author: By the Court. Moncrief, J.

text:
    George Lewis, Plaintiff v. George Jones, Defendant. Same v. Same.
    1. In an action by an indorsee against his immediate indorser of a promissory note, or by the payee against the maker, the defendant cannot prove a verbal • , agreement, cotemporaneous with the indorsing or making of the note, by which the note is not to be paid or become payable until the defendant has realized the amount thereof from specified sources; where the alleged agreement and facts connected with it, do not show a failure of consideration, or that there was no consideration for indorsing or making the note.
    (Before-Wood rum', Mmtobiee and Robebtson,’J. J.)
    Heard October 7,
    decided November 10, 1860.
    Exceptions ordered at the trial to be first' heard at the general term, and the entry of judgment in the meantime to be suspended. Two several actions between these parties were tried the same day, and were argued together before the court, in banc.

    In suit (No. 1) Geo. Jones is sued as indorser of three several notes, made by one Earl W: Johnson, and payable to the defendant’s order, and by him indorsed; and in suit
    • (No. 2) as the maker of a note, payable to the plaintiff's order; all of which are alleged to have been delivered by the defendant to the plaintiff, George.Lewis; and the first three to have been indorsed to him by the defendant.
    The defense contained in the answers, is the same in both suits—and is, in substance, that the plaintiff and defendant were partners, composing the firm of Lewis & Jones; that said Earl W. Johnson owed them about $13,600, and subsequently failed, “ and took the benefit of,the bankrupt laws of Massachusetts, of which State he was a resident,” and his estate payed only about six cents on the dollar.

      It was subsequently discovered that one Simon P. Atkins held, by assignment from Johnson, a lease, as security for paying the cost of several buildings which Atkins had erected for Johnson, on the demised premises, and on which about $5,000 was due to Atkins.
    At the request of the plaintiff, and in order to secure the debt due to Lewis & Jones, from Johnson, the defendant entered into an arrangement with Johnson and Atkins, by which Atkins assigned the lease to the defendant, who paid Atkins therefor the $5,000, and who also received from Johnson his three notes for about $4,500 each, at one, two and three years, from May 1, 1856 ; the defendant to re-assign the lease to Johnson in case he paid said notes at maturity. The plaintiff requested the defendant to enter into said arrangement; to take the assignment of theiease in the defendant's name, and “to give the defendant’s notes to said plaintiff, for said plaintiff's interest in said debt due from Johnson—upon this express condition, however, that the said-notes were not to be payable', nor was this defendant to be liable to pay the same, unless and until he had received, out of the net rents, issues and profits of said leasehold property, sufficient to pay said notes, so to be given by said defendant, after all other charges, including defendant’s aforesaid advance, had been repaid.”
    The note prosecuted in suit (No. 2), is one of the notes so given by the defendant to the plaintiff, and the notes sued upon in suit (No. 1), are renewals of another of the notes so given by the ,defendant to the plaintiff. These renewal notes were made and given “under the same agreement and consideration,” as the original notes. The answers further state, that the defendant “ has not received from the said notes given by said Johnson, nor from said leasehold property, nor from its rents, issues and profits, the amount of said notes, and that the same are not now due and payable.”
    At the trial before Robertson, J., April 18, 1860, the defendant offered to prove, as a defense, the facts alleged in the answer. The plaintiff objecting, the court excluded the evidence, and ordered a verdict in each case for the plaintiff, for the amount claimed therein, to which decisions the defendant excepted.
    The judge then ordered the questions of law arising on the exceptions, to be heard in the first instance at the general term, and the entry of judgment in the meantime to be suspended.

      James W. Gerard, for Defendant.
    I. The evidence excluded related to the condition on which the notes in question were delivered.
    .Its object was not to vary the notes, as notes in the hands of the plaintiff, but to show in substance, that the plaintiff only held these notes on condition that they were not to take effect until the happening of the events in the answer stated.
    All facts relating to the execution and delivery of any instrument, tending to show the circumstances under which it was delivered, and the nature and character of the delivery, may always be shown. (Chester v. The Bank of Kingston, 16 New York Rep. 336, 343 ; Prall v. Hinchman, 6 Duer Rep. 351.)
    This last case especially applies to the notes in suit No. 1, on which defendant is sued as indorser. (Bowen v. Russell, 13 Pick. 75 ; Bernhard v. Brunner, 4 Bosw. 528 ; Goddard v. Cutts, 2 Fairfi. R. 440, 442.)
    That evidence is now admissible of the intention of parties to a note, in opposition to that raised by the paper itself, (see Moore v. Cross, 19 New York Rep. 127,) where the second indorser of a note was held liable to the payee, on proof that such was the intention of the parties when the note was given.
    II. The evidence offered, tended to show either an entire or partial failure of consideration to the notes, and as such was admissible.
    III. The answer set up a perfect equitable defense to the enforcement of these notes by the plaintiff, against the defendant.

      Equitable defenses are now admissible. (Code, § 150; Dobson v. Pearce, 2 Kernan, 166 ; Crary v. Goodman, 2 Kernan, 266.)

      Peter Y. Cutler, for Plaintiff.
    I. Parol evidence is inadmissible to contradict or vary the terms of a written instrument. (1 Greenleaf's Evidence, § 275—the reason of the rule is stated in § 281; Durgin v. Ireland, 4 Kernan, 322; 1 Phill. & Amos on Ev. 753; 2 Starkie’s Ev. 544, 548; Adams v. Wordley, 1 M. & W. 379, 380 ; Boorman v. Johntson, 12 Wend. 573.)
    II. The defendant is estopped from saying that he made any other contract than the absolute one on the face of the notes. (Adams v. Wordley, 1 M. & W. 379, 380 ; Saunders on Pl. and Ev. 696; Fleming v. Gilbert, 3 Johns. 528.)
    III. The answer contains no equitable defense. It does not allege fraud. Nor mistake: as, that the notes should have contained the condition, but that it was omitted by mistake, with a prayer that the clause left out should be restored. Nor any other ground of equitable defense. This is easily tested. Suppose the facts stated in this answer to be stated in a bill in equity, what prayer for relief would they sustain? Obviously none.
    Judgment should be ordered for the plaintiff on the verdicts.
   By the Court. Moncrief, J.

—The law presumes in favor of negotiable paper a good consideration until the contrary appears ; the notes upon their face express a consideration ; the defendant in his answer, éxpressly and distinctly avers, that the notes were given to him, said plaintiff, “for said plaintiffs’ interest in the debt due from Johnson to the defendant and the plaintiff, as copartners.”

The evidence offered, did not show or tend to show, either an entire or partial failure of consideration.

A note which has been executed and delivered, cannot be contradicted, nor can its legal effect be controlled by oral evidence that it was to have no validity except in a certain event.

When the parties have deliberately put their engagement in writing in such terms as import a legal obligation without any uncertainty as to the object or extent of such engagement, it is presumed that the whole contract of the parties and the extent and manner of their undertaking have been reduced to writing; and hence oral testimony, of a previous colloquium between the parties, or of -conversations and declarations at the time when it was completed, will not be admitted to substitute a new and different contract for that actually committed to writing. Thus, parol proof, is inadmissible to show that an absolute agreement for the paymént of money was to be performed only in a certain event. (1 Greenl. on Ev. § 275 ; Thompson v. Ketcham, 8 J. R. 192 ; Wells v. Baldwin, 18 J. R. 45 ; 1 Cowen, 249 ; 1 Hill, 116 ; 1 Greenl. on Ev. § 281.) So where the instrument purported to be an absolute engagement to pay at a specified day, parol evidence of an oral agreement at the same time that the payment should be prolonged or depend "upon a contingency, or be made out of a particular fund, has been rejected. (3 Camp. 57 ; 5 Pick. 506 ; 5 Verm. 114, 152; 7 Mass. 518; 17 Wend. 190; 13 Wend. 527 ; 8 J. R. 192; 4 Gray, 504, 506 ; Woodbridge v. Spooner, 3 B. & Ald. 233 ; 1 Gow. R. 74 ; Edwards on Rills, and notes from 313, 314, 315, and cases cited.) This court, at general term, in Haucksr. Hund, (1 Bosw. 431,) (disapproved by the court of appeals upon another point) holds to the same effect.

In Chester v. The Bank of Kingston, (16 N. Y. R. 336,) the only question necessarily arising and decided is, that the bond in question having been given as collateral security for the notes of the respondents, evidence of the parol agreement would be admissible to show that payment of the debt satisfied the bond. The evidence would not contradict the terms of the bond. The eyidence merely goes t'o show that the purpose and intent for which it was given had been accomplished. The debt for which, the bond was given having been paid, satisfied the bond. The evidence clearly established a total failure of the consideration of the bond, and under all the authorities, was. clearly admissible.

Comstock, J., at page 341, says : “ Where there is a perfect delivery of a written obligation, it is plain that evidence cannot be given of a cotemporaneous parol agreement contradicting the terms of the instrument or impairing its force.”

In Prall v. Hinchman, (6 Duer, 351,) the question now under consideration did not arise, nor was it discussed.

In Bernhard v. Brunner, (4 Bosw. 528,) the defense set up was a quasi fraudulent possession of the check sued upon by the plaintiff, and also an averment of an entire want of consideration.

The evidence did not seek to vary the terms of the contract as imported by the check, but tended and was offered, as tending to show, an impeachment of the title of the plaintiff; that the delivery of the check by the defendants was conditional, and a total want of consideration.

In Moore v. Cross, (19 N. Y. R. 227,) no such question arose, and it was simply held that where one who, for the accommodation of the maker, indorses his note payable to the order of a third person, is liable thereon to such payee as an indorser, and not as maker or guarantor. McGevey made his note to the order of the plaintiff, and in pursuance of an agreement the note was indorsed by the defendant for the accommodation of the maker. The note was discounted at a bank, and being unpaid at maturity, was duly protested and taken up by the plaintiff.

The case of Hauck v. Hund, (1 Bosw. 431,) involved the same principle, and in that respect, was overruled by the court of appeals.

