name.”
    Defendant’s counsel asked the Court to instruct the jury “ that if the plaintiffs had notice that the defendant had nothing to do with the business carried on at the stand in question, the defendant would not be liable for any thing bought after that notice.”
    The Court refused so to charge, and the defendant excepted.
    The jury found a verdict for the plaintiffs for the full amount claimed.
    The defendant appealed to the general term.

      Mr. Nelson Smith for appellant,
    The Court erred in refusing to instruct the jury that if Foster notified plaintiffs that defendant had nothing to do with the "business at McMann’s stand the defendant would not be liable for any thing bought after that.
    It was entirely immaterial how the plaintiffs were notified of the defendant’s withdrawal from the business, or ceasing to stand as security for McMann’s purchases. If, in fact, the plaintiffs actually received such notice before selling, they had no right to rely upon defendant for payment (Vernon v. Manhattan Co., 17 Wend., 526).
    If the defendant stated to the plaintiffs that he was going into business at McMann’s stand, and that he would pay for all beef that plaintiffs sent there, as soon as the defendant withdrew from that business, and notice of that fact was communicated to the plaintiffs, the defendant’s liability for beef which he did not buy, or authorize to be bought, ceased.

      Mr. E. A. Doolittle for respondents.
    The plaintiffs fully proved their cause of action, as alleged in the complaint, and defendant’s evidence, taken as a whole, tends to strengthen plaintiffs’ case. For he admitted he made purchases from plaintiffs, and others, for McMann, and paid the bills, and now seeks to excuse himself from liability because he • advertised.
    The questions of fact were fairly submitted to the jury without exception, and their finding is conclusive (Amox v. Homans, 25 How., p. 427; Lewis v. Blake, 29 Barb., 218; 33 Barb., 397)-
   By the Court:

Monell, J.

The question submitted to the jury was whether Johnson, the defendant, had promised the plaintiffs to pay them for all the beef they should send to McMann’s stand in Fulton Market. The jury found such promise was made, and gave a verdict for the plaintiffs.

The defendant attempted to escape from the consequences of . his promise, by showing that one Foster had said to the plaintiffs that the defendant had nothing to do with the business carried on at McMann’s stand. This was voluntarily said by Foster, without the direction or knowledge of the defendant.

Upon such evidence the defendant asked to have the jury instructed “ that if Foster informed or notified the plaintiffs, on the 15th of November, that the defendant had nothing to do with the business transacted at the stand of MclVIann, the defendant would not be liable for any thing bought after such notice.” The instruction was refused and the defendant excepted.

' The object of the evidence was to give to it the effect of terminating the defendant’s liability, which was a continuing one. Had it such effect? Johnson, the defendant, had denied giving the promise to pay, as claimed by the plaintiffs, or any promise whatever to pay for beef sent to McMann’s stand, and it was therefore a little inconsistent to claim that a liability he had never incurred was terminated by notice.

The contract, as the jury found it, was that the beef was sold to the defendant. It was to be sent to McMann’s stand and paid for by the defendant. Now the notice was that the defendant' had nothing to do with the business carried on at that stand.

Besides, the notice being by a mere volunteer, without any direction from the defendant, or even with his knowledge, it conveyed no information to the plaintiffs that the defendant no longer intended to be responsible. Saying that he had nothing' to do with the business carried on at McMann’s stand bore no' relation whatever to the defendant’s engagement, which was to'' pay for all the beef sent to such stand, and did not change the ground upon which his liability had attached. The promise to'' pay had no connection with the business carried on at McMann’s' stand, or with that which the defendant said he was going into.

At least, if the defendant desired or intended to terminate his' liability, he was bound, it seems to me, to furnish better evidence-of notice to the plaintiffs than was given in this case.

There was no error, therefore, in refusing to charge as re-'' quested by the defendant. ■

Judgment affirmed.


text:
    JAMES R. TRUFANT, Plaintiff and Appellant, v. JOHN E. MERRILL and Another, Defendants and Respondents.
    A referee who has made and filed his report becomes functus officio, and in a proper case a new referee may be appointed.
    In an action for the dissolution of a partnership, where a bond is given by one of the parties to account for the partnership property, it is proper, upon a judgment dissolving the partnership, to appoint a receiver to dispose of the assets, and upon the filing of his account to send it to a referee to state the accounts between the. parties. ,
    Before Monell, Jones, and Freedman, JJ.

