author: Moncrief, J. Robertson, Ch. J. Monell, J.

text:
    Alfred Field et al. plaintiffs, vs. William J. Syms et al. defendants.
    1. Evidence of a mere sale and delivery by the plaintiffs of their own goods to. the defendants is not sufficient to sustain an action to recover for money laid out and expended by the plaintiffs, and for their commissions as the servants and agents of the defendants in the purchase of goods for such principals, and by their order.

      2. Where the sole cause of action set forth in the complaint was for money paid and expended at the defendants’ request, and for services rendered in buying and paying for a certain number of guns, and the defense was that the only transaction between the parties was a purchase and sale of guns, which was void because not in writing; and the case proved was not the employment of an agent, but either a purchase from a vendor, or an order to manufacture; Held that the contract set out in the complaint was not proved, but was disproved, and the complaint should have been dismissed, for that reason.
    3. Held, also, that the claim made in the complaint so entirely varied, in its scope and meaning, from that proved, that the defendants would have been entitled to a dismissal of the complaint, if they had put their motion, on that ground. Ter Robertson, Oh. J.
    (Before Robertson, Ch. J., Moncrief and Monell, JJ.)
    Heard January 14, 1864;
    decided February 13, 1864.

      In their complaint, the plaintiffs describe themselves as commission merchants “ in England and the United States/” doing business under the firm name of Field, Ibbotson & Co. They state that the defendants employed them, for a commission, to purchase “not to exceed 100 guns’ in England, to be' shipped to the defendants in New York, not later than the 15th of January, 1859; and that they executed the order by purchasing and paying for ninety-four guns, and shipping them as directed in December, 1858; and that the “ purchase price,” expenses, and commissions thereon amounted to $599.28, “ which, by agreement between the parties, became due and payable the 15th of April, 1859.”
    In their answer, the defendants deny, that the plaintiffs shipped any guns to them in pursuance of any order they had given, and allege that they gave the plaintiffs a verbal order for 100 guns, at a specified price, to be ready at Liverpool for shipment on the 15th of January, 1859, and to be paid for by the defendants’ note at 90 days from-that date. The guns, as ordered, were never shipped, and the guns shipped on the 10th of Décember, were burnt on shipboard at Liverpool. They further allege that it was the plaintiffs’ duty to give timely notice of the shipment; that no notice was given, and the'guns so burned were uninsured.
    On the trial, it appeared that the plaintiffs were gun makers in Birmingham, and that the guns shipped in December, were in part manufactured by them, and in part purchased by them. On this state of facts, the defendants moved to dismiss the complaint, and excepted to a denial of'their motion. They then gave evidence tending to show that the order was to ship the guns not earlier than the 15th of January, and that they had promptly refused to accept the invoice of the goods, which came to them by mail on the same day with the intelligence that the ship Isaac Wright (on which the guns were shipped) had been burnt at the port of Liverpool. They also proved that the regular mail steamers left Liverpool on the 11th, 18th, and 25th of December, and arrived at Few York on the 27th December, 1858, and on the 5th and 9th of January, 1859; and that a Southampton mail steamer of the 15th December arrived on the”4th of January. The shipment on the Isaac Wright was on the 10th of December, and the invoice and intelligence of the burning of the vessel were received by the defendants on the 9th of January. The plaintiffs in this city, as early as thfe 4th of January, received notice of the shipment.
    The motion to dismiss the complaint was renewed on this evidence, and overruled, and the defendants excepted.
    The court thereupon decided that there was no question of fact for the jury, and .the defendants excepted.
    The court then directed a verdict for the whole sum claimed, being the price of 108 guns, shipping charges, and commissions, to which the defendants excepted.
    The court ordered the exceptions taken by the defendants, to be heard in the first instance at a general term.

      Charles Jones, for the plaintiffs.

      J. M. Van Colt, for the defendants.
   Moncrief, J.

The testimony being closed, if for any reason or ground upon which the motion to dismiss the complaint could have been made or properly granted, it was error to deny the application^ which appears to have been in general terms. The court had the right to call upon the defendants to state the ground upon which it was claimed; but whether stated or not, if the reasons for granting it are sufficient in law, the refusal as a general rule, must be held to be' erroneous, and the exceptions well taken.

The action is for goods ordered by the defendants to be purchased by the plaintiffs, who were' “commission merchants,” and the complaint avers that acting under such order, they did purchase and pay for certain guns, and shipped them to the defendants, forwarding to them a bill of lading and invoice thereof, and claims the purchase price of the said guns, and the shipping expenses, and commissions of the plaintiffs.

The invoice defeats the existence of the relation between these parties. It is of “ hardware purchased by order, and for account and risk,” &c. The evidence clearly establishes that the alleged order never was filled by the plaintiffs; the guns shipped by them were not purchases made by them upon the order of and acting as the factor or agent of the defendants. The plaintiffs sent on board the “Isaac Wright,” some guns purchased and other guns owned by themselves; this was not a performance of the duty devolving upon them towards their principal, the defendants. The testimony did not disclose a variance which could be disregarded or amended, but is a failure to prove the alleged cause of action, not in some particulars only; but in their general scope and meaning. (Code, § 171.) Walter v. Bennett, (16 N. Y. Rep. 250,) in my opinion, is decisive upon the question arising in this case.

Belknap v. Sealey, (2 Duer, 570, 583 ; S. C. 14 N. Y. Rep. 143, 158,) does not militate against this rule; and is plainly distinguishable from the present action. In the court above, it was- held that the judge at special term below, without a jury, having found certain facts, “a general exception to the final decision of the judge, raises only the question whether upon those facts the law was properly decided.” (Id. 158.) The complaint alleged a fraudulent contract, the answer averred a mistake; and the judge found the latter to be the fact, and rendered judgment accordingly.

This was lielcj a variance only, although the late Chief Justice Duer, in this' court, and two judges in the court above, held otherwise. The court could not have permitted an amendment of the complaint. (Saltus v. Genin, 3 Bosw. 250, 263 ; and see S. C. 10 Abb. Pr. 478 ; Gasper v. Adams, 28 Barb. 441; 3 Bosw. 456, 520; 2 id. 590; Code, § 171.) There would seem to he no necessity of stating the proposition that the relation of principal and agent differs most materially from the position of debtor and creditor, or vendor and vendee; that is as plain as the language of the Code. An action to recover for money laid out and expended, and for his commissions as the servant and agent of another in the purchase of goods for such principal by virtue of his orders, cannot be satisfied by evidence of the sale and delivery of the goods of such agent; and therefore, in my opinion, the complaint should have been dismissed.

The exceptions were well taken, and a new trial should be directed, with costs to abide the event.

Robertson, Ch. J.

Most of the confusion in this case, as to the rights of the parties under their contract in question, for furnishing guns for the defendants, arises from the different meanings attributed in the pleadings, and by witnesses to the words “ order ” and “ ordered,” or rather the absence of explanation of the sense in which they are used. The complaint sets out as a sole cause of action “ an order ” given by the defendants to the plaintiffs to purchase a certain number of guns in England, and ship them not later than a certain day, according to a certain course of business of the plaintiffs (which it describes,) by which they were to be paid the purchase price of the articles, and expenses and commissions; and it claims a certain sum as being such purchase price, expenses and commissions, without otherwise alleging directly the expenditure of any money by them. The answer denies giving any order for guns to be purchased by the plaintiffs in England, but admits an order given by the defendants to and accepted by them for the like number of guns at a certain price, to be ready at Liverpool (England) on a certain day for shipment to the defendants, but alleges that such order was not in writing "as required by law. The term “ order” as used in the complaint, was evidently intended as a direction, employment or request to huy and pay the purchase money; as used in the latter part of the answer already stated, as an agreement to huy of the plaintiffs, or perhaps to have manufactured by them, certain guns, with directions or instructions only as to the shipment or delivery. The sole cause of action in the complaint was for money paid and expended at the defendants' request, and services rendered in buying and paying for the guns. The defense was that the only transactions between the parties was a purchase and sale of guns, which was void, because not in writing.

The same ambiguity as to the words “order” and “ ordered,” appears in the only evidence offered on the trial, of the nature of the contract, to wit, the testimony of one of the plaintiffs, (Ibbotson,) and the defendants. The former, after a description of the course of business of his firm, and a statement of previous dealings with the defendants prior to August, 1858, .in which the former had sent the latter guns and gun furniture on their orders, and a promise by him, at the time of receiving one of such orders for two hundred guns, from one of the defendants, (Samuel R. Syms,) to show him a better sample .of a gun than one exhibited at that time,, went on to testify that on the 31st of August, 1858, he showed such new sample to the same defendant; and that the latter thereupon “ordered one hundred additional guns to be shipped ” at a certain time afterwards. He also stated that “ in this case the price was understood and limited at twenty shillings per gun,” although in previous dealings, they had agreed on a certain commission. The defendant, William Syms, testified that when Mr. Ibbotson came to his store, he said “he would furnish the guns at a certain price.” His co-defendant, (Samuel Syms,) testified that when Ibbotson brought the “ sample gun, he' said they were getting up the guns themselves, so that I understood they were manufacturing.” After stating that a previous order was for two hundred guns, which “ Ibbotson said they had on hand, he testified that the latter called again, and asked if they would take a hundred “more,” and he said they would. On the day of such application, some doubt arose whether the guns could be furnished by the day fixed, and the plaintiffs wrote a letter to the defendants, in which they speak of “ the order for one hundred guns in addition to those ordered before,” mention the price, and express such doubt; to which the defendants answered verbally, allowing time to the plaintiffs “ to say whether they could do them or not.” On the same* day, the same plaintiff proposed to the defendants, to ship the guns before the time fixed, because they would rust “ if kept on hand.” The defendants acceded to such proposal, and the plaintiffs “forwarded the order.” In that order, as it is called, sent by the plaintiffs to their firm in England, it is said “add to order and ship January 15, 1859. Please inform us * * if these can be done. If they cannot be done, you had better hold the order until you hear from us. They will probably not take them, if they cannot be done by the 15th ¡¡January. They will advise how to ship when they receive information that they can be done; ” which is followed by the number and description of the guns, and their price. At that time, the plaintiffs were engaged in buying in England, the different parts of such guns, putting them together, and finishing the stocks which were rough when bought. This process one of the defendants testifies was manufacturing guns.

