text:
    Henry Mabey et al., Administrators, Plaintiffs and Respondents, v. William Adams, Defendant and Appellant.
    1. A director of a banking association is not liable to one who becomes a stockholder, for false statements in the articles of association respecting the amount of capital actually subscribed and paid in, by which hp was induced thereafter to become a stockholder.

      Ü. One who purchases stock in a banking association from the association itself cannot maintain an action against a director of the association for violations of the statute relating to moneyed corporations which occurred before he became a stockholder, although the value of the stock is depreciated by reason of such violations of the statute.
    3. A complaint in an action to recover from a director damages for falsely and fraudulently representing that the stock of a bank is worth par, by which the plaintiffs’ intestate was induced to purchase stock from the bank, when in truth the stock was worthless and óf no value and was wholly lost, is bad when it does not aver that the defendant knew that the stock was not worth what he represented it to be, nor that the defendant made the representations with the intent to induce the plaintiffs’ intestate to become a purchaser.
    4. Specifications of losses sustained by reason of becoming a stockholder in an insolvent banking association by being compelled to contribute under the statute to the payment of its debts, are only particulars of damage, and do not alone constitute causes of action; whether they can be recovered or not depends on the sufficiency of other parts of the complaint to charge the defendant with liability therefor.
    5. Banking associations organized under the general banking law are within the provisions of the Revised Statutes, to prevent the insolvency of moneyed corporations. (1 R. S., part 1, ch. 18, tit. 2, art. 1, § 10.)
    (Before Hoffman, Slosson and Pierrepont, J. J.)
    Heard, April 12th;
    decided, July 3d, 1858.
    This action is brought by the administrators of Robert L. Mabey, deceased, who, on the 28th of October, 1854, became a stockholder in the Empire City Bank, (a banking association formed under the act of 1838), against the defendant, a director of the bank, to recover damages for violation of the provisions of part 1, chapter 18, title 2, article 1, section 10 of the Revised Statutes, alleged to have been committed by the defendant, as such director, between January 1, 1852, and October 23, 1854.
    It also claims to recover damages for false statements contained in the articles of association and for misrepresentations of the value of the stock made by the defendant, by which the intestate was induced to buy the stock.
    The plaintiffs claim the sum of $2,000, the amount paid by the intestate for the stock, and the amount of an assessment against the stockholders, under the act of 1849, amounting to $977.08, which assessment was made after the death of Mabey, and which has not been paid by the plaintiffs.
    To this complaint the defendant demurred.
    The demurrer was argued at Special Term before Mr. Justice Hoffman, in February, 1858, and the demurrer was overruled.
    From the order of the Special Term the defendant appeals to the General Term.

      Jno. M. Mason, for the defendant (appellant).
    I. The complaint does not state facts sufficient to constitute a cause of action.
    1. It does not appear by the complaint that the defendant was a stockholder at the time of the commission of the grievances charged.
    The defendant is sued under a special statute, entitled “Regulations to prevent the insolvency of moneyed corporations, and to secure the rights of their stockholders and creditors.” (1 R. S., 589, 4th ed., 1113.)' And the claim is founded on section 10 of that statute.

      a. The director cannot be liable for an act to owners at different times of the same stock, and the party buying the stock after the unlawful act of the director, buys it at its then value as reduced by such unlawful act, and cannot, therefore, recover for the violation of the statute committed before such transfer, the loss having been sustained by the previous owner, and he having a right of action (if any) against the director.

      b. The right to recover against the director is given by section 10 to the stockholders. It is not an incident of the stock. It vests in the holder, and a transfer of the stock does not carry with it the rights of such holder against the director.

      2. The representations contained in the articles of association are not violations of the statute. No such violations could be made by a director at that time. All such statements in the articles of association proceed from the associates. (1 R. S., 4th ed., p. 1146, §§ 166, 167.)
    3. It does not appear that Mabey bought the stock, in consequence of the misrepresentations so charged.
    4. Nor does it appear that Adams was a director at the time of the filing of the articles of association.
    5. The particular loans made, and their amount, should be specifically charged, and the loss chargeable to each violation of the statute stated, or at least the amount of excess of loans, and the loss accruing from such excess charged.
    6. The violations of each particular portion of the act, and the loss accrued thereby, should be separately stated. A director who violates “any provision” is liable for the loss sustained, by reason of such “violation.” (Franklin Ins. Co. v. Jenkins, 3 Wend., 130; Gaffney v. Colvill, 6 Hill, 567, 579.)
    7. The eighth subdivision is bad.

      a. It does not appear that any judgment has been rendered against, or liability incurred by the administrators.

      h. It does not appear that the administrators have paid any such judgment, or have any assets from which to pay it, or that the money, if recovered from Adams will, in the due distribution of the estate go to the payment of this judgment.
    II. Several causes of action have been improperly united.
    1. If it should be held that subdivisions 7 and 8 charge the defendant, in his individual capacity, and not as a director, then there is a union of a cause of action, against a director, arising under a special statute, and who is a trustee by operation of law, with a cause of action against an individual for a false representation. (Hall v. Fisher, 20 Barb., 442; Lucas v. N. Y. Central R. R., 21 Barb., 245; Landau v. Levy, 1 Abb., 376; McMahon v. Allen, 3 id., 89; Dornan v. Kellam, 4 id., 202; Sweet v. Ingerson, 12 How., 331.)
    2. The various causes of action are all improperly joined in subdivision six of the complaint, in which, all the previous wrong-doings of the defendants are made the cause of the entire damage to the stock to the extent of $2,000. (Gaffney v. Colvill, 6 Hill, 567; Durkee v. Saratoga R. R. Co., 4 How., 226; Sweet v. Ingerson, 12 id., 331.)

      3. The claim in. subdivision 6, for the value of the stock paid by the intestate, is improperly united with the claim for the liability incurred by the executors, as stated in subdivision 8.
    III. The directors of a banking association, incorporated under the General Banldng Law of 1838 and the subsequent amendatory laws, are riot liable. (Sec. 10, art. 1, tit. 2, ch. 18, part I, of the R. S.)
    1. The act, as first passed in 1828, referred only to the officers of what were then known as “ moneyed corporations.” It did not refer to banking associations.
    2. The principle of the formation of banking associations, and of the duties of their officers, and the rights and remedies of their stockholders and creditors, is entirely different from that of the banks existing in 1828, and of the Safety Fund Banks under the Laws of 1829. (Compare 1 R. S., 4th ed., p. 1113, &c., with p. 1123, &c., and p. 1141, &c.; See 1 R. S., 4th ed., p. 1123, § 1; Also, p. 1117, §§ 20, 21; p. 1148, §§ 178, 179, 189; See also p. 1118, §§ 29 to 31; See also p. 1154, §§ 201 to 216.)
    3. Although the banking associations have been declared to be corporations, yet the laws relating to the details of the management of the old banks were never intended to apply to the new associations, and the courts have not yet held that the liabilities of directors under the old system is continued under the new. (Gillet v. Moody, 5 Barb., 185, and 3 Comst., 479; Talmage v. Pell, 3 Seld., 328; Gillett v. Phillips, 3 Kern., 114; Curtis v. Leavitt, 15 N. Y. Rep., 1, 247; opinion of Judge Comstock, 61, 76 to 83; opinion of Judge Shankland, 169 to 172; opinion of Judge Paige, 181 to 188.) 4. Other remedies for the protection of creditors are given with regard to banking associations. (Laws of 1849, chap. 226, p. 340.)
    5. The Revised Statutes, in section 10, make the directors liable to the stockholders and creditors.
    The act of 1849 declares that the claim of the creditors shall be enforced in the manner prescribed by that act, and in “no other manner.” A director must be a stockholder, and this remedy being given to the creditors in this case against the director in his capacity of stockholder, shows the judgment and intent of the legislature that the former statute was not in operation.

