text:
    REUBEN W. VAN PELT, Plaintiff and Respondent, v. JOHN M. OTTER, Defendant and Appellant.

      [Decided March 5, 1870.]
    Where there is a general verdict, the court will assume that the jury has found it upon all the facts in the case.
    Upon conflicting evidence the court will not disturb a verdict.
    Am instrument, although purporting to be an absolute sale, may be shown by parol to have been intended as a security only.
    Before Monell, Ebeedman, and Spenoeb, JJ.
    The action was to recover for services rendered by the plaintiff, as an attorney at law for the defendant, in prosecuting an action •against the Brevoort Petroleum Company.
    The defendant, after denying the employment of the plaintiff, alleged that the services mentioned in the complaint were rendered by the plaintiff and one John H.Hull, under the firm of Yan Pelt & Hull j that said plaintiff and said Hull were copartners' in the transaction of law business; that the services were not rendered by the plaintiff individually, but by the said law firm of Yan Pelt & Hull, and that Hull should have been joined as a party. The defendant then further alleged payment in full for said services.
    The value of the services were also put in issue.
    The action was tried by Mr. Justice Jones and a jury.
    On the trial, after 'the plaintiff had given evidence of the performance of the services and their value, the defendant, among other things, proved the following receipt, signed by John H. Hull, in the name of Yan Pelt & Hull:
    “John M. Otter v. The Brevoort Petroleum Co.
    “Received, Hew York, March 27,1868, of John M. Otter, plaintiff herein, the sum of five hundred dollars, in full of all claims for services, counsel fees, disbursements, etc., in this action. “Yan Pelt & Hull,
    “ Plaintiff’s attorneys.”

      After evidence on either side, as to the partnership, etc., two questions were left to the jury. First. Whether there was an actual partnership existing between Van Pelt and Hull. Second. If there was no actual partnership, whether the defendant settled the matter with Hull, without being informed of such fact, or having reason to believe that no partnership existed. If the jury answered either of these questions in the affirmative, they must give the defendant a verdict.
    The jury found for the plaintiff.
    On the trial the defendant proved the following agreement: , “ John M. Otter v. The Brevoort Petroleum Co.
    “ I hereby promise and agree to give, and hereby assign and set over, to Yan Pelt & Hull, my attorneys in the above action, all over the sum of five thousand six hundred and forty-eight dollars ($5,648), and interest thereon from July 23,1865, for their services in said action, to be paid out of the proceeds, whenever collected. Dated Hew York, August 29, 1865.
    “ John M. Otteb.
    “Yan Pelt & Hull.”
    The defendant objected to evidence that the foregoing assignment or agreement was taken as collateral security only, on the ground that such evidence was in variance of the written agreement. The objection was overruled, and the defendant excepted.
    When the plaintiff rested, the defendant moved for a dismissal of the complaint, on the ground (among others) that Hull had a joint interest in the claim, and should have been made a party plaintiff.
    The motion was overruled, and the defendant excepted.
    A motion, made at Special Term, for a new trial, was denied, and judgment having been entered upon the verdict the defendant appealed from the judgment, and also from the order at Special Term.

      Mr. A. J. Vanderpoel for appellant.
    The evidence established that there was a copartnership between the plaintiff and Hull.

      This testimony was so overwhelming that it is difficult to see how any two opinions can be entertained on the subject.'
    The statement of the plaintiff, claiming that there was no co-partnership, is based, probably, upon the statement whereby the plaintiff, apparently conceding that Hr. Hull did have an interest in the costs in that case, renounced all claim or interest which he had, or ever had, in the other case.
    On the 21st of March, 1861, Van Pelt and Hull “associated themselves as partners in the practice of the law in all its departments.”
    On the 29th of August, 1865, there was an assigment drawn of the judgment.
    On the 13th of September, 1865, Van Pelt and Hull (composing the firm of Van Pelt & Hull) assigned and set over their right and interest in the judgment to Alexander H. Wallis.
    Mr. Otter was originally the friend, acquaintance, and client of Mr. Hull.
    The services were all rendered in the name of Van Pelt & Hull.
    The consultations relative to bringing the action were between Otter, Hull, and Van Pelt jointly, and the name, Van Pelt & Hull, was attached to all the actions brought in the office.
    The plaintiff, in various conversations after the assignment, conceded that himself and Hull had each a quarter interest in that judgment. Circulars were sent to their respective acquaintances, stating the fact of the formation of the copartnership, with the knowledge of each partner.
    The partnership name, Van Pelt & Hull, was used in all actions brought in the office.
    The lease of the offices was taken in their joint names. If a suit had been commenced against Van Pelt & Hull by Mr. Otter for mismanagement of his case, and Mr. Hull had pleaded that he was a copartner with Mr. Van Pelt, that on the evidence of Mr. Van Pelt alone no jury would have hesitated for a moment to find that Mr. Hull and Mr. Van Pelt were partners.
    The jury were evidently misled by the inchoate agreement or talk between Mr. Hull and Mr. Van Pelt, whereby Mr. Van Pelt claimed that Mr. Hull renounced to him all claims or interest he had in the Otter case, and the court will see that they were also misled by the peculiar course the case took, of the investigation of the difficulties between Mr. Van Pelt and Mr. Hull, instead of the question which really arose as to whether, toward Mr. Otter, those gentlemen were or were not partners. On the other question submitted by the court, as to whether Mr. Otter, when he settled the suit with The Brevoort Petroleum Company, knew there was no partnership, or had reasonable ground for suspecting that .there was none, little, of course, need be said if we are correct in the first point, but we submit that there was no legal evidence from which such a conclusion should be drawn.

      Mr. Reuben W. Van Pelt for respondent.
    It was perfectly proper to show that the assignment given by Otter to Van Pelt & Hull was intended as a collateral security, and not as a payment. Such testimony did not even tend to contradict the written instrument, and therefore the defendant’s objections were not well taken (Despard v. Walbridge, 15 N. Y., 374; Tyler v. Strong, 21 Barb., 198; Hodges v. Tennessee Ins. Co., 8 N. Y., 416).
    The motion for a nonsuit was properly denied.
    The action was brought in the name of the party in interest (see. 111 of Code of Procedure). John Henry Hull had no interest in the plaintiff’s claim whatever. He was no partner, and even according to his own testimony had no interest in the plaintiff’s earnings.
    Hull says that he was to have eight hundred dollars per year guaranteed to him, whether there were any profits or not. This does not constitute a partnership. To render one a partner he must share in the profit and loss (Post v. Kimberly, 9 Johns., 470; Porter v. McClure, 15 Wend., 187; Paterson v. Blanchard, 5 N. Y., 186).

      To make one a partner he must have a right to share the profits as profits (Ogden v. Astor, 4 Sand., 311).
    One who is employed in a business in a subordinate capacity, and not sharing liability for losses, is not rendered a partner by the fact that he is to receive a portion of the profits in compensation for his services (Bunkle v. Eckhard, 3 N. Y., 132).
    It is immaterial in whose name the service was rendered, so long as it was in fact rendered by plaintiff. He is the party in interest.
    The assignment of Otter of the interest in the judgment to Yan Pelt & Hull, was swept out of existence by the reversal of the judgment, leaving the plaintiff’s claim against Otter the same as if no assignment had been made.
    The assignment by plaintiff and Hull to Wallis, having been procured from the plaintiff by the deception and fraud of Hull, passed no interest, and Wallis having paid nothing for it, but reassigning it for a nominal consideration, Otter can receive no advantage from it, and his attempt now to use it as a defense to this action makes him a particeps oriminis in the fraud of Hull. At all events, the reversal of the judgment cancels and annuls the whole transaction.
    The fact that the suit was conducted in the name of Yan Pelt & Hull is but prima facie evidence that Hull was a copartner, and this presumption is entirely repelled by the positive proof that he was not.
   By the Court:

Monell, J.

We cannot disturb the verdict in this case.

The two main questions submitted to the jury, and determined- by them against the defendant, are conclusive, if there is any evidence to sustain them.

The verdict is general, and we must assume that the jury found that, at the time of the settlement with Hull, the defendant knew or had sufficient notice, or reason to believe, that Hull was not a partner, and had no interest in the claim for services.

At the commencement of the litigation against the Petroleum Company, and until after the decision of the General Term reversing the judgment of the referee, the plaintiff and Hull had held themselves out, as well to the defendant as to the public, as copartners. - But after the appeal had been taken to the Court of Appeals, the plaintiff, as he testified, said to the defendant that he had found it necessary to dismiss Hull from his office. Subsequently, when the defendant was present, the plaintiff said to Hull, “ Why, Hull, you have no interest in this matter; you well know you never hadand Hull replied, * * * now I renounce all possible claim I may have or ever have had in this matter of Hr. Otter.” The settlement with Hull was made after that conversation.

Although contradicted by the defendant and Hull, it was, nevertheless, competent evidence for the jury, and if they believed it, was sufficient to authorize them to find that, previous and at the time of the settlement, the defendant neither knew nor had reason to believe that Hull had any interest in the claim.

With such knowledge his settlement with Hull was wrongful, and is no defense to the plaintiff’s action.

The proof of the value of the services was also conflicting. There were, substantially, only two witnesses who testified, one for and the other against the amount claimed by the plaintiff. Between them the jury have judged.

The motion for a "nonsuit was properly denied. At that stage of the trial, if not afterwards, the questions of partnership and of notice to the defendant were proper questions for the jury, or were, prima facie, sufficient to authorize a recovery by the plaintiff.

The evidence to explain the written agreement was properly admitted. Any instrument, although absolute on its face, may be shown by parol to be a security only (McBurney v. Wellman, 42 Barb., 390; Bryan v. Bowles, 1 Daly, 171; Tibbs v. Morris, 44 Barb., 138; Despard v. Walbridge, 15 N. Y. R., 374; Hodges v. Tenn. Ma. Ins. Co., 8 id., 416).