It is clear that the evidence offered was not admissible, inasmuch as it directly tended to vary the times of payment and terms of the written instruments upon which these actions are brought. The ruling and direction given by the learned court below, were correct, and judgment must be entered for the plaintiff in each action, in accordance with the verdict, with costs.

Ordered accordingly.


source: Caselaw Access Project

author: Robertson, J.

license: Public Domain

text:
    Jas. P. Byrne, Plaintiff and Appellant v. Jacob Weeks, Jr., Defendant and Respondent.
    1. The master of a vessel, who signs a bill of lading by which he acknowledges the receipt on hoard, of goods, of a designated kind and a specified quantity, and agrees to deliver the same to the shipper or his assigns, on payment of freight, at a specified rate per ton, is bound to deliver to one purchasing the goods in transitu and taking from the shipper, an assignment of the bill of lading, in good faith, and relying thereon, goods of the kind so designated, and the specified quantity thereof.
    2. An acceptance of goods of the designated kind, but less than the specified quantity thereof, after discovering that there are more goods of one designated kind and less of another on board than the bill of lading calls for, but the same aggregate quantity in all, does not absolve the master from the liability contracted by the bill of lading, nor impose upon such an assignee of it a duty to take more of one kind or accept less of another, than the bill of lading specifies.
    3. Where, in such a case, after a part delivery, the master refused to make a further delivery, unless the assignee would accept a delivery of all the goods on board as a performance of the carrier’s contract, which the assignee declined to do, and the master thereupon sued the assignee and recovered judgment for the whole freight; issued execution thereon, and caused the goods remaining on board to be levied on as the defendant’s property, and to be removed and stored, and they vpre subsequently sold by the dspositary to satisfy his claim for storage, and at such sale they were purchased by such assignee—the master thereby loses his lien on the goods so levied oil for freight; and the assignee obtaining possession as such a purchaser, does not obtain a delivery under the bill of lading, and is not liable for the freight of such goods—they having been so bought, in ignorance of any claim or lien thereon in favor of the master for freight.
    4. That judgment, having been reversed, is no evidence of a delivery and acceptance of all the goods called for by the bill of lading.
    6. In an action by an assignee of the master’s claim for freight, where the assignment is made after apart delivery of the cargo, and a refusal to deliver the residue of it; the assignee of the bill of lading, may deduct from the amount of the freight payable upon the goods delivered, the value of the goods not delivered pursuant to the contract contained in the bill of lading.
    (Before Woodruff, Moncrief and Eobertson, J. J.)
    Heard October 9,
    decided November 10, 1860.
    Appeal, by the plaintiff, from a judgment rendered on a trial had before Mr. Justice Woodruff, without a jury, in December, 1859.

      This action is brought by James P. Byrne, as assignee of the claim and rights of one Patrick Fegan, against Jacob Weeks, Jr., to recover the freight of a cargo of coal, transported on the canal boat Black Warrior from Port Carbon, Penn., to the port of New York, and for demurrage. Patrick Fegan owned the canal boat, and his son Thomas Fegan (between 18 and 21 years of age) was the master.
    By a bill of lading, dated April 18, 1855, signed by Thomas Fegan, he acknowledged that O. F. Moore had shipped on the said boat, in good order and condition, (but not stating in the body of it what was. so shipped,) to be delivered to Moore or his assigns, at New York, “he or they paying for the said coal, at the rate of $1.90 per ton, and demurrage at the rate of $10 per day for any detention over three days.” On the margin was written : “ Tons, lump coal broken, 78, egg; 100, stove, Chestnut;” also, “ 178 tons, of 2,240 lbs., of Tunnel Vein Red Ash coal.”
    On the 26th of April, 1855, before the arrival of the boat at New York, the defendant, relying on the truth of the matters stated in the bill of lading, purchased the cargo of coal from Moore, and took an assignment of the bill of lading. The boat arrived at New York, April 30, 1855; and when about 10 tons of egg coal had been delivered, it was discovered that the boat contained only 78 tons of stove coal, and had on board 100 tons of egg coal. The master delivered, in all, 76 J tons of egg coal, and 49 tons, 11 cwt., 2 qrs. and 17 lbs. of stove coal; and then refused to deliver more unless the defendant would receive the residue of the egg coal. This the defendant refused to do, but demanded the residue of the stove coal on board—and offered to receive enough of the egg coal to make up 78 tons—and also offered to receive the kinds specified in the bill of lading, and the quantity of each therein specified.
    There was no detention of the boat beyond the three days, by reason of any want of readiness of the defendant to receive the coal called for by the bill of lading. The value of stove coal was greater than that of egg, by twenty-four cents per ton, and was of the value of $3.26 per ton.

      Thomas Fegan demanded freight of defendant for 178 tons, at $1.90 per ton, and payment being refused, he sued the defendant in the Marine Court, and recovered judgment on the 16th of May, 1855, for the whole claim; issued execution thereon, and had it levied on the coal in the boat, as being the defendant’s property, and caused the coal to be removed to the coal yard of H. B. Purdy, for storage, who subsequently, about the 24th of July, 1855, sold it for the storage ; and, at such sale, it was bought by the defendant. That judgment was reversed, and a new trial was ordered.
    On the 29th of January, 1858, Thomas Fegan, by a sealed instrument in writing, assigned all his claims against the defendant for freight, and for an alleged conversion of the coal, to Patrick Fegan; and he, on the 30th of June, 1859, by a like instrument, assigned the like claims to the plaintiff; who commenced this action in August, 1859, to recover-$338.20, the freight alleged to be due, and also $160 for-sixteen days demurrage.
    The court decided that the defendant was liable for freight, only upon the quantity of coal actually delivered, viz., $239.08 ; an$l was entitled to a deduction from this sum of the value of the coal called for by the bill of lading and not delivered, viz., $170.06; and for the difference, being the sum of $69.02, with interest thereon from the time of suit brought, viz., $2.05, (in all $71.07;) he ordered judgment for the plaintiff. . •
    A more detailed statement of the facts is contained in the opinion of Robertson, J. The plaintiff filed various exceptions to the decision of the court, and from the judgment entered thereon, appealed to the general term.

      Francis Byrne, for Appellant.

      B. Slosson, for Respondent.
   Robertson, J.

—This action was tried at special term by the court, without a jury, and the appeal from the judgment has been argued upon exceptions filed to decisions of facts and conclusions of law contained in the finding of the judge before whom the same was tried. •

Two causes of action for freight, are united in the complaint—one for transporting and delivering coal to the defendant—and the other for transporting coal which the defendant converted to his own use, while the lien of the plaintiffs’ assignors for the freight remained. A third cause of action was also set out, and was for demurrage for a detention by the defendant, of the vessel in which such coal was transported. The plaintiff claims, as assignee of the owner and master of the boat in which such coal was carried.

The answer, besides denying the principal allegations in the complaint, sets np a counter-claim for goods mentioned in the bill of lading, (under which the defendants received the goods alleged in the complaint to have been delivered to him,) not delivered to the defendant.

Upon the production of the bill of lading under which the goods were transported for which freight is claimed, the body of it contained no statement of the nature, of the merchandize, except by requiring a certain sum to be paid for freight of each ton of “ said coal.” It had, however, a memorandum upon its margin, as follows: “ Lump coal, broken—78 egg—100 stove, Chestnut; 178 tons, of 2,240 lbs., Tunnel Vein Red Ash coal.” On the voyage for which such bill of lading was given, the boat had on board only 78 tons of stove coal, and 100 tons of egg coal. The rate of demurrage specified therein, was ten dollars a day after three days. The coal specified in the bill of lading, was sold to the defendant, and the bill assigned to him while the coal was in transitu.

On the arrival of the boat, ten tons of egg coal were delivered to the defendant before any discovery was made of a deficiency of stove coal. Upon demanding coal of the quantity and kind described in the bill of lading, he received more egg coal, enough to make 76| tons in all, and a little, over 49§ tons of stove coal, when the master refused to deliver any more stove coal, unless the defendant would take all the egg coal on board, amounting to 23| tons ; the defendant refused to do so, but demanded the rest of the stove coal on board, amounting to nearly 28| tons, and offered to receive a ton and three-quarters of egg coal so as to make the complement of seventy-eight tons, and generally demanded enough of each kind to make up the amount specified in the bill of lading. The master, however, refused to make any further delivery of the coal unless the defendant would take all the coal in the boat, which the latter refused.

The whole of the coal to which the defendant was entitled, could have been received during three days after the arrival of the vessel in New York, and the latter was not detained from any want of readiness of the defendant to receive such coal.

The master of the boat demanded freight for 178 tons of coal, which the defendant refused, offering to pay freight for what he had received, deducting the value of that which he had not received.

After the delivery of the coal, the master of the boat recovered a judgment against the defendant, in the Marine Court of the city of New York, for the freight of 178 .tons of coal, and levied on the coal remaining in the boat, which the officer, having the execution, removed to a coal-yard for storage. The keeper of such yard, subsequently sold the coal for storage, after advertising the same and giving notice to the attorney, by whom the judgment was recovered. Other property which the defendant owned, being in his actual possession, was levied upon at the same time by the same officer, but the judgment was reversed on appeal, and the property levied upon ordered to be restored to the •defendant, which was done.

The foregoing facts appear in the finding of the judge, and are fully sustained by the evidence. There are some matters which seem to be material in some aspects of the case, not passed upon; thus, no demand of the amount due for demurrage, was proved or found, nor was the difference between egg and stove coal pointed out in the evidence, although they are universally spoken of by witnesses as different articles of merchandize, while the latter is both proved and found to have been more valuable than the former. Still less was any inquiry made as to whether the difference is perceptible on bare handling or inspection; or whether the quantity of each in the boat could have been discovered before the defendant took out any qf the coal, received by him. The defendant is not proved to have known that the coal bought by him from the owner of the coal-yard where it was stored, was any part of the cargo. There was no occasion for him to have made inquiries leading to such result; and he remains, as to such coal, a bona fide purchaser for value, without notice.