      Gerardus Clark, for the plaintiffs (respondents).
    1. The first ground of demurrer, viz.: “That several causes of action are improperly united,” cannot be sustained; 1st,' because by the 167th section of the Code, the complaint may unite several (and any number) of causes of action “ where they all arise from the same transaction, or transactions connected with the same subject of action."
    2. If it shall be urged that the causes of action are not all separately stated, then, I answer that the defendant cannot avail himself of that objection under this form of demurrer. (10 How. Pr. R., 861.)
    He should have applied to the Court to strike out. (1 Abbott, 516.)
    II. The second objection, to wit, that the complaint “ does not upon its face state facts sufficient to constitute a cause of action," is equally untenable; even if this form of demurrer was at all admissible. It has been held that it was not. (10 How. Pr. R., 361, and the cases there cited.)
    HI. This is a demurrer to the whole complaint, and, therefore, if any one of the counts or causes of action is good, the demurrer must be overruled. (1 Code R., N. S.; 347, 1 Barb. Ch. Pr., 107; Leland v. Tousey, 6 Hill, 328; 3 Duer, 653; Jaques v. Morris, 2 E. D. Smith’s R., 643, 644.)
    TV". It was urged in the Court below, that the defendant was not liable to the plaintiff for breaches of the statute, because the latter was not a stockholder at the time of such violation. The answer to this is, that the liabilities of stockholders run with the stock, and, therefore, their rights must also. (1 R. S., 1161, 4th ed., sec. 232, part 1, ch. 18, tit. 2, art 7, sec. 4.)
   By the Court.

Slosson, J.

—This is an appeal from an order at Special Term, overruling a demurrer interposed by the defendant to the complaint.

The demurrer is, first, for an alleged misjoinder of causes of action, and second, that the complaint does not state facts sufficient to constitute a cause of action.

As to the misjoinder we are all of opinion that the demurrer is not well taken.

The causes of action all arise out of frauds alleged to have "been practised by the defendant, in relation to the stock of the bank, either by violation of his duty as director, in contravention of the various provisions of the statutes, or by false representations in respect to its value, by which the plaintiff was induced to become a purchaser of it. They may all be said to arise out of transactions connected with the same subject of action.

The case then stands on the general demurrer, and if there is a single good count in the complaint it must be overruled.

First. The cause of action stated in the first count, is an alleged falsehood uttered by the defendant as a director, with other directors, through the articles of association under which the bank was organized, as to the amount of the stock actually subscribed and paid in, whereby the plaintiff was induced to become a stockholder, and that by reason of the amount of stock so represented to have been subscribed and paid for, not having in fact been subscribed and paid for, to the extent so represented, the value of the shares of the capital stock was greatly diminished to plaintiff’s damage.

It is difficult to understand how a director can be chargeable individually for false statements contained in the articles of association of the bank, which necessarily preceded in order of time the election of the board of directors, or how such articles of association can have the character of a continuing false representation by every director who may subsequently come into the board, so as to give to every subsequent purchaser of the stock a right of action against him.

We are clear that no good cause of action is made out in this count.

Second. In respect to the second, third, fourth and fifth counts, they are but recapitulations of distinct violations, by the defendant as a director, of several of the provisions of the statute entitled “Of Moneyed Corporations.” (1 R. S., ch. 18, tit. 2.) Each of them forming an undoubted cause of action, under section 10 of the statute, in favor of every creditor and stockholder who may be injured thereby.

The sixth count is a summing up or statement of the consequences of these several alleged violations of the statute, to wit, the insolvency and suspension of the bank, on the 9th day of December, 1854, whereby the plaintiff’s stock became worthless, and the defendant became liable to the plaintiff for the amount which he had paid for the stock, $2,000, and interest thereon.

These counts all allege the violations of the statute complained of to have been committed by the defendant before the 23d day of October, 1854. This was some five days before -the plaintiff became a stockholder himself, and the question arises whether he is entitled to the benefit of the provisions of section 10, giving this right of action.

We are of opinion that he is not, and that the statute was intended to apply only in favor of those who might be stockholders or creditors at the time of the several violations of its provisions complained of.

The right of action incident to a breach of duty on the part of a director, is one which attaches to the party who, in the language of the statute, “ sustains the lossand this is not predicable of a party who buys the depreciated stock after the offense committed. -The fact that the stock which he purchases is less valuable than it otherwise would have been, constitutes no loss to him, since he must be presumed, in the absence of any fraudulent inducement held out to him to purchase, to: have given only what the stock was worth at the time. If a man purchase a horse which has been injured in the hands of its owner, he certainly does not acquire by the purchase a right of-; action against the wrong-doer. Such -right belongs ■ to him who owned the horse when the wrong was committed, and does not pass with the horse to the purchaser. A man buys stock as he does every other kind of personal property, (under certain qualifications not necessary here to be stated,) at his own risk as to quality.

The statute (§ 10,) was intended to indemnify those who, holding stock intrinsically of value, suffer an actual loss by its depreciation in their hands by the fraudulent conduct of the directors, the trustees who are entrusted with the management of the business' and affairs of the association, and this is all it intends.

We should hold this, had the stock in the present instance been purchased of a previous holder of it, who had a clear right of action against the directors personally, but in fact it was not so purchased, but the plaintiff purchased the shares from the bank itself. He gave par for it. Whether this stock was taken by becoming a subscriber, or by purchasing shares not previously issued, or which had been bought up by the bank, does not appear, but the purchase, whatever its form may have been, was from the bank itself, and not from an individual holder of the shares.

The bank in its corporate capacity could have no right of action under section 10, against its own directors.

Thus, the seventh count contains an allegation, that the defendant while a director did with other directors falsely and fraudulently represent to the plaintiff that the capital stock was actually worth par or over par, and thereby induced the plaintiff to become a stockholder, and that relying on such representations, he agreed to purchase and take, and on the 28th day of October did purchase and take from the bank 80 shares of its stock at par, paying therefor $2,000, whereas the stock at the time of the representation and purchase was worthless, and the banking association was soon afterwards declared insolvent, and the sum so paid by the plaintiff was wholly lost, whereby an action hath accrued to him against the defendant.

The offense here imputed is not one of those prohibited by the statute, and the count if sustained at all must be on the ground that it makes out a good cause of action against the defendant, in his individual capacity, for false representations.

We think it defective in this, that it does not allege that the defendant knew that the stock was not worth what he represented it to be, nor that he made the representation with the intent to induce the plaintiff to become a purchaser of it.

Alleging that a party “ falsely and fraudulently represented” a thing to be what it is not, is not an allegation of a knowledge on his part, or of an intent to deceive. Whether it was a fraud' or not depends on these two circumstances, and the averment that an act is fraudulent, is but an averment of a conclusion of fact, which standing by itself is wholly unsupported.

As director he is not chargeable with knowledge of the value cif the stock, and if he were, he is not responsible to any party to whom he misrepresents such value, unless the false statement were made with the intent to deceive him.

The intent is the essence of the fraud, and it is the question to be submitted to the jury. They might find that the defendant made the representation, but that he was himself deceived, and acted under an honest though mistaken apprehension of the truth.

To render him liable in damages to every person subsequently purchasing stock, to whom he has expressed an erroneous opinion of the value of the stock, or even have made an untrue statement in respect to it, but without an actual fraudulent intent, an intent to induce such purchase, on the ground that he was a director at the time, and should have known better, or should have held his peace, would be establishing a principle with which we are not acquainted and to which we cannot assent.

If the intent is to be proved, it should have been averred, and not being averred the count is bad even if knowledge may be presumed on the part of a director.

The allegation that the plaintiff was “ induced” by the representation to become a stockholder, does not supply the defect, and is entirely compatible with the absence of any fraudulent intent on the part of the defendant in making it.

Fourth. The eighth count alleges, that soon after the plaintiff became a stockholder, the banking association suspended payment, and in the succeeding January was declared insolvent, and that by the judgment of the Supreme Court the stockholders were adjudged to be liable for the payment of its debts, in proportion to the amount of their several shares, which were ratably assessed, and judgment rendered against them for the amounts so assessed, and that the amount assessed on the plaintiff’s stock was $977.08. “By reason of which said several acts of the defendant as hereinbefore mentioned, and violations of the statute aforesaid an action hath accrued,” &c., to the plaintiff against the defendant.

This is not an allegation of a cause of action arising out of the rendition of the judgment, the judgment being stated only as fixing the amount of the additional damages over and above the price paid for the stock to which the plaintiff conceives himself entitled.

No new cause of action is assigned, and the objections above stated to the first six counts are applicable to this. But if it were otherwise, and it was intended by this count to set up a cause of action, arising out of the rendition of the judgment, it would be bad in not averring that the administrators had paid it, or had assets of the estate in their hands which in the course of its due administration were applicable to its payment.

It is only actual damages which the statute (§10) was intended to indemnify against, and not such damage as a mere liability might entail.

We are all clearly of opinion, under the authorities cited by the learned Justice, at Special Term, that banking associations organized like the present are within the provisions of the statute relative to the insolvency of moneyed corporations, above cited, under the tenth section of which this action is brought.

We think the general demurrer well taken, and the judgment, at Special Term, must be reversed, with costs, and judgment be entered for defendant, without prejudice to an application, within twenty days, for leave to amend complaint, if plaintiff is so advised.