The testimony of the defendants gives the transaction rather the character either of an order to manufacture, or a purchase. . The' plaintiffs were engaged in manufacturing guns of the kind to be furnished, and known to the defendants to be so, exhibited a sample of their manufacture, agreed to furnish them at a fixed price, although previous orders had been executed for a commission, asked if the defendants would take one hundred more, in addition to two hundred belonging to themselves, previously purchased, agreed to take the time allowed by the defendants in which “ to do them.” They also wrote by the order in the letter as to doing them, and future directions for shipment; implying ,the preparation of them by themselves, and the reception of them by the defendants as . vendees. It is not pretended that'tke price fixed, was a limitation of the price to be paid by the plaintiffs, or that there was any purchase of strangers; nor was any charge made or evidence given on the trial, of any money' paid for the purchase of the guns. The testimony of the plaintiffs does not alter or conflict with this view. So that the case proved was not the employment of an agent, but either the purchase from a vendor, or an order to manufacture. The contract set out in the complaint was, therefore, not proved, but was disproved.'

Besides, if the contract of agency had been proved, there was no evidence of damages by the breach of it hy the. defendants. There- was no evidence offered of any money paid by the plaintiffs for them on such contract. Commissions and expenses were allowed in the verdict, besides the price fixed. If that were a sum to be paid to the plaintiffs for the guns, it was a sale or contract to manufacture ; and if it were a limit, no proof was given that the price paid equaled or exceeded it.

The claim made in the complaint, so entirely varies in its scope and meaning from that proved, that the defendants would have been entitled to a dismissal of the complaint, if they had put their motion on that ground, (Code, § 171; Belknap v. Sealey, 14 N. Y. Rep. 143;) but they did not. The plaintiffs, however, could have no amendment to their complaint to make it conform to the facts proved; because in this case it would change the claim substantially. (Code, § 173.) There is no resemblance between the duty of an agent and of a vendor, or their modes of discharging it, so that the two relations cannot be sustained at the, same time, by one party to another, in relation to the same matter. The confidence reposed in the skill, diligence, and good faith of an agent, is foreign to the doctrine of “ caveat emptor.” An agreement with the former, may be verbal; with a vendor, except under certain circumstances, it must be in writing. It is .not very easy to say what amendment should be made, to conform to the facts proved, if we had power to do it, or a mere hearing of exceptions at a general term, whether it should allege a contract to sell, or one to manufacture. If the amendment made was a contract to sell, the answer had set up the defense of the statute of frauds; if to manufacture, although such contract would not have been within the statute, (cases cited in Abb. Dig. Sales, 744, pi. 47,) the proof was that part of the guns shipped had been purchased and part manufactured. The former would not have been a proper performance of the contract. (Hight v. Ripley, 19 Maine Rep. 137, 139.) The evidence as to the number of guns purchased, and of those manufactured by the plaintiffs, was indefinite. If the complaint, therefore, is to be considered as one for employment of the plaintiffs as agents, and expenditures by them, the contract was not proved, and no evidence was offered of any expenditure. If one for a sale of goods, such sale was void by the statute of frauds. If for the manufacture of the goods, the evidence shows that it was not fully performed, part of the goods shipped having been purchased, and no means furnished for the jury to determine how many. Yet the plaintiffs were allowed to recover the full amount claimed; and not only that, but for expenses and commissions, although the price was limited.

For these reasons, I think the decision of the learned judge, before whom this cause was tried, that there was no question of fact for the jury, and his direction that they should find for the full amount claimed, to both of which exceptions were taken, were erroneous, and there ought to be a new trial, on that ground.

I concur, therefore, in thinking the motion for a new trial should be granted, with costs to abide the event, with liberty to the plaintiffs to apply at special term to amend their complaint, as they may be advised.

Monell, J.

(dissenting.) In this case, a motion was made to dismiss the complaint, and the motion was denied. No ground, whatever, was stated for the motion. No request was made to charge the jury, and the attention of the judge, who presided at the trial, was not called to the alleged variance between the cause of action stated in the complaint, and the proofs offered to sustain it. It is too late to take the objection for the first time in the appellate court. (Belknap v. Sealey, 14 N. Y. Rep. 143. Ward v. Forrest, 20 How. Pr. 465-477.)

Had the motion for a nonsuit proceeded upon the ground of variance, I think it would have heen within the power of the judge to have allowed an amendment of the pleading. If so, then we must now regard the variance as immaterial, the objection not having been taken at the trial.

Ho mere “variance” between the pleading and proof, can be deemed to be material, unless it shall actually have misled the adverse party. (Code, § 169.) This, however, is said not to be a case of variance, but a case of “ failure of proof.”

The plaintiffs allege, in their complaint, that they are commission merchants; that they received an order to purchase for the defendants a quantity of guns ; that they did purchase ninety-four guns, and shipped them to the defendants ; and they demand judgment for the value of the guns, shipping expenses and commissions. On the trial, it was proved that the guns were in part manufactured, and in part purchased, by the plaintiffs. The manufacture consisted 'in purchasing the different parts, and putting them together.

To the extent of the guns “purchased” by the plaintiffs, and shipped todhe defendants, there was not even a variance between the pleading and proof, and it is clear the plaintiffs were entitled to recover to that extent. It is, at least, doubtful whether the mere putting together of the different parts of a gun, which parts were all made by others, would .consti-’ tute the plaintiffs “ manufacturers ” of guns, in the sense that would deprive them of the right to commissions as commission merchants. But ’ even if they were manufacturers to some extent of the guns .in question, I yet see no reason why they should not be allowed to recover, under proper averments in their complaint, for the guns manufactured, as well as for those purchased.

To constitute a “ failure of proof,” the allegations in the complaint must be unproved, not in some particular, or particulars only, hut in its entire scope and meaning. (Code, § 171.)

In Catlin v. Gunter, (11 N. Y. Rep. 368,) the evidence tended to prove an usurious agreement, which differed from the one in the answer in several particulars, hut not in its entire scope and meaning. Held to be immaterial.

In Walter v. Bennett, (16 N. Y. Rep. 250,) the action was to recover the possession of a draft alleged to have been wrongfully obtained from the plaintiff. The plaintiff failed to prove a conversion, and was nonsuited. It does not appear that any application was .made to the court to amend, and upon the facts the plaintiff was properly nonsuited. He should have brought an action ex contractu, instead of ex delicto.

In Saltus v. Genin, (3 Bosw. 250,) the decision was put on the ground that the cause of action alleged, and the one proved, would require different modes of trial; the one being an equity suit, which could be tried without a jury; the other being a common law action, in which the parties had the right of trial by jury.

In these cases, the cause of action, in its entire scope and meaning, was disproved, and there was nothing to amend by. Not so in the case before us. As we have seen, the plaintiffs could recover under the complaint, as it is for all the guns purchased.” What, then, is the scope and meaning of the allegations in the complaint P That the plaintiffs purchased and paid for ninety-four guns, which they shipped to the defendants. Proof that they purchased part, already put together, and that they purchased the different parts of others, and put them together, does not fall far short of proving that they purchased the whole ninety-four guns. At any rate, the allegation was not unproved in its entire scope and meaning. There was something to amend by, and if necessary, the pleading could have been amended.

The correct rule, in all cases of variance, as well as of failure of proof, is to require the objection to be distinctly taken at the trial, and to hold it to be too late, if taken for the first time, on the hearing of an appeal from the judgment.

I am inclined to so hold in this ease ; and, (even if the objection. was well taken, which I think it is not,) to deprive the defendants of the right to object now.

But the objection is not well taken. The plaintiffs were entitled to judgment for the guns actually purchased, and, I think, also for those of which they purchased the parts, and then put together.

I think the exceptions should be overruled, and judgment entered upon the verdict.

Hew trial granted.


source: Caselaw Access Project

author: Garvin, J. Robertson, Ch. J.

license: Public Domain

text:
    John Connor, plaintiff and appellant, vs. John S. Williams et al. defendants and respondents.
    The defendants agreed (orally) with certain part owners of a vessel, who were also ship’s husbands of her, to settle all debts due from spell vessel, including one due from such part owner to the plaintiff, in consideration of the transfer to them by such part owners of their interest in such vessel; their substitution as ship’s husbands, and their being permitted to retain out Of her earnings all advances which they might make to pay such debts; with commissions thereon, ■ and the amount of any indebtedness due by such part owners to them.