Judgment was rendered in favor of the plaintiff in this action, for the difference between the freight on the quantity of coal received by the defendant from the vessel, and the value of the coal not delivered to him according to the bill of lading.

The finding of the judge, as to the following matters, was excepted to by the plaintiff, as containing erroneous decisions of fact and conclusions of law, to wit: the want of a delivery of the quantity of coal according to the bill of lading; a failure of any delivery, under the bill of lading, beyond 125 tons; the non-delivery to the defendant and non-acceptance by him, of the coal remaining on board ; the non-detainer of the boat beyond the time allowed. Exceptions were also taken to the following supposed conclusions of law of 'the court, to wit: the absence of any obligation on the defendant’s part, to accept the coal left by him on board, as the coal to which he was entitled under the bill of lading; the right of the defendant to select such part of the cargo as he took away, without being bound to pay all the freight provided for in the bill of lading; the liability of the master to deliver merchandize conform-ably to the marginal description thereof in the bill of lading; the right to charge against the freight of the coal accepted by the defendant, the value of the residue of the coal not delivered less the freight; the release of the coal sold for freight from any lien for freight; the exemption of the defendant from liability for freight of the coal so sold; his right to have the plaintiff’s claim reduced by the value of the coal not received by him under the bill of lading; the plaintiff’s inability to recover for more freight than on the coal received by him, or more than the amount awarded. No such conclusions of law are stated in the finding. The only one stated is, that the plaintiff is entitled to recover freight of the coal received less the' value of that not delivered. It is true, that the reverse of such conclusions was insisted upon by the plaintiff’s counsel at the trial. Thus, he contended, that the defendant, on discovering.the variance between the amount of stove coal on board and the bill of lading, was bound to elect whether he claimed it or not, and that his subsequent acts in receiving the coal, amounted to such election and a delivery and acceptance of the whole cargo, and made him liable for all the freight as well as demurrage. But this would not necessarily involve the reverse of the propositions so insisted on in the finding of the court, unless so specified. Upon such a general legal conclusion as that in this case, we can only infer that such legal propositions were adopted by the court to control its decision, as those without which no view of the evidence would justify the judgment. As the Code speaks of conclusions in. the plural, (§ 268,) it is possible the unsuccessful party may be bound, in order to prevent any mistake as to the steps of legal reasoning which the court may deem applicable to and sustainable by the evidence, and by which it may arrive at the final result, so to state them and have them passed upon as to assimulate the finding to a charge to a jury. In such case, the complaining party being furnished with the means of putting his finger on the specific error, would be bound to do so. In the case before us, the finding partakes more of the character of a demurrer to evidence; it will, therefore, be unnecessary to advert to specific exceptions, except so far as they point out propositions inevitably involved in the single conclusion of the court.

Three prominent questions alone seem to be involved in this case:

1. The supposed acceptance in law, by the defendant, of the whole cargo of the vessel in question, by his receipt of part after the discovery of the variance of such cargo fro ni that described in the bill of lading.

2. The supposed acceptance, by the defendant, of the part of the cargo stored and bought by him, so as to make him liable for the freight of the whole.

3. The supposed conversion, by the, defendant, of the interest of the plaintiff’s assignor, by virtue of his lien for freight in the coal bought by the former from the coal-yard.

Upon the'jsolution of these questions, the right to demur-rage depends ; but certain preliminary and incidental questions have been raised which require to be disposed of as interfering with the main questions.

In the first place, if the stored coal was not in contemplation of law, the coal to be delivered under the bill of' lading, the defendant had a right to reduce the claim for freight by the value of the coal not so delivered. The bill of lading, with the agreement that it should so, operate, did operate to transfer the ownership of the goods, if in the vessel, to the defendant. It further operated to give him the right to elect, to accept the goods in the vessel, as a performance of the contract; and it also estopped the plaintiff from denying that he possessed the articles of merchandize as described, because by it, as a written representation of receiving and possessing them, he had enabled the consignee, on the bill of lading, to obtain value from the defendant on the faith thereof. Being thus estopped from denying that he had the articles which were the defendant’s property, and failing to deliver them to the defendant, the plaintiff’s assignor, the master of the vessel, clearly became liable for non-delivery of the articles of merchandize alleged to be shipped. Admitting that no recovery could be had in an action against the owner of the vessel by the shipper, for non-delivery of the goods, because they never were shipped; nor by the assignee. of the bill of lading, because he could only claim through the shipper; yet, when that owner claims, under a contract made by the master against the assignee of such contract, the latter must, in equity, be allowed to recoup damages arising under the same contract, and assume the fact of the existence of the goods, not delivered, aboard of the vessel, by way of estoppel. The acceptance of part of the articles agreed to be delivered, will not preclude such a claim. (Burton v. Stewart, 3 Wend. 236; Van Epps v. Harrison, 5 Hill, 63.) And the case of Deming v. Kemp, (4 Sandf. 147,) is inapplicable, as there the goods were to be delivered at different times. In this case, in fact, a considerable portion of the goods were actually on board, and refused to be delivered, as to which there can be no question as to the right to recoup or set-off. There was no error in allowing the counter-claim if the goods were not delivered.

The plaintiff’s counsel has strenuously insisted, that the discrepancy between the cargo in the boat and that described in the bill of lading, was' merely as to quality; that there was the same quantity of coal in both; while the defendant contends that the error is entirely as to quantity, not one half of the stove coal being deliverable, and egg coal supplying its place. This contradiction arises from an erroneous view of the original contract; that was an agreement to deliver not merely 178 tons of a particular species of coal, but 100 tons of stove and 78 tons of egg coal, being two parcels of two different kinds. There cannot be a doubt that where the kind becomes the subject of a specification, coal of that kind must be delivered. I have already alluded to the fact, that these two are recognized as different articles of commerce of different value; the fact that they are generally the same, is immaterial. The cases cited on the argument in which goods of inferior quality merely, or in a bad condition, were delivered, are inapplicable. If the plaintiff’s views be correct,- a tender of an entire cargo of egg coal would have been sufficient, although a different article and of inferior value. If the bill of lading had. in such case, specified stove coal only, and the defendant had accepted ten tons of the cargo knowingly, he might have been liable for the whole freight in consequence of taking away part of that on which the master had a lien for freight. As the bill of lading called for egg coal, the defendant was only bound to take so much of it out of the cargo as was specified in such bill.

I do not see that the doctrine involved, that an assignment of the bill of lading is a transfer of the merchandize represented by it, Zachrisson v. Ahman, (2 Sandf. S. C. R. 68 ;) Hargous v. Stone, (1 Seld. 73,) has any bearing upon the defendant’s liability; it could not in any case deprive the defendant of his right to repudiate the goods on their arrival, as not corresponding in kind with those sold, or described in the bill of lading. For some purposes, the delivery of the bill of lading is a delivery of the possession, such as insuring and the like, but clearly could not deprive the vendee of the right of rejecting the goods as not being those bought; and he would not be responsible for freight unless he actually received the merchandize.

The judgment in the Marine Court was not conclusive, or even evidence, that the coal stored was delivered to the defendant. It was reversed, -and the levy was an act of the plaintiff. The order of that court to restore property levied upon, was fully satisfied by the actual restitution of other property levied upon under it, and could not put the coal in possession of any one who did not hold it before. This finishes the collateral considerations bearing upon any of the facts in this case.

The nature of the original contract by the bill of lading, determines the first question as to the acceptance of the whole cargo, by the delivery of the coal after the discovery of the error. The defendant was willing to receive all the stove coal on board, which even then would not fulfill the terms of the bill of lading. 'He was also willing, and continued to receive as much egg coal as was necessary, in satisfaction of that part of the contract. The plaintiffs counsel not only conceded that a contract as to quantity was divisible, but furnished two excellent authorities for the position, Kitchie v. Atkinson, (10 East. 295, 310 ;) (Addison on Cont. 484.) Acceptance of as much egg coal as the contract specified, and acceptance of as much stove coal as the master could furnish, would not compel the defendant to accept egg coal in place of stove coal, from which it differed in value and kind. If the defendant had repudiated the contract, so far as the master of the boat in question could carry it out after receiving any coal, he might lose all recourse against his vendor for the part actually in the boat. The defendant is, therefore, not responsible for the .coal which he did not buy, or that which he did not receive, and was not bound to tender back the part which corresponded with the bill of lading, and he had received, in order to recover damages for the non-s delivery.

It will not be necessary to discuss át length the second question, whether the delivery of the goods on the sale of them for storage, constituted a delivery under the bill of lading; they were not tendered as such, and were bought in entire ignorance of any claim for. freight. It would be very doubtful whether a seizure of them by the defendant, knowingly, without the consent of the plaintiff’s assignor, could be converted into a delivery. . A sale by a storekeeper, under a different .claim of right adversely to the plaintiff, can hardly be so designated..