Ordered accordingly.

        See, Leavitt v. Blatchford, 17 N. Y. R, 521.


source: Caselaw Access Project

author: Pierrepont, J.

license: Public Domain

text:
    James R. Bennett, Plaintiff and Respondent, v. Daniel Drew et al., Defendants and Appellants.
    1. In an action against common carriers.brought to recover for the loss of a picture owned by a daguerreotypist, it is competent for the plaintiff, on an inquiry into the value of the picture, to prove that copies thereof were in demand, and that orders for such copies had been actually received from ' customers.

      2. Such evidence corroborates general estimates of value by showing that such a picture is useful; and has a value other than that arising from the mere pleasure its inspection would give.
    3. But the profits anticipated from the multiplication of copies and the sale thereof cannot be proved and recovered as damages.
    (Before Hoffman, Slosson and Pierrepont, J. J.)
    Heard, April 16th;
    decided, July 3d, 1858.
    This action was tried before Mr. Justice Bosworth and a jury, October 16th, 1857. The plaintiff had a verdict, and from the judgment entered thereon, and from an order denying a new trial, the defendants appealed to the General Term.
    The facts and the grounds of the appeal sufficiently appear in the opinion of the Court.

      Charles Jones, for the defendants (appellants).

      8. C. H. Bailey, for the plaintiff (respondent).
   By the Court.

Pierrepont, J.

—This was an action to' recover the value of a picture which the defendants had received as common carriers, and'which was lost. The sole question was the amount of damages to be recovered, and that depended upon the value of the picture. It was a daguerreotype likeness of Henry Clay. The plaintiff, after calling various witnesses as to the value of the picture, put the following questions to Nathan S. Bennett, a daguerreotypist, by whom the claim in suit was assigned to the plaintiff:

Q. Had you orders for copies of that picture ? The defendants’ counsel objected to the question on the ground:
1st. That it was immaterial and irrelevant.
2d. That the orders for or sales of copies of the picture were not proper evidence to go to the jury on the question of value; and,
3d. That the profits of taking copies were not a proper element in determining the value, or recoverable against defendants.

The Court overruled the objection, to which overruling the defendants’ counsel then and there excepted. But the Court stated that the evidence would be admitted to show that actual use could be made of the picture in the prosecution of business, and that it possessed a value beyond the mere pleasure which an inspection of it would furnish, but that no loss of anticipated profits from not being able to supply any copies of it that had been ordered could be recovered as damages.

The witness answered: I had.

The plaintiff’s counsel then put the following question:

. Q. How many orders had you? (This question was also objected to by the defendants’ counsel on the same grounds. The objection was overruled, and the defendants excepted.) The witness answered: I can’t tell exactly; I had orders which, at my charges of from two to ten dollars for each picture, would amount to $600.
Q. By the Court. Within what period of time were those orders given? The defendants objected as before. The objection was overruled, and the defendants excepted.
A. Within five or six months.

The court in charging the jury, very carefully instructed them that profits for copies were not to be taken into account, in determining the amount of their verdict, and it would appear from the amount of the verdict, that they did not estimate the profits to be derived from future copies of the picture. The direct evidence of the real value of the picture, is abundant to sustain the verdict, and we think no error has been committed which demands a new trial.

Judgment affirmed, with costs.


author: Bosworth, J.

text:
    Rogers et al., Plaintiffs and Appellants, v. Murray et al., Respondents.
    1. A party moving for a new trial on the- ground that the verdict against him is contrary to law and the evidence, is entitled to a fair application of the rules stated to the jury relative thereto, in accordance with his request, as being correct expositions of the law.
    2. If the evidence given, assuming such rules to have been correctly stated, entitles him to a new trial, it should be granted, even though the General Term may be of the opinion that such rules are not accurately stated.

      3. In such a case, there should be a new trial, in order that the rule may be given to the jury as the Court at General Term thinks it should be applied, and that the party seeking a contrary instruction may except thereto, and be in a position to obtain the judgment of the Court of last resort thereon.
    4. When a vessel is driven into a port of necessity, it is the imperative duty of the master to forward the cargo in another vessel, when one can be had in the same port; and the cargo is in, or at small expense can be put in a condition to be forwarded, and when that course is required by the interests of the owners; especially when the only other alternatives are, either a total loss of the cargo, or an unnecessary sale of it at the port of necessity, at one-third of its value (damaged as it then is) at the port of destination.
    5. The acts of a master (in such a case,) will be upheld by the law, if upon all the facts before him, they be such as it may be reasonably supposed a prudent owner, if personally present, would have directed or approved.
    6. The expenses of putting a disabled vessel into a port of necessity that she may be repaired; and the wages and provisions of the crew from the time of so putting away, and every other expense necessarily incurred, during the detention, for the benefit of all concerned, must be contributed for as general average.
    7. But expenses incurred for the benefit of the ship only, or for the whole or a part of the cargo only, must be borne by the thing for whose benefit alone it was incurred.
    8. Whether, when part of a cargo has been necessarily sold because it could not be carried further; expenses subsequently incurred for reloading the residue of the cargo, or for the wages or provisions of the crew during the detention subsequent to such sale, can be regarded as made for the benefit (in part) of the proceeds of the property so sold, so that such proceeds are liable to contribute therefor, quaere?

    (Before Bosworth and Pierrepont, J. J.)
    Heard, June 8;
    decided, July 3, 1858.
    This action comes before the General Term on an appeal by the plaintiffs from a judgment rendered at Special Term on the verdict of a jury in favor of the defendants, and also on an appeal from an order denying a motion, made by the plaintiffs, for a new trial, on a case containing the evidence. It was tried in May, 1857, before Mr. Justice Slossoh and a jury.
    It is brought to recover the value (besides other goods) of “ 488 hides, 20 of them damaged.
    “ 20 salted hides in one cask and one barrel.
    “ 14 goat-skins.
    “ 4 calf-skins.
    “ 58 kip-skins.

      “21 deer-skins,” which, with other goods, were shipped in July, 1855, at Aspinwall, on the schooner Pedee, by A. M. Price, under a bill of lading, by which such other goods and the hides "and skins in question were to be delivered in good order and condition at the port of N. Y.; “ The dangers of the seas,” “fire' at sea or in port,” “or any other accident or dangers of the seas, rivers and navigation of whatever nature or kind soever excepted, unto N. Rogers & Co. or order, or to their assigns, he or they paying freight for the said articles,” $10 per ton of 2,240 lbs., with 5 per cent primage, and average accustomed. All the property, except the hides and skins, were ultimately delivered. The latter were never delivered at the port of N. Y., and they are the subject matter of the present controversy. N. Rogers & Co. are the plaintiffs, and the defendants are the owners of the schooner Pedee.
    The Pedee sailed from Aspinwall for New York via St. lago de Cuba, July 6, 1855, with a crew of eight, all told, besides three men to St. lago to work their passage. The bill of lading, of the goods in question, stated that the Pedee was “ bound for New York via Cuba.” The first day out from Aspinwall, the first-mate was taken sick with Chagres-fever, and died on the sixteenth of July. The second day out, the captain was taken sick, and was unable to attend to any ship’s duty for 45 days. On the fourth day out, the second-mate was taken sick, and died on the twentieth of July. James Martin, one of the men before the mast, was appointed mate, and died between the twentieth and the twenty-sixth of July. The rest of the crew were sick off and on till the Pedee reached Carthagena, on the 1st of September, 1855. After the captain and mates were disabled, there were but two or three on board who were physically able to assist in navigating the Pedee, and they did not know how to sail or steer, nor where they were, nor where to go. The Pedee was, therefore, drifted about by the winds and currents, had her sails blown away, and one night went ashore, and knocked off her false-keel, and otherwise injured her so that she leaked badly. She was got off in about two and a half hours. Being in this condition, she was steered for Carthagena, being short of water and provisions, as well as destitute of a force sufficient to navigate her.