      Held 1. That this agreement cre'ated such a promise by the defendants to pay the debts of such part owners to the plaintiff as would entitle him to commence an action thereon in his own name; and was directly within the ruling in Lawrence v. Fox, (20 N. Y. Rep. 268.)
    2. That the pledge of the vessel to the defendants to secure future advances, accompanied by an agreement to allow them to act as ship’s husbands, and earn commissions, being pecuniarily beneficial to them, and a prejudice to the debtors, took the promise of the defendants to such debtors, from whom sucty consideration proceeded, out of the statute of frauds.
    (Before Robertson and Garvin, JJ.)
    Heard December 13, 1863;
    decided February 13, 1864.
    Appeal from a judgment entered upon the report of a referee. The action was brought to recover for sails, &c. furnished by the plaintiff in June, 1860, for the ship Sunshine, at the request of' Amos Howes, a part owner of the ship. The action was referred to a referee, who, by his report, found the following facts: That on or about the 11th ,day of June, 1860, the plaintiff sold and delivered to the ship Sunshine materials, (sails,) amounting to $1004.35. That such sale was on credit of six months. That interest was to he added to such bill from December 11, 1860, the time when the payment thereof became due. That at the time of such sale and delivery by the plaintiff, Amos Howes and James A. Suydam, .composing the copartnership firm of Howes & Oo. were the owners of five eighths of the said ship Sunshine. That.on or about the 8th day of November, 1860, Howes & Co. transferred all their interest in the said ship, being five eighths, to Williams & Guión, the ship then being on her voyage to San Francisco from New York, and in consideration of such transfer, Williams & Guión proposed to become responsible and pay all the bills against the ship; that' a memorandum of such bills was given at the time to Williams & Guión, who were to run the ship for Howes & Co.’s benefit, and until the bills.and any balance Howe & Co. owed them was paid ; and upon those terms a bill of sale was given by Howes & Co. to Williams & Guión. That at the time of the giving of the bill of sale, no money passed between Howes & Co. and Williams & Guión, the consideration of the purchase being the bills owing by the ship which Williams & Guión agreed to pay, and the bill of sale was intended as collateral security for the payment of the bills. That such agreement was not in writing, and no agreement to pay the bills was ever executed by the defendants. No memorandum in writing was made by Williams & Guión in relation to the bill of plaintiff, and the same had not become due and payable at the date of the bill of sale. That the said ship Sunshine was not delivered to the defendants. The plaintiff having rested his case, the counsel for the defendants moved for a dismissal of the complaint upon the following grounds •:
    1. It is a contract or promise to pay the debt of Howes & Suydam, and that contract is not in writing.
    2. It is, by the testimony of Howes and Suydam, an agreement merely to pay out of the earnings of the ship, and is not therefore a change of credit.

      3. There is no privity of contract between plaintiff and defendants.
    As a conclusion of law the referee found, decided and reported, that the plaintiff was not entitled to recover in this action, and that the complaint should be dismissed.
    The referee, in pursuance of an order from the court, made a further report, in which he stated that it appeared, by the plaintiff’s evidence, as matter of fact, that at the time of the delivery of the bill of sale by Howes & Co. of five eighths of the ship Sunshine, to the defendants, Howes & Co. were owners of such five eighths of said ship, and were acting as ship’s husbands and agents, and that it was agreed that the defendants should take the ship and act as ship’s husbands. That a list of the bills against the ship was given by Howes & Co. to the defendants, in which list the bill of the plaintiff was included. That the defendants would have a commission on all those bills, and that the regular commission is 2-| per cent. That the object of giving the bill of sale was, that the defendants -were to pay all the bills, and the agreement was that they were to settle all the bills included and not included in the bottomry, by compromise or in any way they pleased or thought best. That on such agreement the bill of sale was delivered to the defendants, and they were to take the ship and act as ship’s husbands until all these bills were repaid to them, and until all the indebtedness of Howes & Co. to them was repaid out of the earnings of the ship. That the defendants got a commission of the ship’s business, charter, &c. from $2 to $4000 a year, depending upon the business; they would have a commission of all these bills ; the regular commission is 2J per cent. That the bill of the plaintiff 'was one of the bills which was in the list given to the defendants, which they agreed to pay.
    The plaintiff excepted' to the report, and judgment being entered thereon he appealed therefrom.

      E. C. Benedict, for the plaintiff and appellant.

      G. Dean, for the defendants and respondents.
   By the Court,

Garvin, J.

This action is brought to recover $1004.35, with interest from the 11th of December, 1860. The defense interposed is a denial of any promise to pay. The case was referred, and the complaint dismissed on the ground that the promise proved was void by the statute of frauds. Judgment was entered for the defendants, and the plaintiff appeals.

It will be conceded that this sale and transfer was a sufficient consideration to sustain the promise, unless it was necessary to reduce it to writing, as required by the statute of frauds. This statute makes all promises to answer for the debt of another void, unless reduced to writing. This is plain. It is also true, and quite as plain, that a promise to pay, for a good consideration, is valid, though not reduced to writing. The first is a promise to answer for the debt of another. The last. an obligation and promise to answer for one’s own debt. It is well settled, upon authority, that all promises founded upon a consideration which “ moves to the primary debtor,” as a forbearance to sue him, a release of some security to him, or harm to his creditor, or any benefit to the debtor, in which the promissor has no interest or concern, are void, because within the statute. But where the promise is founded upon a consideration, (whatever its nature,) in the. language of Chief Justice Savage, “moving to the party making the promise,” it is not within the statute, and the subsisting liability of the primary debtor is no objection to a, recovery. (Farley v. Cleveland, 4 Cowen, 432, 439.) Where the promise to pay the debt of another arises out of some neto and original consideration of benefit or harm, “moving” between the newly contracting parties, it is not within the statute. (Leonard v. Vredenburgh, 8 John, 29.) These two cases, and the principles there laid down, have been approved by the Court of Appeals, in the case of Mallory v. Gillett, 21 N. Y. Rep. 412.

By these rules this case must be decided : 1st. Did the defendants receive any consideration from any source, as the foundation of the promise in question ? and, 2d. Did they agree, therefor, to pay the plaintiff’s debt ? The referee finds both facts. The primary debtors, (Howes & Co.) conveyed their interest in the ship to the defendants, on or about the 8th of November, 1860, by bill of sale, whether absolutely or as collateral security, makes no difference. 2d. That the defendants agreed to pay the plaintiff’s demands, together with 'other demands, each of which were specified and pointed out at the time the transfer took place. The defendants deemed it for their benefit and advantage to take the interest of Howes & Co.„ in the ship, and by the bill' of sale got the control of their property, for their undertaking and promise to pay the bills against the ship. Plowes & Co. parted with, their interest in the ship to the defendants, thus giving the defendants a consideration upon which they promised Howes & Go. to pay the plaintiff.

Although the effect of the defendants’ promise was to pay the debt of Howes & Co. to the plaintiffs, the primary and leading design of the defendants was to obtain the interest of Howes & Co. in the ship, and to secure their own demand against them. In other words, Howes & Co. conveyed their interest in the ship to the defendants, they promising, in consideration thereof, to pay this debt to the plaintiff, thus obtaining the property of Howes & Co. and promising to pay for it. If the agreement upon this consideration had been to pay Howes & Co. directly, no one would have thought it void because not put in writing, for it would then have been their own promise to pay for a consideration received by them. Is it any less their own debt because they agree to pay to the plaintiff, for the benefit of Howes & Co. whose property they have received as a consideration therefor ? The statute referred to, operates only upon and makes void promises to answer for the debt of another-; not upon the party’s own debt and promise to pay for a consideration received. The defendants made this their own debt to the plaintiff, and it was not necessary to put their promise in writing to make it valid and obligatory upon them. It is said and objected, that there was no delivery of the ship to the defendants. ■ I think the rule is well settled that the sale of a specific chattel passes the property therein to the vendee without delivery. (Chitty on Con. 8 Am. ed. 332. 25 N. Y. Rep. 520.)

Again, it is urged that this action cannot be maintained on a promise made to Howes & Co. and not to plaintiff. It was decided as early as 1st Johnson’s Reports, 140, that where one person makes a promise to another for the benefit of a third person, that third person may maintain an action upon it.

The same principle is recognized "and expressly adjudicated in Lawrence v. Fox, (20 N. Y. Rep. 268.) Such promise is to be deemed made to the plaintiff, if adopted by him, although he was not a party to, nor cognizant of it, when made. These views are decisive of this case. The referee erred in dismissing the complaint. His report should be set aside, the judgment entered thereon reversed, and a new trial ordered, with costs to abide the event; and let the rule referring the case be vacated, unless both parties desire to retain it.

Robertson, Ch. J.

It may be considered as finally settled in this state by the court of last resort, in the case of Lawrence v. Fox, (20 N. Y. Rep. 268,) that whoever in consideration of a benefit to himself, or prejudice to another, promises to pay the debt of a third party, is liable directly to the creditor to whom such debt is due, even when the consideration proceeds from and the promise is made to the debtor alone. That decision bears strongly on the question whether such a promise be within the statute of frauds, for if it be in every aspect legally equivalent to a promise directly to the creditor, it is, in fact, an undertaking to answer for the debt of another, although he is still to remain liable. Had it been left simply as an express promise to the debtor to relieve him of a burden, or indemnify him against a liability, which is not within the statute, (Conkey v. Hopkins, 17 John. 113.) the debtor, if he were afterwards compelled to pay the debt, could recover the same amount as the measure of his damages, in an action brought by him, against such promissor. ' It seems to be a little incongruous, if both actions were brought on the same promise, that creditor and debtor could sug separately, equally well, upon an undertaking created by the same words, but only in terms directed to one of them. This difficulty is sought to be got rid of in the opinion of two of the learned judges in the case first referred to; by supposing the promise to be to the debtor as the creditor’s agent. (P. 275, Johnson, Ch. J. Denio, J.) That supposes an agency without the consent of the agent, and should exclude the debtor from any right of action. Though he had paid the consideration, the promise was made to him, and he was to receive the benefit of it, and it makes the promise purely collateral. The only reasonable ground of sustaining the liability of the promissor directly to the creditor, seems to be that laid down by Ch. J. Shaw, in Brewer v. Dyer, (7 Cush. 337,) quoted with approbation in the leading opinion in the case first referred to, (Lawrence v. Fox.) By that the law is made to presume a general duty to pay the debt, growing out of the form of the promise. By that means a privity between the creditor and the promissor is created, warranting tile implication of another promise in law directly from the latter to the former, and its acceptance by the former. (Berly v. Taylor, 5 Hill, 577, 584.) Such reasoning, however artificial, is necessary to keep a promise to a debtor to pay his debt out of the reach of the statute of frauds, if it is to be construed as creating any promise on which an action can be maintained directly by the creditor.