I am inclined to think that, if I had sat as a juror in this case, I should have hesitated long before agreeing to a verdict for the plaintiff. The evidence on his part was very slight, and in every essential particular distinctly contradicted.

But as it was a proper case for the jury, we cannot disturb their verdict.

Judgment and order should be affirmed, with costs.


source: Caselaw Access Project

author: Monell, J.

license: Public Domain

text:
    EMIL LASS and Another, Plaintiffs and Respondents, v. CHARLES F. WETMORE, Defendant and Appellant.

      [Decided March 5, 1870.]
    It is no variance between an allegation in a complaint that the whole of a claim, which had been left with an attorney for collection, had been collected, and proof that only a part of the claim had been collected.
    Where it is complained on appeal that the judgment was too much by only forty-five dollars, the court might apply the maxim de minimis non curat lex.

    Before Monell, Jones, and Spencer, JJ.
    Appeal from a judgment entered upon the report of a referee.
    Action was brought against the defendant, an attorney-at-law, to recover the amount of a debt due from one Lloyd to the plaintiffs, which they had employed the defendant to collect, and which it was alleged had been collected by him. The plaintiffs alleged that they agreed to allow and pay the defendant a fee of fifty dollars for collecting. The defendant denied that any agreement was made in regard to fee or compensation for collecting. He alleged that he brought suit against Lloyd, which, with the consent of the plaintiffs, he afterwards settled, receiving a note for $300, and $25 costs and $15 for sheriff’s fees. He admitted that he had reeemed on the note $245.
    The action was tried by a referee, who rendered judgment against the defendant for $245, and interest.
    From this judgment the defendant appealed.

      Mr. Charles F. Wetmore for appellant.
    The referee erred in finding as a matter of' fact that the defendant had not paid to plaintiffs in full.
    The referee erred in not finding that the defendant’s negotiable note for $300 was received by plaintiffs in full payment of plaintiffs’ claim against the defendant in this action.

      The referee erred in finding that said note need not he returned to defendant, or cancelled on the trial hereof, before this action on the original indebtedness could be maintained by plaintiffs.
    The referee erred in not finding that it was necessary for the plaintiff to account for said note, or to offer to surrender to defendant, or cancel on the trial of this action, said note, before a judgment could be rendered for plaintiffs, for the original claim for which said note was given.
    The referee erred in finding as a conclusion of la,w, that the plaintiffs are entitled to any judgment whatever against the defendant for the matter claimed in the complaint herein.
    The referee erred in finding that the plaintiffs were entitled to a judgment against the defendant for any sum over two hundred dollars, and interest from 17th October, 1867.

      Mr. Robert J. Mitchell for respondents.
    There is no proof that defendant’s note was given or taken in payment; it was for the defendant to prove that it was (Noel v. Murray, 13 N. Y., 167).
    Had it been taken in payment, it would not discharge the original indebtedness (Moss v. Shannon, 1 Hilt., 175; Geller v. Seixas, 4 Abb., 103; Central City Bank v. Dana, 32 Barb., 296; Hill v. Beebe, 13 N. Y., 3 Kern., 562).
    The defendant not having pleaded payment cannot claim it as ;a defense (McKyring v. Bull, 16 N. Y. R., 298).
    The referee did not err in finding that this note need not be .returned to defendant, or cancelled on the trial, before this action «could be maintained by plaintiffs.
    This note was returned to defendant.
    Had it not been returned the authorities are sufficient to show ithat it was not necessary to return it or cancel it.
    It would not have been necessary even had this been a negotiable note; and there is not the slightest evidence that it was inegotiable (Hill v. Beebe, 13 N. Y. R., 562; Noel v. Murray, 13 N. Y. R., 167).
   By the Court:

Monell, J.

There was no substantial variance between the cause of action stated in the complaint and the cause of action proved on the trial. The plaintiffs’ allegation was, that the tuhole claim against Lloyd, amounting to $384, had been collected by the defendant. The proof showed that he had collected only $245. That sum the plaintiffs could recover under their complaint and created no variance. It was therefore proper to overrule the motion to dismiss the complaint.

The finding of the referee, upon what I consider sufficient evidence, that the defendant had the $300 note discounted and received therefrom the sum of $245, which he has not paid to the plaintiffs, necessarily disposes of one and perhaps the only defense.

That finding negatives the allegation that the plaintiffs received the note in settlement and satisfaction of the claim against the defendant, and overcomes the objection that the note should be returned, either before or at the trial.

The only other objection is that the recovery should have been for $200 instead of $245. To that objection we might apply the maxim da minimis non curat lex. The referee has found all the facts, upon which any such objection could have been predicated, against the defendant. All question in regard to the defendant’s compensation is disposed of by the uncontradicted evidence of one of the plaintiffs, who testified that the defendant agreed that they should receive $300, and at the same time remarked that Lloyd had paid him and the sheriff.

That evidence justified the referee’s disallowing the defendant any compensation, and in holding him liable to the plaintiffs for the whole amount he received upon the $300 note.

The objection to evidence was properly overruled.

I can discover no error in the proceedings on the trial or in the judgment, and it should therefore be affirmed.


author: Jones, J. Spencer, J.

text:
    ADOLPH NAUMAN, Plaintiff and Respondent, v. JOSIAH CALDWELL, Defendant and Appellant.

      [Decided March 5, 1870.]
    If to a demand for the return of loaned property the loanee answers that he has used the property, and has obtained a loan thereon (the property not having been lent for that purpose), this is sufficient evidence of a conversion.
    The measure of damages in an action for the conversion of property is its highest market value between the date of the conversion and the day of trial.
    Where the plaintiff in such an action introduces proof as to the value of the property between certain periods, it is not error to exclude proof offered by the defendant as to its value at times prior and subsequent to said periods.
    Before Monell, Jones, and Spencer, JJ.
    Appeal from a judgment entered upon the verdict of a jury at a trial term held by Justice Freedman.
    The evidence in this case established the following facts: That in March, 1867, the plaintiff loaned the defendant'a bond issu'ed by the South-west Pacific Bailroad Company. Three days afterwards plaintiff requested its return from defendant, and was informed by defendant that he had used the bond in obtaining a loan. Plaintiff then told defendant he had no right to use the bond in that manner, and that he must return it that day.
    Several times afterwards, and particularly in October, 1868, the plaintiff demanded the return of the bond, but it was never returned, and this'action was commenced in December, 1867, to recover the value thereof.
    The only question that arises in the case is upon the value of the bond and the testimony relating thereto.
    William Gr. Ward and William Offernan, witnesses for plaintiff, testified that the value of these bonds in March and April, 1867, was eighty per cent, of their value. On cross-examination, Offernan testified to the value of the bonds in February, 1867, being seventy-five per cent., and in May, 1867, sixty-seven per cent., of their par value. Adolph Hauman, the plaintiff, testified to the interest on the amount of this bond being $143, from 1st April, 1867, to the time the cause was placed on the calendar.
    William J. Dodd, a witness for defendant, testified that he tried and was unable to make any - sale of these bonds in March or April, 1867. That he sold $150,000 of these bonds at public sale on the 21st of May, 1867. On being asked the price obtained, plaintiff’s counsel objected to the question and to any testimony being received as to the value of these bonds on the 21st of May, 1867, and the court sustained the objection.
    Albert H. Hicolay, a witness in behalf of defendant, testified that he sold $15,000 of these bonds at public sale, on the 14th March, 1867, and obtained prices varying from 64 to 70 per cent. That he sold in like manner on the 25th March, 1867, $12,000, at prices varying from 64-J- to 65 per cent.
    The defendant’s counsel offered to prove by this witness sales of these bonds in August and up to October, 1867. On objection by plaintiff’s counsel, the court sustained the objection and excluded the testimony.
    The • court charged the jury to confine themselves, on the question of value of the bond, to the day its return was first demanded. To which an exception was taken.

      Mr. Thomas Henry Edsall for appellant.
    The plaintiff having loaned and delivered the bond to the defendant, his original possession of the bond was lawful.

    Defendant’s original possession of the bond being lawful, there must have been shown a wrongful "detention, after a demand and a refusal to constitute a conversion (Powers v. Bassford, 19 How., 309; Wells v. Kelsey, 15 Abb., 53; Hall v. Robinson, 2 N. Y., 293; Munger v. Hess, 28 Barb., 75.)
    The conversion of the bond, therefore, occurred, if at all, in October, 1867.
    How, the rule of damages, in case of the conversion of an article having an uncertain or fluctuating value is the highest market valuej^om the time of the conversion to the time of trial (Sedgwick on Measure of Damages, 478 and cases cited).
    These bonds were shown to have fluctuated in value; and evidence was adduced by plaintiff showing sales at various prices in .February, March, and May, 1867, but there was no proof offered or given by plaintiff of any value whatever to such bonds later than in May, 1867, except that one of his witnesses swore that they were unsaleable after the middle of June, 1867.
    Therefore, the plaintiff having rested his case without proof of any value since, and consequently, any damage sustained by the conversion of the bond, there was nothing to go to the jury, and the defendant’s motion for a nonsuit should have been granted.
    The court erred in sustaining the objections to defendant’s question as to sales, and the offer to prove the value of these bonds, up to and since October, 1867.
    The court erred in charging the jury to confine themselves to the question of the value of the bond on the da/y its return was first demanded by the plaintiff.

