text:
    Henry P. Hall, Plaintiff and Respondent, v. Edward Morrison, Defendant and Appellant.
    1. On appeal from a judgment in an action tried before a referee although on an examination of the testimony as it appears reduced to writing and printed, the Court may think that on the proofs they should form an opposite conclusion on the facts, the judgment is not therefore to be reversed, when the testimony is conflicting and the preponderance on either side is not such as to warrant a belief that the finding of the referee is not the conviction of an upright mind uninfluenced by any consideration foreign to the case, or that his finding was the result of any error or mistake in the application of the rules of law to the evidence.
    2. Whether the proofs in this case showed a stated account betwéen the parties considered. •
    3. Where a plaintiff alleged in his complaint that he left with the defendant 20 shares of stock on the 27th September, 1854, for sale at not less than 46 per cent and that the plaintiff sold the stock at that rate and refused to pay over the proceeds and the plaintiff prays judgment - therefor; and it appeared by the proofs that the proceeds of such sale were by the plaintiff’s direction invested in other 20 shares of stock, which by like direction were sold and the proceeds invested in other 20 shares, which by the .plaintiff’s authority were sold and the proceeds received on the 20th of March, 1855. . Held,.that the plaintiff is entitled to recover such last named proceeds.
    That the discrepancy between the allegations and the proofs is not a failure to prove the allegations of the complaint in their entire scope and meaning and therefore not a variance which is fatal to a recovery.' ''
    (Before Bosworth, Oh. J., Slosson and Woodruff, J. J.) ';
    Heard, October 12th;
    decided, December 4th, 1858.

      This action was tried before Michael Ulshpeffer, Esq., as referee. He reported in favor of the plaintiff the sum of $1,060. Upon that report judgment was entered for the plaintiff, and from the judgment the defendant appealed to the General Term.
    The complaint alleged, that on or about the 27th day of September, 1854, the plaintiff left twenty shares of. the capital stock-of. the Hew York and Erie Railroad Company, with the defendant, (who was then doing business as stock broker,) to be held by the defendant on account .of the plaintiff, and, sold for bim at not less than 46 per cent of the par value. That the defendant has sold the. stock at not less than that sum, but refuses to pay to the plaintiff the proceeds. That there is due to the plaintiff by the defendant $920, for and on account of said stock, and for moneys thereon and therefor had-and received-, as the proceeds thereof, at the rate of 46. per cent upon the par value, together with interest from the 14th of May, 1856, for which the plaintiff prays judgment. ' ", ...
    (There were other names inserted in .the complaint as defendants, under a belief that the defendant had partners, but by consent those names were struck, out Or disregarded, and the defendant Morrison, treated as sole- defendant. Ho question arises out of this circumstance.)
    The defendant’s answer admitted the receipt of the stock and the sale thereof, at the time and at the.price.in the complaint stated, and that when it was.so left it was to be sold for the price and at the rate so alleged. .. .
    But averred, that after the sale of the twenty shares so left, the plaintiff directed him to repurchase other shares of the;same.stoek with the proceeds, in the discretion, of the defendant, as a stock broker, ■ for and on account of. the plaintiff; .and .from time to time the plaintiff directed him to. continue the operation of purchase, sale and reinvestment,, in such stock.. The result .being sometimes a profit, at others a loss to the -plaintiff, and the final result being that the defendant has and holds for and. on account of the plaintiff the sum of $500rW, .with interest from “ October 16th, 1857,” [1856] “the day on which the last transaction for the plaintiff, and at his request was effected.” " Which sum; then and ever since has remained on deposit with him,, at the call of the plaintiff, and which hé has been willing and offered to pay the plaintiff, but which the plaintiff has refused and rejected.
    On the trial the defendant testified in his own behalf, and his testimony tended to prove that the stock was sold by him on the 12th of October, 1854, at the rate limited, 46 per cent producing after deducting his commission (of \ of one per cent), the sum of $915.00. That the plaintiff' directed him to purchase other twenty shares, which he did October 31st, 1854, for the price of $885.00, and on the 25th of November, 1854, paid to him the profit, $30. That on the 7th of February, 1855, the defendant sold the twenty shares so purchased for the sum of $955.00, and on the 17th February again purchased twenty shares for $920.00, and on the 20th March sold the twenty shares last purchased for $965.00, and the next day paid to the plaintiff the sum of $35, which was the profit on the second sale and purchase.
    That thereupon, as the result of a consultation between the plaintiff and defendant, in relation to the expediency of enlarging the scale of operations, the plaintiff authorized the defendant “to'follow out his own ideas in the matter.” That with the assent of the plaintiff, the defendant continued to buy and sell fifty shares at one time,. (and how many at others he did not state) charging the plaintiff the defendant’s advances and losses on sales, and crediting him the profits and differences, through a long series of operations, down to October 6th, 1856, when there remained in the defendant’s hands a balance to the credit of the plaintiff, of $520.86, and no more.
    That on the 16th October, 1856, the plaintiff called on the defendant; was informed of the balance; that such balance was offered to him but he refused to receive it. That subsequently he rendered to the plaintiff an account, and after that the plaintiff demanded of him “ twenty shares at 46,” which defendant refused. When the account was rendered the defendant did not state, but he adds that this suit was afterwards commenced. That the defendant acted in good faith according to his best discretion, for the plaintiff’s interest, under his consent as above stated; and that the plaintiff was constantly in the habit of visiting the defendant’s office during these operations, and being told thé transactions and the results, made no objection or further request, but would say “very well.”

      The plaintiff being examined, testified that the first sale of twenty shares was made by his direction at 46 per cent. That he consented to a reinvestment of the proceeds in twenty other shares at 44 per cent, and this was done, he receiving the profits, $30. That he also consented to the sale of the said twenty other shares at 46, and the sale was made. That he directed a further purchase at $45f per cent, which was made by the defendant, and after the sale of those shares at 48 per cent, he called and received $35.
    He denied that he ever gave any such instructions or consent as was testified to by the defendant, and stated that the only instructions he gave were to buy at less than 46 per cent, and sell at not less than that rate, “ keep the twenty shares intact,” and operate in that way; the number bought and sold to be twenty shares only. That he received the profits of the first sale and repurchase, $30, of the second, $35, and also of a third, $12.26, and that he had no information at any time of any operations of the defendant with the plaintiff’s stock, except the three transactions which he mentioned, resulting in the said three items of profit so mentioned, until he received the defendant’s account showing the balance of $520.86 to his credit.
    The receipt given by the defendant when the stock was left with him was given in evidence, limiting the price at which the stock was to be sold to 46 per cent.
    Notices by the defendant of one sale, on the 27th September, 1854, at 46; and of one purchase, on the 31st October, 1854; at 44, were also read.
    The defendant’s counsel moved for a dismissal of the complaint on the same grounds upon which he claimed a judgment for the defendant.
    The grounds of this motion were chiefly these:
    That the complaint is unproved in its whole scope and meaning; the action being for the proceeds of the sale of the twenty shares on or about the 27th September, 1854, and the evidence showing a reinvestment of those moneys by the plaintiff’s direction, and subsequent sales having been made at a different time and rate per cent, the defendant has not in his hands the money sued for.
    That the plaintiff should not be permitted to amend his complaint and proceed for damages for the defendant’s embarking in other stock operations without the plaintiff’s authority.
    And that, upon the evidence, the plaintiff has not been prejudiced by those operations, because, non constat, that if the defendant had followed his instructions, the plaintiff would not have been a loser, instead of having $520.86 to his credit.
    And also on the evidence the defendant insisted that he was liable only for the balance of the account he had testified to, $520.86.
    The referee found “that the plaintiff’s case, and claim to $920, as stated in his complaint, are proved by the weight of the testimony and are substantially admitted in the answer.
    “That the defendant proved his allegations as to subsequent sales and purchases for reinvestment; and payments to the plaintiff of small profits in cases where the sales exceeded in amount the rates of repurchase.

      “ That the defendant did not prove by the weight of the evidence, authorization of recognition by the plaintiff of purchases or sales beyond twenty shares at one time or any revocation of the limit of 46 per cent on sales, and not higher on purchases.
    “ That the reduction of plaintiff’s claim below the amount stated in his complaint, depended upon the defendant’s speculations on fifty shares and his departure from the limit of 46 per cent, which the plaintiff disclaims having authorized, and which the weight of the evidence does not sustain as having been authorized on the plaintiff’s account.”
    Humerous conclusions of law, by the referee, are stated in the case, terminating, however, in. the final result, viz., judgment for the plaintiff for “the proceeds or value, as limited, of the twenty shares of stock” at the limited price, 46 per cent, i. e., $920, with interest thereon from May 1st, 1856, to the date of the report, amounting .to $1,060, for which, with costs, the judgment was entered.
    The defendant appealed.