The supplemental report of the referee finds that Howes & Co. the original debtors to the plaintiff, were part owners and ship’s husbands of a vessel, and delivered a bill of sale of her to the defendants, who were to take their place as such ship’s husbands. That the object of such bill of sale was for the defendants to pay all debts due on such vessel, including that to the plaintiffs. And the agreement between them was that the former should settle all such debts, for which they were to receive a certain commission for paying such, debts, and to be repaid such advances and all other indebtedness of Howes & Co. to them out of the earnings of the vessel. In his first report, the referee found that such bill of sale was given as collateral security ipr the payment of such debts. These facts constituted a promise by the defendants to Howes & Co. to pay the plaintiffs the debt due to them, in consideration of the, pledge of the vessel as security to them for repaying the amount so advanced, as well as the commissions; the bill of sale, in fact, being a mere mortgage. Such a promise comes direct within the ruling in Lawrence v. Fox.

It only remains to determine whether such pledge of the vessel to secure future advances, with an agreement to allow the defendants to act as ship’s husbands and earn commissions, being a benefit to the latter and a prejudice to the debtors, (Howes & Co.) and the promise of the defendants to such debtors in consideration thereof, took the case out of the statute of frauds. The case of Mallory v. Gillet, (21 N. Y. Rep. 412,) contains a thorough examination of the authorities on that point; although it only decides that a promise to a creditor to pay a debt due to him by another, where the only consideration was some benefit moving to the debtor from such creditor, was rvithin the statute ; in that respect sanctioning the modification or explanation of the language used by Ch. J. Kent in Leonard v. Vredenburgh, (8 John. 29,) wherein he states a consideration for a new promise by a third party to be sufficient to take the case out of the statute of frauds, if it moved between the newly contracting parties, by the limitation of Ch. J. Savage in Farley v. Cleveland, (4 Cowen, 432, 439,) who requires the consideration to move to the promissor; whether it were of benefit to him or harm to the promisee. The case alluded to sanctions, also, the same distinction as put by Ch. J. Shaw in the case of Nelson v. Boynton, (3 Metc. 396, 400,) who makes the leading object of the promissor in the new contract the test of including in or excluding from the statute of frauds a promise to pay the debt of another; that is to say, whether it is or is not the promotion of some interest of his own, although incidentally part of the result may be the payment of another’s debt. And this corresponds precisely with the object of the statute, which was to prevent any one from being made liable to pay another’s debt by untrustworthy oral evidence of a promise to do so, sustained by some trivial promise by the creditor as a sufficient consideration, and the plaintiff can therefore sustain the action in his own name, if it is maintainable at all.

The doctrine is conceded in both the prevailing and dissenting opinions in the case just commented on, (Mallory v. Gillett, ubi supra,) that a promise by a stranger to either a creditor or debtor, to pay the debt of the latter to the former, when the consideration moves from the promissee to such prornissor, was clearly out of the statute. The numerous authorities commented on in the prevailing opinion in that case fully sustain that view. To which may be added others : Westfall v. Parsons, 10 Barb. 645 ; Cailleux v. Hall, 1 E. D. Smith, 5 ; Mersereau v. Lewis, 25 Wend. 243; Earle v. Crane, 6 Duer, 564; Blyer v. Monholland, 2 Sandf. Ch. 478 ; which are to the same effect.

The conclusion of the referee that the promise in this case came within the statute of frauds, was, therefore, erroneous. The judgment must be reversed, and a new trial had, with costs to abide the event. The order of reference to be discharged, unless both parties agree to retain it.


author: Garvin, J.

text:
    William T. Graff, receiver, &c. plaintiff and appellant, vs. Patience Bonnett et al. executors, &c. of Peter Bonnett, deceased, defendants and respondents.
    1. An order appointing a receiver of a judgment debtor, in an action brought by a creditor, will not vest in such receiver the title to any part of the income of a fund bequeathed by a testator, whereof the income was to be paid to such debtor, accruing after the date of his appointment.
    2. A complaint, in an action by the receiver against the executors of such testator, which does not state that the defendants, at the time of the plaintiff’s appointment as receiver, had money, property or effects in their hands belonging to the legatee, is had on demurrer.
    3. Any accumulation of income in the hands of the executors, beyond what is necessary for the support of the legatee, may, under a proper complaint, he reached by a creditor; but the income cannot be anticipated.
    (Before Robertson and Garvin, JJ.)
    Heard December 16, 1863;
    decided February 13, 1864.

      Demurrer by the defendants to the complaint, on the ground that it does not contain facts sufficient to constitute a cause of action. The case was heard before Justice Babboub at special term, who ordered judgment for the defendants, and the plaintiff appealed.

      John Aitkin, for the appellant.

      Amherst Wright, for the respondents.
   By the Court,

Garvin, J.

The complaint sets forth, that on the 9th of October, 1858, the plaintiff was appointed receiver, by this court, of the property and effects of William H. Bonnett and others ; and on the 3d of June, 1853, was also appointed receiver by the Supreme Court, of the said William H. Bonnett and other defendants. That by the last will and testament of Peter Bonnett, the interest of fifteen thousand dollars was bequeathed to William H. Bonnett, to be paid to him by the executrix and executors, during his life. That said will was proved, and the defendants qualified, and have continued to act as such executrix and executors, since the 22d of October, 1850. That the said will directed the said sum of $15,000 to be kept invested on bond and mortgage, and the interest paid to said William Bonnett. That the plaintiff, by virtue of his appointment as receiver, is entitled to all the interest on said sum since the date of his appointment, and that the defendants have collected such interest, and neglected to pay it to the plaintiff. He therefore demands that they render an account and pay him said interest.

It is not averred in the complaint, that the defendants, at the time of the appointment of the plaintiff as receiver, bad any money, property, or effects in their hands, belonging to the defendant William H. Bonnett. This seems to be decisive 'of this case. The order appointing the plaintiff receiver,'would not vest in him the title to any part of the income of the trust fund, to accrue after the date of his appointment. (6 Duer, 672. 18 How. 50.) Ho other fund, property, or effects, are mentioned in the complaint. This is inalienable by Bonnett, and does not pass to a receiver by operation of law. (2 Comst. 297. 2 Seld. 567. 8 Paige, 83.) Even if a surplus had been in the hands of the trustees, at the time of the plaintiff’s appointment, it is very doubtful whether the plaintiff would have acquired any title to it; but there is no allegation in the complaint of the existence of any such surplus in the hands of the defendants. No facts are stated in the complaint, upon which an issue can be taken, or proceedings predicated to ascertain whether any surplus remains beyond what is necessary to support the debtor. If there is any accumulation in the hands of the executrix and executors, that under a proper complaint might be reached; but it is quite clear, and has been decided, that it cannot be anticipated. (1 Barb. Ch. 427.) The defendant William H. Bonnett, is and will be entitled to all this income, provided it is necessary for the support of himself and his family, if he has any. The plaintiff, doubtless, can reach any surplus there may be, after his necessary support, and that of his family, has been ascertained and fixed. (2 Barb. Ch. 79.) The complaint in this action is clearly defective. The order should be affirmed with costs, with, liberty to the plaintiff to amend on the usual terms.


author: Robertson, Ch. J.

text:
    Henry V. Ryder, plaintiff, vs. Ephraim H. Jenny, defendant.
    1. Where the cause of action set forth in the complaint was a breach of a covenant for renewal contained in a lease, and the only relief demanded was judgment for a specified sum as damages; Held that the only cause of action cognizable by the court was that stated in the complaint; and that it was therefore immaterial whether or not the evidence made out a case for specific performance.
    2. Ownership of a good title, by a lessor, is not a condition precedent to his right of recovery for breach of-a covenant on the part of the lessee to renew. The inability of the former to give a good title is matter of defense, to come from the defendant; who cannot set up such a defense under an allegation in his answer that as to the plaintiff’s “authority to lease,” he has not sufficient knowledge and information to form a belief in relation thereto.

      3. The negation of a fact, simply because the party has not enough information to have any belief about it, is not equivalent to stating information and consequent belief, that such fact does not exist. Fer Robertson, Ch. J.
    4. A lease contained a covenant for renewal at its expiration, for the further term of twenty-one years. At such expiration a lease was tendered by the lessor renewing the original lease for the further term of twenty-one years, at the same rent,” and otherwise upon the same terms, covenants and conditions as “ were in the said original lease contained and expressed,” which also contained a covenant that the lessor had full power and authority to grant said renewal, and a further covenant for the performance by both parties respectively of all the covenants and conditions, &c. contained in the original lease, and that the lessee would pay rent at and after the rate reserved, but in the manner specified in the original lease. Such new lease, however, did not contain a repetition of the covenants for renewal, or for quiet enjoyment, contained in the original lease.