      The hides were found, on arriving at Carthagena, to be badly eaten by worms and bugs, and were put on shore and beaten by men employed by the captain, but were not thoroughly cleaned. A survey was had, and the surveyors certified, as to the hides, “that although perfectly dry they are generally very much injured by worms, and that a great portion of them is so much eaten up that it is almost valueless. Our opinion further is that the vessel having yet to be repaired here, then go to Cuba to take a cargo, before said hides, Sc., could reach New York, it is almost certain that not one single hide, &c., would arrive in this last port. Consequently, that said hides, &c., ought to be sold here, as soon as possible, for account of whom it may concern, in order to save further loss. Given under our hands this 25th day of October, A. D. 1855.
    (Signed) “ Augt. S. Hakabeegh.
    “ Albert Mathieh.
    “ Jos. Darrell Sanchez.”
    Sanchez was 22 years of age, and how much he "knew of the nature of hides, and the effect of such injuries to them, and of the mode and cost of removing the cause of further injury does not appear. Mr. Mathieu intended to bid at the sale of the hides, if a sale of them should be recommended.
    Mr. Hanabergh had resided about seven years in Carthagena, and formerly resided in Brooklyn, K. Y. How conversant he was with such subjects or whether he had been engaged in the hide business did not particularly appear. On cross-examination he stated that he could not say, “ whether the cause could or had been removed by cleaning and beating.” The captain, among other things, testified as follows:
    “The reason of my not shipping them on board another vessel was in consequence of the expense of cleaning them, as I could not have cleaned them as cheap as merchants there could, and in consequence of being short of funds to do it with, as money was worth from 50 to 75 per cent; I tried to do so; that is, to raise the money for the purpose of cleaning the hides, and in consequence of not raising the money I had the survey; I consulted with the American Consul on the subject of reshipping the hides in another vessel; Carthagena is a port where hides are largely dealt in; it is the principal article of export; the vermin remains on the hides until we come into cold weather; the frost kills them.... “ I raised money for repairs of the vessel on letters of credit from my owners; I had the means of paying for repairs without selling the cargo or any part of it.”
    A sale was determined upon by the captain, as being most for the interest of all concerned, and it took place on the 27th of October, 1855. It was a sale at public auction, duly advertised, well attended and properly conducted.
    The 488 dry ox hides sold for ................. $303 73
    20 do salted do .................. 16 50
    54 dry and salted calf skins,............... 22 57
    41 do do deer skins,............... 1 85
    Total,...................... $344 65
    Horner & Foster, of Oarthagena, bought the ox hides and calf skins, at the same time purchasing other hides, their whole purchase being 1041 dry hides and kips. They cleaned the whole lot at an expense of $15, and about the 2d of November, 1855, shipped them for New York, on the Abrasia, a vessel lying at Oarthagena, bound for New York, when the Pedee put into Oarthagena. The Abrasia sailed with the hides consigned to P. N. Spofford, who sold them for 14 cents per pound. The price at which they were sold at Oarthagena, was about $4//^ per quintal. The market value of good hides, in New York, was about 21 cents per pound, and the hides in question, had they arrived sound, would have been worth $1,878.60, after deducting freight and duty.
    Damaged hides always have some market price in New York, and the average price of damaged hides is from ^ to % of the price of sound. When not fit for leather, they are manufactured into glue.
    The Pedee sailed in November, 1855, for N. Y., via St. lago de Cuba, and did not reach N. Y. until the 3d of March, 1856.

      The defendants insisted, that there should be deducted
    from the......................... $344 65
    The expenses of the auction, .............. $17 00
    Consul’s charges,........................ 19 00
    For general average, chargeable against entire
    shipment, to plaintiffs, ............ 257 69
    - 293 69
    The balance being........ $50 96,
    and with interest, amounting in the whole to $62.25, had been tendered to the plaintiffs before suit brought.
    That sum, it was admitted, remained in the defendants’ hands, with the same effect as if paid into Court.
    The Judge charged {inter alia) as follows:
    “If the master of a vessel is driven into a port of necessity, he is bound to act in respect to both vessel and cargo with reference to the best interests of the owners.
    “ In respect to the cargo, his general duty is to put it in a state of forwardness as rapidly as possible. If his own vessel is disabled so that he cannot proceed with her to the port of destination, it is his duty to procure another, if it can be done at the same or a contiguous port. If he does not forward and deliver the cargo, he loses his claim for freight.
    “ If his vessel can be repaired, he may retain the cargo until repairs are made, and- if it become necessary he may sell a portion of the cargo for the purpose of raising money to make repairs, or he may hypothecate the ship or cargo for that purpose.
    “He is bound to exercise a sound discretion however. . . .
    “ The master has no right to sell the cargo unless in a case of necessity, except to raise funds for repairs to the vessel. If no means can be procured to repair the vessel, or to forward the cargo, the captain may and probably ought to sell both subjects, if in the exercise of a sound discretion that appears most for the owner’s advantage.
    “ So if the cargo is of a perishable nature, and would utterly spoil if kept at the port of necessity until the vessel could be repaired or another procured for its transportation; or if in the present case there was the highest probability, in the exercise of a sound judgment, that in the event of reshipping the hides it would be a total loss to its owners by decay during the residue of the voyage; or if there were no means of raising funds to clean the hides, and the captain was destitute of funds, and the hides were unfit for reshipment in their then actual condition, the master might properly sell the cargo as the only course left for the owner’s protection.
    “But a case of necessity must exist, and it is not enough that in making the sale the captain acted in good faith.
    “ The calling in advice of surveyors was proper as manifesting good faith, but the master was not bound by their advice. He was still bound to exercise his own judgment.” . . .
    “You are to determine whether this necessity existed at Oarthagena.
    “If it did, the defendants are entitled to your verdict.
    “If on the evidence you are satisfied that by the resort to proper measures for ridding the hides of the worms the master could have put them in a proper condition for reshipment, and that the captain had it in his power to clean the hides, and that they were not of so perishable a nature, or so utterly damaged as to render their total destruction before arrival in New York, in case of reshipment, in the exercise of an honest judgment on the part of the master, in the highest degree probable; and if you shall be satisfied on the evidence that the captain might either have retained the hides safely until his own vessel was repaired, or could have procured another vessel to have forwarded them, then the plaintiffs will be entitled to recover, notwithstanding the advice given to the captain by the parties whom he consulted in Oarthagena. . .
    “ If you find for the plaintiffs, you will give them the market value of the hides in New York, in the condition in which, according to the evidence, they would have arrived from Oarthagena if forwarded by the Pedee, (as that only is claimed by the plaintiffs), that is, the market price of hides in that condition.
    “The stipulation of the parties has fixed 21 cents as the value of sound hides at the time the vessel arrived in March, 1856.
    “Deducting freight and charges, the amount of loss at that price would be $1,878.60.

      “ The hides actually did bring 14 cents a pound in Hew York. You will determine the price.
    “ The plaintiffs, if entitled to your verdict, admit that defendants shall have freight, otherwise it might be questionable.
    “ From the amount of your verdict, however, the defendants will be entitled to have deducted the amount of general average properly chargeable upon the hides, for the expenses of repairs at Carthagena. The proportion has not been properly adjusted as yet, and will have to be determined by consent or reference, and your verdict, if for plaintiffs, may be for so much, less the proportion of general average expenses to be determined as the Court may direct.
    “Ho interest to be allowed.
    “Should you think the sale at Carthagena justified by the state of things then and there existing, as I have explained it to you, you will then give a verdict for the defendants.”
    Some requests to charge, and some other parts of the charge, are stated in the opinion of the Court.
    The plaintiffs’ counsel excepted to that part of the Judge’s charge wherein he instructed the jury that from the amount of their verdict, (if for plaintiffs), the defendants would be entitled to have deducted the amount of general average, chargeable on the hides for the expenses of repairs at Carthagena.
    The plaintiffs’ counsel also excepted to that part of the Judge’s charge in which he instructed the jury that no interest was to be allowed to the plaintiffs.
    The plaintiffs’ counsel also excepted to so much of the Judge’s charge as instructed the jury that should they think the sale at Carthagena justified by necessity in the state of things then and there existing, as he had explained it to them, they would give a verdict for the defendants.
    The case was submitted to the jury, who rendered a verdict for the defendants.
    The plaintiffs moved on a case for a new trial, which motion was denied. From the order denying that motion and from the judgment entered on the verdict, the present appeals are taken.

      John Sherwood, for plaintiffs and appellants.

      J. Edgar, for defendants and respondents.
   By the Court.

Bosworth, J.

—It is the duty of a master whose vessel becomes so disabled during her voyage that she cannot complete it, to forward the cargo by some other vessel when that can be done. (Abbott on Shipping, 4th Am. Ed., 241, 244.)

. The increased freight, if any, in such cases, is a charge upon the goods. (Ogden v. The General Mutual Insurance Company, 2 Duer R., 216, and cases there cited.)

The Judge,' at the trial, charged in substance, that if, by a resort to proper measures, to rid the hides of worms, the master could have put them in a proper condition for reshipment, and had it in his power to clean the hides, and if they were not so perishable or so much damaged as to render their total destruction before reaching New York, according to the due exercise of an honest judgment, in the highest degree probable, and if he could have forwarded them in another vessel, the plaintiffs were entitled to recover; notwithstanding the advice given to him at Carthagena by those whom he consultéd. (The plaintiffs had requested the court to so charge the jury.)