      John Graham, for the defendant (appellant).
    I. The finding of the referee, that the weight of evidence did not show that the plaintiff authorized, on his account, the defendant’s operations or speculations in fifty shares of stock, and a departure, in selling, from the original limit of 46 per cent, is erroneous.
    H. The account which the plaintiff admitted having received from the defendant, became a settled account, and conclusive upon the plaintiff; and, under the circumstances, the referee should have so treated it.
    There is not the least pretence that the plaintiff spoke out against the account, or in any way disputed it. (Lockwood v. Thorne, 1 Kern., 170.)
    III. The plaintiff failed to sustain the action in its entire scope and meaning. After the defendant had been examined, the plaintiff acquiesced in the truth of his testimony, so far as it overthrew or disproved the allegations of the complaint, and claimed to and did recover, upon a state of facts directly hostile to the complaint. (Hall v. Gould, 3 Kern., 127; McComber v. The Granite Ins. Co., 1 Smith Court of Appeals R., 495; Walter v. Bennett, 2 id., 250; McKyring v. Bull, 2 id., 297, 303, 304, 307.)
    IV. In deciding upon the credibility of the plaintiff, the referee should have considered him as having sworn to an untrue complaint. If a party can be impeached, the plaintiff' was impeached by himself.
    Fro, H. Van Boren, for the plaintiff and respondent.*
    I. All the allegations in plaintiff’s complaint contained, are admitted by the defendant’s answer.
    II. The additional allegations (in defendant’s answer by way of defense in avoidance of the plaintiff’s claim) as to subsequent sales and purchases for reinvestment by authority of the plaintiff, and the assumption of profit or loss on those transactions coupled with a departure from and revocation of the limit of 46 per cent on sales, and not higher on purchases, or with a revocation of the limit of purchases or sales beyond twenty shares at one time, were not sustained or proved by the weight of evidence before the referee.
    ITT. The plaintiff’s stock having been sold and converted into money by the defendant before suit brought, the plaintiff may recover the proceeds as limited and sold, although the purchase and sale of such twenty shares may have been frequently repeated by mutual agreement before the commencement of this suit, and for such recovery this is the proper action.
   By the Court.

Woodruff, J.

—1. If this case were submitted to us upon the testimony reduced to writing, and we were to determine the facts, in the first instance, according to the impressions produced upon our minds by that testimony in connection with the undisputed facts, we should hesitate before arriving at the conclusion that the plaintiff in this action suffered a year and seven months to elapse (from March 20th, 1855, till after October, 1856,) without knowing what had been done with his twenty shares of stock. And that he was frequently in the defendant’s office, as testified without denial, without learning something of the operations which the defendant was making for his benefit, or on the other hand, if he was denied such information as he had a right to require, that he would have waited, quietly, nearly two years without taking measures to assert his right to his stock or its proceeds. And we might, perhaps, infer that he was aware of the transactions of the defendant and acquiesced therein in expectation of profits, and that his present claim is rather the consequence of his disappointment at the result than a sense of what he is justly entitled to receive from the defendant.

But even if it seemed to us upon the reading of the testimony that the account given by the defendant of his transactions and of the plaintiff’s authority and assent thereto would have obtained credence with us, and in connection with other facts have led our minds to a result other than the referee has reached, it does not follow that we can reverse the judgment upon this ground. The testimony of the plaintiff and that given by the defendant were in direct conflict, and the preponderance of the testimony on either side is not such as to warrant a presumption that the finding of the referee is not the conviction of an upright mind, uninfluenced by any consideration that is foreign to the case, or that his findings were the result of any mistake, or qf any error in the application of the rules of law to the evidence. In such case it is settled that the report of a referee cannot be set aside. He has the witnesses before him. He not only hears their words, but observes their manner of testifying. He may have been conscious of reasons for doubting the accuracy of the defendant’s testimony, which do not and cannot appear upon the printed case. Under such circumstances his report upon the facts must conclude us; it stands as the verdict of a jury. What are now urged upon our minds, as the “probabilities of the case ” were the proper subjects of consideration by him, but we are not in a situation to say that he ought not, nevertheless, to have credited the plaintiff, and been guided by the conviction which the whole testimony produced in his mind.

2. It is next insisted that the account, which the defendant rendered and which the plaintiff admitted he received from the defendant, became a settled account and conclusive upon the plaintiff and that the referee should have so treated it.

The imperfection in this claim on the part of the defendant is two-fold.

First. It does not appear by the evidence when the account was rendered and received. The defendant testifies that it was subsequent to the 16th of October, 1856, and before this suit was commenced. It does not appear that it was received and acquiesced in, in such wise, or for so long a time as to raise a presumption of assent to its correctness.

Second. The conduct of the plaintiff excludes any idea of acquiescence which could give the account the force of an account stated between the parties. When, before the account was rendered, the amount of the alleged balance was stated to him, he refused to accept it. After the account was rendered, he called and demanded the “ 20 shares of stock at $46.00,” which we must understand to mean the proceeds of 20 shares at that rate. The precise dates of these transactions are none of them stated, but surely here is nothing that imports assent by the plaintiff to the correctness of the account.

3. It is claimed that the plaintiff has failed to prove his cause of action, in its entire scope and meaning. That the discrepancy between the case made by his complaint, is therefore not a case of variance, but a failure of proof. (Code, § 171.)

The case stands thus, the plaintiff alleges that on the 27th day of September, 1854, he left 20 shares of stock with the defendant to be sold at not less than 46 per cent of its par value. That the defendant sold it at not less .than 46 per cent, and refuses to pay the proceeds to the plaintiff.

The proofs established to the satisfaction of the referee, that on the 27th September, 1854, the plaintiff did leave the 20 shares with the defendant, to be sold at not less' than 46 per. cent. ; That they were sold at not less than that price. That the proceeds were invested in 20 shares of. stock, and they were sold at not less than 46, per cent. That the proceeds were, again invested in'20 shares of stock, and they were then sold^at not less than 46 per cent. The" proof showed-that this last sale was at 48 per cent,. or; .according, to the defendant’s account, 48£, and was made and its proceeds received on the 20th .of March, 1855, at which rate the. sale yielded the sum of $965, after deducting the defendant’s brokerage.

That the subsequent reinvestment of those proceeds .was without the authority or sanction of the plaintiff.

■ It. is .therefore literally true that the defendant sold 20’ shares of stock belonging to the plaintiff, and received therefor a sum even larger than the referee has allowed to the plaintiff." They were left by the plaintiff in his hands to be sold. The discrepancy between the plaintiff’s complaint and the proofs, is in assigning a wrong date to the receipt of the particular stock, the proceeds of which remained in the defendant’s hands. This we think is clearly,, at the most, a variance, and one which'could and ought to.be disregarded. Before the Code, -the time at which-it was alleged-, in a declaration, moneys were had and .received, or a trespass was committed, were not in general material. • And we have, made small advance in our endeavor to. make-rules for the administration of justice, that shall secure what is right without being hindered by mere errors of form, if this judgment must be reversed because the plaintiff alleged that the .defendant received the 20 shares on the 27th of September, instead of alleging that he received them on the. 17th of February; when in fact it, was purchased for .the ..plaintiff The discrepancy did not mislead the defendant. His answer disclosed the fact of the reinvestment of the proceeds of-the first 20 shares; and his own testimony gave the dates of the successive sales.

Besides there is a sense in which it is literally true, that the moneys received on the sale of the 20th of March, were the proceeds of the stock left with the defendant for sale at not less than 46 per cent on the 27th of the previous September. The proceeds had been through several transactions of buying and selling, but they were the ultimate proceeds of the original 20 shares. Not literally and technically the immediate proceeds; but in substance the growth or produce of those twenty shares.

We do not perceive that there is any occasion to regard the plaintiff’s claim under the proofs, as a title to recover for a wrongful appropriation of the plaintiff’s stock. The sale of the 20th of March was, as both parties agree, with the authority and consent of the plaintiff, and the proceeds were received by the defendant. It is the employment of the money in transactions not authorized by the plaintiff, and the refhsal to pay the money to the plaintiff, in which alone the defendant violated the plaintiff’s rights.

We feel constrained to say that the variance, if any, was not material, since it could not have misled the defendant to his prejudice. (Code, § 169.) And that it was not a failure by the plaintiff .to prove his allegations in their entire scope and meaning. He sued to recover the proceeds of 20 shares of stock in the New York & Erie Railroad Company, left in his hands by the plaintiff to be sold at a price not less than 46 per cent. And he has recovered for just such proceeds, and on those grounds. The other details seem to us plainly to be particulars only, and particulars which do not affect the cause of action in its essential character nor alter the entire scope and meaning of the plaintiff’s allegations.

We do not discover why the referee selected the first day of • May, 1856, as the day from which to compute and allow interest to the plaintiff, but no point is made by either party on that subject nor has it been claimed that the referee erred in that particular.