      [Decided July 2, 1869.]
    This is an appeal from an order made at Special Term by Mr. Justice McCunn.
    The action was to obtain a dissolution of the copartnership of the plaintiff and defendants, and a distribution of the partnership assets. Pending the action, the defendants, on an application for the appointment of a receiver, were allowed, in lieu thereof, to give a bond conditioned that they should manage and take care of the property of the firm during the action, and render a true and faithful account thereof whenever required by the Court, and should pay and deliver to the parties who might be adjudged to be entitled thereto all such property as the Court might order to be paid and delivered. A referee was appointed to hear and determine all the issues. In his report and decision he found that the plaintiff was entitled to judgment dissolving the partnership, but that he could not state the accounts between the parties, for the reason that there was no evidence as to what proportion of the debts would prove good and collectable, or of the value of the lease or of the good-will of the business; and he directed that a receiver be appointed to take possession of the assets of the firm and dispose of the same; and after paying the debts to retain the remainder, subject to the further order of the Court.

      On the 4th of May, 1869, an order was made to show cause why judgment should not be entered on the referee’s report and a receiver appointed. On the 10th of May another order was made to show cause why the referee’s report should not be sent back to the referee, with directions to determine all the issues.
    On the hearing upon such last-mentioned order, it was ordered that it be sent to a different referee to take and state the accounts.
    From that- order the plaintiff appealed.

      Mr. T. B. Eldridge for appellant.
    The report of the first referee is full and definite upon all the issues made by the pleadings herein, and appellants were entitled to the judgment of the Court thereon.
    There was no notice of motion for the appointment of a referee, and the Court clearly erred in appointing a new referee.
    If, in the judgment of the Court, the report of the first referee was insufficient, the Court should have referred back the case to him.
    The remedy was by appeal, and not by substitution of referee.

      Mr. R. H. Channing for respondents.
    The portions of the order appealed from are not reviewable. If the Court has the power to order a reference, no appeal lies from such order (Whittaker v. De Fosse, 7 Bos., 678; Harms v. Mead, 16 Abb., 257; The People, &c., v. Haws, 12 Abb., 204 ; Dean v. Empire State Mut. Ins. Co., 9 How., 69; Code, sec. 271, subd. 2.)
   By the Court:

Monell, J.

The motion was merely that the report be sent back to the referee who made it, with directions to decide all the issues. , It was probably supposed that he was bound to state the accounts between the parties, and that until he did so he had not determined, all the issues. If that view was correct, the order substituting or appointing a new referee should not be reversed, merely on the ground that no reason was assigned for the change, or that it was giving more than the moving party asked for. The referee first appointed, having made his decision, became functus officio, and could not again act without being set in motion by the Court; and it was not, therefore, incompetent for the Court to appoint a new referee.

But I am of opinion that it was not necessary, and, therefore, not proper to either send the report back or to appoint a referee, in the present state of the action, to take the account between the parties.

The assets of the firm, consisting of debts due, the lease of Washington Hotel, and the good-will of the business, were in the possession or under the control of the defendants, and, until they were- accounted for or disposed of, could not be made available to the plaintiff; nor could the referee ascertain their value, or give any direction for their distribution. The bond given by the defendants, in lieu of a receiver, authorized a retention of the partnership property only during the pendency of the action. Hpon adjudging the partnership dissolved, the assets must go to pay debts, and the surplus, if any, to the respective parties. Therefore, it is necessary to convert the assets into money, and the usual mode is to do that through a receiver. Upon his appointment the assets must go into his possession, and the conditions of the defendants’ bond will be satisfied.

In the condition of this action, therefore, the referee could not state the accounts; and it was proper to leave that to be done on the coming in of the receiver’s account, showing the amount to be distributed.

Had the action been tried by a justice of the Court, he would, after adjudging the partnership dissolved, have appointed a receiver, with directions to dispose of the assets and report the surplus to the Court, to the end that a referee might then state the accounts between the parties, and the Court direct the distribution. Such a course of proceeding would be regular. The referee, in this case, has not done otherwise, and the order appealed from was premature, and should not have been made.

The order should be reversed, with costs to the appellant to abide the final disposition of the subject of costs in the action. Order reversed.


author: Monell, J, Jones, J.

text:
    CHARLES S. S. LENNOX, Plaintiff and Respondent, v. MOSES A. HOPPOCK, Defendant and Appellant.
    Unless a request is made at the trial to submit a question of fact to the jury, the objection cannot be taken on appeal from the judgment that the Court erred in directing a verdict. Where, however, a motion has been made at Special Term for a new trial on a case containing the evidence, the Court will look into the whole case, notwithstanding the omission of counsel to make the requests at the trial, and may, in furtherance of substantial justice, set aside a verdict and grant a new trial.
    Before Monell, Jones, and Freedman, JJ.