      Mr. Charles Wehle for respondent.
    A cause of action accrued to the plaintiff the moment a demand was made, and failure to return the bond (Boyce et al. v. Brockway, 31 N. Y., 490; Kennedy v. Strong, 14 Johnson, 128; Powers v. Bassford, 19 How., 309; see Kendricks v. Decker, 35 Barb., 298).
    The pledging of the bond by defendant for the loan of $10,000 was a wrongful conversion (Dudley v. Hawley, 40 Barb., 297; Kennedy v. Strong, 14 Johnson, 128).
    The measure of damages is the value of the bond at the time of conversion with interest to trial (Goulet v. Asseler, 22 N. Y., 225; Barton v. Fiske, 30 N. Y., 166; 2 Ker., 40; 18 N. Y., 496).
    The plaintiff, in absence of proof of the value of the bond, was presumptively entitled to its full value (Potter v. Merchants’ Bank, 28 N. Y., 641).

      The conversion took place the moment the demand was made and a refusal to return, particularly as the defendant’s refusal to return was put upon the ground that he had pledged the bond of plaintiff as security for a loan.
    This fact not being disputed, left the question of conversion one of law for the court, and not one of fact for the jury.
    As there was no conflict of evidence as to the time of conversion, that question became a question of law for the court, and not a question for the jury (Newkirk v. N. Y. and Harlem R. R. Co., 38 N. Y., 158; Burns v. Erben, 40 N. Y., 463).
   By the Court:

Jones, J.

The evidence that three days after the loan of the bond the plaintiff met defendant and said to him, “ Hr. Caldwell, you had better return me that bond; I want it,” and his reply thereto that he had obtained a loan on the 19th for $10,000, and had used the bond, was (being uncontradicted) sufficient evidence of a conversion on the 19th of March.

Nothing subsequently transpired to waive that conversion. Plaintiff’s endeavors to obtain his bond without recourse to legal measures had no such effect.

The evidence sufficiently shows that the 19th referred to in this conversation was the 19th of March, 1867.

A conversion on the 19th of March, 1867, having been shown, the plaintiff was entitled to recover as damages the highest market value of such bond between that date and the day of trial.

The plaintiff proved, by William G. Ward, the agent of the company that issued this bond, that the bonds from the 11th of March to the 10th of April were worth in the market 80 per cent., and that during that period he had sold $60,000 of the bonds at that rate. Defendant introduced evidence showing that one William J. Dodd, during the months of March and April, 1867, endeavored to make a sale of bonds of this description without success; and that Albert H. Nicolay sold at auction on March 14,1867, $15,000 of bonds at prices ranging from 64 to 70 per cent., and on March 25, 1867, $12,000 from 6If to 65 per cent.

The evidence thus given by the plaintiff and defendant on the subject of the value of the bonds in March and April, 1867, raised a disputed question of fact as to that value, to be submitted to the jury. It was submitted, and we see no cause for disturbing their verdict.

The evidence offered by the defendant as to the value of the bonds before March and subsequent to April was immaterial to the defense. If it was to prove that the bonds had a higher value at those times, then its exclusion was advantageous to the defendant and he cannot complain of it. If it was to prove that the bonds at those times were lower than in March and April, then it was immaterial, because the plaintiff was entitled to recover the highest value between the 19th of March, 1867, and the day of trial, and he had introduced proof as to what the value was between March 19, and April 10.

The request to the judge to leave it to the jury to determine when the conversion occurred was properly refused, as there was no conflicting evidence on that point-

judgment affirmed, with costs.

Spencer, J.

(concurring). I think the evidence shows a conversion of this bond in March or April, 1867.

The court excluded testimony of the value of this bond at any time after March or April, and substantially charged the jury to confine themselves to that time (March or April) in deciding the question of value.

The only error in this case, if any exist, lies in this ruling and charge of the court, and I confine my remarks to that point.

The general rule in trover cases, as established by decisions in the English and American courts, is, That the damages are measured by the value of the thing taken or converted.” This rule is subject to qualification and subdivision, by the circumstances of each case, namely, as to the time when value is to be estimated, as to special damage for detention, as to interest on the value, and as to the estimation of value when the property converted has been changed or increased in value after conversion and probably in other respects, but all these variations favor an estimate of the highest value of the article converted, from the time of conversion to the time of trial, or the commencement of the action.

In this State the law is well settled that damages are to be estimated upon the value of the article.

1st. When the value remains fixed, the damages are the value with interest from the time of conversion.

2d. When the value is fluctuating the damages should be the . highest value of the article at any time between the conversion and trial.

The highest value of these bonds between conversion and trial was in March and April, 1867, about the time of their conversion.

Applying the rule of damages as stated, the ruling or the charge of the court in this case worked no injury to the defendant, for if we assume that the testimony excluded might have established a higher value, the plaintiff would have been benefited only, and if a lower value, the defendant would not have been entitled to its consideration'by the jury.

A similar ruling and charge by Judge Woodruff at a trial term in the Common Pleas, in the case of Dana v. Feedler (12 N. Y. Reports, 44), was reviewed by the General Term of that Court and disapproved in part, yet was fully approved and affirmed by the Court of Appeals.

The judgment should be affirmed.


author:
Jones, J.
      Monell, J.

text:
    THOMAS LAMBERT, Plaintiff and Respondent, v. ABBY M. LELAND and Others, Defendants and Appellants.

      [Decided March 5, 1870.]
    A mortgage of chattels vests the legal title to the chattels in the mortgagee, which title, upon default of payment of the mortgage debt, becomes absolute in the mortgagee.
    Where, upon a mortgage becoming due, the mortgagor, under an agreement with the mortgagee, delivered the mortgaged property to the mortgagee, who thereupon gave to the mortgagor, under such agreement, a “satisfaction piece” of the mortgage which was filed—Held, that an action to cancel such satisfaction so as to restore the mortgage to its priority over mortgages that had been given subsequently to it but before the satisfaction, on the ground of a fraudulent concealment of the existence of such subsequent mortgages, was proper and could be maintained.
    A judgment in such an action that the defendants pay the amount secured by the mortgage, interest thereon, and costs, within a certain specified time, and in default of their so doing, barring and foreclosing them of and from all right, title, and interest in the mortgaged property, is proper.
    Before Monell, Jones, and Spencer, JJ.
    Appeal from a judgment.
    This action was to have the satisfaction or cancellation of a chattel mortgage declared null, and the lien of the mortgage restored.
    On the 22d of June, 1868, the plaintiff sold to one E. A. Burt the lease and furniture of the Albion Hotel, in this city. To secure a part of the purchase-money, Burt gave the plaintiff a mortgage upon the property sold, which mortgage was filed in the register’s office, and contained a provision that, until default, Burt should remain in possession of the property.
    On the 29th of September, 1868, the sum of $3,000 being due on the mortgage and unpaid, Burt surrendered possession of the property, and delivered it to the plaintiff, together with the lease of the premises, in payment of the amount due on the mortgage. The instrument of transfer was as follows:
    “In consideration of the sum of one dollar, to me in hand paid, and of the execution of papers bearing even date herewith, I hereby sell, assign, and transfer to Thomas Lambert all the furniture and fixtures now in the Albion Hotel, corner of Charles and Hudson streets, Hew York, mentioned in the chattel mortgage executed by me to said Lambert, bearing date June 29, 1868, and specified in the inventory made by me when I entered into possession of said hotel.
    “ Dated September 26, 1868. E. A. Burt.”
    The cancellation of the mortgage was as follows:
    “ The chattel mortgage executed by said E. A. Burt, to secure the payment of three thousand five hundred dollars, dated June 29, 1868, is hereby cancelled.
    “ Dated September 26,1868. Thomas Lambert.”
    Thereupon the plaintiff, as alleged in the complaint, satisfied and cancelled the mortgage of record. After the cancellation of the mortgage it was ascertained that on the 23d of June, 1868, Burt had given to the defendant, Abby H. Leland, a mortgage upon the same property to secure the payment of $1,000. And on the 7th of August he gave said Abby another mortgage, on the same property, to secure payment of a further sum of $853.93, both of which mortgages were duly filed in the register’s office, the first on the 22d of July, and the last on the 25th of September, 1868.
    Subsequently, and before the commencement of the action, Abby M. assigned the last mentioned two mortgages to the defendant, Lewis Leland.
    The plaintiff alleged that he cancelled his said mortgage without any knowledge or information of said two mortgages to Abby M. Leland.
    The relief demanded in the complaint was, that the amount unpaid on the plaintiff’s mortgage be established, and adjudged a lien on the mortgaged property; that the cancellation thereof be declared null and void, and the lien of the mortgage be restored to the record; that the property te sold for the payment of such Men; that the defendants pay such amount within such reasonable time as the court might decide, or forever be ta/rred.

    The action was tried by Judge McCunn, without a jury, who found substantially the foregoing facts, and also that the sum of $3,173.47 was due on plaintiff’s mortgage, and as conclusions of law he decided that, as between the parties to the action, the lien of the plaintiff’s mortgage was not extinguished, and that the defendants had the right to redeem by paying the aforesaid sum found due the plaintiff. It was thereupon adjudged that, if the defendants should not pay said sum of $3,173.47, and the interest thereon from the date hereof, and said costs, within the said ten days after notice of the judgment, then and in that case the defendants, and each of them, and all persons claiming under them, or either of them, be forever barred and foreclosed of all interest, claim, right, title, lien, and legal or equitable equity of redemption in, upon, and to the said lease and property described in the complaint, and every part thereof, and that the lien of said two junior mortgages, so described in the complaint, be extinguished and said mortgages cancelled of record, and that said defendants, Lelands, satisfy the same of record.
    It was further adjudged, that the plaintiff recover against the defendants the costs of the action.
    From the judgment entered in conformity with the decision the defendants appealed.

