author: Hoffman, J.

text:
    Jos. T. Crosby, Plaintiff and Respondent, v. Simeon Nichols, Defendant and Appellant.
    1. When the members of a firm, by agreement among themselves, make an actual division between them of part of the firm’s assets, and allot to each, as his own property, specific portions thereof; and the division thus made is assented to and acted upon by all the partners; the title to the part so . allotted to each, becomes thereby his exclusive individual property.
    2. If one partner receive from a third person, payment of a debt owing by him to the firm, which has been so allotted to his copartner; the latter may maintain an action against him, to recover the amount so received.
    3. If, in such an action, the plaintiff calls one of"his copartners as'a witness; that fact will not entitle the defendant to be examined in his own behalf, under section 399 of the Code, as it read prior to the amendment made by chapter 353 of the Laws of 1857.

      4. The vendor of a personal chattel, or of a thing in action; was, before the Code, a competent witness for his vendee, in a suit by the latter against a third person who had wrongfully converted such chattel, or appropriated such thing in action to his own use. He is not “ an assignor of a thing in action or contract” within the meaning of section 399 of the Code.
    (Before Bosworth, Hoffman and Pierrepont, J. J.)
    Heard, June 16th;
    decided, July 3d, 1858.
    This is an appeal by the defendant, from a judgment against him, entered in favor of the plaintiff on the verdict of a jury. It was tried before Mr. Justice Woodruff and a jury, in June, 1856.
    The plaintiff in the complaint alleges that the plaintiff, the defendant, Thomas Burrows & William Dawson had been partners in trade under the name of S. Nichols & Co. That, on or about the 12th day of February, 1855, said firm was by mutual consent dissolved, when the members thereof divided among themselves certain of the notes and book accounts thereof, and set off to each of the said members certain of such notes, &c., and that each of the members has collected all or a portion of those set off to him. That among the debts so set off to the plaintiff, was a debt of $274.75 against Bugbie & Terrill; and that the defendant subsequently collected and received from said Bugbie & Terrill said debt, the plaintiff then being the sole owner thereof, and that the defendant has not paid over to the plaintiff the money so received by him, and the plaintiff demands judgment for the said sum, with interest.
    The answer of the defendant, Nichols, contains four defenses. The first defense controverts the material allegations of the complaint.
    The second defense states and alleges that at the time of the dissolution of the said firm, the copartners therein submitted by bonds of arbitration, the matters in difference between them, of and concerning the division and distribution among them of the debts and property of the said firm, and all matters relating thereto, and that the said submission has not been revoked, but remains in full force.

      The third defense alleges that the arbitrators afterwards ordered and awarded as to certain matters in that defense set forth.
    The fourth defense alleges and insists that the accounts and matters between the said partners remain, and' are open and unsettled, and that there is a balance in defendant’s favor, and that Burrows & Dawson, the other partners, ought to have been made parties in this action.
    On the trial, a bond signed by all the partners, dated February 5, 1855, by which they agreed to submit to the decision of three persons therein named, “all the proofs and allegations of the parties of and concerning the division and distribution among the parties hereto composing the firm of S. Nichols & Co., in the city of New York, of the notes, book accounts, and other property of the firm of S. Nichols & Co., now to be dissolved, and all matters relating thereto, and that the award of the said arbitrators be made in writing, subscribed by them or the majority of them, and attested by a subscribing witness, ready to be delivered to the said parties on or before the-day of-next.”
    Objection was made to the admission of certain evidence , offered by the plaintiff, in respect to an actual distribution of the assets, on the ground 'that the plaintiff had not declared on an award, nor alleged an award in his complaint. “ The Justice decided that proof of the acts of the parties in making an actual division of the assets, and a delivery in pursuance of such division, with the intent to invest each with the sole property in the shares distributed to the respective parties, was admissible. The witness thereupon further testified.”
    Evidence was then given tending to show that the assets of the firm of S. Nichols & Co., which were supposed to be good, were divided and distributed among the partners; the three arbitrators and the four partners being present and acting in the matter; that each accepted of the part allotted to him, and that all the partners, at the time, declared themselves satisfied; and that the bad debts were sold at auction by consent of the partners ; that the debt due from Bugbie & Terrill was allotted to the plaintiff, and that the defendant subsequently received from them payment of it.

      Thomas Burrows (one of the firm of S. Nichols & Co.) was sworn as a witness for the plaintiff, against the objection and exception of the defendant. He gave evidence tending to show an actual distribution of the assets, or of most of them, and that each member had collected the accounts or demands, in whole or in part, which had been allotted to him on such distribution. When the plaintiff rested, the defendant moved for a nonsuit on the grounds:
    “ 1st. That the bond of submission to arbitration, and the proceedings of the arbitrators or parties under or in pursuance of it, were inadmissible under the complaint or pleadings in this action.
    “2d. That there had been no legal or valid award pursuant to the arbitration bond.
    “3d. That the submission to arbitration by the arbitration bond could not be revoked or in effect revoked, except by a writing under seal, and that until revoked no action could be sustained on or as to the matter submitted.
    “ 4th. That whatever was done with respect to the distribution spoken of by the witnesses, was done by the arbitrators, and was done by them as arbitrators, and not otherwise, and if any action could be sustained on the ground of that proceeding, it ought to have been an action on the award, and not on the alleged agreement between the plaintiff and defendant in the complaint stated.
    “ 5th. That there was no sufficient evidence to establish the allegation of the plaintiff, that the demand against Bugbie & Terrill had been assigned, or awarded to the plaintiff) or that he had any exclusive right, or title thereto.
    “ 6th. That there had been no final settlement of the partnership matters, either by the parties, or by the arbitrators, and that, therefore, the other partners should have been parties in this action, and that the only action that could be sustained, was. either an action for an account or on an award of the arbitrators.
    ’* 7th. That the facts and evidence do not sustain the plaintiff’s complaint, or entitle him to recover in this action.”
    The motion was denied, and the defendant excepted.
    The defendant offered himself as a witness in his own behalf) to the matters as to which Burrows had testified; on the ground that Burrows was an assignor to plaintiff of his. alleged cause off action, and had been examined for the plaintiff. The plaintiff objected, the Court excluded him, and the defendant excepted. The printed case states that “ the evidence on both sides being closed, the Justice charged the jury, who found a verdict in favor of the plaintiff, and against the defendant, for the sum of two hundred and ninety-six dollars and thirty cents.”
    Ho part of the charge is given.
    The defendant moved for a new trial, which was denied. From the order denying that motion, and from the judgment entered on the verdict, the present appeals are taken.

      Thomas 0. Pinckney, for the defendant, the appellant,
    Insisted that no action wordd lie, after the submission, in reference to any matters embraced in it, while the bond of submission remained in force; that the bond could not be revoked except by a writing under seal; and that it is still in force, unrevoked; and that there has been no legal or valid award pursuant to it.
    That there had been no final settlement of the partnership matters, by arbitration or otherwise; that the other partners were necessary parties; and that no action would lie, except for an account; or on an award of the arbitrators.
    Also, that the defendant was, erroneously, excluded from being a witness in his own behalf.

      P. D. Loucks, for the respondent.
   By the Court.

Hoffman, J.