The remaining question is one, perhaps, not entirely without difficulty, to wit: the effect of the sale of the. coal to the defendant, by the keeper of the yard in which it was stored, of the delivery of it to him by the officer; and whether the plaintiff’s assignor had parted with all lien thereby. In the case of Jacobs, assignee, &c., v. Latour & Messer, (2 Moore & P. 20,) it was held, that the defendant Messer, had waived a lien which he had on certain horses of the defendant Latour, in his possession, before an act of bankruptcy, by levying upon and selling them after such act. Ch. J. Best held, “ that the equitable right of lien does not extend to a case where the right of third parties intervene it having been previously established in the case of Price v. Helyear, (1 M. & P. 541, S. C. 4 Bing. 597,) that a sheriff was liable for seizing and selling goods under an execution after an act of bankruptcy. In the case before us, the goods were surrendered to the constable to be levied upon and sold. The possession was parted with, and a sale upon such execution would have cut off the lien, if any, of the plaintiff’s assignor; and although, in the case cited, the lien was prior to the act of bankruptcy, yet the party levying was not remitted to his original rights. It is true, the judgment in this case was reversed, and the levy discharged, but the possession-was parted with by the master of the vessel with intent to deliver the property to the defendant, or subject it to an execution against him, and the former never resumed possession of it; the ownership remained with the shipper of the goods, who could have reclaimed them without discharging any lien for freight. The delivery to the yard-keeper, if.it did not enure to the benefit of the defendant, did to that of the owner of the coal, and it was at his risk while stored. In Sweet v. Pym, (1 East. 4,) upon the delivery of goods to a carrier to be conveyed at the risk of a principal, although he was unknown to the carrier, it was held that such goods could not be reclaimed under a bill of lading, by the carrier, in favor of the person forwarding, and the rule must be the same in favor of all bailees; that a deposit by a third person with them for the benefit of a principal, is final. There can be no doubt that the master of the vessel intended to abandon any lien for his freight, and look to the personal responsibility, either of the defendant or the owner of the coal; that he parted with the possession of the coal with such intent, and never intended to reclaim it in order to protect his lien. The keeper of the coal-yard acquired a new lien, that of storage, paramount to that for freight. This was strong evidence of an intent of the master to abandon his claim, and once abandoned, it could not be resumed; it would be monstrous if the master of a vessel depositing goods on storage and omitting to pay for it, could entrap an innocent purchaser on a sale for such storage, into a liability for freight for which he claimed a secret lien on such goods. Besides this, the goods were delivered as the property of the defendant, to the yard owner, by the constable who levied on them under authority of the plaintiff’s assignor; and he kept and sold them as such. He surely would not be liable for the freight under a secret lien, or for disposing of them after giving notice to the defendant, whom alone he knew as owner. No one could suppose that any one who attempted to apply the proceeds of property in his possession to the payment of another’s debt, meant to reserve a lien upon such property for his own benefit. If the yard owner was not liable, the defendant claiming under him, could not be, for if he were., the former would be liable over on an implied warranty of title. Upon the whole, therefore, I have come to the conclusion, although not without much hesitation, that the plaintiff’s claim for freight for the coal stored, must be rejected.

There being, therefore, no error in the conclusion of law in the 'decision at special term, the judgment must be affirmed with costs.

Woodruff and Moncrief, J. J., concurred in affirming the judgment.

Judgment affirmed.


author: By the Court. Woodruff J.

text:
    Nathaniel Hayward, Plaintiff and Appellant v. The Liverpool and London Fire and Life Insurance Co., Defendant and Respondent.
    1. Where, by the terms of a policy, insuring against loss or damage by fire, “ on the building occupied as an India rubber factory, and on property contained therein * * §2,200 on machinery, tools, steam engine, and shafting, * * * ,” it is provided that the company “ shall not be liable to make good any loss or damage by fire which shall happen or arise, * * * by any explosion;” and where one of the conditions forming part of the policy also declares, that, neither will this company be answerable * * for loss or damage by explosion of any kind ”—and where the insured premises and property are destroyed, during the life of the policy, by a fire which “ originated from, and was caused by an explosion, of one of the boilers of the steam engine, belonging to and used in the said India rubber factory, and covered by said" policy,” the company is not liable for the loss, even though a steam engine was necessary, and ordinarily used in the carrying on of- an India rubber factory.
    2. The import of the exception is, as if the company had said, we will make good any damage caused by fire, to the building, goods, machinery, fixtures and steam engine, unless the fire be caused by the explosion of the boiler, or some other explosion, and in that event the company is not to be liable..
    (Before Woodbuee, Monoriee and Robertson, J. J.)
    Heard October 9,
    decided November 10, 1860.
    Appeal from a judgment for the defendants, rendered " May 24,1860, upon a trial at special term, had on the 15th of May, 1860, before Mr. Justice Hoffman, a trial by jury having been waived by consent of the parties.
    The action is on a policy of insurance issued by the defendants, whereby they insured the plaintiff, against loss or damage by fire, to the amount of $10,000.
    It is not necessary to state the pleadings further than to say, that they are sufficient to present the single question upon which the plaintiff’s claim and the defense of the defendants depend, viz., whether the defendants are liable under the policy, for a loss by fire caused by the explosion of the boiler of a steam engine used in the building, and being itself a part of the property insured ? The parts of the policy material to the question are as follows, (the words and figures here printed in italics being written, and the residue of the policy and the conditions annexed and referred to therein, being printed :)
    “This policy of insurance witnesseth, that Mr. Nathaniel Hayward, Providence, Rhode Island, having paid to the Liverpool and London'Fire and Life Insurance company the sum of two hundred and fifty dollars, for the insurance against loss or damage by fire, (subject to the conditions and stipulations indorsed hereon, which constitute the basis of this insurance,) of the property hereinafter described, to the amount hereinafter mentioned, not exceeding upon any one article the sum specified on such article, viz.:
    “ Ten Thousand Dollars at 2|- per cent.—$250.00.
    “ On the building occupied as an India rubber factory and on property contained therein, situated on the corner of Clifford and Eddy streets, Providence, Rhode Island, viz.: $800 on building No. 1, in plan on file in the office of the Washington Insurance company; $2,200 on machinery, tools, steam engine and shafting contained in building No. 1; $500 on stock of materials manufactured, Unmanufactured, and in process of manufacture, contained therein; $1,100 on building No. 2 on said plan; $2,200 on machinery, shafting and tools contained therein; $1,000 on stock of materials manufactured, unmanufactured, and in process of manufacture, contained therein; $600 on building No. 3 on said plan; $500 on machinery and tools contained therein; $500 on stock of materials manufactured, unmanufactured, and in process of manufacture, contained-therein—for twelve months.

    “ The threé directors of the said company, whose names are hereunto subscribed, do hereby' agree that, from the thirteenth day 'of August; 1857, until the thirteenth day of August, in the year of our Lord one thousand eight hundred and fifty- eight, the funds and property of the said company shall (subject to the conditions and stipulations indorsed hereon, which constitute the basis of this insurance) be subject and liable to pay, reinstate or make good to the said assured, his heirs, executors or administrators, such loss or damage as shall be occasioned by fire to the property above mentioned and hereby insured, not exceeding in each case respectively the sum or sums hereinbefore severally specified and stated against each property. Provided always, and it is hereby declared and agreed, that this company shall not be liable to make good any loss or damage by fire which shall happen or arise by any foreign invasion, insurrection, riot or civil commotion, or any military or usurped power, or by any explosion, earthquake or hurricane; and the policy shall remain suspended and be of no effect in respect to any loss or damage which shall happen or arise during the period of any of these contingencies.
    “ In witness whereof we, three of the directors of the said company, have hereunto set our hands and seals, this thirteenth day of August, in the year of our Lord one thousand eight hundred and fiftj-seven.”

    “ The conditions and stipulations referred to in this policy:”
    (Among these conditions and stipulations, which were thirteen in number, is the following:)
    “ V. That this company will not be answerable for any loss or damage by fire, occasioned by any invasion, foreign enemy, insurrection, civil commotion, riot, or any military or usurped power whatsoever. Neither will this company be answerable for loss or damage to stock or goods while undergoing any process in which the application of fire heat is necessary, nor for loss or damage by explosion of any kind.”
    And indorsed on the policy is the following notice : “Please to read your policy and the conditions.”
    By stipulation, the following facts were admitted:
    The making of the policy; the plaintiff's ownership of the property insured; the destruction, by fire, of property insured, to the value of $84,573.39 ; that if the plaintiff is entitled to recover, such recovery should be for the full amount of the policy, and interest from November 28,1857 ; that due proof of' loss was furnished to the defendants.
    Also, “ 4th. The said plaintiff admits that the said fire, by which said insured property and premises were destroyed, occurred on the morning of the 29th day of October, A. D., 1857, soon after, and originated from, and was caused by an explosion of one of the boilers of the steam engine, belonging to and used in said India rubber factory, and covered by said policy; a steam engine being necessary, and ordinarily used in the carrying on of an India rubber factory.”
    It was also proved that, “ at Hayward’s factory, India rubber boots and shoes are manufactured. After the shoes are formed, they are put into a heater and subjected to heat of from 250 to 280 degrees Fahrenheit, for the purpose of vulcanization. They are universally made so.”
    And the plaintiff read in evidence a circular, issued by the defendants, to show what they decided to be extra-hazardous risks, of which an extract is as follows:
    “ Extra-hazardous risks—as livery stables, large hotels, book binders, printing offices, carpenters and cabinet makers, wholesale druggists, mills, machine shops, manufactories, etc., etc., and in general all establishments where fire is used for other purposes than warming the premises, or where large-numbers of workmen are collected together, you will in general decline.”
    The judge found the facts in conformity with the foregoing statement and proofs, and thereupon stated, and decided as a conclusion of law: “ That- the fire which
    caused the loss, having originated from an explosion of a steam boiler, the case was within the exception in the policy, and the defendants were not liable for such loss.”
    “ Judgment must thereupon be entered, dismissing the complaint.”
    The plaintiff filed exceptions to the findings of fact and to the conclusions of law, and from the judgment entered, dismissing the complaint and awarding to the defendants their costs, the plaintiff appealed.

      Luther R. Marsh, for the Plaintiff, (Appellant.)

      Alex. Hamilton, Jr., for the Defendants, (Respondents.)
   By the Court. Woodruff J.

—-In St. John v. The American Mutual Fire and Marine Insurance company, (1 Dner 311,) the defendants had insured the plaintiff’s property against loss or damage by fire, and, by one of the conditions annexed to the policy, had provided that they would not be liable “ for any loss occasioned by the explosion of a steam boiler, or explosions arising from any other cause.” A steam boiler, in the basement of the building, in the upper stories of which the insured property was contained, exploded; the walls of the building were mostly thrown down, and the fires in the boiler furnace, and in stoves in various parts of the building, were communicated to the frame and wood work of the building, and the insured property was burned. It was held, in this court, that the insurers were not liable for the loss, and that decision was affirmed in the court of last resort. (1 Kern. 11 N. Y. R. 516.) Unless some discrimination, operating in favor of the plaintiff, can be made, which shall distinguish the present case from the one referred to, this case was correctly decided and the judgment must be affirmed.