      Mr. William G. Choate for appellants.
    Lewis Leland, as the tona fidepurchaser for vahee of the two mortgages given to Abby M. Leland, having bought them upon the faith of the record, which by plaintiff’s own act showed the plaintiff’s mortgage cancelled, is entitled to a first lien on the property, whatever equity the plaintiff may show against Burt, or Abby M. Leland (Van Heuson v. Radcliff, 17 N. Y., 580; Thompson v. Van Vechten, 27 N. Y., 581; 2 Rev. St., p. 136, § 9).
    Lewis Leland having bought for value, the burden is on the plaintiff of proving notice to him of the plaintiff’s equity (Palmer v. Yeates, 3 Sandf., 153; Caryl v. McElrath, 3 Sandf., 178; Hoyer v. Lynch, 6 Bosw., 144).
    The transaction of September 26 was not a foreclosure, but a purchase of the property.
    The plaintiff voluntarily released and cancelled his mortgage, and thereafter held as purchaser from the mortgagor.
    This is an answer to the suggestion that the plaintiff’s possession was notice to the purchaser of the mortgages; the plaintiff was not a mortgagee in possession.
    The plaintiff’s complaint shows that the transaction of September 26 was a purchase and not a foreclosure. He sets up as the ground of his equity that he cancelled his mortgage, and asks to have the cancellation set aside for fraud.
    The first mortgage to Mrs. Leland is valid, although executed and delivered before Burt had possession of the property.
    One who conveys or mortgages with warranty is estopped, as well as all claiming under him, from denying the validity of his deed or mortgage, and the title of the mortgagor afterwards acquired supports the mortgage (Jackson v. Bull, 1 Johns Ca., 8; Jackson v. Murray, 12 Johns., 204; Van Rensselaer v. Kearney, 11 How., U. S., 297; Jackson v. Hubble, 1 Cowen, 613).

      Mr. A. G. Rice for respondent.
    The cancellation of the first mortgage on a return of the property by the mortgagor, was ineffectual as a foreclosure as to the junior incumbrances, and left in them an equity of redemption—as to them the plaintiff became a mortgagor in possession— as to the mortgagor he was absolute owner and in possession.
    Lewis Leland was chargeable with notice of the plaintiff’s prior right. At the time of the assignment to him, November 13, 1868, the plaintiff was in the absolute and undisputed possession of the property. This possession was notice to all the world of the plaintiff’s rights (Bank of Rochester v. Jones, 4 Com., 497).
    Lewis Leland and William W. Leland were properly chargeable with costs. They had each made costs, and being defeated were properly charged with costs.
    Costs in equity are always in the discretion of the court, and whether they are granted or withheld they are but as incidents to and part of the relief sought (Bruce v. Tilson, 25 N. Y., at page 108).
   By the Court:

Jones, J.

It is true that after default by the mortgagor in the performance of the condition of a chattel mortgage the title of the mortgagee to the property becomes absolute at law, subject only to the power of the Court of Chancery to permit the mortgagor to redeem. After the title has thus become absolute the mortgagee holds by virtue of the conveyance contained in the mortgage, and by no other title. When, then, that instrument is completely cancelled that source of title is gone, and he mnst rest his right to the property upon some other title.

That is the situation of the present plaintiff. He has given up his title under the mortgage by cancelling it, and has taken in substitution thereof a title under a bill of sale dated September 26,1868.

His only title is under his bill of sale, and his possession must be referred to that title.

Holding under this title, his rights in the property are subject to the two mortgages made by Burt to Abby bí. Leland.

The complaint, therefore, seeks to get rid of the effect of the cancelment of the plaintiff’s mortgage by obtaining a judgment declaring that cancelment null and void, and restoring that mortgage to its former force and vitality.

The complaint does not seek to obtain this relief either on the ground that the papers executed did not conform to and carry out the agreement between the parties in pursuance whereof they were executed, or that through a mistake in law they (or either of them) supposed that plaintiffs title would still in part rest on the mortgage to him, notwithstanding the cancelment thereof. There is no intimation of either of these grounds in the complaint, and there is no evidence in support of either of them.

Even if there were a mistake in law as to the effect of the cancelment, no relief could be granted on that ground (Leavitt v. Palmer, 3 Comst., p. 19, cited from p. 39; Story’s Equity Jurisprudence, sec. 114).

The complaint, however, claims relief on one of two grounds:

Fwst.—Because there was a concealmen t by Burt of the existence of the mortgages to Abby M. Leland.

Second.—That there was a fraudulent concealment by Burt and Abby M. Leland of the existence of those mortgages.

Was there such a concealment by Burt as will entitle plaintiff to the relief he seeks ?

Story on Equity Jurisprudence lays down the doctrine that if a vendor should sell an estate, knowing that he had no title to it, or knowing that there were incumbrances on it of which the vendee was ignorant, the suppression of such a material fact, in respect to which the vendor must know that the very purchase implied a trust and confidence on the part of the vendee that no such defect existed, would clearly avoid the sale on the ground of fraud ” (Story on Equity Jurisprudence, sec. 208).

It is found as a fact in this case that plaintiff did not know of the existence of these mortgages; that Burt did, and that he concealed their existence from the plaintiff, and the evidence sustains the finding.

The transaction between plaintiff and Burt was in legal effect a purchase of the property on which these mortgages were liens.

The plaintiff, before that purchase, had the first lien, by foreclosing which he might, have subjected the proceeds of the property to the payment of his claim in full before the same or any part thereof could be applied to the subsequent liens. Under such circumstances it is hardly to be supposed that he would satisfy his prior lien, and take back the property in satisfaction of Ms claim subject to the incumbrance of these subsequent liens. The circumstances were such as to charge Burt with knowledge that the plaintiff was acting in ignorance of these subsequent mortgages, and that the existence of these mortgages was a material fact of which the plaintiff ought to have been apprised.

Under the above doctrine, laid down by Story, plaintiff is entitled to a decree setting aside the cancelment of his mortgage, and remitting Mm to his original rights as to Burt on the ground of fraudulent concealment.

But is he so entitled as to the defendants Lelands % Unless they have bona fide obtained rights based on the cancelment of plaintiff’s mortgage, he is. William W. Leland appears to have no interest whatever in the matter. Abby M. Leland advanced her money on the faith of a subsequent mortgage. Granting the plaintiff the relief he seeks places her in no different position than she was when she loaned her money, she therefore has no cause for complaint.

Lewis Leland, as the assignee of Abby, occupies her place, and possesses no greater rights or interests unless he took the assignment relying on the cancelment of plaintiff’s mortgage.

There is no evidence that he took the assignment upon such reliance, or that he ever knew that that mortgage had been can-celled.

There is no reason why the plaintiff should be denied a decree of strict foreclosure and put to a sale, although a suit for a strict foreclosure is now uncommon, yet that remedy is not abolished. The time within which to redeem was too short. It should have been at least six months. Lewis Leland is properly charged with costs, since he has aided to create them by defending, and William M. Leland is properly charged as being a party to the fraudulent concealment which made tMs action necessary.

Judgment modified so as to give defendants three months from its affirmance within which to redeem. And as thus modified, affirmed with costs.

Monell, J.

By the mortgage from Burt to the plaintiff, the legal title to the mortgaged property became vested in the latter. Upon default, such legal title became absolute, subject only to the right of redemption in the mortgagor, or his assigns.

It is conceded that after the mortgage debt became due Burt transferred the property to the plaintiff, who thereupon cancelled his mortgage of record. The two subsequent mortgages to Inland operated as conveyances of Burt’s equity of redemption, and therefore all that Burt could transfer to the plaintiff was the right to redeem, which he had previously conveyed to Mrs. leland. In other words, Burt transferred nothing to the plaintiff except, perhaps, that, upon Burt’s discharging the debt due to leland, the plaintiff would have the legal title to the property, discharged of all right of redemption.

The written transfer from Burt, therefore, did not strengthen the plaintiff’s right to the property, except that as between those parties it cancelled Burt’s equity.

It is immaterial whether the plaintiff took possession under his mortgage or under the conveyance from Burt; he was then the legal owner, and entitled to the immediate possession of the property.

His possession operated as a satisfaction of his mortgage, if the property was of sufficient value, and he could retain such possession, discharged' of all lien, except the bare equity of redemption of the subsequent mortgagee. The written cancellation of the plaintiff’s mortgage had no greater effect than must be given to his actual possession of the property, which, as before stated, operated as a payment of the mortgage (Stoddard v. Denison, in this court decided, in December, 1869).

The plaintiff, therefore, being in actual possession of the mortgaged property, and the absolute legal owner of it, which of itself was a satisfaction of his mortgage, such possession, or right to possession, could not in any manner be prejudiced, lost, or affected by the cancellation of the record, which was at most a mere act of supererogation; nor could such possession, or right of possession, be disturbed by the subsequent mortgagee, except by a proceeding to redeem.

But it is claimed that the defendant, Lewis Leland, having acquired, for a valuable consideration, the subsequent mortgages by assignment, after the cancellation of the record of the plaintiff’s mortgage, and without any notice of the actual transfer from Burt of the mortgaged property, has equities which should give him a preference or priority over the plaintiff.

I cannot, however, perceive any difference between the rights or equities of Lewis Leland and those of his assignor, Abby Leland. The former took only such interest in the mortgaged property as was conveyed to the latter by Burt, which was the mere right of redemption. When the plaintiff took possession of the mortgaged property, after the forfeiture, neither Mrs. Leland nor her assignee had any remaining interest, except to redeem; and the satisfaction of the mortgage of record has no other or greater effect upon the rights of Lewis Leland than it would have had upon those of Mrs. Leland, if she had remained the owner of • the mortgages.

Besides, the filing of a mortgage, as constructive notice to creditors and subsequent purchasers and mortgagees, is necessary only where there is not an immediate delivery, followed by an actual and continued change of possession of the things mortgaged (Laws of 1833, ch. 279). Whenever, therefore, a mortgagee takes possession of the property, the filing of the record ceases to be of any consequence whatever.

The plaintiff’s possession on the 26th of September was not as a purchaser from Burt. He took the property in payment of the debt, and with it a release or conveyance of any right or interest of Burt in the property.