—The plaintiff and the defendant one Burrows and one Dawson, were partners. They dissolved, and the proof is sufficient, that they agreed through certain persons, called arbitrators, to make a distribution of their assets, giving to each in severalty, certain notes and accounts, part thereof. This was accomplished, and an account against Bugbie & Terrill, owing to the firm, and part of the assets, was allotted to, and vested in the present plaintiff.

The defendant, one of the partners, got the amount of this demand from the debtors. His partnership power (the dissolution and agreement being unknown), enabled him to do so.

The action is to compel him to pay the amount, over to the plaintiff.

All these facts being established, the right to recover seems indisputable. The objection, that there remain some accounts not divided, deemed desperate, and from which something may perchance be received, is no answer. The firm was broken up.

We may assume that there was but a partial division. So far as that went, it severed the unity of property, and made it absolute and entire in each partner, to whom the particular demand was allotted.

There is in fact but one question, deserving notice in the cause. One of the partners, Thomas Burrows, was called as a witness for the plaintiff, and his evidence tended to prove the fact of the division and allotment among other things. The defendant Uichols then offered himself as a witness to the same matters to which Burrows had been examined, on the ground, that he was an assignor of the plaintiff of the thing in action, .or contract in question in the action. The witness was objected to, rejected, and an exception taken. It is insisted that under the 399th section of the Code, he ought to have been admitted.

The original thing in action or contract, was the debt of Bugbie & Terrill, owing to the firm. The other partners sold and transferred this to the plaintiff) that is, their interest in it. Had the plaintiff sued Bugbie & Terrill, the question would fairly have arisen, whether the defendant could not have been a witness, when Burrows was examined. But the claim and cause of action here is not that thing in action, or contract of those debtors, but a demand against this defendant, for improperly receiving the amount. The title to the property had got into the plaintiff, and the defendant has wrongfully obtained it. (See Hall v. Robinson, 2 Comst., 293.) The exception is not well taken. (McGinn v. Worden, 3 E. D. Smith, 355.)

The judgment must be affirmed, with costs.

Judgment accordingly.


source: Caselaw Access Project

author: Bosworth, J.

license: Public Domain

text:
    Robert Chapman, Plaintiff, v. Dines Carolin and James A. Carolin, Defendants.
    1. When there is a variance between some of the allegations of a complaint only, and the proof, and nothing more appears; the court has no power to nonsuit, on the mere ground that such a variance, whatever it may be, is material
    2. The only test of its materiality, is proof to be furnished by the defendant to the Court, that the variance has actually misled him to his prejudice in maintaining hjg defense upon the merits.
    3. When such proof is not furnished, the variance must be disregarded, and the pleadings may be amended to conform to the facts proved.
    4. Where a note which, by its terms, is payable eight months after its date, is described in the complaint correctly, except that the time when it is payable is not stated; so that, in effect it is stated to be payable, generally and absolutely; the variance is immaterial. Proof by the defendants, that they knew the plaintiff held the note produced at the trial; that they had given no other note of that date and amount; and no note of that amount payable generally, does not tend to show that they have been misled by the variance, no defense upon the merits being pretended.
    5. It is only when the cause of action to which the proof is directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, that the case presents a failure of proof, and ceases tobe one Of variance within sections 169 and 170 of the Code.
    (Before Bosworth, Hoeeman, and Pierrepont, J. J.)
    Heard, June 17th;
    decided, July 3d, 1858.
    This is an appeal by the defendants, from a judgment rendered against them, in an action tried before Mr. Justice Slosson and a jury, in April, 1858. Robert Chapman is the plaintiff, and Dines Carolin and James A. Carolin are the defendants.
    The complaint (sworn to in January, 1858,) states as a cause of action, that the defendants, being partners, under the name and firm of D. Carolin & Son, on the 2d of March, 1857, made their promissory note, in writing, of that date, “whereby they promised to pay to the order of themselves the sum of $792.21, and the said payees thereof indorsed the said note to the plaintiff.” . . “When the said note became due and payable it was duly presented to the said defendants, Dines Carolin and James A. Carolin, and payment thereof was duly demanded but the same was not paid,” &c., &c.
    The answer denied that “ the defendants made, or indorsed the promissory note described in the said complaint,” &c.
    On the trial, the plaintiff produced a note signed and indorsed, D. Carolin & Son, proved the signature to it, 'and the indorsement upon it, to be the handwriting of Dines Carolin, one of the defendants, and offered to read it in evidence.
    Defendants’ counsel objected to its being read in evidence, on the ground that it was not the note described in the complaint. That the note sued on, as described in the complaint, was payable on demand, while that offered in evidence was payable eight months after date. The note so offered to be read (with the indorsement thereon,) was as follows, to wit:
    New York, March 2,1857.
    “Eight months after date, we promise to pay to the order of ourselves, seven hundred and ninety-two dollars and twenty-one cents, value received.
    $792.21. Signed “D. Carolin & Soy.
    “Due November 5th.
    (Indorsed) “D. CAROLiy & Soy.”
    The Judge stated that he would allow the defendants to introduce evidence that they had been surprised, or misled by the description of the note in the complaint.
    Dines Carolin, one of the defendants, was then sworn, and among other things, testified that he knew the plaintiff held this note, that his firm had never made any other note of this date and amount, and they had not made any note payable on demand.
    The Judge decided that the defendants had not been misled, that the complaint might be amended to conform to the proof, and the note be read in evidence, to which decision the defendants’ counsel excepted.
    The note was then read in evidence and the plaintiff rested. The defendants then moved for a nonsuit, on the ground of failure of proof, which motion was denied, and they excepted to the decision.

      No evidence being offered by the defendants, the Judge instructed the jury that the plaintiff was entitled to recover, to which the defendants excepted. A verdict was rendered in favor of the plaintiff on which judgment was entered, and from that judgment the defendants appealed to the General Term.

      Charles A. Miller, for appellants

      G. & T. Stevenson, for respondent.
   Bv the Court.

Bosworth, J.

—The note was correctly described in every particular, except one. It was, by its terms, payable eight months after its date. The complaint, did not state when it was payable. It stated truly its date, and amount, the names of the makers and payees, and the indorsement of it. A note, stating no day of payment, would, as to that particular, correspond with the complaint. There was undoubtedly a variance between the note produced and that described by the complaint. But the variance was not material. The Code declares that no variance between an allegation in a pleading and the proof, shall be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defense, upon the merits. (Code, § 169.)

If a party allege he has been misled, he must prove that fact to the satisfaction of the Court, and in what respect he has been misled. One of the defendants was sworn, and testified as to those matters, and his evidence showed that they had never made any note payable on demand, nor any other note of the date and amount of the one in suit, and he knew the plaintiff held this identical note, and he did not pretend there was any defense to it on the merits. The Court was therefore bound to disregard the variance. (Catlin v. Gunter, 1 Kern., 368.)

When there is a variance between some of the allegations of a pleading and the proof and that is all, the Court has no power to nonsuit on the mere ground that such a variance exists, or is material.

The only test of materiality of the variance, is proof, to be furnished by the party objecting to the variance, that it has actually misled him, to his prejudice, (if a defendant) in maintaining his defense, upon the merits. And the proof must show “in what respect he has been misled.” If it is not made to appear that he has been so misled, his objection is unavailing. He cannot be misled to his prejudice upon the merits, when he has no merits. These defendants had no merits, and no defense.

It is only when, the allegation of the cause of action, to which the proof is directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, that it presents the case of a failure of proof, and ceases to be one of variance within sections 169 and 170 of the Code. (Code, § 171.)