To our minds, whatever differences exist between the two cases, are strongly and decidedly favorable to the defendants’ claim to exoneration.

It is not and cannot be denied, that the contract of insurance, like every other contract fairly and voluntarily made, is to be construed according to the plain and natural import of its language; nor that it is entirely competent for the parties to agree to any terms and conditions defining, limiting or apportioning the risk, which they may think proper, or for their interest respectively.

When, therefore, the insurers consented to give to the plaintiff an indemnity against loss by fire, it was entirely competent for them, as a part of the contract, to define affirmatively the causes of fire, the consequences of which they would be responsible for, and to exclude fires arising from other causes, declaring that for the consequences of such fires they would not be responsible. In one form or another, this discrimination probably enters into every contract of insurance customarily made, and the varying premiums upon fire risks are adapted to the varying hazards assumed, while there are some causes of loss by fire which are rarely assumed at all by insurers.

In the present case, the defendants, in the very body of their policy, have declared—and the other party to the contract must be taken to have conseúted, by accepting the policy—that the defendants “ shall not be liable to make good any loss or damage by fire which shall happen or arise by any explosion.” These terms are too plain to admit of doubt respecting their meaning; they create an exception to the general language of the previous clause, by which •they promise to make good such loss or damage as shall be occasioned by fire to the property insured. It is as if the company had said, we will make good to you any loss which you may sustain to your building, goods, machinery, fixtures and steam engine, by fire, unless the fire is caused by the explosion of the boiler, or some other explosion.

Had this company, in another department of their business, insured the life of the plaintiff, and provided that they would not be responsible if he was drowned by being wrecked when on a voyage at sea, there would be no doubt, we apprehend, of the validity and full effect of the exception.

The terms “ any explosion ” are comprehensive enough to embrace every kind of explosion; and in a policy which covers property in a building containing a steam boiler, and even covers the steam engine itself, would seem to be used with necessary and primary reference to the liability of the boiler to explosion, though not with such exclusive reference to that as to leave them liable for fires caused by other explosions.

It was argued that the very circumstance here mentioned, viz., that the steam engine was insured, created an inconsistency in the policy itself, and therefore the subject of insurance, viz., the steam engine being named in writing, the exception, which was a printed portion of the policy, must* be disregarded. That, by insuring a steam engine against fire, the defendants necessarily assume the risk of a fire arising from the explosion thereof, and that an exception of fire arising from explosion is so repugnant to the defendants’ undertaking, that it must be rejected.

No such repugnancy exists. Fires arising in many ways might occur, and by the destruction of the building and property therein, so far injure the steam engine as to render it worthless except for the materials therein which were not consumed. As above suggested, the exception is simply saying, if the cause of the fire be the explosion of your steam boiler, we shall not be bound to make good the loss; and the plaintiff is to be deemed to say, as to the hazard of fire arising from that cause, I will bear that risk. So an insurer of life may insure the specific life generally, for a term of years, but provide that he shall not be liable if the insured die by violence, or by a particular -specified disease or epidemic. This would create no repugnancy. The cases relied upon, Harper v. Albany Ins. Co, (17 N. Y. R. 194,) and Bryant v. The Poughkeepsie Mutual Ins. Co., (Id. 200,) do not appear to us in any degree to conflict with these views. They hold that an insurance of a particular trade or business ex vi termini, imports a license to use those articles which are necessary or customary in that trade or business, for the usual and customary purposes thereof, and therefore, that when such an insurance is made, the prohibition of the use of those articles must be referred to the use of them for other purposes than such as are embraced within that license, and to the like effect is Harper v. The City Ins. Co, in this court, (1 Bosw. 520.) In the present case, it is expressly conceded to the plaintiffs that they may use a steam engine, but agreed that if the boiler explode and fire be caused thereby, the loss shall not be within the insurance. All parts of the policy are in harmony.

To recur then to the case of St. John v. The American Mutual Ins. Co., above cited : In that case, the words of the condition under which the defendants were protected, were that the company would not be liable “for a loss occasioned ~by the explosion,” &o., and the subject of contention was, whether this exempted the company from liability for a loss by a fire which was caused by the explosion. It was argued that the insurer was liable for all damage sustained by fire, however the fire was caused. That the fire, and not the explosion, was the immediate cause of the loss, and that the exemption was only from a liability for a loss sustained by the mere force of the explosion. And this appears to have been the whole ground of contest, and this was the view taken by Mr. Justice Gardiner in his dissenting opinion. He insisted that the fire was the proximate, and the explosion the remote cause of loss, and for the immediate cause of loss, the defendants were liable. But the other judges of the Court of Appeals held, as this court had held, that the clause ought to be construed as if the words had excepted a liability for “ a loss by a fire occasioned by the explosion,” while at the same time its greater generality would make it include any injury from explosion.

Now, in the case before us, as if the parties had before their minds the very doubt which led to the litigation in that case, they have employed, to describe the exception, the very terms which, by construction, that policy was finally determined to include, viz., any loss or damage by fire which shall arise or happen by any explosion,” and this in the very body of the policy itself.

They did even more than this; they further declared, in the body of the policy, that the agreement to indemnify was subject to the conditions and stipulations indorsed thereon which constitute the basis of the insurance ; and, in one of those conditions, they declare that the company will not be answerable for loss or damage by explosion of any kind.” They have in the condition the very words which were held to exonerate the defendants in the case referred to; and they have, in the body itself, adopted a form of exception which removes the only'doubt which existed in that case. And, to prevent any pretence of a design to entrap the insured by obscure conditions, they have indorsed on the policy a notice cautioning him to read both the policy and its conditions.

It is suggested, that in the case last mentioned, the steam engine .was in the basement of the building, and was not covered by the policy. That may be true, but we are not able to see that that affects the question more favorably to the plaintiff. On the contrary, we have already said that to our minds, the fact that the engine in the case before us was insured, subject to the exception, would rather indicate that the company did not intend to protect the engine itself, nor any other property, against the consequences of the explosion of its boiler; and that the insured bore that risk himself, whether it caused fire or did other mischief.

We are unable to form any other conclusion, than that this case is fully within the case of St. John v. The Am. Mut. Ins. Co., and were we to dispose of the case uninfluenced by that decision, we must still say that the defendants are protected by the exception in the body of the policy, and the condition annexed thereto, from any liability.

The judgment should be affirmed.

Judgment affirmed, with costs.


text:
    Elbert Hoogland and Frank H. West, Plaintiffs and Respondents v. John Wight, Defendant and Appellant.
    1. The report of a referee, like the verdict of a jury, in a case of conflicting evidence, is conclusive, as to questions of fact.
    2. In a suit, by one part owner of a vessel against another part owner, to ' recover the aliquot part of the premium chargable to the latter upon policies effected at his request and covering his interest, it is not a defense that the premium was paid by the negotiable promissory notes of the plaintiff, which have matured, and are outstanding, unpaid.
    (Before Woodbuit, Monobiet and Bobebtsoh, J. J.)
    Heard October 9,
    decided November 10, 1860.
    Appeal by the defendant, from a judgment entered on the report of F. F. Marbury, Esq., as referee.
    This is an action brought.by the plaintiffs, as the general assignees of Messrs. Lane, West & Co., to recover from the defendant moneys paid by that firm as ship’s husbands, in 1855 and 1856, to insure defendant’s interest in the schooners Emetine and Kate Stewart. The defendant, in his answer, denies that he authorized the effecting of the insurance, and denies that the plaintiffs’ assignors expended the moneys claimed. The referee found that the defendant authorized the effecting of the insurance, and held that the plaintiffs are entitled to recover a balance, including interest, of $500.83 ; for which sum, he ordered judgment for the plaintiffs.
    The insurance was effected in the Atlas Mutual Ins. Co. and the Astor Mutual Ins. Co., (among others.) For the premiums payable on the insurances effected for the defendant, Lane, West & Co. gave their negotiable promissory notes, which were accepted as payment by the companies insuring; which notes amount, in all, to $414.34. Of these notes, Lane, West & Co. paid, at maturity, about November 1, 1856, to the amount of $245.22; and the balance, being $169.12, and which matured March 12,1851, hav'e not been paid, and are outstanding.

      “The defendant offered to prove that Lane, West & Co., had, previously to the issuing of the policies in question, given subscription notes to the Atlas and Astor insurance companies, and that the premiums for these policies were, by their direction, applied' in reduction of the said subscription notes respectively.”
    The testimony was excluded by the referee, as immaterial and irrelevant, and the defendant excepted.
    The defendant also offered to prove “ that he had owned vessel property for the last ten years, and during that time has not had any insurance on any of his vessel property.” The referee excluded the evidence, and the defendant excepted.

      Benedict, Burr Benedict, for Appellant.

      Wm. E. Curtis, for Respondents.
   By the Court. Moncrief, J.

—It is well settled that one part owner, though he be also managing owner, (ship’s husband,) cannot, by ordering an insurance of a ship without authority from another, charge the latter with any part of the premium paid, unless the other afterwards assent to the insurance. (Abbott on Shipping, 137; French v. Backhouse, 5 Burr, 2727 ; Bell v. Humphries, 2 Starkie, 345 ; 2 Duer on Ins. 200.)

The referee found that the defendant did authorize " insurance to be made upon his interest in the vessels, by Lane, West & Co.

The report of a referee, like the verdict of a jury is, as a general rule, conclusive in a case of conflict of evidence. (1 E. D. Smith, 85 ; 3 id. 98 ; 4 id. 565 ; 3 Corns. 168.) It is, therefore, like such verdict, to be set aside only where the finding is clearly against the weight of evidence; or where, upon the trial, some rule of evidence or principle of law has been violated. (1 E. D. Smith, 85 ; 5 Duer, 216.)