The plaintiffs are entitled to a fair application of this rule, in disposing of the case on this appeal. If the evidence required the jury to find such to be the facts, there should be a new trial. If it is thought that, any other rule of duty and liability should have been stated as a guide to the jury, it should be stated at the trial, that the plaintiffs may have an opportunity to except to it, if they deem it erroneous;

The hides in question, including another lot equally large, were cleaned at an expense of $15. There is no pretence, that the cost of cleaning, and of reloading, combined with any increased freight that would have been charged, made it as much the interest of the shippers or consignees' that they should be sold, as that they should be forwarded by another vessel.

The captain could have procured the hides to be thoroughly cleaned, as well as those who bought them. If it would have cost him even three times as much, as it did them, it was nevertheless his duty to have had it done. They could have been shipped by the Arabia, for they were so shipped. They could have been carried to New York in a condition to bring two-thirds the market price of sound hides, for that was done. They were sold, for a third of their market value in New York. There is no ground, upon the evidence, for suggesting that the cleaning of them thoroughly, transhipping them, and any extra freight that might have been charged would have amounted to one-sixth of the excess of the price they brought in New York, over that for which they were sold, or that any one supposed they would amount to that.

By the survey itself, the necessity and justification of a sale at Oarthagena, are based in part, and I think we may say, chiefly, upon the assumption that if not sold they must be detained at Oarthagena until the Pedee was repaired, and ready to resume her voyage, and then must be taken to New York, by the way of Ouba. Sanchez testifies, that his opinion in favor of a sale was founded in part upon the fact “ that the vessel was still bound to a port in Cuba, and that before the hides could arrive in New York, via that port, they would be entirely destroyed."

The only excuse, attempted by the captain, for not forwarding them by another vessel was “ the expense of cleaning them," “being short of funds to do it with." He says, “I tried to raise money for the purpose of cleaning the hides, and in consequence of not raising the money I had the survey.” The expense would have been $15, unless it would have cost him more than it did Horner & Foster. If it would have cost him three times as much, it would seem he might have raised funds for the purpose. He procured money for the repairs of the vessel on letters of credit from his owners, and was not obliged to sell any part of the cargo for that purpose. Those repairs amounted to over $3,000, besides the proceeds of the property he sold.

The conclusions cannot be avoided, that the hides could have been cleaned at a small expense, so that they could have been safely forwarded by another vessel, and that there was no difficulty in so forwarding them, and that it was clearly for the interest of the shippers that this should be done. The evidence all tends to support these conclusions, and there is no evidence that the master supposed or had any reason to suppose the contrary to be true. We should not have the slightest doubt of the accuracy of these views had we not been assured on the argument, by the defendants’ counsel, uncontradicted by the counsel for the plaintiffs, that, on precisely the same evidence as is now before us, the learned district Judge for this district has decided that “the master was justified on the facts in proof in ordering a sale of the hides in question.” We have been furnished with a copy of his opinion, being in the case of Ferdinand Maas v. The Schooner Pedee.

That opinion is preceded by a statement of the facts which the learned Judge held established by the evidence. Neither in that statement nor in the opinion is any allusion made to the fact that the necessity of a sale was advised on the idea that the hides must go to New York via Cuba, nor is any notice taken of the fact that the captain knew he could ship them direct to New York by another vessel, and assigned no excuse for not doing it, except the expense of cleaning the hides, and the difficulty of raising money for that purpose. How much the captain supposed the expense would be, he no where states. We cannot but think there was some feature in the history of the case of Maas v. The Schooner Pedee which will distinguish it from the case before us; or that it was so presented as to create an impression that no pretence was made that the hides could have been prepared for reshipment, at a trifling expense, and forwarded direct to New York, in such condition and under such circumstances as to make it the clear duty of the master to have pursued that course.

The duty of the master is imperative to ship and forward the cargo in another vessel, when one can be had in the same port, and there are no great difficulties in the way of a reshipment of the cargo, and when that course is clearly required by the interests of its owners. Under such circumstances his duty is plain, when the only other alternatives are either a total loss of a part of the cargo, or an unnecessary sale of it at one-third of its value, damaged as it was, at the port of destination. (3 Kent’s Com., 213; Saltus v. Ocean Ins. Co., 12 J. R., 107; Treadwell v. Union Ins. Co., 6 Cow. R., 270; Abbott on Shipping, 4th Am. Ed., 243; The Henry, 1 Blatch. & How., 465.

Every case of this kind must depend upon its own circumstances. The acts of a master will be upheld by the law, if upon all the facts before him, they be such as it may be reasonably supposed a prudent owner, personally present, would have directed or approved. (Abbott on Shipping, 4th ed., 242, 243.) It cannot be supposed that an owner of any prudence, would have directed or approved a sale at $344.26, when the goods could have been fitted and transhipped directly to their port of destination, at an expense short of $100, with a reasonable certainty of commanding at that port, according to the market value of such articles in a like damaged condition, from three to four times the price that could be obtained by a sale at the port of necessity. Under such circumstances, transhipment for the place of destination, is the first object, because that is in furtherance of the original purpose, and the interests of the shippers imperatively require it.

We are therefore quite clear that the verdict is not only against evidence, but on the point we are now considering, should have been for the plaintiffs.

It is insisted, and the Judge at the trial was requested to charge the jury, that the hides sold at Oarthagena, were not chargeable in general average for any repairs or expenses at that place; or incurred to reach it.

The expenses of putting into that port, having been made necessary and incurred for the safety of the ship and cargo, the hides must contribute to pay them.

The wages and provisions of the crew from the time of putting away for the port of distress to refit, and every other expense necessarily incurred during the detention for the benefit of .all concerned, are to be contributed for as general average. (2 Arnould, 914, note 1.)

But expenses incurred for the benefit of the ship alone, or for the whole or a part of the cargo only, must be borne by the thing for whose benefit it was incurred.

After it was determined to sell the hides on the ground that they could be carried no further, and after they had been sold and converted into money, it is difficult to perceive, in 'what sense, any subsequent expenses, of reloading the residue of the cargo, or for wages or provisions of the crew during their detention subsequent to such sale, can be deemed to have been made for the benefit of the hides or of their proceeds. They were not incurred with a view to benefit or carry forward either of them. (Vandenheuvel v. United States Ins. Co., 1 J. R., 406; Peters & Co. v. Warren Ins. Co., 1 Story R., 468, 469.)

The point argued was that there were no expenses for which the hides could be made to contribute in general average. As to this we think the plaintiffs are wrong. What particular expenses they should contribute in general average to pay, if chargeable with any, is a question not before us. That the Judge was not requested to decide, but it was to be thereafter ascertained, if the verdict should be for the plaintiffs, on a proper adjustment.

No point having been made that the amount justly payable had not been tendered, provided the hides were liable to contribute in general average, and provided also that the hides were justifiably sold as a matter of necessity, and it having been stipulated that the defendants were to have the same benefit from the tender, as if it had been plead and the money paid into Court, it was not error to instruct the jury that if they found the sale of the hides to be necessary they should render a verdict for the defendants. ([Logue v. Gillick, 1 E. D. Smith R., 398.)

The judgment must be reversed and a new trial granted.


author: Hoffman, J.

text:
    Stephen E. Gardner, Plaintiff and Respondent, v. George Gordon, Defendant and Appellant.
    1. One who holds a note which is indorsed in blank by the payee, and who transfers it without indorsement after it becomes due, is not an assignor of a thing in action in such sense that if he be examined by the plaintiff as a witness the defendant can for that reason offer himself as a witness in his own behalf and must be received, under § 399 of the Code of Procedure.
    2. An indorser of a note is not the assignor of a thing in action in the sense above suggested, although he indorses and transfers the note after it has become due.
    (Before Bosworth, Hoffman and Woodruff, J. J.)
    Heard, June 8th;
    decided, July 3d, 1858.

      This action was tried before Mr. Justice Woodruff and a jury, on the the 25th day of March, 1857.
    The action was brought in 1856, upon two promissory notes made by the defendant at ninety days and dated May 24th, 1842, one payable to the order of I. M. Twitchings, and indorsed by him in blank, and, the other made by the defendant dated the 24th of December, 1844, at four months, payable to the order -of S. Kipp and A. Brown, and indorsed by them.
    The answer set up the Statute of Limitations as the only defense.
    To take the case from the operation' of the Statute of Limitations the plaintiff examined as a witness Abraham Brown, who testified, that he held and owned the first named note until long after it became due, and testified also, notwithstanding defendant’s objection to the evidence, that the defendant made sundry payments thereon while he so held it, and within a year and a half last past, and that he transferred the note to the plaintiff before suit brought. Solomon Kipp was also examined by the plaintiff and he gave like evidence as to the second note, he being one of the payees of the note and an indorser thereof.
    The defendant then offered himself as a witness on his own behalf. On objection by the plaintiff he was excluded by the Court, to which due exception was taken.
    The plaintiff had a verdict and from the judgment entered thereon the defendant appealed to the General Term.