In this case, the allegation of the cause of action was unproved in one particular only. In all others it was proved precisely as stated in the complaint. The nonsuit was properly refused, and there was no error in ordering a verdict for the plaintiff.

The judgment must be affirmed, with costs.

Judgment affirmed.


author: Hoffman, J. Bosworth, J.

text:
    Nelson et al., Plaintiffs and Respondents, v. Recknagel et al., Appellants.
    Where by the terms of a charter party, the plaintiffs chartered a vessel to the defendants “for a voyage from New York to Buenos Ayres, calling at Montevideo for orders, and from either one of those ports to a port in the United States, between New Orleans and Boston, or to a port in Great Britain, or in the English channel between Havre and Hamburgh both included, calling at Hamburgh for orders;” and agreed therein to take and receive on board “during the voyage aforesaid” all such lawful goods as the defendants “ may think proper to ship, anything hazardous or contraband of war excepted;” and the defendants thereby agreed to hire said vessel as aforesaid on these terms, viz.:

      Mrst. They “ engage ” to furnish a cargo of 200,000 feet of pine lumber “ from New York to Buenos Ayres, calling at Montevideo for orders, and from either one of those ports a full and complete cargo of dry hides, with horns for small storage if required.”

      Second. They “ do further engage to pay, . . for the charter or freight of the said vessel during the voyage aforesaid, in manner following, that is to say: “Eor the 200,000 feet of lumber out to Buenos Ayres, or Montevideo, freight free

      “For the hides, six pounds sterling, with (5 per cent) five per cent primage per ton of 2,240 lbs., free from all commissions, payable in cash, without credit or discount. If other goods are shipped, freight to be at proportionate rates. Lining hides free of freight;” and where such voyage has been performed and the lumber carried; and because no dry hides could be procured a full cargo of bones and bone ash, being 334 tons, was shipped at Buenos Ayres and carried thence to Southampton; and it appearing on the trial that a fall cargo of dry hides for said vessel would be 250 tons, and that the current rate of freight thereon was eighty shillings sterling a ton; and on bone and bone ash was thirty-five shillings sterling a tori; it was:
    1. Held, that the plaintiffs were not entitled to recover the same sum as if a cargo of dry hides had been carried.
    2. Held, also, that the rule of damages was the current rate of freight on the bone and bone ash; increased in such proportion as the stipulated price for carrying a cargo of dry hides exceeded the current rate of freight on dry hides trom Buenos Ayres to Southampton, at the time the bone and bone ash were shipped.
    3. (Bosworth, J., dissented, holding that the agreement to furnish a full cargo of dry hides and pay £6 per ton therefor, fixed a price to be paid for the voyage; and that the plaintiffs were entitled to recover the same amount, as if they had carried a full cargo of dry hides.)
    (Before Bosworth, Horau» and Pierrepont, J. J.)
    Heard, June 18;
    decided, July 3, 1858.
    This is an appeal by the defendants, Carl L. Recknagel and Gustav Schwab, from a judgment against them, in favor of the plaintiffs, William Kelson, and William Kelson, Jr. The action was tried in May, 1858, before Mr. Justice Slossoh, without a jury, a trial by jury having been duly waived. It is brought upon a charter party, dated August 6, 1855, executed by the plaintiffs, for the owners of the bark Roman, of the first part, and the defendants of the second part, to recover a balance of freight alleged to be due thereon. All the parties to the charter party, at the time it was executed, resided and did business in the city of Kew York; and the charter party was there made and delivered.
    The portions of it having any bearing upon the question presented by the appeal, are in the words following, viz.:
    “ This charter partir, made the sixth day of August, in the year one thousand eight hundred and fifty-five, between Wm. Kelson & Son for owners of bark Roman of Kew York, the burthen of two hundred and forty-five tons or thereabouts, register measurement, now lying in the harbor of New York, of the first part, and Recknagel & Schwab of the second part, witnesseth: That the said parties of the first part, for and in consideration of the covenants and agreements hereinafter to be kept, and performed by the said parties of the second part, do covenant and'agree on the freighting and chartering of the said vessel unto the said parties of the second part for a voyage from New York to Buenos Ayres, calling at Montevideo for orders, and from either one of those ports to a port in the United States, between New Orleans and Boston, or to a port in Great Britain or in the English Channel between Havre and Hamburgh, both included, calling at Falmouth for orders.”.......
    “ The said parties of the first part do further engage to take and receive on board the said vessel during the aforesaid voyage, all such lawful goods and merchandise as the said parties of the second part or their agents may think proper to ship, anything extra hazardous or contraband of war excepted.
    “ And the said parties of the second part, for and in consideration of the covenants and agreements to be kept and performed by the said parties of the first part, do covenant and agree with the said parties of the first part, to charter and hire the said vessel as aforesaid on the terms following, that is to say:
    “First. The said parties of the second part do engage to provide and furnish the said vessel a cargo of two hundred (200) thousand feet white pine lumber from New York to Buenos Ayres, calling at Montevideo for orders, and from either one of those ports a full and complete cargo of dry hides, with horns for small storage if required.
    “ Second. The said parties of the second part do further engage to pay to the said parties of the first part or their agent, for the charter or freight of the said vessel during the voyage aforesaid, in manner following, that is to say:
    “For the (200) two hundred thousand feet lumber out to Buenos Ayres or Montevideo, freight free.
    “ For the hides, six pounds sterling, with (5 per cent) five per cent primage per ton of 2,240 lbs., free of all commissions, payable in cash, without credit or discount. If other goods are shipped, freight to be at proportionate rates.
    “ Lining hides free of freight.”

      The vessel took aboard the lumber and proceeded to Buenos Ayres, where she arrived about the 1st of November, 1855. The agent of the charterers there, was unable to furnish any dry hides, and the vessel was loaded with bone and bone ash, which she carried and delivered at Southampton. The master received freight there, on the 10th of June, 1856, at the rate of fifty shillings a ton, under protest, claiming the same freight as if a full cargo of dry hides had been carried. The capacity of the vessel for dry hides, was two hundred and fifty tons. She carried of bone and bone ash three hundred and thirty-four tons. The current rate of freight for hides, from Buenos Ayres to Southampton, was eighty shillings sterling a ton, and that for bones and bone ash was thirty-five shillings sterling a ton.
    The present action is brought to recover the difference between the freight paid at Southampton, and the amount which would have been earned, had a full cargo of dry hides been carried. The judge held that the plaintiffs were entitled to recover such difference, and gave judgment in their favor for the amount of it. From that judgment the present appeal is taken.