Our conclusion is that the judgment must be affirmed. We do not think it necessary to consider in detail the conclusions of law or reasons which are stated as such conclusions, by which the referee arrived at his ultimate legal conclusion, it is sufficient to say that his final report by which judgment was awarded to the plaintiff, and therefore the judgment itself must be affirmed.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Hoffman, J. Bosworth, Ch. J.

license: Public Domain

text:
    Baldwin, Administrator, Plaintiff and Respondent, v. The New York Life Insurance and Trust Company, Appellants.
    1. Where a life policy, made in New York upon the life of a person then residing there, declares that such policy is accepted upon the condition, that if the insured, without the previous consent of the insurer indorsed on the policy, “ shall visit those parts of the United States which lie south of the southern boundaries of Virginia and Kentucky, . . the policy shall be void, null and of no effectand where an indorsement is made by the insurer on such policy on the 24th of October, 1853, that “ the insured has permission to reside, and travel by land or by any of the regular sea steamers, in any part of the United States; to be north of the south bounds of Virginia by the 10th of July, 1854,” and where in pursuance of such permission and soon thereafter the insured goes to Appalachicola, Florida, and is there on the 11th of June, 1854, seized with sickness and is so sick as to be unfit and unable to travel and to start on his return to the north and so continues until the 20th of July, 1854, when he dies at Appalachicola, (distant six days travel from the south bounds of Virginia by the ordinary route and mode of travel); the insurers are not exempt from liability, on the ground that the insured’s being north of the south bounds of Virginia by the 10th of July, 1854, is a condition precedent, the performance of which is so essential to the continuing validity of the policy that its non-performance cannot be excused, though caused by the act of God. (Per Hoffman, J.)
    2. Where a life policy contains such a condition, and has such a consent indorsed upon it subsequently, and where performance of the condition rests with the assured exclusively and is wholly personal, and he, while intending in good faith, to perform it literally, is disabled from performing it by the act of God, without.any default or neglect of his own; non-performance of the condition will not, alone, exempt the insurer from liability. (Per Hoffman, J.)
    3. The consent indorsed on the policy should be so construed as to conform to the intent of the parties, to be collected from the terms of the whole agreement. (Per Bosworth, Oh. J.)
    4. By a just construction of the policy and of such consent, the life insured, was insured against death resulting from disease contracted or first developed, on the 11th of June, 1854, at Appalachicola, (distant from the south bounds of Virginia six days of ordinary travel), provided the disease was of a character that made his death in the highest degree probable, if he attempted to return. (Per Bosworth, Oh. J.)
    (Before Bosworth, Oh. J., and Hoffman, J.)
    Heard, November 4;
    decided, December 4, 1858.

      This is an appeal by the defendants from an order denying a motion made by them for a new trial.
    This cause was tried before Mr. Justice Woodruff and a jury, on the 23d of April, 1858, when a special verdict was taken, as hereafter set forth, in favor of the plaintiffs, and for the sum of $3,486.41. A motion was made at Special Term, by the defendants, for a new trial, which was denied by an order of the 7th of May, 1858; and from that order the present appeal is taken.
    The action was brought by the plaintiff, Charles N. Baldwin, as administrator of James J. Baldwin deceased, upon a policy of insurance dated October 23, 1849, issued by the defendants, on the life of the said James J. Baldwin, for seven years from the date of the policy, at the annual premium of $34.50.
    The policy contained a clause by which it was “declared to be the true intent and meaning of this policy, and the same is accepted hy the assured upon the express conditions, that in case the said James J. Baldwin shall die upon the seas, &c., or shall, without the consent of this Company previously obtained and indorsed upon this policy, visit those parts of the United States which lie south of the southern boundaries of the States of Virginia and Kentucky, this policy shall be void, null and of no effect.”
    The following indorsements in writing, were made on the policy, at the time of their respective dates, viz.:
    “The party insured has permission to reside and travel inland in any part of the United States, or by any of the regular steamers, to be north of the south bounds of Virginia by the 10th day of July, 1850.
    “Wm. Bard, Act'y. D. Thompson,
    “P. R. Kearny, Sec'y. President.

    “October 23, 1849.”
    “In consideration of the extra premium of twenty-two dollars, the party insured has permission to remain in Appalachicola, Florida, until the 1st of August next, to be north of the south bounds of Virginia by the 10th of August, 1850.
    “Wm. Bard, Act'y. D. Thompson,
    “P. R. Kearny, Sec'y. President.

    “July 19, 1850.”

      “The party insured has permission to reside and travel by land, or by any of the regular sea steamers, in any part of the United States, to be north of the south bounds of Virginia by the 10th of July, 1851.
    “ Wm. Bard, Acfy, D. Thompson,
    “P. R. Kearny, Sedy. President.

      “ October 19, 1850.”
    “The party insured has permission to reside and travel by land, or by any of the regular sea steamers, in any part of the United States, to be north of the south bounds of Virginia by the 10th of July, 1854.
    “P. R. Kearny, D. Thompson,
    “ Secretary. President.

    “October 24, 1858.”
    The complaint sets forth the making and delivery of the policy, and a copy of it, with the indorsements made thereon; avers that the annual premium was duly paid up to and including the 23d of October, 1858; that in pursuance of the consent of the 24th of October, 1853, and soon thereafter, the said James went to Appalachicola, Florida, and while there, and in June, 1854, “ the said James was seized with sickness, and became, and was so sick and ill in body, as to be wholly unfit and unable to travel, and to start on his return to the North, and he continued thus sick and unable until the day of his death aforesaid, and that by such sickness and illness, and by that cause alone, the said James was kept and detained at Appalachicola aforesaid, and prevented from leaving the said place during the whole period from the time he was so taken sick in June as aforesaid, up to the time of his death as aforesaid; that in consequence of such sickness and illness as aforesaid, it became, and was impossible for the said James to be north of the south bounds of Virginia by the tenth of July, 1854, and he was thus by the act of God prevented from being north of said south bounds of Virginia by the said tenth day of July; and said plaintiff further shows that it was not through or by means of any act, omission, neglect or default of the said James that he was not north of said south bounds of Virginia by the said tenth day of July, but his not being north of the south bounds by said day was caused solely by the act of God, as hereinbefore stated and set forth.”
    The defendants, by their answer, “deny that it was impossible for the said James J. Baldwin to be north of the south bounds of Virginia by the tenth of July, one thousand eight hundred and fifty-four. And they deny that he was, by the act of God, prevented from being north of the said south bounds of Virginia by the said tenth day of July, in the year one thousand eight hundred and fifty-four. And these defendants further answering say, that it was through or by means of his own act, omission, neglect, or default, that the said James J. Baldwin was not north of said south bounds of Virginia by the said tenth day of July, one thousand eight hundred and fifty-four, and they deny that his not being north of the south bounds of Virginia by the said day, was caused by the act of God, as stated in said complaint.”
    J. M. G. Hunter, and Samuel W. Spencer, and T. J. Eppes, all of Appalachicola, were examined, and gave evidence tending to establish the facts specially found by the jury. No other witnesses were examined.
    The special verdict is as follows: “The jurors, after deliberation, rendered their verdict, by which they found as follows: That pursuant to the permission and consent mentioned in the complaint in this action, and that of October 24, 1853, and soon after the making of the same, James J. Baldwin, in said complaint mentioned, went to the State of Florida; that on or about the 11th day of June, A. D. 1854, the said James J. Baldwin, while at Appalachicola, in the said State of Florida, was seized with sickness, and became, and was so sick and ill in body as to be unfit and unable to travel, and to start on his return to the north, and he continued thus sick and unable until the 20th day of July, A. D. 1854, when he died at Appalachicola aforesaid; that by such sickness and illness, and by that cause alone, the said James J. Baldwin was kept and detained at Appalachicola, and prevented from leaving the said place during the whole period from the time he was so taken sick on the 11th day of June aforesaid, up to the time of his death, as aforesaid; that in consequence of such sickness and illness, the said James J. Baldwin was unable to be north of the south bounds of Virginia by the tenth day of July, 1854; and that his not being north of the south bounds of Virginia by'the tenth day of July, 1854, was caused solely by the facts aforesaid, and without default or neglect on the part of the said James; that the time required to travel from Appalachicola, in the State of Florida, to the south bounds of Virginia by the ordinary route and mode of travel, does not exceed the period of six days'; that due notice and proof of the death of the said James, and of his sickness aforesaid, were given and furnished to the defendants on or before the 12th day of October, 1855; that at the time of the commencement of this action the plaintiff was, and he still is, the lawful administrator of the estate of the said James J. Baldwin, deceased; that the said plaintiff is entitled to recover of and from the defendants the amount agreed to be paid in and by said policy of insurance; and that there is now actually due to the plaintiff from the defendants upon the said policy of insurance the sum of three thousand dollars, with interest from the 12th day of December, 1855, making in all the sum of three thousand four hundred and eighty-six dollars and forty-one cents.”
    The defendants moved, at Special Term, for a new trial, which motion was denied. From the order denying it, the defendants appealed to the General Term.

      William Betts, for appellants.
    I. The facts, as proved by the plaintiff, do not sustain the allegation of the complaint, in the finding in the special verdict.
    II. The special verdict does not find that it was impossible for the assured to have complied with the condition; but only, that on or about the 11th of June, 1854, he was seized with sickness, and thenceforward was unfit to travel, and to start on his return to the north; and that by such sickness alone he was prevented from coming north, without any default or neglect on his own part.
    Supposing this to be correct, the testimony of Dr. Spencer shows the character of the prevention: that it was a mere moral coercion, acting upon his mind from the fear of consequences.
    IH. Where a party, by his own contract, creates a duty or - charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.

