author: By the Court. Bosworth, J.

text:
    T. Stokes Dickerson v. John Cook, John W. Cook & Alexander Cook.
    Where, in an action to enjoin the collection of a judgment, a bond is given in the sum of $1,130'82, being the principal of the judgment only, conditioned to “pay the said sum of $1,130"82, the amount of said judgment, whenever ordered by the said Superior Court,” in an action on such bond, the sureties cannot be made liable to pay more than the sum named in the penal part of the bond, viz. $1,130'82. An order made at a special term of the court, that the judgment be paid, will enable the obligee to maintain an action on the bond, so far as his right to recover depends upon the question, whether the court has ordered the judgment to be paid.
    It is enough, that the court has made an order, in the action in which the bond was given, on a notice, only to the defendant therein, that the judgment be -paid. It is not indispensable to a right of action, on such a bond, that the sureties in the bond had notice of such motion.
    When a complaint contains two separate and distinct causes of action, and on the trial, the complaint is dismissed as to one of them, and as to the other a verdict is rendered for the plaintiff, subject to the opinion of the Court, at General Term, upon the questions of law arising in the case, on a case to be made by the plaintiff—if the plaintiff wishes to review the decision of the Court,-as to the dismissal of the complaint, as to one of the causes of action, on the same case, he should either obtain such permission from the Court to be evidenced by its order, or, on serving the case made, accompany it with some notice that is made, as well for that purpose as to enable the court to decide the questions of law subject to which the verdict was taken, upon the other cause of action. Unless this is done, so as to enable a defendant to prepare amendments, so as properly to present all the matters that would greatly influence the decision of both subjects, the plaintiff on moving for judgment on the verdict will not be heard, as to the dismissal of the complaint as to the first cause of action. If he wishes to move for a new trial, on the. ground of such dismissal, he should apprise his adversary that his ease is made for that purpose, and also by the terms of his notice of the hearing sought to be had on the case made.
    (Before Oaklet, 0. J., Campbell and Boswokth, J.J.)
    May 3;
    May 20, 1854.
    A verdict was rendered in this action for the plaintiff, subject to the opinion of the court at General Term, on the questions of law presented by the case. The action is on an undertaking, also on a bond, executed by the defendants. The former was given to obtain an injunction, and the latter, after the injunction had been dissolved, to have it restored and continued. The facts are briefly these : Dickerson had a judgment against John Cook, in the Supreme Court, for $1130 x8/0, entered April 30, 1849, under § 382 of the Code; John Cook brought an action in this court, to restrain Dickerson from collecting the judgment, and from proceeding further under an execution issued upon it, and an injunction was issued on or about the 6th of April, 1849, upon an undertaking executed by J. Cook, and the other defendants, as his sureties, whereby they agreed to pay to the plaintiff such damages, not exceeding $500, as he might sustain by reason of the injunction, if the court should finally decide, that John Cook was not entitled thereto. This injunction was dissolved by an order of the court, made October 20, 1849, with $10 costs of the motion, on the ground, that a bond, under 2 R. S. p. 189, § 147, was indispensable. The General Term of the court, on appeal, affirmed that order with $10 costs, February 9, 1850. But the General Term further ordered, that the injunction might be restored and continued on John Cook’s giving within ten days, a bond with two sureties in the amount of the judgment. A bond was executed accordingly by all the defendants, in the penal sum of $1,130.82, conditioned that if tfie said obligees, their executors, or administrators, or any of them, shall well and truly pay, or cause to be paid, to the said Dickerson, his executors, administrators or assigns, the said sum of $1,130.82, the amount of said judgment, whenever ordered by said Supreme Court, then the obligation to be void,.otherwise to be and remain in full force and virtue.”
    Issues were joined in that action. It was referred to a referee, to hear and decide the whole case, who made a report October 15, 1851, which stated the facts established by the evidence, and the referee’s conclusions of law thereon, which, among others, was, that John Cook was not entitled to relief, and that his complaint should be dismissed with costs. The report found, among other facts, that prior to, and at the time of confessing the judgment of April 30,1849, John Cook was indebted to the plaintiff, upon a bond and mortgage, notes and checks ; that the mortgage had been so far foreclosed,'that the plaintiff had obtained judgment in an action to foreclose the same, and thereupon, an accounting was had, and a balance fixed of $1,130 xVo, for which amount John Cook confessed the judgment of April 30, 1849, upon an agreement between him and the plaintiff, that the latter should surrender and give up to the former such notes, cheeks, and bond and mortgage, and cancel the judgment in the foreclosure suit, and give time for the payment of the judgment. That such notes, checks, and bond and mortgage had not been surrendered, nor the judgment in the foreclosure suit cancelled. Judgment having been entered on the report of the referee, Cook appealed from it to the General Term. On the appeal, that judgment was reversed, and a judgment was given, that the plaintiff surrender the notes, checks, and bond and mortgage, acknowledge satisfaction of the mortgage, and of the judgment recovered on the foreclosure suit. But the court did also further adjudge the judgment of the 30th of April, 1849, for $1,130 Ts/0, “ to be a good and valid judgment, .and directed the same to stánd as good and effectual between the parties.”
    On the 11th of October, 1852, the Superior Court, at Special Term, on a previous notice to John Cook, ordered, that he pay the judgment of $1,130 Ts/o and interest, in ten days, or that in default thereof, the plaintiff might move for liberty to sue the sureties on their bond and undertaking.
    On the 30tli of Hovember, 1852, an order of the Special Term was made, that the clerk of the court deliver the bond and undertaking to the plaintiff, to be prosecuted by him. On the motion, on which the last order was made, counsel for all these defendants were heard.
    In December, 1852, this action was commenced.
    On the trial the judge presiding, dismissed the complaint as to the first cause of action (which was upon the undertaking) on the ground that the orders and judgment, given in evidence, had not finally determined that John Cook was not entitled to the injunction issued on the security of the undertaking. He also decided that the plaintiff could not recover, on the bond, anything in addition to the sum of $1,130 T\\, not even interest, subsequent to the commencement of this action.
    The defendants offered to prove that the notes, checks, and bond and mortgage, which it had been adjudged that Dickerson should surrender to John Cook, had not been given up; that the mortgage had not been cancelled, nor satisfaction of the judgment in the foreclosure suit acknowledged. Ho such defence was set up in the answer of either defendant. A motion was made by defendants to dismiss the complaint, as to the second cause of action (which was upon the bond), on various grounds. The motion was denied, and the decision excepted to. On the application, at the General Term, for judgment on the verdict, the plaintiff insisted on the right to review the decision of the judge, dismissing the complaint, as to the first cause of action set forth in it (which was on the undertaking), notwithstanding no such right had been reserved at the trial, nor any case or bill of exceptions had been made and served by the plaintiff to be the basis of such a motion. The only case made was one to present the questions of law arising at the trial, subject to the decision of which, by the court at General Term, a verdict had been ordered, and rendered, in favor of the plaintiff.