      Meld that the insertion of such last mentioned covenants, in the new lease, was not a matter of strict right, to be insisted on by the lessee, before he became liable to an action at law; and that the omission thereof did not prejudice him.
    5. In order to get rid of an award made by an umpire, fixing the value of demised premises, under the provisions of the lease, for fraud or misconduct, the party assailing it must either bring an action to set it aside, or ask for that relief affirmatively, in his answer.
    6. Where a lease, containing a covenant for renewal, provides for the appraisement of the value of the premises, at the end of the term, and for the payment of a specified per centage upon that valuation as rent under the renewed lease, the lessee is at liberty, until such appraisement is made, to consider himself tenant from year to year at the original rent.
    7. If the appraisement is delayed, by the lessor, he is entitled to recover an amount equal to the advanced rent, with interest only from the day the renewed lease was tendered.
    (Before Robertson and Garvin, JJ.)
    Heard December 16, 1863;
    decided February 13, 1864.
    Exceptions ordered to be heard in the first instance, ait a general term. The complaint alleged that on the 18th day of J anuary, 1842, the plaintiff, being seised and possessed of a leasehold estate in certain premises situate in the seventh ward of the city of New York, particularly described, he, the plaintiff, by an indenture of lease, bearing date that day, executed and delivered by and between him, the said plaintiff, of the one part, and one Abraham Meserole of the other part, did, in consideration of the sum of $6450, and also, in consideration of the rents, covenants and agreements in the said indenture of lease contained, on the part and behalf of the said Abraham Meserole, demise to the said Abraham Meserole, and the said Abraham Meserole did hire and take of and from the plaintiff, the said lot of land, by the boundaries and dimensions above set forth, for the term of fourteen years, two months and twenty-five days from the 1st day of February, 1842, at the yearly rent of $100, payable in equal quarterly payments, to wit: on the 1st day of May, August, Hovember, and February, in each and every of the said years ; in which said indenture of lease it was, among other covenants and agreements, covenanted and agreed by and between the aforesaid parties thereto, as follows: “ And it is mutually covenanted and agreed by and between the parties hereto that, at the expiration of the term aforesaid, the said party of the first part, his heirs, executors, administrators, or assigns, shall and will grant and execute unto the said party of the second part, his executors, administrators, or assigns, at his or their expense, a renewal of this lease for the further term of twenty-one years thence ensuing, at such annual rent as shall be agreed upon by the said parties, their heirs, executors, adminstrators, or assigns respectively, in quarterly payments; but, in the event of their not agreeing upon such rent, each party shall choose a disinterested person to ascertain the same, which persons so chosen, shall themselves be owners in fee simple of one or more lots of land in the neighborhood of the one hereby demised, and shall, in making their award or determination, under oath, appraise and value the said lot of land hereby demised at its full and fair worth at private sale, considering the same as an unincumbered vacant lot; and four per cent on the amount of their appraisement shall be the annual rent of the said lot of land for such further term ; and in case the arbitrators should differ in the amount of their appraisement or valuation as aforesaid, they shall then chose an umpire, qualified as aforesaid, whose decision, under oath, shall fix and determine the same, and four per cent on the amount of the appraise'ment or valuation so fixed and determined, shall be the annual rent of the said lot of land, for such further term.”

      The complaint further alleged that before the expiration of the said term, Ephraim H. Jenny, the defendant, had, by sundry mesne assignments, become seised and possessed thereof, and the estate in the said indenture of lease granted, and liable to and subject to and charged with the performance of all the covenants in the said indenture of lease contained on the part of the said Abraham Meserole, as well as entitled to all the benefits of the covenants therein contained on the part of the plaintiff. That, on the expiration of the said term, to wit, on the 25th day of April, 1856, and thenceforward to the commencement of this action, the said defendant, Ephraim H. Jenny, had held over and continued in the possession of the said premises by him thus acquired under and in virtue of the said lease, but had not paid nor proposed nor offered to pay any rent for the'same to the plaintiff, nor, until the 2d of February, 1861, asked a renewal of the said lease, in accordance with the covenants above set forth. That, on the said 2d day of February, 1861, the plaintiff and the said defendant, having been unable to agree as to the amount of rent for such renewal, he, the plaintiff, chose, nominated, and appointed Henry Bansher, of number 41 Montgomery street, in the city of New York, who was in all respects qualified as required by the terms of the said covenant for renewal on his part and behalf in the manner in said covenant for renewal prescribed, to ascertain, appraise, fix, determine, and settle the value of the said premises, and notified the defendant thereof; and on the 4th day of February, 1861, the defendant, on his part, chose, nominated, and appointed John S. Giles, of number 181 Tenth street, in the city of New York, on his part and behalf, in the manner in said covenant for renewal prescribed, to ascertain, appraise, fix, determine, and settle the value of the said premises, and the said Henry Bansher and John S. Giles were afterwards, on the 6th day of February, 1861, severally sworn, each in due form of law, faithfully to discharge the duties of his appointment to the best of his ability. That the said Henry Bansher and John S. Giles thereupon entered upon the duties of their said appointment, but failed to agree, as well on a valuation of the premises under the said covenant, as in the appointment of an umpire, and thereupon wholly ceased to act under their respective appointments as aforesaid-. That afterwards, to wit, on the 18th day of February, 1862, he, the plaintiff, again chose, nominated, and appointed William Miles, of 229 Henry street, in the city of Hew York, who was in all respects qualified as required by the terms of the said covenant for renewal, on his part and behalf, in the manner in said covenant prescribed, to ascertain, appraise, fix, determine, and settle the value of the said premises, and notified the defendant thereof; and on the 11th day of March, 1862, the defendant, on his part, again chose, nominated, and appointed Anson Willis, of number 226 West Twenty-third street, in the city of Hew York, on his part and behalf, in the manner in said covenant for renewal prescribed, to ascertain, appraise, fix, determine, and settle the value of the said premises, and after-wards, on the 10th day of March, 1862, the said William Miles, and on the 11th day of March, 1862, the said Anson Willis, were severally sworn, each in due form of law, faithfully to discharge the duties of his appointment to the best of his ability, and thereupon entered upon the duties of their said appointment, but were unable and failed to agree upon an appraisement or valuation of said lot of land, and thereupon chose and appointed Thomas Webb, of number 38 East Twenty-eighth street, in the city of Hew York, who was in all respects qualified as required by the terms of said covenant for renewal, as umpire, to fix and determine the value of said premises under the said covenant for renewal in manner therein prescribed. And the said Thomas Webb was afterwards, and before entering upon the duties of his said appointment, sworn in due form of law faithfully to discharge the duties of his said appointment to the best of his ability. That the said Thomas Webb did thereupon enter upon the discharge of the duties of his said appointment, and notified as well the plaintiff as the defendant thereof, and having heard the proofs and allegations of as well the said defendant as the said plaintiff, clid, on the 30th day of June, 1862, make, render and deliver Ms appraisement, determination, valuation and award, in writing, wherein and whereby the said Thomas Webb did fix and determine the value of the said lot of land, considering the same as an unincumbered vacant lot and for the objects and purposes in said covenant for renewal specified, at the sum of three thousand five hundred dollars, of which said award the defendant, J enny, was on the same day notified by service of a copy thereof. That afterwards,, and on the 21st day of July, 1862, he, the plaintiff, did execute under his hand and seal, and cause to be left with the said Ephraim H. Jenny, to he executed on his, said Jenny’s, part and to be offered and tendered to the said Ephraim H. J enny on the condition that fie, the said Jenny, would in like manner execute the same fop delivery in due form of law, by and between the plaintiff and the defendant, an indenture of renewal to the said Ephraim H. Jenny of the said lease between the plaintiff and Abraham Meserole for the term of twenty-one years, from the 26th day of April, 1856, at the yearly rent of one hundred and forty dollars, being four per. cent on the said valuation and appraisement of the premises by Thomas Webb as aforesaid, payable in equal quarter yearly payments, on the first days of February, May, August, and November in each year, and otherwise upon the same terms, covenants and conditions as qre in the said original indenture of lease contained and expressed. A copy of this lease was set forth in the complaint. It recited the execution of the original lease, and the covenants therein; and that the defendant was then the owner of the said indenture of lease, and as such owner was entitled to the renewal thereof; and that the rent of the said demised premises for the second term of twenty-one years had been fixed, in the manner prescribed by said indenture, at the sum of one hundred and forty dollars. It then witnessed that the said party of the first part, in consideration of the premises, and the sum of one dollar to him in hand paid, the receipt whereof was thereby acknowledged, had renewed and did thereby renew the original lease, and grant, demise and to farm let unto the said party of the second part, the premises in question, being those described in the original lease, for the term of twenty-one years from the 26th day of April, 1856, yielding and paying therefor to the lessor, the yearly rent of $140, payable quarterly, “ and otherwise upon the same terms, covenants and conditions, as are in the said original indenture of lease contained and expressed ; provided, however, that if it should hereafter appear that the said party of the second part be not the lawful owner of said lease and legally and equitably entitled to claim the renewal thereof, this indenture and the estate hereby granted shall be void.