      Therefore impossibility of performance on a special contract is not matter of defense to an action brought. (Co. Litt., 206, b; Litt., ch. 5, § 334; Paradine v. Jane, Aleyn, 26, 27; Shubrick v. Salmond, 3 Burr., 1637; Liddard v. Lopez, 10 East., 526; Monk v. Cooper, 2 Strange, 763; Hallett v. Wylie, 3 J. R., 47; Hadley v. Clark, 8 T. R., 259; Barker v. Hodgson, 3 M. & S., 269; Doctrine in Aleyn, ack’d, 7 Mass., 331; 2 Lord Raym., 1164; 1 Lev., 11;. 6 T. R., 719; Beatson v. Schenck, 3 East., 233; Lockyer v. Offley, 1 T. R., 260; Beebe v. Johnson, 19 Wend. R., 500; Warner v Hitchins, 5 Barb. S. C. R., 666; Harmony v. Bingham, 1 Duer R., 209; S. C., 2 Kern. R., 99; Com. Dig., Asst. G., 36 Cond. D., l; Platt on Covenants, 3 Law Lib., 1st Ser., pp. 260, 582; part 6, ch. 2, § 1; Angell on Com. Carr., § 294: W. W. Story on Contr., § 975; Chitty on Contr., Springfield Ed., 1842, p. 734, ch. 5, § 5.)
    IV. The plaintiff avers impossibility of performance of a condition precedent, in order to lay the foundation of an action. As this forms no defense, still less can it be allowed to support an action.
    A condition precedent must be performed strictly, nothing can excuse its performance. There is no case, dictum or authority known to appellants, which allows a plaintiff to set up impossibility in excuse for performance of a condition precedent.
    Where a right of action depends upon the performance of a condition precedent, performance cannot be excused, unless it is dispensed with or prevented by the opposite party; although it has become impossible without any default on the part of the plaintiff, or even by the act of God. (Carpenter v. Stevens, 12 Wend., 589; Smith v. Briggs, 3 Denio, 73; Page v. Ott, 5 id., 406; Oakley v. Morton, 1 Kern., 21, 30; Com. Dig., ut supra; Burritt v. The Saratoga Mutual Insurance Co., 5 Hill, 188, 191, 193; Farmers' Insurance and Loan Co. v. Snyder, 16 Wend., 488.)
    V. The plaintiff has no equity. The indorsements on the bond show that on a prior occasion, the assured had paid for an extension of one month, viz.: to the 10th August, 1850, the sum of $22fVIo) or more than seven times as much as the risk at the north. He knew that he was incurring a risk after the tenth of July, seven times as great as the usual risk; and the indorse-men! on the policy shows that the company and himself had agreed on that valuation of risk, and he assumed it himself.
    VI. Judgment on the special verdict should be pronounced for appellants.

      Luden Birdseye & LB. Yates Sommers, for respondent.
    I. The policy was to become void, if the insured should, without the consent of the company previously obtained and indorsed upon the policy, visit those parts of the United States which lie south of the southern boundaries of the States of Kentucky and Virginia. The insured visited Florida pursuant to the following consent duly indorsed on the policy: “ The party insured has permission to reside and travel by land or by any of the regular sea steamers in any part of the United States, to be north of the south bounds of Virginia, by the 10th of July, 1854.” It is claimed by the defendants that this consent was conditional, -and that a failure to return at the time mentioned, rendered the policy void. They seek to give it the same effect that it would have, if the following words were added to it, viz.: “ And it is hereby declared to be the true intent and meaning of this consent, and the same is accepted by the assured upon the express condition, that if the said Lames L. Baldwin shall fail to return north of the south bounds of Virginia by the time aforesaid, this policy shall be void.”

    We submit that the consent cannot thus be read, and that no such consequences could result from a failure to return, for the following reasons:
    1. The condition, if any is annexed to the consent, was made for the benefit of the insurers, and there is nothing upon the face of it to show that the insured assented to the condition. They, therefore, cannot claim any benefit from it- except what is properly and fairly deducible from the language used. (1 Duer on Ins., § 6, p. 101.)
    2. To create a condition it is usual to insert the word, “ condition, ” or “proviso.” Such words must be used as clearly show that the grant or license is not absolute; that something is excepted from its general operation, or that its use is dependent upon something to be done by the other party to the contract. And the words used, must not be repugnant or uncertain. Co. Lit.. 203, a, 203, b, 204; Bac. Abridg., Title, Condition (A); 3 Com. Digest, 83, Title, Condition. (A 2, A 6.)
    3. The only words which can be relied upon as creating a condition in the consent, are the words, “ to he north of the south bounds of Virginia by the 10th of July, 1854.” This language is altogether too indefinite and uncertain to create such a condition as is contended for. For aught that appears upon the face of the consent, this language was used by the insurers merely as expressive of a determination that the insured should return at the time specified. They do not say that the policy should be void if he did not return. If they intended it to have that effect, they should have so declared. The language is that of their own selection. It must be presumed that they said all they intended. The words are merely words of limitation. (Bacon’s Abr.', Title, Condition, Introduction.)
    4. If it is claimed that the language of the consent is to be construed with reference to the policy, we submit that it cannot be so construed for the purpose of creating a condition out of words, which, standing alone, do not amount to one. To constitute a valid condition, there must be a distinct and independent sentence expressly specifying the limitation or proviso with reference to which the grant is made, and it must not depend upon another sentence or instrument for its effect. Bacon’s Abridg., Title, Condition. (A.)
    5. The construction contended for would make the consent,1 in its nature, a warranty. Now, it is well settled that a warranty cannot be created by construction. It must either appear in express terms, affirmative or promissory, or must necessarily result from the nature of the contract. It must, therefore, appear on the face of the policy in order that there may be unequivocal evidence of a stipulation, the non-compliance with which, is to have the effect of avoiding the contract; or, if on another part of the same sheet, or on a sheet physically attached, the stipulations must, of themselves show, that they were intended to be incorporated in and form a part of the contract. If they appear in another paper, they must not only be referred to in the policy itself, but must be referred to in such a manner as clearly to show that they were intended to be incorporated in the policy and form a part of its conditions. (Jefferson Ins. Co. v. Cotheal, 7 Wend., 80; Reynolds on Life Ins., 92.)
    6. But a reference to the policy, to ascertain what construction should be put upon the words in question, would not help the defendants. For the policy nowhere provides that it shall be void, if the insured fails to return within the time specified in the consent. The consequences of a visit without consent, are specified, but the policy is silent as to the consequences of a failure to return, in case of a visit by permission. There is, therefore, nothing in the policy which will aid in creating the condition contended for.
    7. Ho penalty is fixed for a failure to perform this provision of the consent. The insurers have distinctly specified the cases in which the policy should become void. A failure to comply with the requirement in question is not one of these cases. It is no part of the original contract that, if the insured goes beyond the specified limits with consent, he shall return within a given time, or forfeit the policy. If the defendants have any right to repudiate their contract, and declare the policy at an end, because the insured did not return within the specified time, ' such right must be derived from the terms of the consent itself. Ho such right is conferred by the consent.
    (a.) The consent does not, in terms, attach any penalty to a non-compliance with its terms. It does not say that the policy shall be void, if this provision is not fulfilled. For aught that appears from the language used, some other penalty may have been intended than that of a forfeiture of the policy.
    (6.) If the condition did confer such a right, then a new and independent proviso would be created not within the terms of the policy.
    (c.) To create such new proviso would be a modification of the original contract.