      Charles P. Kirkland, for defendants and appellants.
    I. The charter provides that the freight for carrying dry hides shall be £6 per ton; that if other goods are shipped, freight is to be at proportionate rates. This phraseology necessarily excludes the idea (upon which this judgment is based) that if “other goods” are shipped, the freight upon them is to be the same as though dry hides had been carried.
    Proof of this “proportionate rate ” was an essential part of the plaintiff's case; and for the want of it, the complaint should have been dismissed.
    1. The word “ proportionate ” is unambiguous and well understood. It means. adjusted to something else, according to a certain rate or comparative relation, proportional. (Web. Dic., Walk. Dic.)
    As for instance, if 120s. is stipulated to be paid for dry hides, when the current or usual rate is but 80s., and bone ash is carried instead, the proportionate rate of freight upon this article would be such as would bear the same relation to the current rate for it (bone ash) as 120s. for hides does to the current rate for that article, to wit, fifty per cent.
    2. It is idle to say that the owners of this vessel are entitled to the same amount of freight as they would have earned, had dry hides been carried. In other words, that “ proportionate ” means or is synonymous with “equivalent? This clause, under which the amount of freight is to be determined, might as well be expunged from the charter. According to the plaintiffs’ construction it is utterly meaningless, and they claim to recover just as much as though it had been omitted; estimating, not upon the goods transported, but upon dry hides, which could not be ■ obtained.
    II. The Court erred in excluding evidence of what the “proportionate rate ” of freight was at Buenos Ayres, under the usage and custom of that port.
    1. The inquiry was not directed to the point of usage, for the purpose of varying or even explaining anything in the charter, but simply to confine the witnesses within, and to obtain in mercantile phraseology, the basis upon which such proportionate rates are calculated; and the sixth interrogatory calls distinctly for the fact, to wit: The proportionate rate of freight upon bones and bone ash, instead of hides, under this charter, according to the usage or custom (in other words, the mercantile law) of Buenos Ayres.
    2. Buenos Ayres is the only place at which this essential fact ■—essential for the plaintiff—can be ascertained. There is no rate of freight at any other port upon goods shipped at Buenos Ayres. It was the place in the contemplation of the parties. The whole adventure was made with reference to the goods to be obtained at the River Platte, (Buenos Ayres or Montevideo) and that was the place of performance of the contract; the place from or at which goods are shipped is necessarily the only one at which rates of freight can be ascertained. Such rates vary with ' the supply or scarcity of shipping and of the article to be carried.
    III. It appears from the depositions of the witnesses at Buenos Ayres, that the proportionate rate, under this charter, for a single voyage from Buenos Ayres to Southampton was 25s., and consequently, 50s. for a double voyage, as this was. It is conceded that this sum was paid in full.

      TV. The Court erred in admitting evidence of the meaning of the words 11 proportionate rate ” in the port of Hew York.
    1. Such evidence contradicts directly, the well known and generally understood definition of common words. It does not explain or interpret, but it substitutes a meaning directly the reverse of that borne by the words themselves. “Proportionate ” means unequal, but having a certain comparative relation to something fixed and settled, while “ equivalent” means equal. Ho more force can be given to the argument against the admissibility of this evidence than is contained in the mere statement of the facts. (Cow. & Hill’s Hotes, part 2, pp. 507, 508, and cases cited.)
    ■ Y. Judgment should be reversed, and judgment rendered upon the facts found, for the defendants.

      Charles Jones & Henry B. Cowles, for respondents.
    I. The Court below properly decided that the plaintiffs were entitled to recover the same amount of freight for the cargo carried from Buenos Ayres to Southampton, as they would have been entitled to receive for carrying two hundred and fifty tons of dry hides.
    1. It was manifestly the intention of the parties to fix the amount of freight which the vessel was to earn on the voyage for which she was chartered, and this has been done in the charter party itself. Heither party would have entered into a contract without knowing and determining what was to be received by the one and what was to be paid by the other.

      a. By mutual agreement, the vessel was not to be paid freight for the lumber carried from Hew York to Buenos Ayres, and the charter was not made with reference to the current rate of freight on lumber between the two ports.

      b. The defendants then agree, that the vessel having carried this cargo of lumber freight free to Buenos Ayres, shall there be laden with a cargo of dry hides at £6 per ton. They covenant absolutely to furnish dry hides and pay freight for the same at that rate. The amount of freight which was to be paid and received was thus fixed.
    c. The provision that if other goods were shipped, the freight was to be at proportionate rates, was clearly not intended by the parties either to increase or lessen the amount of freight to be paid and received. This provision was for the benefit of the defendants, and was not inserted to change or vary the standard fixed by the charter.
    2. The words “proportionate rates,” in the connection in which they are used, import that the freight on the substituted cargo shall be such a sum per ton, per cubic foot, or per gallon, as the case may be, as will give the vessel the same amount as she would receive for carrying dry hides at £6 per ton. The standard of price is fixed by the contract itself, and no rate per ton for other goods is proportionate to that fixed unless it will produce as large an amount of freight as would have been received for the stipulated cargo.
    In the present ease there were delivered 310 tons of bones and bone-ash. The vessel could have carried 250 tons of dry hides. The contract price for dry hides is £6 per ton. The proportion is as follows: 310: 250:: £6: £4 16s. 9/Td., which gives the rate per ton for bone and bone-ash. •
    3. But the words “proportionate rates,” as-used in this charter party, have a well-known mercantile meaning in the port of New York, and mean that if other than the goods specified in the charter are shipped, the vessel is to receive the same freight as though such specified goods had been carried.
    This was clearly proved, and the finding of the judge to that effect is not excepted to by the defendants. The evidence was admissible. (2 Greenl. Ev., §§ 278, 280; 2 Parsons on Con., 48, &c., and notes.)
    If, however, the Court should adopt the construction of the contract contended for by the plaintiffs, then this evidence, if inadmissible, would not be a good ground' of reversing the judgment. It should be rejected as immaterial, and the judgment affirmed.
    II. Evidence of what was the actual difference between the current rates of freight for dry hides and bones and bone-ash would not be admissible. The parties to the contract were mer- > chants residing and doing business in the city of New York, and did not contract in reference to any usage or custom at Buenos Ayres, or to the current rates of freight there. They, by contract in Hew York, agreed upon the freight which the vessel was to earn, without regard to the actual freight paid, or to be paid on goods at Buenos Ayres.
    The judgment should be affirmed, with costs.
   By the Court.

Hoffman, J.

— The proposition of the plaintiffs is, that whatever might be the goods shipped, they were to receive the same rate of freight as if hides had been shipped. The price per ton of whatever might be carried, was to be calculated and adjusted, so as to amount to the sum total of the freight, which the capacity of the ship would enable her to earn for hides, at £6 per ton.

On the other side, the defendants insist that some rule of proportion is plainly contemplated. If other goods are shipped, the freight is to be adjusted upon a comparison with something in relation to something. If the contract had been as the plaintiffs contend, it would have been perfectly simple to have said, that full freight as for hides at £6 per ton, should in all events be paid, the capacity of the vessel to carry hides being all that was undetermined; in short, that the freight shall be such for other goods, as will give the same amount as if the vessel had been filled with hides.

But when the instrument declares, that freight for other goods shall be at proportionate rates, a comparison of rates is indicated and directed.

We concur in this view; and we think that the method of solving the question suggested by the defendants' counsel is a correct one.

The freight stipulated to be paid for hides must necessarily bear a certain proportion to the rate of freight for hides, had the ©barter been made at Buenos Ayres. That proportion is found to- be fifty per cent; that is, the rate agreed upon is fifty per cent more than that from Buenos Ayres would have been. The articles actually shipped were at the current rate of thirty-five shillings a ton at that place. Add fifty per cent to that price, and a proportionate rate is attained. The words receive some effect.

The charter party shows, that the fact was contemplated of the inability of the agents of the charterers to procure dry hides-at Buenos Ayres. Hence the provision to fill with other goods, and the liberty to do so, implied in the clause in question.