      [Decided July 2, 1869.]
    TMs case was tried before Mr. Justice Freedman and a jury.
    The complaint alleged that the defendant, employed the plaintiff to sell two mortgages of forty thousand dollars upon real and personal estate ; that, upon such employment, the plaintiff performed work and services reasonably worth one thousand dollars, which sum the defendant had promised to pay.
    The answer was a general denial.
    On the trial, after the evidence was all in, the Court directed a verdict for the plaintiff, and the defendant excepted.
    A motion was made, on a case containing the evidence, at Special Term, for a new trial, and denied,
    The defendant appealed from the order and judgment.

      Mr. John S. Woodward for appellant.
    The plaintiff in this action must recover upon a contract specific in its terms, or upon a quantum, meruit., It was important, therefore, to ascertain what the contract between plaintiff and defendant was, in its nature and terms. The testimony of the plaintiff and defendant conflicted as to the terms of the contract; defendant therefore was entitled to have the evidence of his witnesses, as to what contract was made, submitted to the jury, and to the determination of the jury on the facts (McIntyre v. Clapp, 31 N. Y. Rep., p. 569 ; Robinson v. Lyle, 10 Barb. S. C. R., p. 513.) ,
    The Court erred in assuming that, upon the defendant’s version of the contract, and his act in acceding to the sale of the mortgage for the price offered, he waived the condition of his first arrangement with the plaintiff, so as to entitle the plaintiff to the full amount of compensation agreed to be paid by the contract. The Court should have submitted it to the jury upon the evidence to determine whether or not the plaintiff did waive such condition, and, if so, what the plaintiff’s services were worth in finding a purchaser at a less price than the amount mentioned in his contract with plaintiff.

      Mr. J. L. Cadwalader for respondent.
    It is admitted that the plaintiff sold the mortgage and that defendant was paid.
    The complaint claims $1,000 for general services, and a general denial is interposed.
    The gist of the action is, that the plaintiff was employed to make a sale of the mortgage, and upon such sale he was to have his commission of $1,000; he effected the sale and earned it, and the terms of the sale are really immaterial.
    Even if the contract had been to pay $1,000 in case the mortgage was sold at defendant’s price, and the price was fixed at $43,000, the acceptance of $40,000, a less sum, was a waiver of the terms, and the plaintiff was entitled to recover.
    The defendant is not in a position to raise these questions.
    The Court directed a verdict, and the defendant took a general exception, and made no request to go to the jury on any particular question.
    The Court decided as a fact that there was a waiver on the question of price, and that the weight of evidence lay with the plaintiff. Whether or not the defendant waived that condition, must be a question of fact and not of law. Defendant, if dissatisfied, should have asked to have had the questions specially submitted to the jury (Barnes v. Ferine, 2 Kern., 22People v. Cook, 4 Seld., 78; Bidwell v. Lament, 17 How., 357; Stedman v. Western T. Co., 48 Barb., 97; Plumb v. Cattaraugus Ins. Co., 18 N. Y. R., 392; Winchell v. Hicks, ib., 558; Graser v. Stellwagen, 25 N. Y. R., 315).
   By the Court:

Monell, J,

The only question in this case ariéing under the appeal from the judgment is upon the exception to the direction of the Court to the jury. Such direction was on the ground that the defendant, by consenting to and transferring the mortgages for a total consideration of forty thousand dollars, had thereby waived the condition that the plaintiff should obtain the full amount of principal and interest due upon the mortgages, with the costs of foreclosure.

The evidence, both in regard to the original agreement between the parties and the alleged waiver, was conflicting. The plaintiff testified that the agreement was, that if he sold the mortgages for forty thousand dollars the defendant would pay him one thousand dollars; while the defendant testified that the compensation of a thousand dollars was to be paid only in the event of the plaintiff’s finding a purchaser for the mortgages at the full amount of principal and interest, and the costs of foreclosure. The plaintiff also testified that, after conducting negotiations with Mr. Palmer for some time, he obtained'an offer from him to purchase the mortgages for forty thousand dollars, which was accepted by the defendant, and the mortgages transferred to Palmer. Such acceptance and transfer were, probably, ‘prvnmfaoie evidence of an assent on the part of the defendant to a change in the terms of the original agreement, and of a waiver by him of the condition that the plaintiff’s compensation was to depend on his obtaining the full amount due on the mortgages. But the defendant testified that, when he accepted the offer of Palmer, he expressly rejected the claim of the plaintiff’ to be paid a thousand dollars, and repudiated his right to any claim whatever to compensation under the original agreement, thereby denying that there was any waiver of the condition.