      (d.) To modify the original contract, it would be necessary to have the consent of all the contracting parties, and no consent of the insured is shown, or is properly inferrible, either from the terms of the writings, or the conduct of the parties.
    8. The consent, if capable of a construction which makes it a warranty or condition, is also capable of another reading, which will not result in a forfeiture. Ho language capable of such a double reading will ever be held to constitute a warranty or condition, the breach of which works an absolute forfeiture.
    9. But the parties have put a construction on this language, which shows that neither of them considered it as constituting a warranty or condition. The consent of October 23, 1849, is in the same form as that of October 24, 1853, under which this question arises. The consent of July 19, 1850, shows that the insured had remained in Florida till after July 10, 1850, and gave him permission to remain there still longer. Thereby clearly conceding that the policy was not avoided absolutely, by the mere failure to be north of the south bounds of Virginia by the time limited in the consent for that purpose. The consent of October 24, 1853, was accepted by the assured in the light of that construction put on the same consent by the insurers. And there can be no pretence that the assured, in accepting this consent, could have intended to bind himself by it as a warranty or condition.
    II. Giving to the consent the full effect claimed for it by the defendants, the plaintiff would still be entitled to recover, because the insured was excused from performing the condition. The jury have found affirmatively, that he was taken sick on the 11th of June, and continued ill and wholly unable to travel, from that time to the time of his death, which occurred on the twentieth of July following; that his failing to comply with the condition was without default or neglect on his part. He was, therefore, prevented by the act of God, from performing the condition, and the act of God will excuse performance.
    1. The very nature of the stipulation is such, that the parties must have intended that a compliance with the condition should be dependent upon the physical power of the insured to perform it. It must receive a reasonable construction, and one which will not enhance the risk beyond what was fairly contemplated by the insurers. If the condition is to be performed, at all hazards, it would increase the risk, because the very act of performance might'cause the death of the insured, and thus result in loss to the insurers. It cannot be that they intended to impose a condition which might render a loss inevitable.
    2. The fact that consent is required to authorize the visit, implies that it will be attended with danger, and may result in an inability to perform the condition. To give it any other construction would be to assume that the insured actually contracted to do an act which, at the time, he knew would or might be beyond his power to perform.
    3. The covenant relates to the health and life of the party making it, and must therefore be presumed to have been made with reference to the physical ability of the covenantor to perform, and to the contingencies and hazards attaching to human life.
    4. But whether the parties actually intended that performance of the condition should depend upon the physical capacity of the insured or not, would make no difference, for the law would excuse performance of such a condition as this where performance had become impossible by the act of God. Bacon says, that if a man 'covenant to build a house by a certain day, and the plague is there before the day, and continues there till after the day, this shall excuse him from the breach of the covenant for the not doing thereof before the day, “for the law will not compel a man' to venture his life for it." (Bacon’s Abridg., Title, Condition, Q. 1.) This has always been the rule in relation to covenants dependent upon the life or health of a party. (The People v. Manning, 8 Cow., 298; Carpenter v. Stevens, 12 Wend., 589; Browning v. Hanford, 5 Denio, 586; 3 Comyn’s Dig., Title, Condition, D. 1; 2 Co. Litt., 206, a, b.)
    5. The case in question is clearly distinguishable from that of a common carrier, or other contractor, who covenants to do an act relating to property, for in such a case it is in the power of the covenantor to provide against the consequences of accident. He may provide against the consequences of his own sickness. But in this case the insured could not have provided for a performance of the condition, in case of his own inability to perform it.
    III. But it may be said, that although the act of God is a sufficient excuse for non-performance, where it is set up as a defense to an action, yet it is not, where performance is a condition precedent to a right of action. To this we reply that the return of the assured at the time specified in the consent is nowhere made a condition precedent to his right to recover. We have already shown that no such stipulation is contained in the policy itself, and it is clear that none is contained in the consent.

      IV. The verdict of the jury was warranted by the evidence, and therefore, if either of the foregoing positions are correct, the motion for a new trial should be denied.
   Hoffman, J.

—I agree with the counsel of the defendants that the consent of October 24, 1853, must be read in connection with the provision in the policy, which it affects. The case then is thus presented. ' The life of the plaintiff’s intestate was insured by the contract, while he remained within certain territorial limits. If be went beyond those limits without consent, the policy was to be void. Then the consent modified the restriction, permitted him to go within the before prohibited limits, but required that he should return from within them, by the 10th of July, 1854.

I treat then the legal scope and import of the contract as stringent as it can possibly be treated, when I regard it, as if on the twenty-third of October, the parties had made the insurance, giving liberty to the assured to go and remain south of the specified bounds down to the 10th of July, 1854, and declaring that the policy should be void if he was not north of those bounds by that day. The license then would be. accompanied with a provision or stipulation, or condition, whatever may be the proper term; and so here, the relaxation of the original prohibition is accompanied with the same modification attached to it.

The learned counsel of the defendants insists that there is a condition precedent here, which must be literally and absolutely fulfilled, before a recovery can be had. He must, upon the theory he advocates, sustain a proposition like this; that the agreement was, that the company would be liable, if death occurred within the specified limits, between the 23d of October, 1853, and the 10th of July, 1854; or beyond those limits at any other period of the year; but in no other event. The occurrence of death, under one or the other of these contingencies, was the casus foederis, a condition precedent to any liability.

That the whole instrument, the policy and indorsement taken together, admits of such a construction, may not be doubted; neither can it be questioned that no particular form of words is necessary to constitute a condition precedent. “ It is dependent upon the intention of the parties, to be collected in each case from the terms of the agreement itself, and from the subject matter to which it relates.” (Per Timbal, Ch. J., 2 Man. and Gran., 266.)

Such cases as Graves v. Legg, (25 Eng. L. and Eq. Rep., 552,) Kearney v. The West Granada, &c., Co., (38 id., 327,) and Inman v. The Western Fire Ins. Co., (12 Wend., 452,) are striking examples of conditions precedent deduced from words, portions of a sentence, even parenthetically used, and far from wearing the form of a condition or proviso.

. But I do not think that even in the case I have supposed, the construction of the agreement contended for as above stated, is a necessary one. The distinction is considerable, between language defining the case of a liability and excluding expressly every other case, and words simply declaring that unless a party was beyond a certain place by a given day, the assurers should be exempt. I think the consent is to be regarded as a qualification, and a qualification upon terms. Assume that those terms substantially amount to a proviso, or condition, it is not one, inflexible, arbitrary and incapable of exception, or of anything short of literal performance. Full license is accorded to be within the before excluded limits for the period mentioned. There is an obligation imposed upon the party to return, there is an implied stipulation on his part to return, treat it as in substance a condition that he should return; and yet there is not the absolute exclusion of every possible excuse for not returning by the day fixed.

If so, we come to the question whether the facts found by the special verdict are sufficient to dispense with the literal fulfillment of what is now treated as a condition.

It admits, indeed involves, the idea of an intention to return within the period prescribed. It is found that Baldwin’s not being north of the boundary was solely caused by the illness which resulted in his death. And we see that when his inability to travel commenced, he had twenty-nine days to perform a journey which required but six.

In the case of Carpenter v. Stevens, (12 Wend., 589,) these propositions are laid down: 1st. “ That where the condition of a bond or recognizance is possible, at the time of making it, and before it can be performed, becomes impossible by the act of God or of the law, or of the obligee, there the obligation is saved, as if the condition is, that a man shall appear at the next term of a Court, and before the day he dieth, the recognizance is saved.” It is as if the duty had been fulfilled. 2d. “ That where a right of action depends upon the performance of a condition precedent, performance cannot be excused, unless it is dispensed with or prevented by the opposite party, although it has become impossible without any default on the part of the plaintiff, or even by the act of God. The rule is different, where the impossibility of performance is set up as matter of defense.”

The case was this: The defendants had given a replevin bond to the sheriff for the return of a mare taken by him. Judgment of return was given for the defendants in the replevin suit. In an action on the bond, the plea was, that the mare had died from inevitable accident, and without the fault of the obligors. Judgment was given for the defendants. Lord Coke’s authority is cited, (1 Inst., 206, a, b).

The case of Williams v. Lloyd, (William Jones, 179,) is to the same point. A horse was delivered to the defendant, upon an undertaking to" return it on demand. It was pleaded that the horse had died before request made, and the plea was held good.

So in The People v. Manning, (8 Cow., 297,) the action was upon a recognizance for the appearance of a sheriff arrested on attachment, at the next term of the Court, viz., the third Monday of February ensuing. The plea was, that on the 1st of February the sheriff was taken violently sick; was confined to his house and bed; and could not be removed therefrom, and continued sick until he died on the 22d of March. It was held, that the recognizance was like a bond with a condition, a compliance with which had become impossible by the act of God. And in such a case, the performance is excused; no action lies. Coke upon Littleton, (206, a,) is cited. Judgment was rendered for the defendants on demurrer to the plea.

For the second proposition stated in Carpenter v. Stevens, the following cases are cited: Moakley v. Riggs, (19 John., 69; Wood v. Worsley, (2 H. Black., 574; S. C, 6 T. R, 710; Routledge v. Burrell, 1 H. Black., 258; Taylor v. Bullen, 6 Cow., 624; and Inman v. The Western Insurance Company, 12 Wend., 452.)

There is nothing in the case of Moakley v. Biggs, but a suggestión that it may be doubted whether the engagement by one to perform an act on the previous performance of another act by the other, can be enforced without showing the previous act done; or that its performance was dispensed with or prevented by him who was to perform the subsequent act. The decision rested upon the neglect to do a previous act, which it had been in the power of the party to perform for some time after performance would have discharged him.

In Taylor v. Bullen, (6 Cow., 624,) Taylor and Otis had warranted the collection of a promissory note, and to pay all costs of suits legally commenced for its recovery. One Stroud, was the maker. The note was to run two years. Stroud died before its maturity. In an action on the guaranty the plea was, that he died seised and possessed of large real and personal estate. It was held that the condition had not been complied with, as the heirs had not been sued. Chief Justice Savage says: “Here was a condition precedent; that condition was not' confined to a prosecution of Stroud himself. Had it been so, then indeed the plaintiff would possibly have'been excused, as that was rendered impossible by the act of Grod, the death of Stroud. Even this however may be doubted.” He then cites the language of Spencer, Oh. J., in Moakley v. Riggs.