      B. Winne, for the defendant (appellant).
    I. The testimony of the witnesses Kipp and Brown was not admissible because the facts to which they were called to testify were not alleged in the pleadings. (Garvey v. Fowler, 4 Sand., 665.)
    II. The defendant Gordon was a competent witness.
    The plaintiff’s witnesses were assignors of the claims mentioned in the complaint, within the meaning of §§ 112 and 399 of the Code.
    1. The notes were transferred after they became due.
    A promissory note transferred after it is due, is subject to the same rules as a note, not negotiable. (Code, §§ 111 and 112.)

      2. The transfer of a note not negotiable is an assignment of a chose in action. (Tulloss v. Rapelye, 3 Abbott Pr. R., 93; Chamberlain v. Gorham, 20 John., 144; Jagoe v. Alleyn, 16 Barb. S. C. R., 580.)
    8. The transfer of a note past due is not an indorsement. (6 Cranch, 222.)
    4. The transfer of a note without indorsement is an assignment of a thing in action. (Hedges v. Sealy, 9 Barb. S. C. R., 214.)

      Thomas C. T Buckley, for the plaintiff (respondent).
    I. Facts which avoid the Statute of Limitations may be proved, although the pleadings only allege the original demand. (Esselstyn v. Weeks, 2 Kern., 637.)
    II. Neither Kipp nor Brown were assignors within the meaning of the Code.
    1. An indorser of a negotiable note is not an assignor. {Hicks v. Wirth, 10 How. Pr. R., 555; Anderson v. Busteed, 5 Duer, 485; Calkins v. Pacfeer, 21 Barb., 275, 281.)
    2. But neither Kipp nor Brown were indorsers at all, within any meaning of the provision. (Watson v. Bailey, 2 Duer, 512.)
   Bv the Court.

Hoffman, J.

—The action is upon two promissory notes made by the defendant. One of them was payable to Isaac M. Twitchings, was by him indorsed and came into the possession of the plaintiff without further indorsement.

Abraham Brown was examined as a witness for the plaintiff, and proved that the note had been held by him and that payments had been made upon it by the defendant. This was to take the case out of the Statute of Limitations.

The defendant was then offered as a witness on his own behalf, on the ground that Brown was the assignor of a thing in action. He was rejected, and an exception taken.

The case of Watson v. Bailey, (2 Duer, 512,) is decisive upon this question, and sustains the ruling of the Judge. Brown was clearly not an assignor within the meaning of the Code, from the mere fact that the note passed through his hands.

The question upon the other note is only varied by the fact that Kipp, the witness to prove payments, with a similar view to avoid the statute, had indorsed the note. The case of Ander son v. JSusteed, (5 Duer, 485,) settled this point also. An indorser is not an assignor within the proper construction of the 899th section of the Code.

Judgment affirmed with costs.

        Porter v. Potter. 18 N. Y. Rep., 52.


text:
    William Wright, Plaintiff and Appellant, v. Henry A. Weeks, Edward Woore and Wife, and Julius Raynor and Wife, Defendants and Respondents.
    1. A writing signed by the owner of lands and delivered to W. W., to whom he has leased the same for one year, by which he says, “ I will sell W. W., at any time within three months from April 1, 1857, the premises (describing them) for the sum of six thousand five hundred dollars upon the terms as specified, ” is not a sufficient compliance with the New York statute of frauds, which requires that the consideration should be expressed in the writing.
    2. A contract in such terms, though in writing, does not bind the owner of the land and will not be enforced in equity by a decree for its specific performance.
    3. Parol evidence will not be received to prove that at the time such writing was signed, there was a specific verbal arrangement and agreement fixing the time and manner in which the consideration was to be paid and secured if W. W. concluded to purchase.
    (Before Boswobth, Hoffman and Pierrfpont, J. J.)
    Heard, June 7th;
    decided, July 3d, 1858.
    This action was tried at Special Term before Ob. J. Duer (without a jury), on the 5th November, 1857.
    The action was brought to compel the specific performance of an alleged agreement by the defendant Weeks, to convey to the plaintiff three lots of ground in the city of New York, with the buildings thereon.
    No question arose on the pleadings and it is unnecessary to state their contents further than to say that Woore and Raynor, with their wives respectively, were made parties upon allegations that since the making of the agreement, but with notice of the plaintiff’s claim, Woore and Bay nor had purchased the premises and received a conveyance thereof from Weeks.
    On the 11th of March, 1857, Weeks executed and delivered to the plaintiff a lease of the three lots of ground (Nos. 157,159 and 161 Goerck street), with the stables, &e., thereon, for the term of one year from the 1st day of April then next, at a rent of $650, payable in advance quarterly, at the beginning of each quarter. This lease was executed by both parties and delivered, and after-wards and before the parties separated, the defendant Weeks wrote and signed a writing in the words following, that is to say:
    “ This is is to certify that I hereby consent to the reletting of the stables on the premises 157, 159 and 161 Goerck street, and will sell the said premises to the said William Wright, at any time within three months from April 1, 1857, for the sum of six thousand five hundred dollars, upon the terms as specified.
    “March 11,1857.” “Henry A. Weeks.”
    The plaintiff took possession of the premises, and was in possession at the time of the trial. At which time the term mentioned in the lease had not expired.
    On the trial evidence was offered by the plaintiff, that at the time the papers were signed there was a parol agreement as to the manner in which the $6,500 should be paid and secured, if the plaintiff purchased the premises. That in that case the plaintiff was to pay $1,500 on the 1st of July, 1857; $1,000 on the 1st May, 1858, and was to assume the payment of a mortgage for $4,000, which was already an incumbrance on the premises. Any rent paid before the expiration of the three months was to be allowed on the first payment of $1,500.
    The Court held the evidence inadmissible, and the plaintiff excepted.
    It is not material to state the other evidence. When the plaintiff. rested, the Court dismissed the complaint, “ on the ground that the agreement was defective in not stating the consideration in full.” From the judgment for the defendants thereupon entered, the plaintiff appealed.

      M P. Gowks, for the plaintiff (appellant).

      I. The contract is sufficient within the Statute of Frauds.
    1. It is signed by the party to be charged, and that is a sufficient signing of it. (Statute of Frauds, 2 R. S., 135; McCrea v. Purmont, 16 Wend., 460; 1 Edw. Ch’y R., 5; 14 John. R., 484).
    2. It expresses the consideration, viz., $6,500.
    II. The agreement itself being sufficient, it was.competent to show when that consideration should be paid, and in what it should be paid.
    1. The statute is complied with when the amount of consideration is expressed.
    The agreement defining the premises, fixing the price of the ^purchase, and the time within which the sale should be made, expresses all that the statute requires.
    This is evident because a parol agreement extending the time of payment, may be given in evidence. (3 John., 528; 1 Johns. Ca., 22.)
    Substantially that is this case; for admit that by the terms of the agreement the whole consideration would have been payable at once and in cash, yet the parties could agree that the time should be extended, and that a mortgage on the premises which the defendant would have had to raise, should be left on and assumed by plaintiff.

      A fortiori. If such a subsequent parol agreement would have been upheld, a similar agreement made at the time the written agreement was signed would have been sufficient.
    Hone of the essential elements of the contract required to be put in writing, are changed or varied.
    Ho proof was offered or put in, which would not have been admissible, had it been respecting an agreement made by parol subsequent to the written agreement.
    The proof was, therefore, as we respectfully submit, improperly rejected, and the judgment for dismissal of complaint should be set aside and a new trial ordered.