From all this evidence it is very clear that there were two questions in the case proper for the jury: First, whether the compensation of the plaintiff was to depend upon his obtaining the full amount due on the mortgages; and if it did, then— Second, whether snch condition had been waived by the defendant.

Both these questions were taken from the jury. The first was substantially determined by the Court in favor of the defendant, and the verdict was then directed against him, on the ground that the proof established the waiver.

I have no doubt that if the defendant’s counsel had requested the Court to submit these questions to the jury, it would have been error to have withheld them. They were both eminently proper for the consideration of the jury. The evidence bearing upon them was very conflicting; and a verdict either way would not have been disturbed. Upon the evidence, the jury could have found that the contract was as it was testified to have been by the plaintiff; or, if they found otherwise, then they could have further found that the condition had been waived. Unless the evidence is wholly undisputed, or clearly preponderates on the one side or the other, the court cannot take it from the jury, if requested to submit it to them. And a question of waiver, when not supported by unconflicting evidence, being always a question of intent, is for the jury and not for the court.

' But no request was made in this case to submit any questions of fact to the jury; and the objection cannot be now taken that they should have been (Plumb v. Cattaraugus Ins. Co., 18 N. Y. R., 392 ; Winehet v. Hicks, ib., 558; Graser v. Stellwagen, 25 ib., 315).

This disposes of the only exception in the case, and the only question which can be raised on the appeal from the judgment:

A motion, however, has been made at Special Term for a new trial on a case, and an appeal taken from the order denying the motion. We are therefore at liberty to look into the case, notwithstanding the omission of the defendant’s counsel on the trial (Archer v. Hubbell, 4 Wend., 514; Geer v. Archer, 2 Barb., 420; Hastings v. McKinley, 3 Code Rep., 10), for the purpose of seeing whether the merits of the case have been fully aiid fairly tried, and whether any injustice has been done (3 Gra. & Wat. on new trial, 48). ,

If the views I have before expressed, that the questions of fact in this case should have gone to the jury, are correct, then it seems quite clear that the defendant ought not to be deprived of a right guaranteed to him, of a trial by jury, upon the somewhat technical ground which has deprived him of his exception to the ruling of the Court. Had he demanded such submission to the jury, the learned justice would have been bound, as I think, to have granted the request; and their verdict might have been quite different from what it was directed to be by the Court. The questions were not entirely free from doubt; there was room for an honest difference of opinion; and there was enough evidence on either side to have sustained a verdict either way.

Upon the whole, I ata of the opinion that, in furtherance of substantial justice, a new trial ought to be granted ; for which purpose, the judgment and order appealed from should be reversed, without costs. , '

Jones, J.

(concurring). I concur in re'versing the judgment and order appealed from, on the ground that there was no evidence whatever of a waiver. This being so, it was unnecessary to request the judge to submit to the jury the question whether there was a waiver' or not. There was no conflict of testimony on this subject, and consequently nothing to submit to the jury. The judge having decided upon the uncontroverted facts that there was a waiver, as matters of law, an exception to such decision properly brings before the court on appeal the question whether such decision was correct or not.

I cannot, however, concur in the view that upon a case the court can reverse a judgment, simply because it is of opinion that the merits have not been fully and fairly tried, and that injustice . has been done, in a case where no objections or suggestions were made on the trial, the disregard of which has resulted in an erroneous judgment.

My views on this subject are fully expressed in the case of Crow v. Becker (5 Robert., 262), and I see no reason for changing them.


text:
    BENJAMIN HAGUE, Plaintiff, v. OWEN O’CONNER, Defendant.
    Proof of a parol agreement between a plaintiff and a defendant to the effect that, in case plaintiff would procure certain lands of the defendant to be sold, or would find a market lor the same, at an aggregate price of not less than a certain sum named by the defendant, the defendant would sell the lands for said price and pay to the plaintiff for his services one half of the excess, which the plaintiff would procure to be given over and above the sum named by the defendant,” followed up by further proof showing full perforihance on the part of the plaintiff at a price exceeding the limit named by the defendant and a subsequent refusal of the defendant to convey, is sufficient to entitle the plaintiff to recover his compensation, as agreed upon.
    Before Monell, Jones, and Freedman, JJ.