Wood v. Worsley was the case of a condition in a policy ot insurance, that a certificate of the minister and church wardens to a certain fact should be produced. It was not procured, and was refused without cause. It was held essential.

Routledge v. Burrell, ut supra, is to the same point. And this decision was recognized and followed in a very similar case in Maine. (Leadbetter v. The Ætna Ins. Co., 1 Shepley, 265.)

So in Campbell v. French, (cited by Oh. J. Savage, 6 T. R., 200,) the condition was to pay bills if returned protested for non-payment, and they were returned protested for non-acceptance. It was held, not to be complied with.

In these cases there was no impossibility or insuperable difficulty, in literally performing the agreement; and strong reasons existed, resulting from the nature of the contract, for requiring a strict fulfillment. Those reasons are clearly set forth in the opinions in Wood v. Worsley, particularly in that of Mr. Justice Lawrence. . Inman v. The Western Insurance Co., (12 Wend., 452,) was of the same character. The policy there required notice of the loss to be given forthwith. It was not given for thirty-eight days after the fire occurred.

In the People v. Bartlett, (3 Hill, 570,) Chief Justice Nelson, states broadly, that it is a general principle of law, that where the performance of the condition of a bond or recognizance has been rendered impossible by the act of God, or of the law, or of the obligee, the default is excused. He cites Bac. Abridg., Title, Condition, Vin. Abr., Ibid, and the cases.

There is another class of cases of which Harmony v. Bingham, (1 Duer, 209, 2 Kernan, 99,) is a marked example. Under a contract to transport and deliver goods at a certain place, by a certain day, without any exception, the obligation is absolute; and a defense that unavoidable accident, such as freshets in a river, prevented performance is unavailable. The rule as expressed in Paradme v. Jane, (Aleyn, 26,) is stated as the law, and need not be repeated.

When the case of Harmony v. Bingham was in the Court of Appeals, the learned Judge observed, “ It is not found that the thing covenanted to be done could not by any means be accomplished ; and there is no fact from which we can draw any such inference.”

. Many of the leading authorities will be found to have in them this important element, that there did exist means to accomplish or meet the condition. Such was the case in Oakley v. Morton (1 Kern., 25); in Beatson v. Schenck, (3 East., 233); in Inman v. The Western Insurance Co., (12 Wend., 452); and in the strong case of Beebe v. Johnson (19 id., 500).

It may also be useful to advert to the series of decisions in the slaveholding states, upon bonds given for the hiring of slaves for a particular period. It is held in many of them, that the death of some of the slaves within the period, is a ground for an abatement of the sum to be paid; in others, a different rule prevails. The authorities are fully stated in Harman v. Herring, (25 Miss. Rep., 135,) in which it was held that no deduction should be made. The opposite cases proceed on the ground that the act of God had interfered to prevent the entire fulfillment of a contract. (See also Mozely v. Baker, 2 Sneed’s Rep., 370.)

The cases from 6th and 8th Cowen before cited, and the rule of law which they recognize and apply, have not as far as I am aware, been overruled or controverted. They establish, that an inability, short of absolute impossibility, may exempt a party from his liability under a contract, if this inability result from the act of God. The rule laid down in the other cases is not then imperative, and without exception or qualification. In some instances at least, that which amounts to an act of God, creates an exception.

After a careful examination, I have not been able to find a decision in which the distinction suggested by Chief Justice Spencer, has been acted upon in a case similar to the present; where, though the events, amounting to an act of God, would have constituted a defense had Baldwin or his estate been in the position of a defendant, they form no ground for supporting a claim. • Had there been a penalty to be paid by the assured, for an absence beyond the day, it is clear he would have been exempted from it. I do not see any satisfactory reason for the distinction referred to, in a case like this. Had the condition been so positive and explicit as to preclude any exception, my views would have been different.

But the language of the provision admits of the reasonable construction, that absolute inability to return by the day prescribed, from accidents consistent with the attempt or fixed intention to return, may be treated as a contingency within the view of the parties, and the contract be subjected to such contingency. If it be urged, why then did not the assured provide for it, the reply may be, why did not the insurers use language which would preclude the possible exception?

My conclusion is that in a life policy, where the performance of such a condition or provision as exists in this case, rests with the assured exclusively, which does not admit of his employing any agency, but is wholly personal, and he is disabled from performance by the act of God, without neglect or default of his own, but with the intention to perform literally, the condition is saved, and the insurers are liable.

I consider also that the death which here took place, was a death from the act of God. “It was something in opposition to the will and act of man.” (Lord Mansfield, Forward v. Pittard, 1 T. R., 29; Oakley v. The Pori of Portsmouth, &c., 84 Eng. L. and Eq. R, 530.)

I have considered this case precisely as if in the license or consent of the 24th of October, 1853, the words had been “provided,” or “ upon condition that he be north of the south bounds,” &c. I think the order should be affirmed.

Bosworth, Ch. J.

—James J. Baldwin, the insured, was taken sick, at Appalachicola, in Florida, on the 11th of June, 1854. If he had died there, before the tenth of the following July, of the disease with which he was attacked on the eleventh of June, the defendants would be liable on the policy. So too, if he had started north, in time, and so as to have passed north of the south bounds of Virginia by the 10th of July, and had died north of such bounds on the eleventh of July, the insurers, on the principies contended for by them on the argument before us, would have been liable, even though such a journey, performed under such circumstances, diminished the insured’s chances of recovery.

Under this construction of the license granted to the insured, the latter, in order to keep the policy in force, if taken sick in Florida on the 11th of June, must start north, at whatever peril to his life; in time to be and succeed in being north of the south bounds of Virginia, a living man, by the 10th of July. If he does not, this policy would become void. And this consequence follows; although there be the highest moral certainty, that if he performs the journey, his disease will be, thereby, so aggravated that his death will be inevitable, and the company made liable to pay the sum insured. Hence, if that is the proper construction of the license or consent, the insured, if taken suddenly ill, when he has five times as long a period remaining as is ordinarily required to perform the journey, must, although there may be a reasonable prospect of his restoration to health by a day subsequent to the tenth of July, if he continue where he is; either forfeit his policy if he remains there, or earn the sum insured by terminating his life, before the tenth of July south of the south bounds Virginia, or north of them immediately thereafter, by reason of the rash and hazardous attempt to perform such journey.

In other words, under Such a state of facte as the evidence in this case established, in order to keep the policy in force, the insured must do acts which will unavoidably subject the insurers to a loss of the sum insured, and thus literally “ die by his own hand,” in which event, the policy, by its terms, becomes .void.

If the insured, when taken sick, had been north of the south bounds of Virginia, but absent from his home, and the nature of his disease and its aggravated condition were such, at the. time, as in the judgment of those conversant with such subjects, death would inevitably ensue if he should attempt to journey home; while his recovery would be, in the highest degree, probable if he continued wheré he was, and submitted to the regimen prescribed by competent professional advisers, and he. should nevertheless, against such advice, persist in the . attempt to journey home, and by reason of it, should die on the way, his conduct would fall within the spirit of the condition last referred to, though it might not within the letter of it, as it has been judicially interpreted. (Breasted v. The Farmers' Loan and Trust Co., 4 Seld., 299; Parsons Merc. Law, 544, note 1.)

On. such a state of facts, it would be difficult to say that, the death of the insured was not caused by his own default or neglect.

As the policy in question is one upon the life of the deceased, I think the terms of the license or consent should be so construed as not to require him to attempt to return north of the south bounds of Virginia by the tenth of July, when,' in consequence of sickness suddenly and unexpectedly contracted or developed, an attempt to do so, would be certain, so far as the human mind can foresee results, to produce the, death of the insured.

By the ordinary route and mode of travel, hé Could have passed from the place, where he was taken sick, north of those bounds in six days. Excluding the eleventh of June, on which day he was taken sick, and the tenth of July following, ' there were twenty-eight days remaining.

He was taken and became “so sick and ill in body as to be unfit and unable to travel, and to start on his return home,” and continued so until he died.

I do not think the consent or license should be so construed as to require him to start in that condition, with the certainty that, if he did start, he would die, in consequence of his sickness and of such acts on his part south of the south bounds of Virginia before the tenth of July, or north of those bounds immediately thereafter.

That, it could not have been the intention of the parties to this contract that, the insured, under the state of facts established by the special verdict, should do acts which would make his own death inevitable, in order to a proper performance, on his part, of his duty, as prescribed and declared in such license or consent..

That, by a - just construction of the policy, he was insured against death resulting from a disease contracted or first developed on the 11th of June, 1854, at the place where he then was, if the disease was of a character that his death was in the highest degree probable, if he attempted to travel.

And that, his being north of the south bounds of Virginia by the 10th' of July, 1854, is not a condition precedent to the right to maintain an action upon the policy in case of his death, in such sense that, if in consequence of sickness, discovered on the eleventh of June, (at a distance from such bounds of six days ordinary travel,) and so severe that his death will be in the highest degree probable if he attempts to travel, the insured must endeavor to reach these bounds, with the certainty, that if he does, he will die before the tenth of July and before crossing them, or as soon as he has passed north of them, either on the tenth, or immediately thereafter. The consent or license, should be so construed as to conform to the intent of the parties, to be collected from the terms of the whole agreement, and the subject matter to which it relates.