      Francis Byrne, for the defendants (respondents).
    I. The writing upon which the plaintiff relies is not an agreement, but a mere proposition, which was not accepted and at no time bound the plaintiff to purchase, or afforded to the defendant Weeks a means of enforcing a liability upon the plaintiff. (Mactiers, Admr's, &c., v. Frith, 6 Wend., 103; Tucker v. Woods, 12 Johns. R., 190; Burnet v. Bisco, 4 id., 235; Getman v. Getman, 1 Barb. Ch’y R., 499; Reynolds v. Dunkirk R. R. Co., 17 Barb., 613.)
    II. The writing contains no mutuality of obligation between the plaintiff and the defendant Weeks.
    It is not like the case where both parties are bound at the instant of execution, with a right to one party to annul it, or where it says in the agreement, I A. B. agree to sell, and I 0. D. agree to purchase.
    III. The writing does not contain the whole of the consideration, but requires parol evidence to show what is meant by “ the terms as specified;” and therefore does not satisfy the Statute of Frauds, which requires the consideration to be expressed. (2 R. S., p. 135, old paging, § 8; Weed v. Clark, 4 Sand. S. C. R., 31.)
    IV. A contract ambiguous in its terms affecting real estate ( or an interest therein) should not be favored so as to be enforced specifically. (Acker et al. v. Phoenix, 4 Paige, 305.)
    V. A consideration should not be allowed to be proved by parol to change a title to lands. (2 Cow. and Hill’s Notes to Phil. Ev., p. 530, &c.)
   By the Court.

Pierrepont, J.

—The question in the case is, whether the agreement is void by the Statute of Frauds. Upon this trial the complaint was dismissed, and (as we think), properly. Every agreement of this kind is void unless in writing and “expressing the consideration."

The expression “six thousand five hundred dollars upon the terms as specified,” presents an ambiguity, patent upon the face of the contract, and which parol evidence is not admissible to explain, and being unexplained, the contract is void, the consi deration not being fully expressed in writing.

It is only partially expressed in writing, and the writing furnishes no means of discovering the full consideration.

This can only be ascertained by a resort to unwritten evidence which is not admissible. (Weed v. Clark, 4 Sand. S. C. R., 31; 2 R. S., 135, § 8.)

Judgment affirmed, with costs.


text:
    Eleanor Meserole, Plaintiff and Respondent, v. William J. Archer and Andrew J. Martin, Appellants.
    1. When, in an action of trover, a witness testifies that the property in question belongs to the plaintiff, who authorized her to pledge it to the defendants on certain terms; that she pledged it on certain terms telling them the property was the plaintiff’s; it is not error to allow such witness to state what she told the plaintiff that the bargain made was.
    2. The plaintiff cannot, in such a case, be deemed to have assented to any bargain except such as she authorized; or was informed had been actually made and to which, on being so informed, she did not object.
    3. The fact that such witness and agent made a written contract with the defendants, which imports that she sold to them such property as her own; does not make evidence, that she, at the time, told them the property belonged to the plaintiff; inadmissible.
    4. Evidence that the plaintiff went with an agent to the defendants before suit brought, having the requisite amount of money with them to make a • legal tender to the defendants, of the amount of their lien on such property; and that such agent told the defendants that he had come to tender the money and get the property in question, and that one of the defendants replied: getaway, I will have nothing to do with it, is (if credited), sufficient evidence of a tender and refusal.
    (Before Bosworth, Hoffman and Woodruff, J. J.)
    Heard, June 10;
    decided, July 3, 1858.
    This action comes before the General Term on an appeal by the defendants from a judgment, entered at Special Term. It was tried before Mr. Justice Hoffman and a jury, in December,
    1857. The appeal presents only questions of law. The action was brought to recover the value of a diamond bracelet, which it was alleged belonged to the plaintiff and had been wrongfully converted by the defendants to their own use.
    The plaintiff’s mother (Mrs. Abraham Meserole), testified that the bracelet was the plaintiff’s property. That she, the mother, owed the defendants a bill. That they called for it, and the mother told them she wanted money. She took the bracelet to them and they offered to lend $300 on it. That she told them it was her daughter’s property, and that she was authorized to leave it on a loan of $300 being made on it, as a security for such loan, and to allow $50 on their bill. That they advanced $100, and agreed to advance the other $200 the next day, but although called upon and asked for it, they never advanced the other $200.
    The mother, among other matters, further testified, thus: “ When I went home I told my daughter, and she objected to the bargain.
    “ The counsel for the defendants duly objected to the testimony of what the witness stated to the plaintiff and the reply thereto, objecting to the bargain, which objection the court overruled and the counsel for the defendants then and there excepted.”
    “ On being shown the following and asked whether it was her signature thereto, she said it was. It was then read in evidence and is as follows:
    “Mess. Archer & Mártir,
    “ Bought of Mrs. Abh. Meserole,
    “ One diamond bracelet,....................... $250
    “Rec’d payment, New York, Nov. 1, 1856.
    Mrs. A. Meserole.”
    She further testified she was told and supposed the paper was a receipt, when she signed it.
    She was asked what she said to the defendants when she left the bracelet. This was objected to on the ground that the contract was in writing and could not be varied by parol. The objection was overruled, and the defendants’ counsel excepted. The witness answered, “ I said I will allow you $50 on the bill, if you advance the $300, and you can hold the bracelet till I can pay you the balance.”
    The plaintiff was examined in her own behalf, and testified that before suit brought, she went to defendants’ store with her attorney Mr. Bulkeley, he having $250, which she had furnished him, with which to make a tender. “Bulkeley, said he came to tender them money and get my bracelet.” He then had money in his hands, how much she could not say. “I heard Mr. Archer say to Mr. Bulkeley, get away, I will have nothing to do with it.”
    Both of the defendants were sworn, and gave evidence tending to show, that plaintiff’s mother sold them the bracelet for $250, taking $100 in cash and allowing their bill, amounting with interest to $150, for the balance, and saying the bracelet belonged to her.
    They contradicted in other particulars the testimony of the plaintiff’s mother, and also the plaintiff, as to some things, which she testified was said and done at the time of the alleged tender. But neither of them denied that Archer said to Bulkeley what the plaintiff swore he did.
    When the testimony was closed, the defendants’ counsel requested the Court to charge the following propositions, severally :
    1. That according to the testimony the defendants became lawfully possessed of the bracelet.
    2. It is necessary, for the plaintiff to sustain this action, that the amount advanced upon the bracelet by the defendants should have been duly tendered to them.
    3. To constitute a tender it should have been made by the offer and exhibition of the money on the part of the plaintiff or her attorney to the defendants.
    And if the Court refuses to charge either, then as to such refusal defendants except.
    The Court then charged the jury, and refused to charge other than what was embraced in the charge, which was substantially as follows:
    That the statements made by the witnesses were wholly irreconcilable; that if the jury fully believed the statements of Mrs. Meserole, the witness on the part of the plaintiff, it would then be proved that the plaintiff was the owner of the property in suit, and also that the plaintiff intrusted her mother to obtain from the defendants an advance upon it of $300, she allowing $50 upon a bill or former indebtedness owing to the defendants.
    The statement of the mother is that she proceeded to the store of the defendants with the bracelet, having no other authority than to pledge it, and after some conversation with the defendants they agreed to advance her the amount which the plaintiff authorized the mother to obtain; that the defendants did not advance at first but $100, but agreed to advance in a few days afterwards the further sum of $200; and that after advancing the $100 they refused to advance anything more.

      On the other hand, the statements on the part of the defendants are equally explicit but directly opposite. The defendants both state that Mrs. Meserole being indebted for a balance of an account amounting to $188.50 for goods furnished to her (and as to which there is no dispute, nor that one article amounting to $150 was for the plaintiff herself), which they were pressing her to pay, she came to their store and represented herself to be the owner, and sold the bracelet in question to them for $250, they calling her indebtedness $150 which included interest, and paying her besides $100 in cash; that it appears the bill against Mrs. Meserole was not receipted, but that is explained by one of them that the bill had been made out some months before and was not there at the time of the sale of the bracelet, and that Mrs. Meserole never asked to have it receipted; they also state they never knew the plaintiff claimed any title to it before this suit was commenced.
    These statements are directly opposite to those made by the plaintiff and her mother.
    The jury must weigh between them, and would render their verdict accordingly as they credited the one or the other representation of the transaction.
    That an actual tender in specie before suit, was brought was necessary to constitute a cause of action, unless the defendants dispensed with it by their express declaration, or by acts equivalent to their express declaration. That if the defendants, upon the plaintiff and Mr. Bulkeley coming to them to make the tender knowing that they had come for that purpose and upon Mr. Bulkeley’s announcing to them the object of his coming, told him to go away that they would have nothing to do with him or it, and did or said enough to show to the jury’s satisfaction that it would be useless to offer them the money, then they might find that the actual tender was dispensed with.
    If they should come to the conclusion that the plaintiff was entitled to their verdict, then they should consider the amount she would recover; that the question of value in this case was one of great uncertainty; that it was said by Mrs. Meserole the bracelet cost $800; but it appears that it was not purchased by the plaintiff but sent to her anonymously, and they probably would not place reliance upon that valuation, but it is said by the mother of the plaintiff that the defendants stated it to be worth $600; that if they should proceed upon that basis then with the $100 advanced and $50 allowed on the bill, the result would be $450; that the damages however were for them to estimate upon the evidence as they best could, provided they should come to the conclusion the plaintiff was entitled to recover.
    The defendants’ counsel then made the following exceptions to the charge:
    1. As to so much of the charge which submitted to the jury the amount of damages the plaintiff was entitled to recover, provided she was entitled to their verdict; also as to the value of the bracelet.
    2. To so much of the charge wherein it is stated that it is not necessary a tender should be made if the defendants stated they would not accept any money for the bracelet; such last exception being made on the ground of there being no evidence to that effect.
    3. The defendants’ counsel also duly excepted to the said charge, on the ground that the Court did not instruct the jury as contained in his said requests; and also to so much and such parts thereof as differed from said several requests.
    The jury thereupon retired and rendered a verdict in favor of the plaintiff against the defendants for the sum of three hundred dollars damages.
    Erom the judgment entered on that verdict, the present appeal is taken.