We are justified also in considering that the parties were acquainted with the nature and description of the commodities generally shipped from Buenos Ayres, to the designated ports in Europe. “Vessels chartered to load other produce at proportionate rates, run the risk of being loaded according to the convenience of the charterer, unless certain proportions of different articles are stipulated for. This may appear unjust; but on the other hand it must be supposed that no ship-owner would charter his vessel to' load at a foreign port, unless he was acquainted with the produce shipped at, and the customs of such port; and in case of his failure, by the necessary stipulations in the charter party to secure his vessel, he himself would be the only party to blame. A ship-owner, wishing to avoid all such risks, charters his vessel for a round sum to carry a cargo of legal merchandise."

Both parties then acted on the contract which presumes that other goods may be shipped, and on the implication that such goods must be of the description usually made the subjects of shipment from Buenos Ayres. They have met the question of the freight to be paid, under such anticipated circumstances, by the clause in question. Nor is it at all unreasonable to presume that the parties had some knowledge of the rates of freight of the articles which were usually shipped at that port. This assumption is not interpolating new and other terms into a contract. It is introducing facts, justly to be inferred as known to the parties, to interpret any ambiguity in their agreement.

The ship-owner secures to himself, by the agreement thus understood, a certain premium upon the current rate of freight of the articles which his ship shall in fact carry. Whatever is the proportion between the £6 per ton stipulated, and the current freight of dry hides from Buenos Ayres, that proportion shall regulate the increase of premium upon the current freight of what is transported. Thus in the present instance, the difference between the rates for hides was £2, or fifty per cent, the current freight there being £4. This premium or advance upon the £115s., the freight of the bones, gives £2 12s. 6d., payable to the ship-owner.

So the effect in relation to the charterer is, to protect him from paying the full freight of £6, as if he had shipped hides, when probably the profit of his adventure from his inability to procure them, might be much less than if his apparently main object had been realized by obtaining them.

I think the judgment must be reversed, and the amount adjusted upon the principles stated. If the parties do not settle this among themselves, a new trial must be had, with costs to abide the event.

Pierrefont, J., concurred with Judge Hoffman.

Bosworth, J.

(Dissenting.)—The bark Roman, was chartered for a voyage from New York to Buenos Ayres, and thence, or from Montevideo to a port in the United States between New Orleans and Boston, or to a port in Great Britain or in the English Channel between Havre and Hamburgh, both included.

The voyage has been performed, and the practical question is, to what compensation are the owners entitled, by the terms of the charter party.

The clauses fixing the compensation to be paid, require that a cargo of 200,000 feet of white pine lumber shall be carried from New York to Buenos Ayres, freight free.

That the defendants shall provide at Buenos Ayres or Montevideo, “ a full and complete cargo of dry hides, with horns for small stowage if required,” and shall pay “for the hides, six pounds sterling with (5 per cent) five per cent primage per ton of 2,240 lbs., free of all commissions, payable in cash, without credit or discount. If other goods are shipped, freight to be at proportionate rates. Lining hides free of freight.”

Instead of shipping 250 tons of dry hides, which the bark could have carried, (there being none which could be procured) 334 tons of bones and bone-ash, making a full cargo, were shipped and delivered at the port of discharge.

What is meant by “ proportionate rates,” of freight to be paid on other goods, if shipped ?

If, as the defendants contend, the customary or actual rate then charged at Buenos Ayres on a cargo of dry hides from that place to the port of discharge is to be first ascertained, and then the rate on the cargo actually shipped, and if the latter is then to be enhanced in such proportion as the contract rate for carrying- the dry hides, exceeds that which shall be ascertained to have been the current actual rate for carrying them, then it was left by the charter party, entirely uncertain how much it would be the duty of the defendants to pay or the right of the plaintiffs to claim. The amount earned on that theory, on the cargo actually shipped, is over $3,000 less than would have been earned by carrying a cargo of dry hides. Had the cargo been something else thán bones and bone-ash, the loss of the ship owner, on this theory, might have been still greater. On this theory, the amount to be paid cannot be ascertained by any information furnished by the terms of the charter party alone, even when the number of tons of the cargo actually carried, and the number of tons of hides that could have been carried have been determined by actual weight, or have been agreed upon.

The further questions also arise, what was, at the time, the usual or fair price per ton for carrying dry hides from the port at which they were to have been.shipped to the port of discharge, and what of the cargo actually shipped? And in case of disagreement between the parties, as to these two matters, how is the question to be settled ?

To find any basis for the defendants’ theory, it becomes necessary to interpolate into the contract, a reference to the actual freight at the time, on dry hides, and on the cargo actually carried from Buenos Ayres to the port of discharge, in order to make them subjects of consideration and comparison, in ascertaining and stating the proportion, provided for by the contract.

But treating the contract as one which determines the price to be paid for the voyage (on ascertaining the actual weight of a full cargo of dry hides); and as specifying all the subjects to be considered, in ascertaining and stating the “proportionate rates,” if other cargo should be shipped, the contract leaves it substantially certain what was to be paid for the voyage, no matter what might be the cargo carried.

I think the fair meaning is that, whatever might be the cargo shipped, (and the defendants, although agreeing to furnish a full cargo of dry hides, were to be permitted to ship something else, whether hides could or could not be procured,) the defendants were to pay such a rate of freight, that the cargo (whatever it might be) at such rate, would produce the same sum total in dollars or pounds sterling, as a full cargo of dry hides at six pounds sterling per ton, of 2,240 lbs., would produce.

It was not known precisely, without going into an arithmetical calculation, how many tons of dry hides the bark would carry; but it was known nearly enough for all practical purposes, .and sufficiently so to advise both parties about what sum the vessel would earn. Not knowing the precise sum to be paid, if a cargo of dry hides should be furnished, instead of ascertaining by arithmetical calculation to what sum it would amount, and. inserting that as the one to be paid whatever might be the cargo, the clause was inserted that if cargo other than dry hides should be furnished, freight should be paid at a rate which would be in such proportion to the whole thereof, as six pounds sterling per ton of dry hides is to the whole number of tons thereof, making a full and complete cargo.

The contract furnishes all the data necessary to be known to state the proportion and ascertain the result intended by both parties, except the precise number of tons of hides making a full cargo, and the number of tons of other cargo actually carried, or of the tons of register measurement which it required for proper stowage.

If dry hides had been carried, their actual weight was to be ascertained, and the price to be paid fixed, by multiplying it by the specified rate.

There are many considerations which support this view of the contract, as being the correct one, and the one in the actual contemplation of the parties. They all resided in New York, and the contract was made there. There is nothing to show that either of them knew the actual rate" of freight then charged at Buenos Ayres for carrying dry hides thence to Great Britain, or to some port between New Orleans and Boston, or that they had any reference to any such matter in making the contract. Neither is there anything to show that they knew what kinds of cargo there was most reason to suppose could be furnished, if hides could not be. The contract covers the whole voyage, and the freight to be paid for carrying dry hides, though nominally paid for the hides only, included, in the intent of the parties, an agreed compensation for carrying the lumber. On the defendants1 theory, if they could not procure dry hides, nor a full cargo of any kind, it is not obvious but that it might so happen that cargo enough might not be furnished at Buenos Ayres to compensate for carrying the 200,000 feet of lumber to that place from Hew York. If¡ contrary to the expectation of the parties, neither dry hides nor other cargo could have been procured, to what compensation would the plaintiffs have been entitled ?