      “ And the said Henry V. Ryder, hereby covenants that he has full power and lawful authority to grant this renewal.
    “ And the said parties of the first and second parts hereto do each with the other mutually grant, covenant, promise and agree that they, or their legal representatives, will respectively well and truly keep, perform, abide by, and fulfill all and every of the covenants, conditions, restriction^ and provisions in the said original indenture of lease contained, by the lessors and lessees therein named to be kept, performed, fulfilled and observed, and the said party of the second part, his executors, administrators or assigns shall and will pay rent for the demised premises at and after the rate hereinbefore reserved, but in the manner specified in said original indenture of lease.”
    The complaint then alleged that the defendant had hitherto wholly neglected and refused to execute and deliver the’said indenture of renewal of lease, or to propose or offer to execute and deliver betweeh him, the said defendant, and the plaintiff, any renewal of the said original lease between the plaintiff and Meserole. And the plaintiff claimed that, by reason of the use and occupation of the premises by the defendant, since the said 25th day of April, 1856, to the commencement of this action, and the matters and things before alleged, the plaintiff was lawfully entitled to have, of and from the defendant, the sum of $840, with interest from the first day of August, 1856, and alleged the neglect and refusal of the defendant to pay the same. Demand of judgment for that sum, with interest and costs,

      The answer of the defendant admitted that the plaintiff, on the 18th day of February, 1842, was possessed of a leasehold estate in the lots of land on East Broadway, as mentioned in the complaint, for the term of twenty-one years only, thence next ensuing, from the 1st day of May, 1834 ; but as to the plaintiff, at the commencement of this action, having, and still retaining his said leasehold estate in said premises ; and as to the plaintiff having any right, title, and interest in said premises, whereby he has the power to lease the same to the defendant for twenty-one years, from the 26th day of April, 1856 ; and as to the plaintiff’s having any right and interest in said lots, whereby he is entitled to ask and have, of and from the defendant, $140, or any other sum, per annum, for the use of said premises, since May 1st, 1856, the defendant hath not knowledge or information sufficient to form a belief, and therefore denies the same. He admits that he has occupied, and still does occupy the premises, since the expiration of his term mentioned in the complaint, without any new contract or agreement with the plaintiff, or any other person ; and has, at any and all times, been ready and willing, and anxious to pay the rent of said premises to the plaintiff, or any other person having the right to receive the same, at the same price and rate which he paid to the plaintiff during the pendency of his-lease, and previous to the expiration of the same, to wit, the sum of $100 per annum—that being the amount of the yearly rent of said premises during the pendency of said lease, and all the use of said premises were, and still are worth per year. He alleged that he has offered to the plaintiff the aforesaid sum of $100, annually, for the use of said premises, and requested the plaintiff to take said amount, yearly, but tkeplaintiff refused, and still does refuse to accept said amount, although the defendant has held over, and continued in, possession of said premises, without any new contract or agreement having been entered into between the parties, to- this action.. He denies that the plaintiff is entitled to recover of him the sum of $140 dollars per year, for the use and occupation of the. premises aforesaid; and he denies that- the pretended award, of the said Thomas Webb, in the complaint mentioned, should be obligatory upon him, because upon the trial, or hearing before the said Webb, he, the defendant, produced in evidence several witnesses, who were well and duly qualified to speak as to the value of the lots in the complaint mentioned, and that none of the witnesses so produced, valued the lots more than $2500, but some of them less; that the plaintiff did not, upon said hearing, nor at any other time, produce any witnesses, or give any evidence whatever in relation to the value of said lots ; and if the said Webb did make any decision or award on the hearing, the same was made without any evidence other than above set forth ; and in assessing the value of the said lots at $3500, the said umpire acted without authority, in any respect whatever ¡ and that the said award is void, and of no effect, the said Webb, the umpire, in a partial manner, and without any evidence before him, assessing the value of said lots at $3500. And the defendant alleged that no award, appraisement, determination or valuation of the lots aforesaid, by the said Thomas Webb, had been served upon, or left with him, nor was the lease mentioned in the complaint, which bears date the 26th day of April, 1856, and which' the plaintiff ¡alleges was left with the defendant for execution, with the conditions therein contained, in accordace with the covenants and conditions of the lease, which was made by and between .John Beekman and Mary E.' Gr. Beekman, his wife, of the one part, and Leonard K. Smith, of. the other part, and which lease was afterwards duly assigned to the plaintiff' hy the said Leonard K. Smith, and which lease should have contained the same covenants as the Smith lease ; therefore, he, the defendant was not bound to accept said lease, or execute a lease with an agreement to pay $140 dollars, and omitting the covenants which should have been inserted. And this defendant denied that there was any thing due the plaintiff, the said lots not having been dply appraised or valued, so that it could be ascertained what amount should be paid by the defendant, as by the covenants in the lease from the plaintiff to Abraham Mes-prole, tlie defendant's assignor, is required to be ascertained; wherefore the defendant prayed judgment that the plaintiff’s complaint he dismissed, with costs.
    On the trial before Justice Robertson and a jury, in January, 1863, the plaintiff, after reading the pleadings to the jury, rested his cause ; whereupon the counsel for the defend-, ant moved to dismiss the complaint, on the ground that, by the pleadings, the defendant was entitled to judgment. The motion was denied by the said justice, and the counsel for the defendant excepted.
    At the close of the testimony, the defendant’s counsel moved to dismiss the complaint, on the ground that the plaintiff failed to prove title. Motion denied. Exception by the defendant. The defendant’s counsel asked the court to charge :

      “ 1. That no relation of landlord and tenant is now existing between the parties, whatever.
    2. That this is not a covenant running with the land.
    3. That the plaintiff has showed no title or right to demand either rent, or for use and occupátion.
    4. That if the plaintiff be entitled to any thing, it is only from the time when he- states he tendered the renewal lease.”
    The court decided all the questions at law against the defendant, and directed a verdict for the plaintiff for §1031.30, of which §191.30 was for interest.

      J. S. Bosworth, for the defendant.

      C. Jones, for the plaintiff.
   By the Court,

Robertson, Ch. J.

This court has recently, in an action brought to recover on a contract for the sale of land, held that the relief demanded in the summons and complaint determines the character of the action, so that a prayer for damages exclusively, prevents a judgment for specific performance, notwithstanding the complaint contains facts sufficient to warrant it. (Fowle v. Jones, 1 Rob. 84.) As the relief demanded in the complaint in this action is for a sum of money only, it becomes immaterial whether a case for specine performance is made out or not. The sole cause of action, cognizable by us, is, therefore, a breach of the covenant of renewal contained in the original lease from the plaintiff to the defendant.

One objection taken at the trial, was that the defendant was not bound to take, although the plaintiff was, to give a lease. If it were a question of election on the part of the former, his appointments of appraisers, and remaining in possession of the premises, would be evidence of his agreeing to accept a properly renewed lease. But the original' covenant is expressly declared to be mutual, and the language of the whole of it implies a reciprocal obligation. Such objection was, therefore, properly overruled.

Another objection to the plaintiff’s right of recovery was that he had no title to the premises. It is to be remembered, however, that although this is merely an action at law, the defendant has not set up such want of title as a defense, and the plaintiff might disregard his own allegation of power and title to lease as not essential to his case. The denial in the answer of the plaintiff’s authority to lease, is qualified, being that the defendant has not sufficient knowledge and information sufficient to form a belief in relation thereto. The Code requires that every allegation in a pleading should be positive or on information and belief. The negation of a fact, simply because a party has not enough information to have any belief about it, is not equivalent to stating information and consequent belief that such fact does not exist, This question is important in regard to the burden of proof; if the_ defendant contends that the consideration of his contract has failed by the inability of the plaintiff to give a good title, he is bound to establish it. Possession of a good title by the vendor, may be matter of implied warranty on his part, (Sugd. on Vend. ch. 1, § 3, art. 17 ; Burwell v. Jackson, 9 N. Y. Rep. 535,) but it is not a condition precedent to his right of recovery, but matter of defense to come from the defendant. The latter, therefore, had no right, under the pleadings, to endeavor to establish such a defense.

But even if the defendant had the right to set up a want of authority on the part of the plaintiff to lease, or a defect in his title, the evidence made out a prima facie title in him, which the defendant offered no evidence to rebut. The latter, besides testifying that the Beekmans were “ the oioners ” of the- property originally, obtained possession of the premises under a lease from Mr. and Mrs. Beekman, claiming to own the lands in fee which had been assigned to the plaintiff, The legal title to the premises in fee was traced down from such lessors to another Mr. Beekman and a Mr. Cox, described as trustees for a Mrs. De Peyster. Mr. Cox subsequently conveyed all his interest to his co-trustee, pursuant to an order of the Supreme Court, which directed him to do so, discharged him from his trust, and declared his co-trustee, upon such conveyance, to be sole trustee. Such order was made on a report of a referee, to whom a petition of Mr. Cox to such court to be discharged as such trustee had been referred, to take proof of the facts stated in such petition. The petition itself was not produced, but an entry of its filing in the books of the clerk of the Supreme Court was proved, and also a diligent but ineffectual search for it in that office. The attendance of Mr. Cox, personally, before such a referee, on such reference, was also established. The petition was recited in the final order of the Supreme Court. There was, therefore, sufficient prima facie evidence of the existence of such petition, and its presentation. Consequently, there was no outstanding interest, either legal or equitable, in Mr. Cox. If the trusts obstructed the right to grant a lease, the defendant was bound to establish it; there was no evidence that they did, and prima facie legal ownership establishes a right to lease. The defendant’s objection to the title was, therefore, untenable, under the evidence.