      C. Bainbridge Smith, for appellants (defendants).

      Chauncey Shaffer, for respondent (plaintiff).
   By the Court.

Bosworth, J.

—In disposing of the first exception it must be borne in mind that, according to the theory of the plaintiff’s case, the bracelet was her property; and the witness acted as her agent, and was authorized to leave it with the defendants only upon the condition of their loaning $300, on the security of it. This was about the 1st of November, 1856. The witness returned without the bracelet and with only $100, in money. In the proper discharge of her duty as agent, and according to the usual course of things, it was natural to infer that she told the plaintiff what had been said and done between her and the defendants in respect to the bracelet.

It was material to show what information was communicated to the plaintiff; whether she acquiesced in or objected to, what she was told had been agreed upon; for if she acquiesced, she would thereby assent to only such an arrangement as she was told had been made. She could not be deemed to have acquiesced in an arrangement which she had not authorized and of which she had never heard.

Whether she objected or assented to the arrangement, which the witness, so far as she had then testified, said she had made, and told her daughter she had made, could not by any possibility have affected the verdict.

That arrangement was that they were to advance $300 on the bracelet, and were to be allowed $50 on their bill. Although they did not advance but $100, and refused to advance the other $200, the jury were in effect told that, if they found for the plaintiff, and also found the arrangement authorized and made, to be such as testified to by the plaintiff’s mother, they must deduct from the value of the bracelet the $100 advanced, and the $50 which was to be allowed on their bill. It is not clear on what ground they were entitled to be allowed the $50, if they had refused to comply with the conditions, essential to create the right to retain it as security for that sum.

It is therefore quite clear, that no possible prejudice has resulted to the defendants, from the testimony covered by the exception first taken.

It was certainly proper to show what the agent told the defendants when she left the bracelet. Sufficient evidence had been given to establish, if it remained uncontradicted, that the bracelet was the plaintiff’s, and was intrusted to the witness for a special purpose, and with a limited authority as to the terms and conditions on which it could be, lawfully, left with the defendants. Even, if it had been proved that she sold it, and executed a bill of sale of it, it was competent for the plaintiff to show that they bought it with notice that it was the plaintiff's property, and that the mother had no authority to dispose of it, on the terms on which she said it was left, or on which they claimed they received it.

The objection taken to the evidence was that the contract was in writing and could not be varied by parol. Even if in writing, that was no objection to receiving evidence that they were told the mother had no right to make such a contract, as the paper signed by her imports.

But she had previously testified, without objection, that she signed that paper without reading it, being told by Mr. Archer it was a receipt, and believing “ it was a receipt for $100.”

Under such circumstances, it was also competent for her to state fully and precisely what she said to the defendants, as pertinent to the inquiry whether she signed the paper under- ■ standing its contents and meaning.

The general rule as to the necessity of a tender, and what was essential to a sufficient tender, was stated to the jury as favorably for the defendants as they could ask.

If the plaintiff went with a person to make a tender, and with money enough to pay all the defendants had a right to ask, and if the defendants understood that the plaintiff had come for that purpose, and understanding that, told the person with her, on being informed by him that he and the plaintiff had come to tender them money, and get the bracelet; “to get away,” they “ would have nothing to do with it,” it could not be necessary to exhibit the money or make a more formal offer.

If the jury believed that was said, they were justified in-finding an unqualified refusal to give up the bracelet on any terms, and that the defendants, dispensed with an actual tender.

They might very properly find that this was said, as the plaintiff swore to it, and the defendants, although examined, did not deny it.

We think no error was committed for which a new trial can be granted, and that the judgment must be affirmed

Judgment affirmed.


text:
    John Bissell v. Frederick Hamlin.
    1. By the 399th section of the Code, as amended by the act of April 13th, 1857 Laws of 1857, Yol. 1, p. 744), a party may be examined as a witness in his own behalf, who has given notice of such intended examination, ten days prior to the time he offers himself as such witness, although such notice was not given before the trial commenced.
    2. Having given such notice, he may be examined notwithstanding the action is against the survivor of a firm (as such), which consisted of three persons when the transactions in question occurred, and two of such persons are dead. The survivor, in such a case, is alone the adverse or opposite party, within the meaning of that section.
    (Before Bosworth, Hoffman and Pierrepont, J. J.)
    Heard, June 11;
    decided, July 3, 1858.
    This action comes before the Court, at General Term, on an appeal by each party. The defendant appeals from a judgment entered against him on the report of Abraham Underhill, Esq., as referee. The plaintiff appeals from the same judgment, because the whole amount of his claim was not allowed.
    The action was commenced in June, 1854, by the plaintiff, against Frederick "V". Hamlin, James M. Sloan and Hamilton Squires, (composing the firm of Hamlin, Sloan and Squires,) to recover for services rendered by the plaintiff, as an Ohio commissioner, for said firm, in a suit in which they were parties, and pending in the State of Ohio.
    The cause was tried in 1855, before a referee, and on an appeal from the judgment entered on his report, a new trial was granted.
    Before the cause was again tried, both Sloan and Squires had died and the action was continued against defendant Hamlin, as sole surviving partner.
    The plaintiff was admitted as a witness in his own behalf, on the second trial, against the objection and exception of the defendant. The facts in respect thereto appear in the opinion of the Court.

      James T. Brady, for defendant.

      John W. Edmonds, for plaintiff.

      The opinion of the Court, delivered by Hoffman, J., after disposing of some questions of evidence, and those relating to the amount of the recovery, proceeds as follows:
   By the Count.

Hoffman, J.

—The remaining and a material question is, whether the plaintiff was properly admitted as a witness in his own behalf.

On the 21st of February, 1857, the cause was sent back to the referee to be retried. On the 13th of April, proceedings were resumed before him. On the 5th of May, 1857, the plaintiff gave notice of his intention to offer himself as a witness on the trial before the referee. The statute of 1857 permitting such an examination had gone into effect on the 13th day of April preceding. On the 29th of May he was examined.

The first objection taken is, that the notice of ten days should be given ten days before the commencement of the trial. But the 399th section requires only ten days’ notice of the intended examination to be given, not ten days before the trial. We see no reason for refusing the privilege, when a trial is in progress so long, that the full notice prescribed has expired when the party is called, although given during the trial.

It is next objected that two of the original parties to the action have died since the commencement of the suit. That their interests have fallen upon their personal representatives, who ought not to be prejudiced by the testimony of the plaintiff, not being able to meet it themselves.

But the deceased were partners with the present defendant, who is the survivor, and in whom the legal title is vested, The record is perfect as to parties. Ho objection is taken, and none probably could be taken that it is defective as to parties. Hamlin, the present defendant, is the adverse party on that record. There is no opposite party on the record in the character of a representative of a party deceased.

We think that this is all that the Code requires. The examination is to be allowed when the adverse party is living. The adverse party is the adversary on the record. So, under the other part of the clause, the person in interest must be living. That means, we apprehend, the person designated in the 397th section; one for whose immediate benefit the action is prosecuted or defended. The representatives of the deceased defendants could not be treated as of this description.

We consider that the plaintiff was properly admitted.

There were some exceptions taken to rulings of the referee when the case was formerly before him. Rut no point has been made respecting them, nor has our attention been called to either of them. They can scarcely be of materiality, from the course the cause has taken, and the matters of fact and law.on which the decision rests. We have not considered them.

As to the plaintiff's appeal, we see no ground for it upon testimony or law.

Judgment affirmed.