      [Decided July 2, 1869.]
    This case was tried before Chief-Justice Barbour and a jury.
    The action was upon a parol agreement made and entered into between the plaintiff and the defendant in about the month of September, 1867, to the effect that in case plaintiff would procure certain lands of the defendant to be sold, or would find a market for the same, at an aggregate price of not less than seventeen thousand dollars, the defendant would sell the lands for said price, and pay to the plaintiff for Ms services one half of the excess wMch the plaintiff could procure to be given over and above the said aggregate sum. The evidence further showed that, in pursuance of the agreement, the plaintiff appraised the property, divided it into lots, made a map, and estimated the price of each lot; that he submitted the map and appraisement to the defendant, who approved of it as made; that plaintiff thereupon got circulars printed, and went round with them, and finally procured purchasers for all the lots at the aggregate price of eighteen thousand four hundred and seventy-five dollars ; that Thursday evening, the 13th of February, 1868, was appointed between the parties and the purchasers as the time, and Farmers’ Institute as the place, for the delivery of the deeds, and that a meeting of all parties took place accordingly. It appeared, however, that the defendant, not having the deeds ready for delivery at the appointed time and place, applied for and obtained an adjournment until the following Tuesday, February 18, 1868, but that at the same time he commended the plaintiff for the manner in which the latter had managed the business, and informed the purchasers that the plaintiff was not to blame for the delay. On the 18th another meeting of the plaintiff and the purchasers took place pursuant to adjournment, but the defendant did not appear, and again made default in the delivery of the deeds.
    The Court dismissed the complaint, and ordered the exceptions to be heard in the first instance at General Term.

      Mr. Albert Roberts for plaintiff.
    The Justice erred in allowing the paper dated February 19, 1868, referred to in the answer as a contract, to be admitted in evidence.
    On its face that paper was never made till more than five months after the agreement set forth in the complaint, nor, as the evidence previously introduced conclusively showed, until after there had been two breaches by defendant of the entire parol agreement of the previous September, upon which the action was founded.
    It was not pleaded in such a way in the answer as to be admissible at all as the evidence then stood.
    It was no evidence that the defendant did not make the agreement alleged in the complaint; it was not pleaded as a set-off, nor as a counterclaim, nor a release, nor an accord and satisfaction, nor as a substituted or modified agreement.
    The writing so admitted in evidence did not tend to prove either an estoppel or a waiver of the right of action already substantiated.
    Where a right of action has accrued for the breach of an agreement, such right can only be destroyed by a release under

      seal, or by the acceptance of something in satisfaction of the injury (Allaire v. Whitney, 1 Hill, 488; Barbour v. Rose, 5 id., 76-78; Bowman v. Teall, 23 Wend., 306-9; Willoughby v. Backhouse, 2 Barn. & Cress., 821; McKnight v. Dunlap, 5 N. Y. Rep., 537). /
    The instrument offered in evidence by the defence was without consideration, and void.

      Mr. Charles D. Ingersoll for defendant.
    The written agreement of February 19, 1868, entered into by the plaintiff, was a substitute for the stipulations contained in the previous communications between the parties. This agreement covers the whole subject of these prior parol stipulations and agreements, and all those prior agreements are merged in the written one, which becomes the only contract between the parties, and no action can be maintained except on the writtén contract (Renard v. Sampson, 12 N. Y., 561; Phillips on Evidence, vol. 2, 665).
    H the plaintiff, in the absence of the written contract, would have had any cause of action against the defendant, he must be regarded as having waived the same by entering into the written contract (Van Buskirk v. Stow, 42 Barb., 9; Hart v. Bauman, 29 Barb., 410 ; Meech v. City of Buffalo, 29 N. Y., 198, per Johnson, J., pp. 218-219; Munroe v. Perkins, 9 Pickering, 298).
    The objection to the admission of the written contract of February 19 in evidence was properly overruled.
    It was the only contract between the parties, it having superseded all previous stipulations.
   By the Court:

Freedman, J.

Upon the facts in the case I think the plaintiff is entitled to recover his compensation as agreed upon. I am of the opinion that he has shown a perfect cause of action, which could not be defeated by the introduction by defendant’s counsel, upon plaintiff’s cross-examination and against plaintiff’s objection, of a new agreement, alleged to have been made by plaintiff on the day after the second default of the defendant, for the i'eason, amongst others, that the evidence, as it stands, shows that the plaintiff was induced by the defendant to sign it upon the representation and in the belief that it related solely to an allowance by plaintiff to defendant of five per cent, out of his share of the profits, and that the plaintiff did not know or suspect it to contain anything else.

The plaintiff’s exception to the order dismissing his complaint should be sustained, and the said order of dismissal should be reversed and a new trial granted, with costs to abide the event.