I. think, it was the intent of the parties that, the defendants should be liable, in the event that has happened, and on its happening under the circumstances, under which it is proved to have, occurred. :

The order should be affirmed.

Order affirmed.


author: Hoffmak, J. Woodruff, J. Bosworth, Ch. J.

text:
    Henry P. Fessenden, Receiver, &c., Plaintiff, v. James H. Woods, Defendant.
    1. A receiver appointed in proceedings supplementary to execution to whom an assignment has been executed by the debtor of all his property, is entitled to recover from a creditor by judgment recovered subsequent to that in which such proceedings were had, but prior to his appointment, the value of property afterwards levied upon by such creditor’s direction under such subsequent judgment and sold.
    '2. The title to the property in such case is vested in the receiver and his leaving it in the possession of the judgment debtor for ten months and down to the time of such levy, does not warrant the subsequent judgment creditor in treating the proceedings supplementary to execution, and the assignment to the receiver as fraudulent and void as against him, when it is not shown that the property was left in the debtor’s possession by collusion . with or by the consent of the creditor, at whose instance the receiver was appointed.
    (Before Bosworth, Oh. J., and Hoffman and Woodruff, J. J.)
    Submitted, November 4th;
    decided, December 4th, 1858.
    This is a controversy submitted without action, under the 372d section of the Code. On a case and statement of facts as follows, viz.:
    “ On the 22d of December, 1855, Henry Dwight, Jr., was the owner and possessed of a black walnut buffet of the value of $600 and upwards, and mortgaged the same to James Brown and others, to secure payment of certain promissory notes then due and unpaid, amounting to a sum greatly beyond the value of the property so mortgaged. Such mortgage was on the 24th of the said month of December, 1855, duly filed in the office of the clerk of the town of Red Hook, in the county of Dutchess, in which town the said Henry Dwight, Jr., then resided, and the said buffet was and ever since has been. And for the purposes of this submission the said mortgage is. to be deemed to have been made in good faith.
    “On the same 24th day of December, 1855, the said James Brown and others recovered judgment in the Supreme Court against the said Henry Dwight, Jr., upon the same debt secured by the said chattel mortgage, for the sum of two hundred and fifty-four thousand one hundred and three dollars and ninety-three cents; and such judgment was forthwith duly docketed in the county of New York and the county of Dutchess, and execution in the usual form issued thereon to both those counties. Afterwards, such executions having been returned unsatisfied, except in a small part not exceeding five hundred dollars, the said James Brown and others, prior to the 31st day of July, 1856, pursuant to the second chapter of the ninth title of the second part of the Code of Procedure, instituted proceedings against the said Henry Dwight, Jr., supplementary to the said execution!, and upon an affidavit showing the necessary facts, obtained an order from one of the Justices of the Supreme Court, requiring him to appear and answer concerning his property, before the said Justice, at a proper time and place in the said order specified, and prohibiting any transfer or other disposition of his property not exempted by statute from execution, and any interference therewith. This supplementary proceeding has been duly continued, by successive adjournments, until the present time; but no examination of the said Henry Dwight, Jr., has been had thereunder, nor any other proceeding taken, save the adjournments aforesaid.
    “ On the 15th day of January, 1856,• the Sun Mutual Insurance Company of the City of New York, a corporation duly incorporated and existing under the laws of the State of New York, recovered in the Court of Common Pleas for the city and county of New York, a judgment against the said Henry Dwight, Jr., for nineteen thousand dollars and upwards; and the said judgment was duly docketed in the counties of New York and Dutchess. Executions on the said judgment, against the property of the said Henry Dwight, Jr., were also issued to the said counties respectively, and duly returned and filed, altogether unsatisfied. The said Henry Dwight, Jr., was a resident of the said county of Dutchess when the execution to that county was issued, and continued to reside there until it was returned.
    “ On the first day of February, in the same year, the defendant, James H. Woods, also recovered judgment against the said Henry Dwight, Jr., in the Superior Court of the city of New York, for thirty-six hundred dollars and sixty-seven cents; which, judgment was regularly docketed in the counties of New York and Dutchess.
    “ On the thirty-first day of July, eighteen hundred and fifty-six, both the said executions on the judgment recovered by the Sun Mutual Insurance Company having been returned wholly unsatisfied as aforesaid, the said company, pursuant to the second chapter of the ninth title of the second part of the Code of Procedure, instituted proceedings against said Henry Dwight, Jr., supplementary to such executions; and upon an affidavit showing the necessary facts, obtained an order from one of the judges of the said Court of Common Pleas requiring said Henry Dwight, Jr., (who was then temporarily residing in the city of New York) to appear and answer concerning his property before such Judge, at a time and place within the said county of New York, 'specified in said order, and prohibiting any transfer or other disposition of his property not exempted by statute from execution, and any interference therewith.
    “ On the fifth day of August, eighteen hundred and fifty-six, the said Henry Dwight, Jr., appeared before the said Judge in pursuance of the said last mentioned order, and was examined under oath concerning his property, and thereupon the said Judge made an order, (the said James Brown and others having been notified and assenting,) appointing the plaintiff, Henry P. Fessenden, receiver of all property and estate, real or personal, legal or equitable, rights of action and equitable interests, of or belonging to the said Henry Dwight, Jr., or which were of him on the said thirty-first day of July, 1856; ■ and directing the said Henry Dwight, Jr., to execute and deliver to the said plaintiff, as such receiver, an assignment under seal of all such his property, estate, rights of action, and equitable interests; and such assignment was executed and delivered accordingly.
    “ At the time of the commencement of both such supplementary proceedings, the said buffet was in the possession of the said Henry Dwight, Jr., and had been so ever since before the said twenty-second day of December, 1855.
    ■ ' “No copy of the said chattel mortgage to the said James Brown and others, nor any duplicate or original thereof, nor any statement of the mortgagees’ interest thereunder, was ever .filed in any town clerk’s or other office, except as aforesaid, although the sum intended to be secured by the said mortgage is due, and. for the purposes of this statement and proceedings, is to be considered wholly unpaid, except, in the said amount less than five hundred dollars. :
    “ On the twenty-third day of June, eighteen hundred and fifty-seven, the defendant, James H. Woods, issued execution to the sheriff of the county of Dutchess against the property of the said Henry Dwight, Jr., upon the said judgment recovered in his favor; and: upon, the said'execution, caused the said buffet, then still in the possession- of the said Dwight, to be levied on and sold towards the satisfaction thereof. Prior to such sale, although not until after such levy, he had actual notice of the appointment of the plaintiff- as receiver as aforesaid, and of the said assignment to him as such. .
    “The said, parties now submit the said case to the Court, the plaintiff claiming judgment against the defendant for the valué aforesaid of the said buffet, with interest, and the defendant insisting that no cause of action arises upon the facts aforesaid in favor of the plaintiff against him. .
    “Dated New York, January, 1858.”

      Ü.P. Fessenden, plaintiff, in person.
    I. The receiver, by bis appointment, acquired an equitable title to.the buffet, subject to Brown,Brothers’ mortgage; which, in equity, was still but a mortgage.-
    Upon the lapse of a year from, the filing of that mortgage, without the same being refiled, .that is on-the 25th December, 1856; which was long before the defendant’s execution was issued, the receiver’s title became absolute; because the mortgage, as against creditors, whom he represented, then ceased to be valid. (Porter v. Williams, 5 Seld., 142, 149; Charter v. Stevens, 3 Denio, 33; 2. R. S., 136, § 11.)
    II. Whether, however,, the receiver holds the, buffet discharged of the mortgage or not, he still has the right of redemption and the right of possession which he acquired by his appointment. That right of possession was good as against all the world except the mortgagees. Unless, therefore, the defendant has succeeded to their rights, the receiver’s possessory right has been unjustly interfered with by the defendant. But the defendant cannot have acquired the mortgagees’ rights unless those rights first, as respected the defendant, revested in Dwight, so as to become liable to be seized under execution against him; and they could not so revest unless there had been some interest in Dwight on which they could attach; which was not the case. The true theory is, that the statute makes the mortgage void as against creditors, and if then the equity of redemption be in the debtor, he has the whole title in him, and the creditor’s execution attaches. Test the defendant’s position in another way. If Dwight had no interest in which the mortgagees’ rights could merge, it must be those rights themselves which the defendant acquired by his execution sale. But does the defendant admit any right of the receiver to redeem the buffet? If such redemption were proposed, must the whole mortgage money be paid, $200,000 and more?
    ITT. The neglect of the receiver to take possession of the property raises no presumption of fraud against his title. He is not within the statute, because he does not claim under any assignment by the debtor (Porter v. Williams, 5 Seld., 147, 148), but by the appointment of the Court in invitwm. And if he were within the letter of the statute, it would not be applicable to an officer of the Court. (And see Rew v. Barber, S Cow. R., 272.)
    IV". The defendant has, therefore, seized and sold property in which the receiver has either the whole title and interest, or at least a right of possession and good title against all but Brown Brothers & Co. The receiver is, therefore, entitled to judgment, and, the defendant being a stranger, to judgment for the full value of the buffet.
    Y. The appointment of the receiver, considered as made under Brown Brothers’ supplementary proceedings, and at a timé when their mortgage was in full force against the world, gives him a good title to the property in question, as against the defendant’s execution.