When Lewis Leland purchased the two subsequent mortgages, the plaintiff was in the actual possession of the property; his mortgage was paid, and neither the filing nor the satisfaction •of it entitles Lewis Leland to any priority or preference. He has only the right to redeem, by paying the amount of the plaintiff’s debt.

Holding these views, I have not been able to find a reason for granting any of the relief demanded by the plaintiff, except that of a foreclosure of the defendant’s equity of redemption. He had a right to have such equity foreclosed, and that gives him a standing in court.

But the judgment in this case does not direct a sale of the property, and the application of the proceeds to the payment of the plaintiff’s debt, and of the residue, if any, to the subsequent mortgagees. But it requires such subsequent mortgagee to pay the amount found due on the plaintiff’s mortgage withvn ten days after notice of the judgment, or be forever barred and foreclosed of all equity of redemption.

This is in analogy to a strict foreclosure of a mortgage upon real property, which, since the statute (2 R. S., 191, sec. 151) authorizing a sale, has gone quite out of practice, and cannot properly be applied to a mortgage of chattels, in which, it seems, a sale is always required (Stoddard v. Dennison, supra). Besides^ the time given for redemption is not sufficient. In strict foreclosures, the usual time given was not less than six months (McKinstry v. Mervin, 3 John. Ch., 466, note).

There was no propriety in charging the defendants with the costs of the action. The plaintiff brought them into court to gain his own ends, and the most he can claim is, that his costs shall be paid out of the proceeds of sale.

I think the judgment should be modified so as to require a sale of the mortgaged property, and payment out of the proceeds of the plaintiff’s debt, together with the costs of the action, and the residue, if any, to Lewis Leland, until his mortgage is paid, and any remaining to the plaintiff.

Ho costs to either party on this appeal.


text:
    PETER C. ANTHONY, Plaintiff and Respondent, v. ASHER D. ATKINSON, Defendant and Appellant.

      [Decided March 5, 1870.]
    In an action to compel the specific performance of a written contract to transfer shares of stock of a corporation, it is competent to show by parol that the contract, although purporting on its face to be a sale, was, nevertheless, intended as a mere security for the payment of a sum of money.
    Such at least is the rule in equity. The rule at law is otherwise, and parol evidence is inadmissible to vary a written instrument or explain its meaning, if it is free from ambiguity.
    Before Monell, Jones, and Spencer, JJ.
    Appeal from a judgment.
    The action was to compel the performance of the following agreement, assigned to the plaintiff.
    “New York, March 1,1865.
    “ For value received, I hereby agree, on the payment of a certain promissory note; drawn by Lemuel Arnold, dated December 24, 1864. four months after date, for five thousand six hundred and sixty-six 10-100 dollars, to transfer to the said Lemuel Arnold, or to his order, eight thousand five hundred and eighty-five shares of the capital stock of the Sherman and Barnsdale Oil Company of New York, and to deliver to said Arnold scrips of said stock, as he may desire, and to indorse such payments on his note as he may from time to time desire to pay at the rate of one 50-100 dollars per share.
    “ (Signed) Asher D. Atkinson.”
    The plaintiff averred a tender of the amount due on the promissory note, a demand for the stock, and a refusal to deliver.
    The defense was, that the sum represented by the promissory note was a loan from the defendant to the plaintiff’s assignor, and that the stock was a pledge to secure the loan.

      The answer further alleged that, upon maturity of the note and after demand of payment, the defendant, upon due notice to the plaintiff’s assignor, sold the shares of stock, realizing a sum less than the amount due on the note.
    On the trial before Judge McCunn without a jury, the defendant, in support of his defense, offered to prove that the stock was pledged to the defendant by the plaintiff’s assignor to secure money advanced by the former to the latter to pay the latter’s subscription to the capital stock of the oil company.
    Which offer was excluded by the court, and the defendant excepted.
    It was proved that at the maturity of the note its payment was demanded and refused, and at the same time a return of the stock offered.
    An offer to prove notice to the plaintiff’s assignor of the time and place of sale of the stock was also excluded, and the defendant excepted.
    Judgment was rendered against the defendant, from which he appealed.

      Mr. James Emott for appellant.
    The issue between the parties, made by the plaintiff, was whether the transaction in March, 1865, between Atkinson and Arnold was a loan and a pledge, or a sale. Defendant alleged and offered to prove that he did not sell or agree to sell this stock to Arnold, but that he lent him money and received this stock in pledge to secure it.
    There was nothing in this inconsistent with the agreement signed by the defendant in 1865. That was an agreement by Atkinson to do exactly what, as pledgee, he was bound to do in payment of the note for which he held the pledge.
    Defendant offered to show the history of these shares of stock from their inception—that Arnold subscribed for them and was their original owner—that defendant lent and advanced the money to him to pay his subscription—that they were never defendant’s, so that he could not have sold or agreed to sell them, but were held by him to secure the money he advanced to Arnold —and that the title to the shares was taken to him, by Arnold’s request, for his security.
    Defendant offered to prove that Arnold was elected and acted as trustee on this very stock, and joined in agreements with the other stockholders.
    There was no legal ground whatever to exclude all or any of this evidence.
    The note spoken of in the written memorandum of March 1, 1865, was dated December 24,1864, at five months. It was therefore an existing debt to defendant by Arnold when this paper was signed, and not the purchase-money of stock then sold him.
    It was proved that when this note matured, and afterwards, payment was demanded and the stock was tendered. Payment was not made nor the stock accepted—and Mr. Arnold had become in default and forfeited his contract and rights when he undertook to assign it.
    Defendant should have been permitted to prove that he notified Arnold that in default of payment he should sell the stock, and that he did sell it at the day and place named in the notice, fairly at public auction.
    Even if this was not a transaction of loan and pledge, but a sale or agreement for a sale, in which defendant was vendor and Arnold vendee, upon his making default and failing to pay the price when due and demanded, and to accept the article when tendered, he had a right to close the transaction by selling the property for his account (Pollen v. Leroy, 30 N. Y., 549; Sands v. Taylor, 5 J. R., 395; Bennet v. Smith, 15 Wend., 493; Crooks v. Moore, 1 Sand. S. C. R., 297; Laird v. Pim, 7 M. & W., 478; Barren v. Arnaud, 8 Q. B., 604; Blackburn on Sales, 325; Sugd. Vend., 39; Benj. on Sales, 588, 590, 594).
    Even on the theory of the plaintiff, therefore, the evidence which defendant offered should have been received.
    The tender proved by the plaintiff was insufficient, because it was conditional.

      The rule of damages adopted by the judge was erroneous. The plaintiff cannot have the highest price of the stock, fixing it at a certain time, and also dividends made afterwards.

      Mr. Levi S. Chatfield for respondent.
    The contract relied on was in writing, was clear and specific in its terms, and was for the absolute transfer of 8,585 shares of the stock above mentioned whenever Arnold should pay a note to Atkinson of $5,666.10. No time or place of performance was specified. The stock was contracted as Atkinson’s stock, and he agreed to transfer it to Arnold or his order whenever the money should be paid. There is no intimation on the face of the contract, that the stock had been pledged to Atkinson, that it was stock which Arnold had subscribed for, or stock that he had had any connection with.
    It is respectfully insisted that this contract could not be turned into a pledge or security contract by parol, and that all the evidence offered tending to that result was properly rejected.
    Extrinsic evidence cannot be received to contradict, vary, or add to an instrument in writing, but only to explain and elncidate it, and this only in case of ambiguity appearing on the face of the instrument (Jackson v. Sill, 11 John., 201; Erwin v. Saunders, 1 Cow., 249; Norton v. Woodruff, 2 Coms., 153; 3 Hill, 171; 24 Wend., 419).
    If there be no latent ambiguity in the contract, subsequent acts of the parties, like parol evidence, are inadmissible to give it a construction (Lawber v. Le Roy, 2 Sand., 202).
    When no trust appears upon the face of the deed, oral evidence is not admissible to engraft a trust upon it; and so of every condition not made a part of the deed (Movan v. Hayes, 1 John. Ch., 339; McCurtie v. Stevens, 13 Wend., 528).
    But a tender and demand would be just as valuable to the defendant as a sale on Arnold’s account.
    Exit no proper or available demand and tender was ever made. Atkinson says he demanded payment and offered to transfer the stock. He does not pretend that he had the stock then and showed it to Arnold. This he was obliged to do, for Arnold had a right to know that what was offered was the stock of this company and was properly transferred on the books. Until this was done he was not obliged to pay his money. Arnold denies this. He says no stock was ever offered to him by Atkinson. He did ask him to pay the note, but offered him no stock. It became a question of fact whether this demand and tender was ever made, and it has been found in favor of the plaintiff, and that finding cannot be disturbed on appeal.
    It is claimed that the plaintiff’s tender was insufficient because it was conditional. How conditional ? By the terms of the contract an offer of the money for the notes was all that was necessary. If that was done, that was enough.
   By the Court:

Monell, J.

As the exclusion of the evidence offered by the defendant to show the nature of the transaction between the parties was, as it appears to me, so clearly erroneous that the judgment must be reversed and a new trial had, I do not propose to examine any of the other exceptions taken by the defendant.

It is to be presumed that the decision of the learned judge, in rejecting the evidence offered, was upon the ground that such evidence would contradict or vary the written agreement; and as the written contract was free from ambiguity, such evidence could not be used to elucidate or explain it. Such undoubtedly is the rule at law, and had this been an action to recover damages for a non-performance of the contract, it might be that the rule would have been properly applied (Webb v. Rice, 6 Hill, 219).

The rule in equity, however, is otherwise; and it may be considered as settled that, in equity, parol evidence is admissible to show that any instrument, although absolute as a sale (and whether with or without a seal), was intended by the parties as a mere security; and upon showing such to be the nature of the instrument, it loses its characteristics of a sale, and becomes subject to all the rules applicable to a pledge (Despard v. Walbridge, 15 N. Y. R., 374).