The evidence adduced on the part of the plaintiffs warranted the finding of the referee. The witness Lane, states expressly, that the defendant requested him to insure his interest in the schooners, and that insurance was effected in accordance with such request. The witness West says, that the defendant asked him if the schooners were insured. The interest of the defendant was insured by Lane, West & Co. And again, during the time Mr. Johnson was owner of the defendant’s present interest in the schooners, (the defendant having bought of him,) the firm of Lane, West & Co., as ship’s husbands, were in the habit of insuring the interest of Johnson, and this fact the defendant knew. The defendant, at the time of purchasing from Johnson, agreed to pay the premium of insurance due to Lane, West & Co., from Johnson. In the bill rendered to the defendant by Lane, West & Co., under date November 6, 1841, (marked Exhibit No. 9,) there is a charge for insurance of the schooner Kate Stewart, for one year.

This evidence is assailed and contradicted by the defendant alone.

Neither of the exceptions is well taken; the testimony offered was properly excluded.

The decision and judgment therefore, were correct, and the judgment must be affirmed.

Ordered accordingly.


author: By the Court. Robertson, J.

text:
    Joseph G., Henry H., and Benjamin P., Gurney, Plaintiffs and Respondents v. Thomas B. Smithson, impleaded with Richard B. Hayes, Defendants and Appellants.
    1. A motion on a case for a new trial, cannot be made, as a matter of right, after judgment perfected.
    2. In a case of conflicting testimony, neither party is entitled to an instruction to the jury founded on the assumption that the testimony of either of the witnesses is to be treated as accurate.
    3. A party's right to instructions, is limited to undisputed facts; or to a hypothetical statement of facts which it is left to the jury to determine upon the evidence.
    (Before Woodbuee, Monobiee and Robebtson, J. J.)
    Heard October 10,
    decided November 10, 1860.

      Appeal by defendant Smithson, from a judgment, and also from an order denying a motion for a new trial, made after judgment was perfected. The suit is brought to recover rent for the last three-quarters of a year, expiring May 1, 1858, on an alleged hiring by the defendants, from the plaintiffs, of No. 22 Liberty street, for one year from May 1, 1857, at $400 per annum,-payable quarterly.
    The defendant Smithson, alone answered and alleged as a defense, that defendants, in April, 1857, being in possession as tenants at will, or by sufferance, continued to so occupy up to the first of August, 1857, and paid rent tb that time, when their tenancy terminated, their partnership having expired on the first of July previous; that Smithson, about the first of August, 1857, applied to the plaintiffs to hire the premises for his individual use, to May 1, 1858, at the same rent, but they refused to let to him, and informed him “ the premises were let, or about to be let, to Hayes alone, and that they would not hire or let the same to him; and he, thereupon, removed therefrom, and the plaintiffs took and entered into the possession thereof.” That the premises were occupied the remaining three-quarters, part of the time by Hayes alone, and part of the time by Hayes and the plaintiffs, and the rest of the time by the plaintiffs, or one of them.
    On the trial before Woodruff, J., and a jury, on the 18th of May, 1860, Smithson testified thus: “Previous to August 1, 1857, I called on Joseph G-. Gurney, one of the plaintiffs, and asked him to let me the store for the balance of that year. He then told me he had let the premises to Hayes, (the other defendant,) as he (Hayes) was to be the agent of P. W. Hayes. I also, about that time, applied to Benjamin P. Gurney, another of the plaintiffs, and he told me the same thing. I then informed him that I would go and take another place, and he said to me go and take it. I said I would not go unless he (plaintiff) should release me from rent. His answer to me was, he would do so, as Mr. Hayes would rent; or that he would do so, as Mr. Hayes had rented it. He stated it both ways. This was B. P. Gurney; there was nothing further than that. In consequence of that, I took a store.”
    This testimony was directly contradicted by other witnesses ; and there was also evidence tending to corroborate it.
    The judge was requested to charge, “ that if, in consequence of the conversation with Gurney, testified to by the defendant Smithson, he went and took another store, the plaintiffs are estopped to claim rent.” He refused to so charge, and the defendant excepted.
    - The judge, among other things, charged the jury thus : “ But the principal contest is in relation to what took place about the first of August, which the defendant Smithson claims, released him from all liability if’ any existed. He insists upon a surrender of the premises by Smithson & Hayes, and are-letting by the plaintiffs to Hayes, and the plaintiffs’ consent that he should remove. If the plaintiffs did take back the premises from Smithson & Hayes by consent of both, and resumed the possession, or re-let the premises to Hayes alone, the original letting to Smithson & Hayes, and their liability was terminated, and the defendant Smithson, is entitled to your verdict. But if the plaintiffs never consented to receive back the premises, nor let them to either of the defendants separately, and did not resume the possession, the defendant Smithson, is not released by their refusal to let to him alone, nor by his voluntarily going away and leaving Hayes in the occupation.”
    The jury then retired and found a verdict for the plaintiffs against the defendants, for $342.81, the amount agreed upon by the counsel.”

      Robert Gillen, for Appellant.
    I. The refusal of the plaintiffs to let the premises to Smithson, and the agreement between plaintiff's and the defendant Smithson, that he should take another store and remove from the premises, and his actually doing so, operated in law as a surrender by both defendants, they being then joint tenants, and jointly liable to plaintiff's.

      A surrender in law may be proved by the acts or' express words of the lessor and lessee. (Bailey v. Delaplaine, 1 Sandf. Supr. C. R. 5 ; Taylor’s Landlord and Tenant, § 507 ; Thomas v. Cook, 2 Starkie, 408 ; 2 R. S. 5th ed. 220, sec. 6.)
    II. An actual and continued change of possession by the mutual consent of the parties, amounts to a surrender by operation of law. (Taylor on Landlord and Tenant, §§ 507, 514, 515, and references ; Bailey v. Delaplaine, 1 Sandf. Supr. C. R. 5 ; 3 R. S. 5th ed. 220, § 6.)
    III. This is an action for use and occupation, and in such action the tenant is not answerable unless he has had the beneficial enjoyment of the property. (3 R. S. 5th ed. 31, § 20; Gilhooley v. Washington, 4 Coms. Rep. 217.)
    IV. The justice erred in declining to charge the jury, that if in consequence of the conversation with Gurney, testified to by Smithson, he went and took another store, the plaintiffs are estopped to claim—the jury erred for want of such instruction. (1 Graham & Waterman on New Trials, 273, 277; Scott v. Lunt, 7 Peter, 596.)

      Loder &f Pomeroy, for Respondents.
    I. There is no error of law. The refusal of the judge to charge, as requested, was right.
    1st. What that conversation was, and what effect it should have, were, in the conflict of evidence, questions of fact for the jury to pass upon, and was properly left to them by the judge in his charge, and stated as favorably for the defendants as it could be done.
    2d. A mere conversation, without some act of surrender on the part of the defendants, and acceptance by the plaintiffs, even conceding that the conversation was as Smithson says it was, amounts to nothing whatever, it would be a nudum pactum. The judgment and order denying a motion for a new trial, should both be affirmed with costs.
   By the Court. Robertson, J.

—The defendant Smithson has brought two appeals in this case, one from the judgment at special term entered on the verdict of the jury, and the other from an order denying a new trial on a motion made after such judgment was entered, on a case. The order refusing such new trial after judgment was clearly correct. By the practice as it stood before the adoption of the Code, the rule for judgment was conditional, .unless cause should be shown within four days after the verdict; the motion for a new trial was required to be made within that time, unless it was enlarged by an order of the court ; if judgment was once entered, no new trial could be allowed even on newly discovered evidence, Jackson v. Chace, (15 J. R. 354,) and this principle remained undisturbed until the time of the adoption of the Code; a judgment regularly entered could not be overleaped to get at a verdict, upon which it was founded. The 264th section of the Code,

’ subdivision one, requires the clerk of the court to enter the judgment in an action upon receiving the verdict, and in conformity therewith, when no different direction is given by the court, no other change is made in the practice ; such order of the special term must therefore be affirmed with costs. (5 Bosw. 73.)

The other appeal requires a more full examination of the proceedings on the trial to ascertain the justness of the complaint of a misdirection by the judge to the jury, in reference to the effect of a supposed conversation between one of the plaintiffs, and the defendant, Smithson.

The plaintiffs claim three-quarters rent of certain premises let by them to the defendants for a year from the 1st of May, 1857, at the annual rent of $400. The defendant Smithson, in his answer, setup byway of defense, that after having jointly, with his co-defendant Hayes, occupied as tenant at will, or at sufferance part of the premises-described in the complaint for three months from the 1st of May, 1857, and paid the rent due therefor, he, about the 1st of August, 1857, applied to the plaintiffs to hire the same premises for his own use exclusively for the residue of the year, but they refused to let them to him, and informed him either that they were let or to be let to the oth„er defendant alone, whereupon, the defendant removed from the premises, and the plaintiffs took possession thereof. The answer also adds that the premises were afterwards occupied during the residue of the year by his co-defendant or the plaintiffs, or by both at different times. This defense, if it amounts to anything, is either a denial of the fact of any tenancy except one determinable by the will of the parties, or a surrender and acceptance; nothing is said in it of any estoppel.