By the natural and just meaning of the charter party, the defendants took the risk of being able to furnish a cargo. at Buenos Ayres. They secured the transportation from Hew York to and the delivery at that place of 200,000 feet of lumber. They were to furnish a full cargo of dry hides at that place, and the price per ton of 2,240 lbs. was stipulated. This was to compensate for the whole voyage. To what aggregate sum that would amount, could not be stated precisely, without entering into an arithmetical calculation. The defendants did not wish to be compelled to ship hides, if none could be procured for the purpose. The ship-owners were willing that the defendants should ship what they could procure, if they could not obtain hides, on being paid the same sum for the vessel for the voyage.

A careful consideration of the contract, convinces me, that its terms show this to be the intent and understanding of the parties. ■

The defendants covenant, absolutely and unconditionally, to provide and furnish at Buenos Ayres, or Montevideo “ a full and complete cargo of dry hides, with horns for small stowage if required;” and second, they “further engage to pay,” . . . “forth& charter or freight of the said vessel during the voyage aforesaid, in the manner following, that is to say:

“ For the lumber, freight free.

“ For the hicks, six pounds sterling, with (5 per cent) five per cent primage per ton of 2,240 lbs. free of all commissions, payable in cash, without credit or discount. If other goods are shipped, freight at proportionate rates.

“ Lining hides free of freight.”

The unconditional covenant to furnish hides, and a full and complete cargo of hides, and to pay six pounds sterling per ton of 2,240 lbs. on a full and a complete cargo, is a provision for ascertaining, substantially, a lump sum to be paid for the round; its precise amount to be ascertained by computing the freight which would be payable for a full cargo of dry hides at the rate specified.

This is a common form of a charter party, which provides a lump sum for a whole voyage, when by the terms of the instrument the whole freight is made payable on the homeward cargo. (Gilkison v. Middleton, 40 Eng. L. and Eq., 295; and see Wilson v. Hicks, id., 511.)

The “ proportionate rates ” of freight to be paid “ if other goods are shipped,” are to be fixed, so as to secure the compensation thereinbefore, (in the charter party,) covenanted to be . paid “for the charter or freight of the said vessel during the' voyage aforesaid.”

That is, “ if other goods- are shipped” to make a part only of a return cargo, they are to pay the same proportion of the whole price as the space they occupy would have produced, if filled with dry hides. If in addition to hides, various binds of merchandise compose a part of the homeward cargo, the same rule of proportion is to be applied to such various kinds of cargo.

Upon any other construction, the unconditional covenant to provide and furnish “ a full and complete cargo of dry hides,” would seem to be unmeaning.

By one clause, the plaintiffs covenant to take and receive on board “all such lawful goods,” &e., as the defendants “may think proper, to ship, any thing extra hazardous or contraband of war excepted.”

By another, the defendants covenant to provide and furnish “ a full and complete cargo of dry hides.” This covenant is not even qualified with the condition that such a cargo can be procured.

Then follows the clause, which professes to fix the price to be paid “ for the charter or freight of the said vessel during the voyage aforesaid.” And that is fixed by a stipulated, rate to be paid “for the hides,” viz., £6 per ton of 2,240 lbs.

I think it may be said in this case as was said in Capper et al. v. Forster, (3 Bing. N. C., 938,) that “ the original intention and expectation of the parties at the time the charter was entered into as to the amount of freight which would become payable for the voyage, must have been founded upon the assumption, that the ship would bring home a cargo consisting” of dry hides, a full and complete cargo of which, the defendants covenanted, absolutely and unconditionally to furnish. Omitting the clause, “ if other goods are shipped, freight to be at proportionate rates," that case and the present would be substantially alike.

If it was impossible to procure dry hides, still the plaintiffs would have been obliged to receive a cargo of lawful goods and merchandise. (Wilson v. Hicks, supra.) They would have no right to insist on returning empty, and then claim the whole stipulated freight.

In such a case, that is, if no dry hides could be procured and other cargo was shipped, the plaintiffs would have been entitled to recover just as much as if they had. brought a full cargo of dry hides, if the clause “if other goods are shipped, freight to be at proportionate rates,” had been omitted from the contract. Capper et al. v. Forster, supra, is a direct authority in support of this proposition.

In this view of the intent of the parties, and of this contract, the phrase “if other goods are shipped, freight to be at proportionate rates ” should be construed to mean, that the freight of “ other goods ” should be so rated and apportioned, that there would become payable “for the charterer freight of the said vessel during the voyage aforesaid” the same aggregate sum or compensation, that would have been due if the defendants had furnished a cargo of the article they absolutely covenanted to furnish, viz., dry hides.

Believing this to be the intent of the parties, and that the true construction of the contract will give effect to such intent, I think the judgment should be affirmed.

The judgment was reversed, and a new trial granted, with costs to abide the event.

       This action was tried a second time before Mr. Justice Woodruff and a jury, in December, 1858. The same facts appeared un the second trial as on the first; except that “the going rates (of freight) for bone and bone-ash from Buenos Ayres to Southampton, were 35s. to 40s.1' The. Judge considering himself concluded by the foregoing decision refused to charge, that the plaintiffs were entitled to recover the same sum, as if they had carried a full cargo of dry hides, and the plaintiffs excepted to such refusal. He “charged the jury that they should find upon the following principle or basis, namely: That as the current rate of freight at Buenos Ayres at the time the vessel received her cargo there, on dry hides from Buenos Ayres to the English channel was to the rate by the charter party agreed to be paid for dry hides, so was the current rate of freight at Buenos Ayres from that port to Southampton on bones and bone-ash to the amount which the plaintiffs were entitled to receive from the defendants, with five per cent primage added thereto. That from the amount so ascertained there was to be allowed to the defendants the amount which they had paid to the plaintiffs, and that the plaintiffs were entitled to recover only the balance thus found, with interest thereon from the time the freight was payable, which is agreed by counsel to have been June 10th, 1856. To which charge the counsel for the plaintiffs there and then excepted.”
      The jury found a verdict in favor of the plaintiffs, for $244.17.
      Erom the judgment entered upon that verdict, the plaintiffs appealed to the General Term. That appeal was argued at the January Term, 1859, before Bosworth, Oh. J., and Hoffman and Moncrief, J. J. The Court agreed •that the charge of the Judge conformed to the decision made by the General 'Term in July, 1858; and that the latter decision, could not with propriety, •be re-examined on such appeal, and affirmed the judgment. Bosworth, Oh. J., dissented from the decision, in other respects, on the grounds stated .in his opinion, as above reported.


author: Woodruff, J.