All the cases cited by the respondent’s counsel were actions at Tcm, and arose chiefly before the adoption of the present Code of Procedure, allowing equitable defenses to be set up to strictly legal causes of action.

In these cases the rule at 1cm was applied, and the parol evidence was held to be inadmissible. Before the union of law and equity in one tribunal, and until the adoption of the Code, it could not be set up as a defense to an action at law that a contract absolute in its terms was intended to be a security. Hence it was necessary to go into equity for the relief. Under the Code, however, such equitable defense can be interposed in any action.

The case at bar relieves the question of all difficulty. The action is for a specific performance of a contract, therefore an action in equity, to which must be applied equitable rules.

The case of Despard v. Walbridge (supra) was an action to recover for use and occupation by the assignee of the lessor. An offer to prove by parol that the assignment, although absolute in its terms, was intended as a security merely, was rejected, and the rejection held to be erroneous. The distinction between the rule at law and in equity is stated, and the admissibility of such evidence under the Code, when the facts are set up as an equitable defense, is authoritatively determined (See also Hutchins v. Hebbard, 34 N. Y. R., 24).

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


author: Spencer, J.

text:
    LOUISE C. SOUTHWICK, Plaintiff and Appellant, v. GEORGE W. SOUTHWICK, Defendant and Respondent.

      [Decided March 5, 1870.]
    In a civil action between husband and wife either party is a competent witness for or against the other.
    The 3d section of the act of 1867, entitled “An act to enable husband and wife* or either of them, to be a witness for or against each other or on behalf of any party in certain cases,” which provides “that no wife or husband shall be compellable to disclose confidential communicationsetc.¡ does not prohibit a voluntary disclosure of the same.

    There is no power in the courts to restrain or prevent the exercise of a married woman?s right under the statute of holding or parting with her property at her will and pleasure.
    No written order, request, or direction from the wife to the husband is necessary to authorize the husband to pay bills or disburse money for her benefit. A verbal order or request is sufficient.
    Before Monell, Jones, and Spencer, JJ.
    Appeal from a judgment entered upon the report of a referee.
    The plaintiff claimed to recover from the defendant the sum of $5,118.98 and interest from June 22, 1866, for an alleged balance of moneys collected and received by the defendant as her agent from the executors of the last will and testament of plaintiff’s father (the late Mangle M. Quackenboss). Plaintiff alleged that defendant so received as such agent sums of money which amounted in the aggregate on the 22d day of June, 1866, to the sum of $14,448.24, of which there remains due to plaintiff the said sum of $5,118.98.
    Although the defendant in his answer denied the agency and the reception of any moneys as such agent, yet he subsequently stated facts that substantially established the relation of principal and agent. He alleged that he is the husband of the plaintiff and one of the executors of the last will and testament of her late father; that the said executors made large payments to the plaintiff; that after such payments the plaintiff “ handed to this defendant as her husband, and He had charge and custody of various sums of money derived by the plaintiff from the estate of said Quackenboss, being portions of the share of said plaintiff,” amounting to the aggregate sum of §13,032.24, and no more. And defendant alleged that he has paid to, and paid, laid out, and expended for the plaintiff’s use, and at her request, from said moneys sums amounting in the aggregate to $14,068.79.
    He denied that there is any sum of money due from him to plaintiff, but claimed, she owed him the sum of $136.55, for which, with interest (as a counter-claim), defendant claimed judgment against plaintiff.
    (Defendant also sets up another counter-claim in the answer, but as no evidence was given in relation to the same it requires no consideration.) The reply denied all the allegations of the answer. The action was tried before a referee in April, 1869. By the will of the late Mangle M. Quackenboss, and the proceedings in the probate thereof, and in the administration of the estate (all of which was received in evidence before the referee without objection), it appeared that the plaintiff and her two sisters and a sister-in-law were the residuary legatees and devisees of the estate. The fifth article of the will provided that the share of the estate given to each daughter “ shall be taken and held by her in her own right, and subject to her own separate disposition, without being in any manner liable for the debts or liabilities of her husband, or subject in any manner to his control or disposition.” The defendant and one John M. Quackenboss were named as executors and qualified as such. The inventory and appraisement of the personal estate amounted to $50,021.07, but a statement of the appraisers attached thereto was to the effect that it was subject to mortgages exceeding its value. Beyond this inventory no evidence appears as to the amount of the property of the estate received by the executors, or the amount belonging to plaintiff. The plaintiff also introduced in evidence, without objection, two written documents. The first was a formal power of attorney, dated September 16,-1864, authorizing the defendant, as plaintiff’s attorney, “ to ash, demand, and recover and receive ” all and any sums of money or other property then or thereafter to become due, payable, etc., from the estate to the plaintiff. The other document was an indemnity bond dated April .10,1865, whereby the plaintiff formally covenanted to indemnify and save harmless the defendant and John M. Quackenboss, the executors of her father’s estate, from all loss and damage that might arise to them because of past or future payments by them to her from the estate, etc. The first instrument was executed by the plaintiff personally, and the latter instrument was executed by the defendant as the attorney of the plaintiff, and was so admitted. It was then admitted by defendant that plaintiff had, prior to the commencement of this action, duly demanded of defendant the amount claimed by plaintiff in this action. After the introduction of this evidence the plaintiff rested her case. At this stage of the trial there was no evidence of any sum or sums of money due or owing from the defendant to the plaintiff except the admissions of the defendant in the first part of his answer as to the amount he had received from the plaintiff ($13,932.24), which were followed by the subsequent allegations of payment of a greater sum and denial of any indebtedness and of a counter-claim.
    Without moving for a nonsuit or the dismissal of the complaint, the defendant called as a witness George W. Southwick; the defendant, as a witness in his own behalf. The plaintiff objected to his competency on the ground that he was the husband of the plaintiff (which fact was admitted). The referee overruled the objection, to which ruling plaintiff duly excepted, and the defendant was admitted to testify. The defendant’s testimony was substantially as follows : That he was the husband of plaintiff, and that he had received on account of plaintiff’s interest in her father’s estate divers sums from January 25,1865, to March 12,1866, amounting in the aggregate to $14,448.24.
    It was then admitted by plaintiff that she had received payments from this amount from defendant (in divers sums and at dates stated in an account), amounting in the aggregate to the sum of $9,329.26. (This admission left only the sum of $5,118.98 contested.) The defendant testified that he had paid one Dr. Eeisig for medical attendance upon plaintiff, and by the request and direction of plaintiff, the sum of $639 in two bills. One of January, 1865, of $266, and another of January, 1866, of $383. That these bills so paid were sent to his house, and had been made out in the name of defendant. Defendant also testified that at the request of plaintiff he had paid to her divers sums of money at sundry dates, including January 25, 1865, and April 7, 1866, the amount of which (as appeared from the statement of defendant or detailed account) cash payments was $3,580. That he had also paid at her request sundry bills for merchandise purchased by the plaintiff, amounting to the sum of $864.98 (statement in detail at folios 114 and 115). That he paid for the plaintiff at her request the sum of $35 for concert and church bills; that several times at her request he had given plaintiff a statement as to how the account stood, to which she made no objections. The last statement made to her was about April 10,1866 ; that the money was paid to her, and the bills paid for her upon her verbal orders, directions, or requests; that he never received any order, direction, or request in writing from the defendant to pay her these moneys or to pay these bills for her, nor any order in writing authorizing him to charge the same against her separate estate.
    All the testimony of the defendant in regard to the subject-matter and conversations between himself and plaintiff in regard to the moneys and bills paid were objected to on the ground of incompetency, because the witness was the husband of plaintiff, or the conversations having been between husband and wife must be regarded as confidential and prohibited, and should be excluded. The referee overruled the objections, and the plaintiff excepted to the ruling.
    "Upon the testimony as received by the referee, and the findings of the referee, judgment was entered for the defendant for his costs against the plaintiff, from which judgment plaintiff appeals to the general term of this court.