On the trial of the issues of fact, the defendant, Smithson, testified to two different conversations with two different plaintiffs about the 1st of August, 185*7; the first ■with Joseph G. Gurney, upon his applying to hire the store for the rest of the year, when he was told it was let to his co-defendant; the second with Benjamin P. Gurney, who, on a similar application, told him the same thing, and being then informed by Smithson that he would take another place, said, go and take it; but Smithson refused to leave, unless he were released from the rent, which the plaintiff, Benjamin P., agreed to do, at the same time stating both that he had let, and would let the premises to the defendant Hayes; Smithson also added that, he took another place, and that no such conversation ever took place in the presence of any one but a Mr. Kay. Kay gave a different version of the conversation, in which he says the plaintiff only stated that Hayes had applied for the premises. Martin, another witness, swears he was present at the conversation, and gives it substantially as stated by Smithson. Benjamin P. Gurney being examined, denied that he ever told Smithson he would release him from the rent; said that he uniformly told both the defendants that the plaintiffs had rented the premises to both the defendants. Smithson admitted his memory to be bad, and in some matters, contradicted himself. The occurrence therefore of the conversation with either of the plaintiffs as testified by Smithson, may be fairly considered the subject of conflicting evidence, and a proper matter for the jury to have passed upon; but the counsel for the defendant requested the judge presiding on the trial to instruct the jury, that if the defendant Smithson took another store in consequence of the conversation with Gurney testified to by him, the plaintiffs were estopped from claiming rent; and excepted .to the refusal of- the judge so to charge, which is the only exception before us. Such a request would be clearly unwarrantable as it assumes to be true, what was disputed, to-wit: the occurrence of the conversation; a party being confined in his requests to instruct a jury, to undisputed facts, or to a hypothetical statement of the case.; Doughty v. Hope, (3 Denio 594 ; S. C. 1 Comst. 79 ;) otherwise a judge might be called upon to instruct a jury, upon the effect of that which they might come to the conclusion never took place.

But taking for granted, that Smithson had a right to assume that the conversation took place as he stated it, he ■ was not entitled to the instruction prayed for. The point of his request was, that the taking of another store by the defendant in consequence of such supposed conversation, estopped the plaintiffs from claiming rent; now independently of the fact, that the answer does not set up such a defense, it nowhere appears that the plaintiffs had any interest in or derived any advantage from the defendants taking such store,, and it certainly was not a natural or necessary consequence of any part of the conversation; it was just as natural for him to have abandoned business altogether in consequence of such a conversation, and such an abandonment would have furnished as good a ground for raising an estoppel. If the estoppel had been claimed to have arisen from the abandonment of the premises in question by Smithson in consequence of the supposed conversation,. there would have been some foundation for it, but such an estoppel would have amounted to a surrender in another form. Putting it in the strongest light for the defendants, the plaintiffs declaration was -equivalent either to a proposal to -evict Smithson, or take possession of the premises, or an admission that they had done so, for without that or his consent, they could not put his co-defendant in exclusive possession; his own acts and words were equivalent to a consent to such abandonment of the premises, provided he were released from rent; without which consent, he could not have been legally deprived of possession. He had not then been actually txirned out of possession. If he abandoned it, it was by his own voluntary act amounting to a surrender, as he does not claim any forfeiture of the rent by an actual eviction. The question of such a voluntary surrender by both defendants was fairly submitted by the presiding judge to the jury. His charge upon that point was as follows: that “if the plaintiffs did take back the premises from Smithson & Hayes by consent of both, and resumed the possession, or relet the" premises to Hayes alone, the original letting to Smithson & Hayes, and their liability, was terminated, and the defendant Smithson, was entitled to a verdict. • But if the plaintiffs never consented to receive lack the premises, nor let them to either of the defendants separately, and did not resume the possession, the defendant Smithson, was not released by their refusal to let to him alone, nor by voluntarily going away and leaving ,Hayes in the occupation.”

The jury upon that must be assumed to have found that the plaintiffs did not take back the premises by the consent of both defendants, and resume their possession or relet the premises to Hayes alone.

I do not see that any error was committed prejudicial to the defendant, and the judgment should therefore be affirmed with costs.

Ordered accordingly.


author: Moncrief, J. Robertson, J.

text:
    Charles Burrall, Plaintiff and Appellant v. Robert Jones, Defendant and Respondent
    1. In a suit against the accommodation payee and indorser of a promissoi-y note, it is prima facie a defense, that the plaintiff, at the request of the makers of the note, sold another note made by them, and also indorsed by the defendant for their accommodation, for the purpose of paying, and realized enough from such sale to pay the amount owing upon the note in suit.

      2. It is no answer to such defense, that the defendant has been sued as indorser of such sepond note, by the purchaser thereof, and obtained a verdict, and that the plaintiff thereafter received back such note and refunded to the purchaser thereof, the amount paid by him therefor; there being nothing in the pleadings or proofs which estops the defendant from insisting that the plaintiff refunded such money voluntarily, and it not appearing that it was not voluntarily refunded.
    (Before Woodruff, Moncrief and Robertson, J. J.)
    Heard October 11,
    decided November 17, 1860.
    Appeal by the plaintiff from a judgment, and also from an order denying a motion made by him for a new trial.
    The suit is against the defendant, as payee and indorser of a note, for $1,563.29, dated September 18, 1847, made by James Jones Co., payable three months after its.date.
    The defenses set up in the answer, are : First. That the note, in suit, and three others made by the same makers, amounting in all to- about $8,690, were indorsed by the defendant for the accommodation of the makers. That one McMillen loaned to the makers thereon, about $6,000, at usurious rates ; that the plaintiff furnished the money so loaned, and knew of the usurious agreement with McMillen; that three of said four notes were paid at maturity, and more than enough was paid thereby to refund the loan of $6,000 and interest, and that nothing is due to the plaintiff • on the note in suit. Second. That before the note in suit was due, the plaintiff became possessed of another note for the sum of $1,500, dated December 11, 1847; also made by James Jones & Co., and indorsed by the defendant for their accommodation, payable three months after its date ; that plaintiff obtained possession of it from the makers, or from some one who held it for them, and sold it about four weeks before its maturity, and received the face of it less legal discount; that the moneys received on such sale belonged to James Jones & Co.; that he then held the note in suit, and did not pretend that there was due to him thereon more than between $1,100 and $1,200, and that he applied enough of such proceeds to pay, and in payment of the sum alleged to be due on the note in suit, whereby all liability on the note in suit, was satisfied and extinguished.
    The plaintiff, in his reply, denied all the allegations stated in the answer and forming the first defense. He also states, that he advanced to McMillen $2,000, on a note for $819.43, and the note in suit; that the note for $819.43, was paid when due, leaving a balance owing to the plaiiftiff, of $1,180.57, and interest on the $2,000; that he received the $1,500 note from McMillen, and sold it to one R. Houghton, representing and believing it to be a valid note; that after it was due, Houghton sued said Robert Jones, as indorser thereof, in the New York Common Pleas, and he defended on the sole ground that the note had been sold to Houghton by the plaintiff, without any lawful right or authority, and that the same was not a valid and subsisting security when so transferred ; that the jury found such to be the facts, and on those grounds only rendered a verdict in favor of Jones; that in consequence of such verdict, the plaintiff, on the 5th of April, 1849, before this suit was brought, refunded to Houghton the money received from him, and took baók the $1,500 note ; and denies that any application of the money received from Houghton was made to pay the money due to- him from James Jones & Co., or due upon the note in suit, except as aforesaid.
    On the trial of this action before Mr. Justice Woodruff and a jury, on the 21st of February, 1860, it was proved, that Charles Burrall was a witness on the trial, in the Common Pleas, of the suit brought by Houghton against Robert Jones, on the $1,500 note, and there testified that
      James Jones requested him to negotiate that note and take his pay out of it; that he. sold it to Houghton about six weeks before it was due, at seven per cent, discount. It was also proved, that'in that suit, the judge charged, that Houghton could not recover if Burrall obtained the note by fraud, or had no authority to receive it, unless Houghton had proved that he was a bona fide holder, as Jones was an accommodation indorser; and also charged that Burrall could not recover if he made the original loan of $6,000 on a usurious contract; or, if he made a usurious loan of the $2,000. It was also proved, that the jury in that suit, rendered a verdict for Jones, and that Burrall subsequently refunded to Houghton the money received from him, and took back the $1,500 note.
    In the present action, after the testimony was closed, the judge ordered the jury to- find a verdict for the defendent, to which instruction the plaintiff excepted, and a verdict was rendered accordingly. The plaintiff moved, at special term, on a case and exceptions, for a new trial. From the order denying it, and from the judgment entered on the verdict, the plaintiff appealed to the general term.

      E. H. Kimball, for Appellant.
    I. The receiving and negotiating the promissory note of one thousand five hundred dollars by the plaintiff to Houghton, under the circumstance proved in this case, was no payment of the original loan made upon the note in suit. (1 Hill’s Rep. 516; 5 Id. 448.)
    II. The defendant having set up as a defense to the fifteen hundred dollar note, that it was not a valid security in the plaintiff’s hands, and having succeeded in his defense, is estopped from alleging that the sale of said note was a payment of the note in suit, or was an available security for any purpose. (Johnson v. Johnson, 11 Mass. Rep. 359.)
    III. The testimony respecting the receipt and transfer of the fifteen hundred dollar note by plaintiff to Houghton, the, suit by Houghton against the defendant to recover the same, the defense set up by-the defendant, the decision of the court and jury thereon, and the payment by and the return of the note to plaintiff, constitute a full and perfect answer to the defense of payment set up in this case. The judge erred, therefore, in directing a verdict for the defendant; it should have been for the plaintiff. (Ramsdell v. Soule, 12 Pick. Rep. 126 ; Johnson v. Johnson, 11 Mass. Rep. 359 ; Swartwout v. Payne, 19 Johns. Rep. 294 ; Judge Bosworth’s opinion in this suit on demurrer; Delaware Bank v. Jarvis, Court of Appeals, not yet reported.)
    , IV. The point of defense is, that the respondent obtained from James Jones & Co., or their broker, and sold (without recourse to himself and without guarantee) to Houghton, the fifteen hundred dollar note, and applied the same in payment of the amount due on the note in suit; and that the non-payment of the fifteen hundred dollar note, the defense set up to it by defendant, and the repayment of the same by Burrall to Houghton, furnish no answer to the allegation of payment. If this defense is available, then, it follows that, although the parties to the note have, in fact, paid nothing, yet the transaction proved in this case, has really paid the loan and both notes, and put three or four hundred dollars into the pocket of James Jones & Co. besides.