text:
    William Sharp, Plaintiff, v. Augustus W. Whipple, Defendant.
    1. A general verdict for the plaintiff taken by consent on a concession that “ there could be no controversy as to what facts the evidence established, and that the case presented only questions of law,” must be deemed at least as favorable to the plaintiff upon the facts in issue as it would be if such verdict had been found by the jury upon a submission of the issues to them upon the evidence.
    2. In such case for the purposes of a hearing upon the questions of law arising on the trial, the plaintiff is entitled to regard the issues of fact as found in his favor.
    3. And where in such case the parties agreed upon the form of a verdict and consented thereto, and in addition to a general verdict for the plaintiff they agreed to a special finding of certain facts-, upon which questions of law arose, such general verdict must stand unless such special finding is inconsistent therewith; and though the whole verdict is taken “subject to the opinion of the Court,” the defendant is not at liberty to claim on the hearing that the issues of fact were not established by the evidence in favor of the plaintiff, except so far as such special finding may control them.
    4. In the case last stated, the special finding agreed upon is to be taken as establishing the facts therein stated, and the general verdict as establishing all other facts in issue, in the plaintiff’s favor.
    (Before Duer, Oh. J., Slosson and Woodruff, J. J.)
    Submitted, October, 1857;
    decided, July 3d, 1858.
    After the argument of this cause, and the decision made therein, at the June Term, 1857 (reported 1 Bosw., 557), the defendant applied for, and, upon grounds which it is not material to state, obtained a resettlement of the case. As resettled, the case showed that instead of the statement that the Judge presiding at the trial “then charged the jury and directed them to render a special and general verdict;” and that “the jury, having retired, returned into Court and rendered the following verdict,” as was contained in the case as then submitted to the Court; the case was and the case is now settled so as to read:
    “The testimony here closed. It being conceded that there could be no controversy as "to what facts the evidence established, and that the case presented only questions of law, and the defendant desiring that they should be heard and decided at the General Term in the first instance; the form of a verdict was agreed upon, which was rendered by the jury, without the Judge charging the jury upon any legal proposition or deciding any principle of law affecting the merits, which verdict was in the words following, viz.” Whereupon the verdict follows in the terms set forth in the original case (see 1 Bosw., 562), adding, however, to the amount of the general verdict so that the same now reads “they also find a general verdict for .the plaintiff for $6,075.66, which verdict was tabeen by consent of the parties, subject to the opinion of the Court, at General Term, on the questions of law arising in the case,” &c., &e.
    And the order of the Court touching the hearing of the cause is amended so as to read “ the Court ordered that all the questions of law arising in the case be heard in the first instance at General Term,” &c., &c.

      Upon the resettlement of the ease, the same was again submitted to the General Term, before the same Justices, for farther consideration.

      Edwards Pierrepont, for the plaintiff.

      John Graham, for the defendant.
   . By the Court.

Woodruff, J.

—Upon a review of the case as now submitted, it appears that what was said in the opinion pronounced at the June Term, 1857, in regard to the presumption arising upon the case as then presented, that the jury were properly instructed as to all questions of law which were material as a guide to their deliberations, and that their general verdict for the plaintiff must be deemed to have been found under those instructions, is not applicable to the case as- it actually occurred, and as it now, on a resettlement, appears.

As resettled, the case now shows that it was conceded that there could be no controversy as to what facts the evidence established, and that the case presented questions of law only.

It is manifest that a verdict for the plaintiff taken by consent, in pursuance of such a concession, must be deemed at least as favorable to him upon the facts in issue, as it would be if found by a jury. And after such a concession, the defendant certainly cannot ask that it be set aside upon any question of fact which may be involved in the issues between the parties; all such issues must be deemed settled by mutual consent.

In substance and effect the case now reads, that by concession of the parties, the controverted questions of fact are settled and agreed upon as follows: First. That certain special matters of fact are as set forth in the special findings now agreed upon; and, Second. All other questions of fact presented by the issues in the action are established in favor of the plaintiff. In other words, upon the issues the plaintiff is entitled to a verdict, except so far as certain agreed facts specially found may show that he is not entitled to recover, or may limit or diminish the amount of the recovery.

The consenting to and taking such a verdict, subject to the opinion of the Court upon the questions of law arising in the case, preserves to the parties the right to discuss the exceptions taken on the trial, if any; the question whether a nonsuit moved for ought to have been granted, and whether upon the facts found as above stated the plaintiff is entitled to judgment, or to what extent, if any, the general verdict should be modified by the special findings.

A verdict subject to the opinion of the Court, where the facts are controverted and the evidence conflicting, would not be proper. This we have often held, and such a verdict taken without consent and by" order of the Court, would in such case be a mis-trial. But where the parties agree that there can be no controversy as to what facts the evidence establishes and proceed to embody the result of the proofs in an agreed verdict, that verdict must be taken to establish the facts according to its tenor.

It is not apparent then, that the resettlement of the case, has presented it to our consideration any more favorably to the defendant than it was before, in this respect.

In regard to the questions of law subject to which the verdict was taken, it may be that the case is more fully open to discussion than was intimated in our former opinion. But even that is not clear. If it is, then it must suffice to observe that although we intimated that the only questions then properly presented, were whether the nonsuit ought to have been granted, and whether, upon the special finding, the sum due to the defendant from J. De W. Spurr should be deducted from the verdict, yet we followed the course pursued by the counsel in arguing the cause, and considered the other questions raised. We now find no reason for changing the opinions then expressed, and our opinion upon the questions of law then given, must be taken as our opinion upon the same questions as now resubmitted to us.

Judgment should therefore be rendered for the plaintiff on the verdict.

Judgment ordered accordingly.


author: Pierrepont, J.