      Mr. Elbridge T. Gerry for appellant.
    The referee committed a fatal error at the outset of the case in permitting the respondent to testify in his own behalf. Prior to the act of 1867, hereinafter considered, the courts uniformly held in this State that the amendments of the statute authorizing parties to actions to testify as witnesses, did not include cases where the only parties were husband and wife. The rule was one at common law, based as well on the identity of legal interests as on principles of public policy for the maintenance of peace and harmony in the marriage relation, which constitutes the basis of civil society (Co. Litt., 6 b; Barbat v. Allen, 7 Exch., 609; Stapleton v. Crofts, 18 Queen’s Bench R., 367; Bentley v. Cook, 3 Doug., 422).
    And so zealous were the courts of maintaining this rule, and so sensible were they of its propriety, that prior to the passage of the act of 1867 they uniformly held that the previous statutes allowing parties to testify removed only the disqualification of interest, which at common law excluded the evidence of all parties ; but did not remove the disqualification which attached to the marital relation, and which rested on higher and worthier grounds (Chamberlain v. Dempsey, 36 N. Y. R., 149; Hasbrouck v. Vandervoort, 5 Seld., 153; 4 Sandf., S. C. R., 596; Carpenter v. White, 46 Barb., 419; Marsh v. Potter, 30 id., 156; Pillow v. Bushnell, 5 id., 156; Smith v. Smith, 15 How. Pr. R., 165; A. A. C. v. S. C., 35 id., 430; Babbitt v. Thomas, 31 Barb., 278; White v. Stafford, 38 Barb., 419; Rivenburg v. Rivenburg, 47 id., 419; Rogers v. Rogers, 1 Daly, 194; Wehrkamp v. Willett, 1 Keyes N. Y. R., 250; Moffat v. Moffat, 10 Bosw., 468; 17 Abb. Pr., 4; Card v. Card, 39 N. Y. R., 322).
    The respondent was the husband of the appellant. Both were parties to this action. It is submitted that the act of 1867 (2 Laws of 1867, ch. 887), “ to enable husband and wife, or either of them, to be a witness for or against the other or on behalf of any party in certain cases,” did not authorize the respondent to testify in the present case. The first section of that act seeks to render competent the husband and wife of any party to a suit, or of amy person in whose behalf it is prosecuted, to testify the same as any other witness. It does not provide that husband and wife, when parties, shall be allowed to so testify (2 Laws of 1867, p. 2221).
    The second section expressly forbids husband or wife to -testify for or against the other in criminal and divorce cases, and the thvrd section forbids either to disclose confidential communications made during their marriage. A strict construction of this statute (and being in derogation of the common law and of the rules of evidence, it must be strictly construed) would authorize a party to produce his wife (or vice versa;) as a witness in any suit not within the prohibition of section two. But the omission of the statute to provide that they may testify when both are pa/rties, it is insisted, sustains the exception taken (Jackson v. Hobby, 28 Johns., 357; Richardson v. Gere, 21 Wend., 156; People v. Hadden, 3 Den., 220; Fleming v. Hollenback, 6 Barb., 271; McClusky v. Cromwell, 11 N. Y. R., 593; Taylor v. Jennings, 7 Robertson, 583, per Jones, J).
    A similar statute was enacted in England in 1853. A reference to that statute and of the construction placed upon its language by the courts there, will well illustrate the force of the objection here raised and of the propriety of the application of the rule of construction here insisted on (Stat. 16 and 17 Vic., cap. 83, §§ 2 and 3; Stapleton v. Crofts, 18 Q. B. R., 367 in point; 2 Taylor on .Evidence, 4 ed., §§ 1217, 1219, and notes reviewing the statute, citing it and stating effect of construction).
    But even if, under the act last cited, the respondent was competent as a witness, his evidence was not competent as to the verbal statements to which he testified, and the exception to the admission of which was well taken. At the time the conversations testified to by the respondent occurred they were privileged under the law as it then stood. The act of 1867 can have no retroactive effect as to conversations made under sanction of a legal privilege prior to its passage. Even under the act of 1867 the exceptions referred to are well taken. The evidence was of communications made by a wife to her husband during coverture, and therefore confidential within the second section of the act (Handlong v. Barnes, 1 Vroom, N. J., 69).
    The referee erred m allowing the respondent, as a proper deduction from the balance in his hands belonging to the appellant, the sum of $639, which he testified he paid for medical attendance upon his wife. Bo writing was shown authorizing the respondent to charge the appellant’s separate estate with the payment of any such sums for any such purpose (Yale v. Dederer, 22 N. Y. R., 450; 18 id., 265; Vanderhaven v. Mallory, 1 Comstock, 452; Willard v. Eastman, 45 Mass. R.).
    A husband is legally liable for medical attendance on his wife, and this even where she has left him (Mayhan v. Thayer, 8 Gray’s (Mass.) R., 172; Myger v. Wythe, 23 Texas, 180).
    Equally erroneous was the finding of the referee that the responden t had paid personally to the appellant various sums amounting to $3,580, and that he was entitled to deduct that amount from the balance of her separate estate in his hands. She gave him no receipt, order, or instrument showing her intention to bind her estate by receiving the moneys. A verbal request, as already shown, was insufficient to charge her estate. Any other rule would authorize any husband, who, as here, was the repository of his wife’s separate estate, to charge it with the payment of every dollar given by him to her during her coverture. A further error was committed by the referee in allowing the respondent the further sums paid for goods and merchandise ordered by the appellant, and for church and concert bills, and in permitting the same to be deducted from the balance of her separate estate in his hands. The second finding of the referee, that “ the ‘plaintiff voluntarily placed in the possession of the defendant certain moneys received by her, from time to time, from the executors of the last will and testament of her said father, on account of her interest in his estate,” was inaccurate in point of fact, and the exception thereto is well taken.

      Mr. William Henry Arnoux for respondent.
    The husband was a competent witness on the trial of this action (Code, sec. 399, as amended by 2 Laws 1868, p. 1845; 2 Laws 1867, p. 2221, ch. 887).
    The act of 1867, “to enable husband and wife or either of them to be a witness for or against the other, or on behalf of any party,” includes this case. It is a remedial statute, and is to be liberally construed.
    The Legislature in the second section construes the meaning of the provisions of the act by excepting from its operation certain divorce cases. It would be absurd to say that husband and wife could not testify in that class of cases, wherein they alone were parties, if they could not in any case where they might be parties.
    The English act known as Lord Denman’s act to amend the law of evidence, passed August, 1861 (14 and 15 Vict., c. 99), has no analogy to this law; it only in general terms rendered pern-ties competent and compellable to give evidence on behalf of any or either of the parties to the suit, without providing for the case of husband or wife eo norrdne.

    But when the decisions of Stapleton v. Crofts (83 Engl. Com. Law R., 385) and Alcock v. Alcock, an equity case (12 Eng. Law and Eq., 364), were announced, the British Parliament, two years afterwards, passed an act that was the forerunner of ours (16 and 17 Vict., c. 83) whereby husbands and wives are rendered competent in all ciroil cases to give evidence on behalf of any or either of the parties to an action, but not in criminal cases nor cases of adultery, nor to disclose any communications made during marriage.
    The testimony of the defendant respecting the conversations between himself and the plaintiff was properly received. The testimony was given of communications that had no reference to the marital relation existing between the parties, but were had between principal and agent.
    The testimony did not disclose any confidential communication made by one to the other during their marriage. This word confidential distinguishes our statute from the English statute above referred- to.
    The statute does not prevent the parties voluntarily disclosing such communications. Its language is, “ Ho husband and wife shall be compellable to disclose,” etc. (2 Laws 1867, p. 221, ch. 887, sec. 3).
    The plaintiff has no right of action against the defendant for these moneys. They were placed in his hands by her voluntarily, without any express or implied trust or agreement in relation thereto. Being personal property, reduced by the husband to possession, they belong to him (2 Kent’s Com., 135, and cases cited in notes).
    The statutes in relation to married women’s property do not abrogate this rule (Laws 1848, p. 309; Laws 1849, p. 528).
    ' The plaintiff fulfilled the directions of the will—she did receive and dispose of the money.
    If putting it in possession of the husband was a valid disposition of these moneys, then no right of ownership could be revived or created in the plaintiff by the account of defendant.
    It is against the policy of the law to disturb the relations between- husband and wife, by allowing such suits to be brought for moneys paid to the wife or expended under her direction.
    A verbal order was sufficient to charge the plaintiff’s separate estate.
    There is nothing in the law of principal and agent that requires that orders to pay moneys should be in writing, and nothing in the relation of the parties to this action that makes it requisite.
    After the money was so applied the plaintiff was notified and approved of such payment, and thus ratified the payment. Such ratification can be proved by parol.
    The case of Yale v. Dederer applies only to a future promise to pay as indorser and not to a payment actually made.
    Although the husband is primarily liable for all household expenses and physicians’ bills, yet the plaintiff could lawfully direct the payment thereof out of the separate estate. Such payment so made would be in diminution of her estate pro tanto.

    It is conceded that the defendant has truthfully stated the transaction, that it was the express direction and clear intent of the plaintiff that such payments would be so made, otherwise the plaintiff would have been called as a witness.
    The payments made by the defendant were properly charged to the plaintiff against the moneys she had placed in the defendant’s hands, if she had any claim thereon.
    The defendant did not receive this money from any third party, but from the plaintiff herself. Conceding here, for the sake of argument, that the money was the money of the plaintiff, then the defendant was only the custodian of these moneys, a bailee without reward, and he was bound to return them to the plaintiff or to make such disposition of them as she should direct.
    If the plaintiff had taken her money from a third party, and had gone to Stewart’s and bought and paid for her purchases, no one would contend that she could have claimed that her husband should refund the amount to her. And the fact that the custodian of the money was the husband makes no difference in law.
    There is now no presumption that a wife is, as respects her separate property, under the fear or compulsion of her husband. Our beneficent legislation commenced in 1848, and since by various acts greatly improved and followed in nearly every State of the Union, has changed the relation between husband and wife and has freed the wife from the vassalage of the common law. In respect to her property she is equal to her husband, and his control is no longer recognized as being more influential in the disposition thereof than that of any other person, and therefore the statute no longer requires of a married woman a private acknowledgment apart from her husband, in respect to her separate property (Blood v. Humphrey, 17 Barb., 660; Yale v. Dederer, 18 N. Y., 271; Wiles v. Peck, 26 do., 42).
   By the Court:

Spencer, J.

There are several important questions ruled upon by the referee in the trial of this case to be considered before we reach the final question of the sufficiency of the evidence as received to support the findings and judgment.

First. Was the defendant a competent witness on the trial? The referee ruled that he was, and received his testimony. The argument of the appeal brought before the court much legal research and logic in favor and against the competency of the defendant as a witness, particularly as to the construction of the first section of the statute of 1867, entitled “An act to enable husband and wife, or either of them, to be a witness for or against each other or on behalf of any party in certain cases,” which provides as follows: “ In any trial or inquiry in any suit, action, or proceeding in any court or before any person having by law or consent of parties authority to examine witnesses or hear evidence, the husband or wife of any pa/rty thereto, or of any person in whose behalf any such suit, action, or proceeding is brought, prosecuted, opposed, or defended, shall, except as hereinafter stated, be competent and compellable to gime evidence the same as any other witness on behalf of any party to such suit, action, or proceeding.” As the law was before the passage of this act, the defendant would not have been a competent witness. But it appears to me that this statute relieves the case of all doubt, and enacts and provides substantially that, in a civil action of this character between husband and wife, either is a competent witness for or against the other. In the words of its provisions, “ the husband or wife of any party thereto shall be competent and compellable to give evidence the same as any other witness on behalf of any party.” In my opinion the letter and spirit of the statute supports the ruling of the referee on this question.