      JE. W. Stoughton, for the defendant.
    I. The receiver, by virtue of his appointment as such, was entitled to take only such property as Dwight possessed on the 81st of July, 1856, or, at most, when the order was made.
    As to all property subsequently acquired, it could be reached only by supplemental complaint or proceedings. {Browning v. Bettis, 8 Paige, 572.)
    Until the 24th day of December, 1856, the mortgage referred to remained perfectly valid as against Dwight and his creditors, and on that day it ceased, as against such creditors and Iona fide purchasers for value, having no notice of the mortgage, to be of any force whatever.
    It was not, therefore, an invalid or fraudulent instrument, which could have been impeached by the receiver at the date of his appointment.'
    It was then perfectly valid as against him, and therefore, he, by force of such appointment, was vested with no right, title or interest in or to the property covered thereby.
    If we assume that he might impeach fraudulent conveyances, made by Dwight, they would be such only as were then in existence, and at that time subject to be impeached by his creditors, or those representing them.
    The receiver, therefore, had no more right to take this property because of the failure of Brown Brothers to file the mortgage, by reason whereof their right to it as against creditors ceased, than he would have had to take property acquired by Dwight subsequent to the entry of the order appointing him receiver. In other words: All the rights which the receiver acquired were such as became vested in him by virtue of,' and at the time of, bis appointment as such.
    The right of creditors to take this property did not then exist, and only arose upon the failure of the Browns to file a copy of the mortgage, as above stated. Hence it follows, that no such right could have vested in the receiver in the August preceding.
    II. The object of a creditor’s bill, and of proceedings supplemental to execution, is, to sequestrate, for the benefit of creditors, all such interests and property as cannot be taken upon execution.
    No right to seize this property, under execution or otherwise, existed in creditors, until after the 24th of December, 1856. Up to that time, Dwight had remained in the' actual possession of the property mortgaged, nor bad the receiver made any attempt to take possession of, or exercise any control whatsoever over the same.
    If, therefore, it could be said, that he might have taken such possession, his failure so to do, or to make any attempt in that direction until after its seizure upon execution, gave to the creditors in whose behalf it was so seized, a right prior to and stronger than any which can be set up on behalf of a receiver, whose function it is to seize and collect only such equitable interests and property as the debtor was entitled to, or as his creditors might have reached at the time of filing the bill, or of commencing supplemental proceedings, as the case may be.
   By the Court.

Hoffmak, J.

—It is unnecessary to inquire whether the mortgage to James Brown and others is valid or not, as between the mortgagees and the other parties in this action. When the receiver was appointed he became entitled to the possession of the buffet in question, either subject to the claim upon the mortgage or discharged from its lien. He would take the property and its proceeds for the benefit of the mortgagee, if it was valid, or for the benefit of those next entitled, if they could set it aside. His title was not in either aspect varied.

The plaintiff was appointed receiver on the 5th of August, 1856, by an order made in the action brought by The Sun Mutual Insurance Company, under proceedings upon their judgment of the 31st of July, 1856. This was ten months before the execution on the judgment in favor of Woods was issued. That order divested the title and interest in the property from the judgment debtor, and vested it in the receiver. (Porter v. Williams, 5 Seld., 142; Edmonston v. McLoud, 16 N. Y. R., 544.) An assignment also is stated to have been executed.

When then the levy was made, no legal right remained in the judgment debtor. He had no property which could be seized. It was in another by operation of law. It was in the custody of the law, and of the Court appointing the receiver. And this fact became known to the execution creditor, the defendant, before the sale, although after the levy.

This might appear necessarily to determine the case in favor of the plaintiff; but yet there is one circumstance to be regarded. The receiver, appointed in August, 1856, neglected to take possession ; left the debtor in uninterrupted control, and in June, 1857, the execution creditor so finds it.

I think, however, that the rule which prevails as to executions, supplies an analogy to govern this case. I understand that rule to be, that if a sheriff neglect to complete a levy by a sale, with merely the acquiescence, but no positive act of interference of the first execution creditor, the right of the latter will not be superseded by a subsequent execution. (Herkimer County Bank v. Brown, 6 Hill, 232; Knower v. Barnard, 5 Hill, 377.) In Cosher v. Peterson, cited, (7 Halsted, 291,) Oh. J. Kirkpatrick states the law thus: “ If the execution should not be pursued, and a subsequent one be levied on the same property, then it will always be a question whether the first was kept up merely by color, and for fraudulent purposes.” (1 South., 317.)

Upon this principle, the legal title of the plaintiff, prior in date, ought I think to prevail. Whether the assent of the persons to his appointment, gives them any rights as judgment and execution creditors, need not now be inquired into.

The receiver will hold the money for those who may be entitled to it, and cannot pay it away without an order of court made when the rights of the parties are determined.

Judgment should be ordered for the plaintiff, for the value of the property, with interest from the time of the sale.

Woodruff, J.

—It is not material in this case to inquire whether as between James Brown and others and the plaintiff, the mortgage to the former is a valid security or ceased to be valid as against the other judgment creditors by reason of the omission to refile (as to which see 4 Kern., 71.) The validity or invalidity of that mortgage cannot determine the rights of the parties to this suit as between themselves.

If the mortgage to Brown and others is invalid, it is alike invalid as to each of the parties to this action, and their rights must be determined by their relations to the subject, just as they would be if no such mortgage had existed.

If that mortgage is' valid as to either of these parties, it is so as:, to both, and' as 'before, their rights, between themselves, depend upon other questions.

Whether the mortgage was valid or invalid, the plaintiff when he was appointed receiver became entitled to the possession of the buffet in question. His right to the buffet was subject to the claim of Brown and others as mortgagees only. If the lien of the mortgage had ceased as to him, then his title to the property was absolute. If such lien had not then ceased, then he acquired a right of possession and a right to redeem the property, or in other words, he had a title to the property, subject to the mortgage.

As between the plaintiff and the defendant, the plaintiff’s right and title was, at the time of his appointment, prior in time and in equity to the right of the defendant to seize the property on an execution subsequently issued.

The judgment in favor of the Sun Mutual Insurance Company, was recorded and docketed (January 15, 1856,) before the judgment in favor of the plaintiff (February 1, 1856). Pro: ceedings supplementary to execution were had at the instance of the insurance company. Dwight was enjoined against disposing of his property, and the plaintiff was appointed receiver, and in obedience to the order then made, Dwight executed an assignment to the plaintiff as such receiver, and all this was done in July and August, 1856, ten months before the issuing of the execution on the defendant’s judgment, on which the property was taken.

By instituting supplementary proceedings, in the nature of a creditor’s bill, the judgment creditors by whom they were instituted, and the receiver on their behalf acquire a preference over other creditors in respect to any property discovered, subject only to prior liens, which may have been acquired by prior proceedings of the same nature..

As between these parties therefore, the remaining question is, whether the receiver’s title was lost, or is to be held invalid as against the defendant, because the receiver had not taken actual possession of' the buffet before the defendant’s execution was levied thereon ? For as between these parties the question whether the plaintiff will be ultimately directed to apply the funds in his hands, in the first instance to the payment of the judgment of Brown and others, (which was the first judgment recovered against Dwight) or not, does not arise. Brown and others instituted the first proceeding supplementary to execution; that proceeding is still pending. The Court or Judge would not appoint two receivers of the same property. And presumptively the ultimate appropriation of the property in the receiver’s hands will be among creditors, instituting such proceedings, in the order of priority, corresponding with the times when those proceedings were respectively commenced.

To recur then to the remaining question above stated.

There is no pretense of any actual fraud or collusion. There is no evidence that the delay of the receiver in taking possession was by the consent or direction or even with the assent of the creditors at whose instance he was appointed. Under such circumstances the judgment creditors ought not to be prejudiced by that delay. The receiver is the officer of the Court and acts under its direction, or that of the Judge by whom the appointment was made. To the creditors on whose behalf he acts, his relation is similar to that of a sheriff; as to whom see the cases 5 Hill, 377; 6 id., 232.

At the time the defendant’s execution was levied and the property was sold, there was no legal title in Dwight the judgment debtor. When the property was sold, the defendant had actual knowledge of the plaintiff’s title as receiver.

No rule of law and no equities between the parties warranted the defendant in proceeding to sell the property in disregard of the plaintiff’s title, for there is no proof of any bad faith or that the plaintiff’s title was sought to be used as a protection to Dwight or to hinder or delay his creditors.

The plaintiff should have judgment for the value of the property with interest from the time of the sale.

Bosworth, Ch. J.

—I concur in the conclusion last stated, and in the reasons assigned by Woodruff, J.

Judgment for the plaintiff for the value of the property and interest from the time of the sale, with costs.