text:
    Mordecai L. Marsh, Respondent, v. Ely Hoppock, Appellant.
    1. Where a married woman owns fixtures, implements and machinery, adapted to the manufacture and distillation of spirits, an'd her husband, under a written power of attorney from her, contracts as her agent with a third person, (the defendant) to manufacture whiskey, on which the defendant is to advance and which he is to sell, and the business is prosecuted pursuant to such agreement; and is transacted wholly by the husband with the defendant, such business is in fact and in law the business of the husband.
    2. In a suit by the wife’s assignee of the balance claimed to be due to her in respect to such business; to recover such balance, it is error to disallow to the defendant upon a statement of accounts in relation to it, moneys advanced by the defendant to the husband in the course of the business; upon the ground that the power of attorney under which he acted did not authorize him to obtain such advances on her account.
    (Before Hoffman, Slosson and Pierrepont, J. J.)
    Heard, April 12;
    decided, July 3, 1868.
    This action comes before the Court at General Term, on an appeal by the defendant from a judgment in favor of the plaintiff, entered on the report of a referee.
    Mordeoai L. Marsh, the plaintiff, sues as assignee of Frances Jackson. At the time the contract (hereinafter set forth) was made, under which the business was done out of which this controversy arose, Frances Jackson was a married woman; and the contract was made by her, by her husband Thomas Jackson as her attorney, of the one part, with the defendant of the other part.
    The complaint avers, among other things, that from April, 1851, until some time in March, 1853, “the said Frances Jackson delivered or caused to be delivered to the said defendant, Ely Hoppock, for the purpose of sale, a large quantity of whiskey, known as Irish and Scotch whiskey, upon each and every gallon of which said whiskey so delivered as aforesaid,' the said defendant promised and agreed to advance and pay to the said Frances Jackson the sum of eighty-five cents, and upon the sale of said whiskey the said defendant promised and agreed to render to the said Frances Jackson a full and true account of the sale and disposition of said whiskey, so that the said Frances Jackson might be able to judge of the result thereof, and pay to her what was due upon the balance of such accounts.” It alleges that the defendant rendered accounts from time to time, describes them and avers that he rendered no other accounts, and that those rendered are not full or accurate. The complaint prays for a judgment, that the defendant account; and that he'pay such balance as may be ascertained upon such accounting to be due to the plaintiff, as assignee of said Frances Jackson.1
    The defendant in his answer admits, “that the said Thomas Jackson as the attorney and agent of his said wife, delivered large quantities of said whiskey to this defendant for sale upon commission, and received large advances and payments from this defendant therein, between April 1, 1851 j and July 23, 1853,” and claims, that a balance of $755.25 is due to him, the defendant.
    He further avers, “that he made returns and accounts of sales from time to time, to said Thomas Jackson, with whom he transacted said business.” . .
    “ And the said defendant admits that he has furnished returns to said Frances Jackson, since the death of her husband," of the amount of sales, receipts, and expenses attending said sales of whiskey, which returns and accounts were correct when so furnished; but he denies that such statements were the only accounts ever furnished, as said Thos, Jackson, during his lifetime, received frequent accounts and statements as her agent and attorney.” . . .
    “ And the said defendant further says, that he is ready and willing, and always has been ready and willing, to account to and with the said Frances Jackson, and any person duly authorized by her, in respect to said transactions, and submits to any reference of his accounts which may be directed by this Honorable Court, and prays that said complaint may be dismissed, with costs, to be paid by the said plaintiff.”
    The referee found as facts, “that from the month of April, 1851, and for some time prior to that time, Frances Jackson, then of the city of Mew York, was the owner of certain fixtures, implements, machinery, and other property, then, and subsequent thereto, being situate at Mo. 68 Seventh avenue, in the city of New York; and that, from the month of April, 1851, to the month of March, 1853, the property and premises were used by her in the manufacture and distillation of spirits, known as Irish and Scotch whiskey. That, during the period last mentioned, Frances Jackson was a married woman, viz.: the wife of Thomas Jackson, who was then living and residing with his said wife Frances Jackson in the city of New York. That the defendant knew Frances Jackson, and on March 27, 1851, the defendant entered into an agreement with Thomas Jackson, the husband of said Frances, which agreement was produced, and is in the words and figures following:
    “Terms of agreement between Thomas Jackson and Ely Hoppock, both of the city and county of New York.. Thomas Jackson is to manufacture Irish and Scotch whiskey, of a quality equal to that heretofore on the premises known as No. 90 Seventh avenue, fourth proof, and to be delivered to Mr. Hoppock in imported puncheons, Irish and Scotch, and placed in his cellar in good order; said Jackson is to pay storage, insurance, labor, etc., etc.; said Hoppock is to advance his notes at four months date, from time to time, on the delivery of said whiskey, as aforesaid, at the rate of eighty-five cents per gallon, for which he is to receive from said Jackson ten per cent commission on gross sales of said whiskey, for advancing, selling, collecting, and guaranteeing sales. Interest is to be charged by said Hop-pock in case he should be out of funds, at the rate of seven per cent per annum.
    “ F. Jackson,
    “per Thos. Jackson, Att’y,
    “ Ely Hoppock." :
    “ That Thomas Jackson acted as the agent of his wife Frances, under and by virtue of a power of attorney, under her hand and seal, which power of attorney was produced in evidence, and is in the words and figures following:
    “Know all men by these presents, that I, Frances Jackson, of the city and county of New York, do hereby ordain, constitute, and appoint Thomas Jackson, of New York city, my true and 'lawful attorney .and agent, for me and in my name to purchase grain of any and every description, malt; if required for the manufacture of whiskey known as Irish and Scotch malt whiskey, to dispose of the same to the best advantage, for- my benefit, to sue for, recover, and receive from all persons whatever all sums of money and debts due or to become due to me, and all claims and demands, and to give sufficient acquittances therefor, and to adjust, settle, or compound all debts or demands due of to become due to me, and to institute proper suits for the recovery thereof, and the same to pursue to final judgment and execution, and I hereby ratify and confirm what my said attorney or agent shall lawfully do or cause to be done in the premises.
    “ In witness whereof, I have hereunto set my hand and seal, this third day of April, 1851.
    “ Signed, Frances Jackson.”
    That an indorsement or agreement was made on the back of the agreement of March 27, 1851, signed by Thomas Jackson, as attorney for Frances Jackson, which was produced and read in evidence; it is as follows:

      “ This is to certify that I hereby agree to release Mr. Ely Hoppock from guaranteeing any sales of my whiskey that he has made or shall hereafter make. And in consideration of not being able to sell all my whiskey the first year, I agree to pay said Hoppock ten per cent commission, for advancing drafts, selling the whiskey, and collecting bills of same.
    “F. Jackson,
    “ per Thos. Jackson, Att’y.
    “ The words 1 to sell ’ inter-1 lined before signing. j
    “Witness, John Quackenbush.
    “Hew York, January21, 1853.”
    The referee also found that the business of the distillery was carried on, as contemplated when these contracts were made, and that the defendant made certain advances to Thomas Jackson in the course of the business, and charged the same on account.
    The referee also found that certain of the items charged in account by the defendant to Frances Jackson, amounting to $1,369.44, being for moneys paid to Thomas Jackson, or to others by his order, were not properly chargeable to her, on the ground that the power of attorney of the date of April 3, 1851, did not authorize Thomas to receive, or order them, paid on her account, and disallowed the same.
    For a similar reason he also disallowed a charge of $1,000, for defendant’s acceptance of that amount delivered to Thomas, on his executing as her attorney a mortgage to defendant, on the credit and security of which such advance was made.
    He found a balance of $1,278.60, due from the defendant, to the plaintiff as assignee of Frances Jackson, and reported that he was entitled to judgment therefor, with costs. Judgment having been entered upon the report, the defendant appealed from it to the General Term.

      Charles W. Sandford, for the appellant, insisted that the business was, in law and in fact, the business of Thomas Jackson, the husband; that a married woman cannot carry on business through the agency of her husband. It must be considered his business and treated accordingly. Consequently the items charged to Mrs. Jackson and disallowed by the referee, were erroneously rejected.
    That the plaintiff, Marsh, if he has any ground of action, must assume all the transactions of Jackson in the business.

      Barrett & Brinsmade, for the respondent.
    Thomas Jackson acted as the agent and attorney of Frances Jackson, and every verbal and written agreement between him and the defendant, purports to have been made under and by virtue, of the power of attorney under the hand and seal of Frances Jackson.
    The defendant must therefore account upon the basis of his contract, treating her as the principal, and Thomas as her agent. The report is right, rejecting such acts of the husband as the power of attorney did not authorize, and his principal has not sanctioned.
   By the Court.

Pierrepont, J.

—The referee evidently regards the relation of Thomas Jackson to Frances, so far as relates to this business, the same as though the two were strangers to any alliance, and one the mere agent of the other.

Such is not our view of the meaning of the statutes relating to married women. The parties were husband and wife living together. It does not appear that the wife had a separate estate from which she derived an income; and it does appear that she advanced no money whatever in the business.

The husband carried on the business, and it was his, and not that of his wife. Signing the contract of March, 1851,

“F. Jackson,”
“ Per Thos. Jackson, Att’y,”

did not in legal view make the business which Thomas Jackson carried on under the agreement, the separate business of his wife.

The items in the defendant’s account, which the referee rejects, were mostly cash advances made by the defendant, (in the course of the business,) to Thomas Jackson.

A construction of the acts of 1848 and of 1849 has been given by this Court, quite inconsistent with the rulings of the referee in this case. (Switzer v. Valentine, 4 Duer, 96; Freeman v. Orser, 5 Duer, 476.)

This fundamental error in considering it the sole and separate business of the wife, in which the husband was but a mere agent, having no personal interest, runs through the entire case.

A new trial must be granted, with costs to abide the event.

Rule of reference discharged.

Judgment accordingly.

       See Burger v. White, 2 Bosw., p. 92.