An objection of some difficulty arises to the plaintiff’s right of recovery, growing out of the character of the léase tendered. This does not contain a repetition of the second covenant for renewal contained in the first lease, which was conditional, or of the covenant for quiet enjoyment. The plaintiff only undertook to renew the lease, that is, to give a new demise for a term of years. The terms of such agreements have never been stretched beyond their legitimate meaning. On the contrary, they have only been required at law to be literally complied with ; thus an agreement to convey in fee is satisfied by a deed without any covenants. (Van Eps v. Mayor, &c. of Schenectady, 12 John. 436. Fuller v. Hubbard, 6 Cowen, 13.) The original covenant to renew a second time on a contingency is a perfectly valid and binding contract, capable of being enforced when the contingency occurs. There is no obligation on the plaintiff to execute a similar new contract, when he is performing another covenant, merely because it is in the same instrument. It has no relation to the new term of years given, does not protect or affect it or the enjoyment of the land, and is not incidental to it. It binds the land into whosever hands it falls, (Piggot v. Mason, 1 Paige, 412,) as does that to pay for improvements, where, as in this .case, assignees are included. (Lametti v. Anderson, 6 Cowen, 302.) The omission of such covenant in the new lease does not, therefore, prejudice the lessee. Its insertion may make the statute of limitations begin to run from the new lease, instead of the happening of the contingency, but there is no principle which would render it obligatory on the lessor to give the lessee that advantage, merely because the two covenants are in the same instrument. Even in cases of covenants in a lease for perpetual renewals, the point does not seem to have been adjudicated that every renewed lease should contain a similar covenant, unless .the first lease contained a provision to that effect; and even where it did, it has beep held that trustees were not bound to insert it in a lease by them. (Hodges v. Blagrove, 18 Beav, 104.) In the case of Bridges v. Hitchcock, (cited in Iggulden v. May, 7 East, 237,) referred to on the argument, the covenant was for “ such further'lease as the lessee might desire ; ” and in Furnival v. Crew, (3 Atk. 83,) also so referred to, the terms were to “ grant a new lease, and so continue renewing them.” Although the cases of Rutgers v. Hunter, (6 John. Ch. 215,) and Phyfe v. Wardell, (5 Paige, 288,) do not expressly decide this point, they seem to consider that a covenant for perpetual renewal, at least, is necessary to require the repetition of a covenant for renewal. The danger of a loss of the first instrument, or of evidence in the course of time, might, in case a lease was to continue forever, render a repetition of the covenant in such instrument necessary, when it would not he where there was to he but one renewal. The insertion of either a covenant for renewal, or for quiet enjoyment in the lease to be tendered by the plaintiff, was not a matter of strict right to be exacted on the part of the defendant before he could be sued at law. Possibly, in an equitable action for . specific performance, the defendant might have a right to be protected against any risk arising from loss of instruments, or otherwise, by a repetition of a covenant for renewal; aU though the plaintiff had not in ter-ms bound himself to insert such a covenant in his new lease ; but there seems to be' no reason for it in an action at law.

On the trial, testimony offered by the defendant to show by the opinions of witnesses that the lot in question was worth less than the sum at which it .was appraised, as well as the grounds of the decision of the umpire, was excluded. The only grounds of objection taken to such award in the answer, are : First. That the witnesses produced before the umpire by the defendant testified that the lot in. question was not worth more than twenty-five hundred dollars, while the plaintiff did not produce any witnesses, and no other testimony was taken by such umpire. Secondly. That no award of the umpire was ever served on the defendant. The last objection was overcome by proof to the contrary. It was also proved that it was agreed by the parties that the umpire should use the testimony taken before the appraisers, besides additional testimony, and that after the evidence had been closed, further testimony had been taken by agreement. In order to assail such award for fraud or misconduct, the defendant should have either commenced an action to set it aside, or, upon suitable allegations, have asked for the same relief affirmatively in Ms answer. (Owen v. Boerum, 23 Barb. 187.) It is true it has been held in this court that a valuation by an umpire of land, to be appraised as an unincumbered lot, when he took the value of an incumbered lot as his guide, was an excess of authority, (Borrow v. Milbank, 5 Abb. Pr. 28,) and therefore void, even at law. But no such ground is taken in the answer in this case. Even if an arbitrator were precluded from using his own knowledge, or relying on his own judgment, there was no proof offered that the only testimony presented to the umpire stated a less value than he fixed, but merely that the lot was worth less, which cannot be used to set aside an award. (Underhill v. Van Cortlandt, 2 John. Ch. 339.)

The condition precedent to the performance of the defendant’s covenant having thus been determined, and a proper lease tendered, the only remaining question is as to damages. Keither party seems to have proposed a renewal until February, 1861; when the first submission was executed. Until that time the plaintiff could have ejected the defendant as holding over after his term had ended. Until the amount of rent was determined, and a lease tendered, the defendant could only be liable in an action for use and occupation, and the measure of the plaintiff’s right of recovery would have been the amount of rent previously paid. The testimony shows that the plaintiff refused to receive rent at that rate every year ; and yet there is no evidence of any attempt on his part to put the defendant in default by proposing to have the value of the lot appraised, until February, 1861. The first appraisement having fallen through, no new steps were taken until February, 1862, and the defendant remained at liberty to consider himself tenant from year to year, and at the same rent. He certainly was not bound to anticipate the appraisement, and tender, by conjecture, the possible amount of rent to be afterwards fixed. I think the plaintiff estopped from claiming interest on the larger rent by not having it determined, or putting the defendant in default, and on the former rate, by his refusal to receive the rent when offered. The lease was not tendered, until July, 1862, and the increased rent only became payable at that time. Of course, the defendant having joined in the submission, was bound to have executed the lease when tendered ; if he had done so, he would have been liable for the increased rent from the time when it commenced ; not having executed it, he is liable for the loss sustained by the plaintiff thereby. If he had put his -refusal to execute upon the ground that his acceptance of it would make him liable for interest on each quarter’s rent, from the time it became due, possibly he might have been justified, unless the plaintiff agreed to'waive all claim to such interest. As it stands, the plaintiff is entitled to recover an amount equal to the advanced rent, with interest only from the 21st of July, 1862 ; and he must consent to make the necessary deduction, or there must be a new trial, with costs to abide the event.

If the plaintiff consents to make the proper deduction of interest, the exceptions of the defendant must be overruled, the motion for a new trial denied, and judgment given for the plaintiff for the amount so modified, without cost on the appeal to either party.


author: Robertson, J.

text:
    John Purchase, plaintiff and respondent, vs. Mahlon Mattison and John B. Mattison, defendants and appellants.
    1. In an action by the holder against the drawer of checks, the payment whereof had been stopped, the defense set up by the answer was, that the checks were obtained from the defendants by S. and others without consideration and with a preconceived design to cheat the defendants out of the amount thereof. That they were intended to be advances of money under an agreement entered into between S. and others on the one hand, and the defendants on the other, upon false representations and promises on the part of the former. That they were passed by S. to W. and by W. to the plaintiff, without parting with any consideration. That both W. and the plaintiff knew the purpose for which the checks were given. That they were diverted therefrom; and that the plaintiff was not the lawful owner and holder thereof. The evidence showed that the checks were lent by the defendants to S. to enable him to buy cattle, upon an understanding that he would repay such loan and a small previous debt, with the hides and tallow, resulting from such purchase.

      Held that even if the purpose thus proved, for which the checks were lent, had been alleged in the answer, it would still be a serious question how far it was one for such a diversion of the checks as would be one of which the defendants could complain.
    2. The rule is. that a lender of accommodation paper has no right to complain of such an appropriation of it as would divert it from any purpose in the accomplishment of which he has no legal interest.