      E. W. Stoughton, for Respondent.
    I. The verdict in the action in the Common Pleas between Royal Houghton and Robert Jones, has no force or effect in determining this action.
    1st. Because it was not between the same parties or their privies; nor was the action for the ^ame cause.
    2d. Because the verdict might have passed, and probably did pass, upon grounds other than that mentioned in the reply. (Lawrence v. Hunt, 10 Wend. 81; Wood v. Jackson, 8 Wend. 36.)
    II. In this action, the defendant proved that the plaintiff, upon the trial of the suit of Houghton v. Jones, testified that he received the note for $1,500, from James Jones & Co., at their request, for the purpose of selling the same, and applying the proceeds upon the balance alleged to be due him. That he did sell it to Houghton without indorsing it, or guaranteeing, in any manner, its validity or its payment. That he did apply sufficient of the proceeds to pay the balance due him, and from $300 to $400 balance of such proceeds, is still in his hands, belonging to Jas. Jones & Co.
    There is no evidence whatever tending to prove the contrary of the plaintiff’s sworn statement. He is, therefore, concluded by it, and the direction of the justice who tried the action was correct.
   Moncrief, J.

—Upon the trial of the issues in this action, (before Mr. Justice Woodruff and a jury,) it distinctly appeared by the testimony of the defendant (uncontradicted by the plaintiff, who supposed the fact to be so) that the note in suit was indorsed by him merely for the accommodation of James Jones & Co., and without any consideration.

It was also in evidence (by the testimony of the plaintiff himself) that James Jones authorized him to get the $1,500 note from McMillen, who held it merely for negotiation; that the plaintiff saw McMillen, and told him Mr. Jones had requested the plaintiff to get the note, that McMillen gave the note to him, saying he supposed it was all right, that he had been trying to negotiate it to take up this (plaintiff’s) loan; and that he kept the note until about a month before it became due, at which time James Jones told him to negotiate it; “ wanted me to negotiate it and take my pay out, of that” ; the plaintiff replying “ he did not know that he could negotiate it, wanted his money, &c.;” that the plaintiff did negotiate the note with Royal Houghton a month or six weeks before it became due; that the plaintiff, a few days before the note became due, told James Jones he had negotiated the note, (in reply to a demand that the note should be returned to him, Jones;) that Jones came again the day before the note became due and demanded it again; and the plaintiff says: “I told him he need not come to me, I had nothing to do with it;” and again, said the plaintiff: “Mr. Jones, you make yourself perfectly ridiculous, about this, you know, you authorized me to negotiate the note.” Jones said: “you can’t prove that;” the plaintiff saying: “I presume you won’t deny it;” Jones replied; “I won’t admit any thing.”

It also was in evidence that the plaintiff when a witness in the case of Houghton v. Jones, (6th and 7th March, 1847,) testified that: “ in receiving the money from Houghton on the §1,500 note, it left some §300 or $400 over what was due to him, (plaintiff,) that he had not paid over that balance; he had not been asked for it; he had always stood ready to pay the balance, and to give up the note for $1,563, (the mote in' the present action;) they had never been called for; that he was abundantly able to respond for that note (1,563), and the balance of the money.

And again, that Houghton did not ask the plaintiff to indorse the $1,500 note ; supposed Houghton knew defendant was rich, and did not ask plaintiff if he was a holder for value or any thing about the consideration of the note, and did not ask him to indorse it, and that the plaintiff did not intend, if it turned out that he had no right to sell the note, to pay Mr. Houghton the money again, or any part of it.”

It also appears that the judge’s charge to the jury in the case of Houghton v. Jones, in the court of Common Pleas, was as follows:

“ That if the note was obtained by Burrall by fraud, or if he had no authority to receive it, Houghton could not recover, unless he had proved that he was a bona fide holder without notice of matter of defense, Jones having proved that he was an accommodation indorser. Again, that if Mr. Burrall had loaned to James Jones & Co., the $6,000 on the four notes, and that loan was paid with lawful interest in the payment of three of the four notes, Houghton could not recover unless he proved himself a bona fide holder, Jones having proved himself an accommodation indorser. He also charged “ that if Mr. Burrall made the original loan of $6,000 on an usurious contract, plaintiff (Houghton) could not recover at all, or if Burrall had made an usurious loan of'the $2,000, Houghton could not recover.”

And under such charge the jury found a verdict in favor of the defendant, and judgment was entered for costs against the plaintiff Houghton.

The evidence was entirely undisputed; in fact almost wholly given by the plaintiff himself, and fully and completely disposed of every issue raised by the pleadings. There was no question to be submitted to the jury.

The decision of the court, or verdict in the action of the court of Common Pleas, has no force or -effect in determining this action:

First, Because the issue in respect thereto to be tried was, “whether or not said verdict wds rendered upon the sole ground that the $1,500 note had been transferred without authority, and was not a valid and subsisting security in his hands;” and it distinctly and without contradiction, appeared that the verdict of. the jury under the charge from the court may have proceeded from a view:

1. That Mr. Burrall had loaned to James Jones & Co.,. the $6,000 on the four notes, and that loan was paid with lawful interest in the payment of three of the four notes; or

2. ' That Mr. Burrall made the original loan of $6,000 on an usurious contract; or

3. That Mr. Burrall had made an usurious loan of the $2,000; and

Second, If the plaintiff claims that the suit in the court of Common Pleas, was defeated -on the ground that the original transaction (which includes the note in this action) was usurious, and claims the benefit of the judgment rendered therein, then it must follow that the fact is' assumed to be as by that judgment he says it was decided, and if so, then usury is established in this action as set up in the answer of the defendant.

The objection to the admission of evidence showing that the note in question was an accommodation note, is deafly untenable, and no point was made upon it at the argument.

The question, “after the verdict in the case of Houghton v. Jones, were you (plaintiff) called upon to pay the note V’ was immaterial; it Was of no consequence unless he was liable to pay it when called upon, or actually did pay the amount.

The other question, “ after the verdict in the case of Houghton v. Jones, did you pay to Mr. Houghton the amount of the $1,500 note ? although at first ruled out, was permitted to be answered subsequently, and the exception to the ruling therefore is not well taken.

Finding no error in any ruling or decision of the court below, the judgment and order denying the motion for a new trial must be affirmed.

Woodruff J., concurred.

Robertson, J.

—Besides the defenses of usury and want of of notice of non-payment of the note sued upon, the answer sets up its payment by the makers, (James Jones & Co.)

Such defense of payment consists of the application, by the plaintiff of the proceeds of the sale of a note by him, to the satisfaction of the amount due on the note in suit; the answer avers that the note so sold was obtained by the plaintiff from the makers of the note in suit, or some one who held it for them, and that both notes were indorsed by the defendant merely for the accommodation of the makers, and that the proceeds of the note sold belonged to them. The sale of such note was admitted, in the reply, to have been made to one Houghton, but is therein averred to have been accompanied by a representation by the plaintiff, at the time of such sale, that such note was a valid and subsisting security. The uncontradicted evidence of the defendant, and established admissions of the plaintiff, prove the truth of the residue of the answer.

The reply, however, alleges as a further answer to the defense of payment, that the plaintiff repaid to Houghton the amount of the note sold to him, and received such note back from him in consequence of a verdict and judgment obtained by the present defendant against Houghton, in an action brought by the latter against the former upon such note. It further alleges that such action was brought in 1 the New York Common Pleas, and the defendant insisted on the trial of the issues therein, that the present plaintiff had no authority to transfer such note to Houghton, and that it was not a valid security in his hands, and gave evidence in support of such defense; that the questions of such authority and validity were alone submitted to the jury upon such trial, who thereupon rendered a verdict solely for want of such authority and such invalidity. The pleadings, or the nature of the issues made thereby in such action, are not stated in the reply, nor does it aver as a substantive fact that such note was sold without authority or was invalid.

The sole question raised by the reply is, whether a successful defense, by the present defendant in the action brought against him by Houghton, upon the grounds alleged, is an answer to the defense of a sale of the note in controversy, and application of the proceeds thereof. The mere payment of the money by the plaintiff to Houghton, not being a necessary or legal consequence of the verdict in that action, was voluntary and immaterial, unless there was a legal obligation to refund, to sustain which, there is no averment of any fact in the reply, except the action, trial and verdict in the Common Pleas. Even if the plaintiff became bound to refund the money due on such note in consequence of his alleged representation of its validity, and he was justified by his agency to sell in making such representation, or if he became a.warrantor of the title by, selling without disclosing the name of his principal, the truth of the representation in one case, and the fact of the concealment in the other, must necessarily have become the subject-of an issue. The admissions of the plaintiff on the trial, in fact, disprove any such representation at all. The result of the action in the Common Pleas, and the proceedings therein, are not claimed in the reply as an estoppel at all, and under such circumstances, by the rules of pleading established before the Code, the plaintiff would have had no right to have availed himself of them as such ; pleaded simply as facts, they were immaterial, as the plaintiff had a perfect right to open the estoppel. The reply is also imperfect, in not furnishing all the materials for determining what was adjudicated in such action, as the pleadings, the most essential part, are wanting.

Assuming, however, the estoppel to be properly claimed, and all the facts necessary to support it detailed, they would not create one in favor of the plaintiff against the defendant. Even Houghton could not have employed the verdict in the action in the Common Pleas against the present plaintiff, Maupin v. Compton, (8 Bibb. 214 ;) the latter was neither party nor privy to such action; whether he could have been made so by notice of it or otherwise, is immaterial, it appears that he was not; as the judgment in question could not bind the plaintiff as an estoppel, it clearly would not the defendant. (Jackson v. Vedder, 3 J. R. 8 ; Case v. Reeve, 14 J. R. 79.) Besides this, the reply does not truly set forth the nature of the controversy in the Common Pleas. The question of usury was also submitted to. the jury, besides those stated in such reply, and it is impossible to determine on which issue the verdict proceeded; if it were upon the ground of usury, the first branch of the defendant’s defense in this case- would be made out.

I therefore concur in the decision of the court affirming the judgment.