Second. Was the testimony of the defendant in regard to the conversations between the plaintiff and defendant in respect to these bills and advances, and the payment of the same, and the state of accounts between them admissible ? The referee held that they were, and received the same. It is held by plaintiff’s counsel that there was error in this ruling. First—That at the time the conversations occurred they were privileged and were clearly inadmissible in evidence under the law as it then stood, and that the act of 1867 should not be so construed as to give to the same a retroactive force or effect, so that these conversations held before its passage, and inadmissible then, should become admissible since its enactment. There is much to be considered in this view of the question.

This act of 1867 is not one that can be classed or claimed as an “ ex post facto law,” prohibited by the Constitution of the United States, for it has long been held and settled by the courts of this State and the United States that this prohibition applies only to laws respecting crimes and punishments, and, so far as it affects or relates to this case, this act cannot be claimed as one “ impairing the obligation of contracts,” nor within any other class of laws prohibited. I am of the opinion that no law can be objected to simply because it may be said to be retroactive in its effect, if it does not endanger or disturb vested rights or impair the obligation of contracts, or in other respects come within constitutional prohibition. Our State legislature, when acting within the limits of the constitution of the State of Uew York and the United States, have that supreme power that Judge Blackstone ascribes to the British Parliament: It has sovereign and uncontrollable authority in the making, confirming, restraining, abrogating, repealing, reviving, and expounding of law concerning all matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime, or criminal” (1 Black. Com., 160).

I also hold that this law is like many others in this State that by their enactment substantially changed the rules of practice and evidence in our courts, yet they have been held to extend to actions upon contracts made before their enactment; that they did not impair the obligation of contracts, but had reference only to the remedy upon them. It is true that this act of 1867 establishes a new rule of evidence. It admits testimony that was prohibited before, and thus far affects or varies the remedy existing before.

In like manner section 398 of the Code established a new rule of evidence. It admitted witnesses and testimony that were excluded before its enactment, and yet it has been held that this provision extended to actions on contracts that were made before the adoption of the Code (Neass v. Mercer, 15 Barb., 322).

It is also contended that under the third section of the act of 1867 these conversations were inadmissible and prohibited. I am of the opinion that the conversations as disclosed were not of a confidential character, but even if they had been the third section does not prohibit a vohmtary disclosv/re. It only prohibits a compulsive disclosv/re. “ Ho husband and wife shall be compellable to disclose,” etc.

I am clearly of the opinion that no error was committed by the referee in admitting the defendant to testify as a witness in his own behalf, nor in permitting him to state the conversations between himself and plaintiff in relation to these accounts. In reviewing this case I find that objections were duly made to the admission and the sufficiency of the testimony on the ground that no written order or instrument in writing from plaintiff to defendant had authorized the payment of these moneys and bills by the defendant, or authorized him to charge the same to the plaintiff or upon her separate estate. The members of this court are unanimous in the opinion that no order or authority in writing was necessary in this case; that it was simply a case of dealing of a principal with an agent, where the principal had the full and absolute control of the subject-matter, namely, the estate or funds in question, and in regard to the disposal of which the principal directed the agent. The statute of 1848, as amended in 1849, gives to the married woman the same control over her separate estate as if she was single, namely, absolute control.

This case does not involve the principles and questions discussed in Yale v. Dederer (18 and 22 N. Y. Reps.) and in other cases where the liability of the married woman on a contract is discussed. In this case there was a personal estate, a cash fund, belonging absolutely to the plaintiff, and absolutely under her control in the eye of the law. It was placed, or it reached and remained, in the possession of the defendant, her husband, with her consent, and was paid out and disposed of in divers sums and at divers dates in accordance with her orders, directions, and requests to him given. I think that the ordinary rules governing principal and agent must apply to the dealings between husband and wife in this case.

The statute entitled “An act for the more effectual protection of the property of married women,” as amended in 1849, possesses one unmistakable feature, be the same considered a virtue or defect. It withdraws all power or control of the wife’s separate property from her husband and vests the same in the wife “ in the same manner and with the like effect as if she were unmarried.” She may spend it as she lists. She may give it away to whom she wish, to her husband if she so please, or she may pay his debts with it; in fact, do with it as she pleases. There is no power in the courts to restrain or prevent her from the exercise of a married woman’s right under the statute, of holding or parting with her property at her will and pleasure. She may make her husband or any other person her agent in the care and control of the same, on such terms and subject to such direction, written or verbal, as she may prescribe; and in a case like this there is no power in the courts to prescribe any different rules for the observance of the husband as her agent in fulfilling her directions than the law provides for the observance of any agent towards his principal or any agent chosen by her other than her husband.

The court holds that no written order, request, or direction from the plaintiff to the defendant was necessary to authorize him to pay the plaintiff these sums of money, or to pay these different bills; that a verbal order or request was sufficient; and there being no conflict of testimony as to the fact that he paid the same in accordance with her verbal directions, the judgment should be affirmed.


author: Jones, J.

text:
    THOMAS F. YOUNGS et al., Plaintiffs and Respondents, v. GEORGE L. KENT et al., Defendants and Appellants.

      [Decided March 5, 1870.]
    That part of a lot of goods sold by sample were not of the kind and quality agreed to be sold, and did not correspond in kind and quality with the sample (the whole lot having been delivered, and the defective portion not having been returned or offered to be returned to the vendor), cannot be pleaded in *bar to an action of goods sold and delivered, brought to recover the agreed price of the lot.
    Before Monell, Jones, and Spencer, JJ.
    This action is brought to recover the price agreed to be paid by defendants for twenty-six hogsheads of sugar which were sold and delivered by plaintiffs to defendants.
    The answer sets up as a defense in bar that the sale was by sample, and that four of the hogsheads delivered were not of the kind and quality of sugar which the plaintiffs agreed to sell to the defendants, and did not correspond in kind and quality with the sample.
    The plaintiff moved for judgment on the answer as frivolous.
    The motion was granted at Special Term, and j udgment was thereupon entered in favor of plaintiffs against the defendants, for the agreed price of the goods, interest thereon, and costs, amounting to $5,066.55.
    Defendants appeal to the General Term from the order granting the motion for judgment on the answer as frivolous, and from the judgment entered on such order.

      Mr. Charles Jones for appellants.
    The question is not one arising under executory contracts. The case as made by the plaintiffs in their complaint, is in substance an action for goods sold and delivered in the absence of any special contract, and the further answer of the defendants sets up a special contract which does not in terms, or by implication, admit that the goods sold and delivered by the plaintiffs were those claimed for in the complaint.
    The admission standing upon the record, therefore, is that there was a special contract; and to enable the plaintiffs to recover in their present form of action, therefore, it would be incumbent on them to show that the sugars for which they claim to recover were those referred to in the special contract set forth in the answer, and that by the action of the defendants in accepting goods under the contract, they were bound to pay for the goods.
    The amount and value of the goods so accepted, therefore (if the plaintiffs can recover at all in their present action), would have to be determined upon, showing what the contract was and what was delivered under it, and the circumstances of such delivery, by which the plaintiffs could be excused for the non-performance of the whole contract.
    These questions necessarily must be determined by evidence on the trial.

      Mr. Henry J. Scudder for respondents
    If the answer in this suit can be defended from the charge of frivolousness, it is because there is some color in the law for this proposition; that under a contract for the sale of goods of a particular description, or to correspond with a certain sample, the buyer may receive and keep goods delivered to him under the contract without incurring any obligation to pay the price thereof, or any portion of it, should the goods turn out in any, even the smallest respect, not to answer the description or conform to the sample. It does not seem necessary to give reasons or cite authorities to show the absurdity of such a position.
    The defendants may endeavor to escape the consequences of the foregoing point by saying (this was their argument in the court below) that they have so cunningly framed their answer as not in fact to admit a delivery of the goods. But this ingenious,
      rather than ingenuous plea, will not commend itself to a tribunal which requires suitors to be frank, unequivocal, and explicit in their pleadings. It is manifest that they admit the delivery of twenty-six hogsheads of sugar, and rest their defense on the allegation that it did not conform to the description by which they agreed to purchase (West v. The Am. Exc. Bank, 44 Barb., 179).
    In construing an answer to ascertain the scope of its denials and allegations, the whole of it must be taken together.
    The matters set up in this answer are not matters of confession and avoidance, but matters of denial. The purpose of them is .not to admit the case made by the complaint, but to deny it. How, it is the intention of the Code to require the defendant, if he means to deny any allegation in the complaint, to deny it directly, and this either by an absolute denial, or by a denial of any knowledge or information sufficient to form a belief. It is not designed to permit the defendant to set up in his answer facts which, if true, show that some material allegation of the complaint is untrue. He must deny the allegation, and upon the trial of the issue thus raised give the facts in evidence. It is only matter which admits the truth of some allegation of the complaint, and avoids its effect, which the defendant is required or permitted to set forth affirmatively (Code, § 149; West v. The Am. Exc. Bank, supra).

    How, the frivolousness of the answer appears right here. The defendants do not pretend that they have sustained any damage, or that the sugars were of inferior quality; indeed, for aught that appears, the goods delivered were of superior value to those called for by the contract. The notion upon which the answer proceeds is that the plaintiffs have not performed their contract, and, therefore, cannot maintain an action upon it. The matter of waiver is wholly lost sight of.
   By the Court:

Jones, J.

The averments contained in the answer clearly constitute no defense. If there had been so substantial a variance as to render the four barrels less valuable than the sum agreed to be paid therefor, then the difference between the actual value and the price agreed might have been recouped by an answer containing proper averments. But the answer does not set up a recoupment. It is an answer in bar.

Order and judgment affirmed with costs of appeal.