    3. Held that the defendants in this case had no legal interest in the purchase of the cattle which was the purpose of the loan; the utmost benefit they could expect from the application of the checks to the purchase of cattle being the subsequent payment by their hides and tallow, if S. should choose to pay in that manner.
    4. An account or memorandum of sales of property, entered by a vendor in a book, will not affect the rights of other parties, and is not admissible in evidence against them.
    6. The meaning of a mark, affixed to an entry in a book, cannot be explained by a person who did not make it.
    (Before Robertson and Garvin, JJ.)
    Heard December 18, 1863;
    decided February 13, 1864.
    This action comes up on an appeal from a judgment (upon the verdict of a jury) in favor of the plaintiff. The action was brought August 14th, 1856, to recover the amount of two checks made by the defendants for $20Q each, dated August 3th, 1856, the payment of which was stopped by the drawers, on the same day they were drawn. The plaintiff claimed to hold them for value from the parties to whom the defendants passed them. The action has been through this court once, and went to the Court of Appeals, where a previous judgment for the plaintiff was reversed, and a new trial ordered, on the ground of a mistrial, or irregularity in reserving the judgment, on the proceedings at the first trial, for the general term in the first instance. The second trial took place before Justice White and a jury, March 20th, 1863. A motion for a new trial upon a bill of exceptions was made, on the part of the defendants, before Justice Barbour, at special term, October 26th, 1863, and denied. The apppeal embraces this order, as well as the judgment.
    The opinions of the general term of this court, when the action was up before it the first time, will be found in a report of the case in 6 Duer, 587, and 3 Bosw. 310.
    The general facts are as follows : M. Mattison & Co. the defendants, in 1856, and previously, were dealers in hides and leather at the city of New York. They had a place in First street, where they permitted certain butchers (Sollinger, Leon, Meyer and Katz) to slaughter. They had advanced money to these butchers, upon the same terms, before the checks in question. On the evening of August 13th, (the day before these checks were issued,) John B¡ Mattison, (one of the defendants,) had a settlement or accounting with the butchers. They were found to .be in the defendants’ debt $115.70, which was reduced to $100 by the payment of $15.70 in cash. This $100 was to remain until the butchers could purchase more cattle, and turn in the hides and fat, and then the obligation was to be discharged. The account was balanced every Tuesday. On the morning of August 14th, 1856, one Meyer, who was employed by the defendants at that time, took the checks in question to the Bull’s Head, to deliver them to the butchers, in pursuance of, and subject to their express agreement with the defendants ; which was, that they should purchase cattle with them at the Bull’s Head, bring the cattle to the defendants’ place, (in First street,) slaughter them there, turn in the hides and fat in payment of their debt to the defendants, and leave the feet for the privilege of slaughtering in their place. Meyer saw Leon and Sollenger (two of the butchers) at the Bull’s Head. Leon asked him for, and received the checks, pretending that he had “ ten cattle in price.” Meyer followed them up, saw them hand the checks to, one Wheaton, (who, as the defendants insist, was the plaintiff’s partner ;) and they then went to the Third avenue, and took a “ down town” car. From that time the butchers never came near the defendants, but, as was claimed, violated their agreement with them ; and, besides defrauding them of the checks, still owe the defendants the balance of $100 from their previous dealings with them. The plaintiff claimed to have received the checks through Wheaton (his pretended clerk or agent,) in part payment of a bill of $915, for cattle sold to Sollinger, August 6th, 1856.
    The justice, at the trial, allowed the plaintiff to explain by parol his account or memorandum book of sales of cattle. The object was to prove that the crosses between the names and amounts were a symbol or hieroglyphic, by which the plaintiff understood or meant that those amounts had been, or were absolutely paid and extinguished, as between himself and the individuals whose names stood opposite to them, or on a line with them; and that the amount “ $715,” which was between “ D. Sollinger’s ” name and the “ $915,” was placed there in the line with the crosses, because it was an absolute, unconditional payment or extinguishment of the “ $915 ” to the extent of “ $715.” The checks in question were a part of this “ $715.” The crosses, which were sought to be explained, were not made by Wheaton, (the witness asked to explain them,) but by Purchase, the plaintiff.
    The plaintiff recovered a verdict for the amount of the checks and interest, and the defendants appealed from the judgmenk

      A. Graham, for the defendants, appellants.

      W. Fullerton, for the plaintiff, respondent. •
   By the Court,

Robertson, J.

The defense set up by the , answer, in this case, is that the checks sued upon were obtained from the defendants, by one Sollinger and others, without consideration, and with a preconceived design on the part of the latter, to cheat the defendants out of the amount thereof. That they were intended to be advances of money, under an agreement entered into between Sollinger and such others, and the defendants, under representations on the part of the former, wholly false when made, and promises not intended to be, and not performed by them. That they were passed by Sollinger to Wheaton, who was interested in business with the plaintiff, and by him to the latter, without the payment of any value, or parting with any consideration. That both Wheaton and the plaintiff knew the purposes for which such checks were given, and that they were diverted therefrom ; and that the plaintiff is not the lawful owner and holder of such checks, in manner and form, as alleged in the complaint.

This seems to be a defense, resting on the.fact that the checks were originally obtained, with a preconceived design of cheating the defendants out of the amount, and given as advances of money upon an agreement obtained by false representations, and promises not intended to be performed, rather than their being given or lent, originally, for a Special purpose, and afterwards fraudulently diverted. Indeed, no purpose is alleged in the answer, as that for which they were given ;■ nor is it alleged that they were diverted from the original purpose, whatever that might be, for which they were given. It is true, there is an allegation that the plaintiff and Wheaton knew the purposes for which they were- given, and that they were being diverted therefrom ;■ but that is not equivalent to a direct allegation of the purpose. The only purpose previously mentioned in the answer,- was that they were advances of money under an agreement.

The evidence in this case establishes that such checks were lent by the defendants to Sollinger, to enable him to buy cattle, upon an understanding that he would repay, with their hides and tallow, such loan and a small previous debt, and leave their feet to pay for the use of a slaughter house. At the time of lending them, Sollinger owed the plaintiff a much larger sum for cattle purchased a week previously, and on the day he obtained- such checks, he handed them and some money to Wheaton, to- be credited for the amount on such debt, at the same time promising to pay the residue on the same day. On that day, the checks and money were delivered by Wheaton to the plaintiff, and the payment of the former stopped by the defendants. There was no other evidence of a design by Sol-linger to cheat the defendants out of the checks, or of any other agreement under which they were advanced, or of false representations or promises. Even if the purpose thus proved, for which such checks were lent, had been alleged as such in the answer, it may still- be a serious question how far it was one for a diversion of the checks, of which the defendants could complain. The rule, as laid down, is that a lender of accommodation paper has no right to complain of a diversion of it from any purpose in the accomplishment of which he has no legal interest. (Cases collected in 1 Abb. Dig. 466, pl. 461, title Bills, Notes and Checks.) The utmost benefit the defendants could expect from the application of the checks to the purchase of cattle, was subsequent repayment by their hides and tallow, if Sollinger chose to pay in that manner. He, of course, was bound to repay them, at all events. The rate, or price at which such hides and tallow were to be taken was not defined. The moment the cattle were bought and paid for, by such checks, the defendants became liable on them, whether they were ever repaid, either by hides and tallow, or otherwise. It is difficult, therefore, to see how the defendants had a legal interest in the purchase of the cattle, which was the purpose of the loan, since they became Sollinger’s property, and he could do what he pleased with them, unless that their possession furnished him with the means of paying by their hides and tallow. Checks, too, payable forthwith, do not seem to be a fair subject for the rule. The money could be drawn immediately, and applied by the borrower as he thought proper. They resemble a note lent to be discounted, which the borrower applies directly to paying a precedent debt. (Bank of Rutland, v. Buck, 5 Wend. 66. Grandin v. LeRoy, 2 Paige, 509.) The whole question here, in any event, would be whether the possibility of repayment to the lenders of the checks in question, by the hides and tallow of cattle bought by such checks, constituted such a legal interest of such lenders, in their exclusive appropriation to the purchase of cattle, as would make their diversion therefrom to paying a previous debt, fraudulent as regards the lenders. If so, it would remain so, notwithstanding Sollinger might buy cattle with other funds, and tender their hides and tallow in payment of the loan. This case seems, however, to have been tried on the principle that a diversion from such a purpose was fraudulent, as regarded the defendants, and they are, therefore, entitled to the benefit of that rule on this appeal.

The learned judge, in his charge to the jury, perhaps somewhat guided by the allegation in the answer of an agreement in pursuance of which such checks were given, stated that they were business paper, in Sollinger’s hands, to be used by him, and not lent notes without consideration. This was correct, if they were a mere loan of money, to be repaid by hides and tallow of cattle to be purchased therewith, made on the faith of a promise of such repayment, and only erroneous if there was no personal advantage to be derived by the lender from such application. Of course, Sollinger never could have recovered on the checks, in any event; they were mere orders for money whose payment could be stopped ; and, of course, if he passed them away, the right would pass to another. I do not find the rest of the charge obnoxious to the severe criticism, into which the zeal of the defendants’ counsel has led him. The doctrine that testimony given with hesitation, and not positively, is not entitled to as much weight as that which is positive and direct, is undoubtedly true, when, all other things are equal. It is a mere truism to say that a witness ought to be believed, unless you have some reason to doubt his credibility. The learned judge submitted to the jury the question whether the plaintiff received such checks in part payment of what Sollinger owed him, without notice of fraud, they were good in his hands; which was all the defendants contended for.

On the trial an account or memorandum, entered in a book, which had been made by the plaintiff, was received in evidence on his behalf. It was headed August 6th, Sales of cattle, bought of McKee,” under which were made fourteen entries on as many lines, the third of which was 15 D. Sollinger, * * $715, $915.” Above and below the name of Sollinger, in a column, were names of other persons, and above and below the sum of $915, were in a column of other sums, opposite to which were double crosses. The reception of such entries in evidence, was objected to, and an exception taken. A witness (Wheaton,) not the plaintiff, was asked -what the double crosses meant, and he testified that it meant such items were paid; to which question an exception was taken. He also testified that the figures “ $715,” in such third entry, were made by the plaintiff, when he received the checks in question. The learned judge instructed the jury “ that such entry did not affect the rights of the parties, in any way. These rights existed by their agreement, and the mere evidence of it in the book, did not vary the agreement.” I fully concur in the first part of such instruction, but do not see how an entry of $715, opposite $915, is evidence of any agreement. In fact, the whole account was a mere memorandum, kept by the plaintiff for his own benefit, of sales of cattle, in which he entered what he received. He could not make an agreement with himself, when Bollinger was not present to receive the checks in payment. The agreement, if ever made, was made when Bollinger delivered the checks to Wheaton, and by the latter received in payment, either absolutely or subject to the plaintiff’s approval. In the latter ease, the plaintiff, by receiving them, approved of the contract as made. A sum entered in a book is, by itself, no evidence of any agreement in regard to it. If the plaintiff had sued Bollinger, on his original debt, this entry wotild have been no evidence of payment. There is no explanation on the face of it, of the purpose of the entry. Entries made by the plaintiff, in his own handwriting, are not an evidence of indebtedness against another person. The question as to the meaning of a mark, put to a person who did not make it, is still more objectionable.

The admission of such entry was clearly erroneous, and of the testimony in reference to the marks in such account, still more so. The judgment must, therefore, be reversed, and a new trial had, with costs to abide the event.