      H. Brewster, for plaintiff, made the following points.

      As to the first cause of action, the plaintiff says—
    I. The right of action, on the first cause of action, depends on the question, whether the Superior Court finally decided that the plaintiff, John Cook, was not equitably entitled to the injunction. 1. The very terms of the injunction show that, if it is not continued, or the judgment set aside in the final decision,, such decision is adverse to the plaintiff’s right to the injunction. John Cook was plaintiff, and was asking judgment against the defendant to vacate and set aside the judgment entered by confession. 2. The court decided, Oct. 20, 1849, that he was not equitably entitled to his injunction, which was affirmed at General Term, February, 1850. (Duncan v. Lawrence, 1 Barb. S. C. R. 447.) 3. By the final judgment of this court, first on the report, and secondly on the appeal, there can be no doubt that the dismissal of complaint, with costs, was a decision against the equity of the injunction. (1 Barb. Ch. Ju. 614 & 645 ; Old v. Old, Seaton on Decrees, 300.) 4. That decision is left standing, except so far as the judgment on appeal conflicts. The judgment of May, 1852, not upholding the injunction and declaring the judgment valid, the injunction fell, and with no saving clause or reservation, necessarily this established that John Cook was not equitably entitled thereto. It is a rule of law or equity, and is also common sense, that the injunction must be retained in the final decree if it is to be retained after judgment. (Seaton on Decrees, 44, note 5.) 5. If the judgment is good and valid, if not impeachable for fraud, and not to be interfered with, of course the injunction was inequitable. The party, if he feared his paper would be negotiated (which is not alleged), should have enjoined the defendant from negotiating the paper. The result shows no ground for that injunction, and, therefore, the condition was not complied with. This was the point on which the judge ruled, and the exception is well taken.
    TT The other objections were not well taken. The undertaking made no provision for a reference, and, therefore, no reference could be had. (Gracie v. Sheldon, 3 Barb. S. C. 232; Higgins v. Allen, 6 Prac. Rep. 30.) If otherwise, the court were not restricted to that course, and they have ordered this suit for the purpose of ascertaining the damages. (Code, § 222.) The second point of defendants was equally baseless, as the Eevised Statutes provide for two kinds of security, and they were to be both used in such a case as this. By section 141,. 2 E. S. 189, the party asking injunction, after judgment, was required to deposit the money or give a bond, and 2. Also execute a bond to pay all damages and costs, &c. By section 146, now § 152, 2 E. S. 190, a bond with sureties may be substituted, and then the penalty and condition may be enlarged to cover both security for damages, and to take the place of a deposit of the amount of the judgment. The first part of section 14 L is modified by the Code. And the condition here very properly conforms to the Code. But the bond provided for by the rule of this court, was to stand with the undertaking, and, therefore, its provisions only cover subdivision 1 of section 141. Had it been intended to supersede the undertaking, then it would have had to go further, and provide for damages, &c. Consequently, the case was made out sufficiently to authorize proof of damages, and the exception is well taken.
    HI. The second cause of action, on the bond, was sufficiently proved. The condition was to pay the judgment of $1,130.82 whenever ordered by the Superior Court. A bond is of binding effect unless avoided by a compliance with the condition. The objections to it, are none of them well taken. 1. They say John Cook only was ordered to pay, and that is not within the condition. To this we say, that John Cook, only, was a party, and the only one over whom the court had jurisdiction, and, therefore, the meaning of the condition obviously is, that whenever payment is ordered by the Superior Court in any form. Again, the condition is, that if the above bounden parties, or any of them, shall, and will, well and truly, pay whenever ordered; that is, whenever any of them are ordered to pay, if they pay, the bond is void. An order that any one of them pay, is, therefore, not performed or complied with, unless payment is made. 2. The condition was to pay $1,130.82, and, as the order required payment of interest, it is said not to be according to the condition. If the greater did not include the less, there would be some force in this objection. But as long as the order was for the whole, with interest, it certainly covered that amount. 3. Had a judge at Special Term authority to make such order ? The Special Term is as much the court as the General Term, and the bond says the Superior Court; General Term is not in the bond. («.) The order at Special Term cannot be impeached collaterally, and is good until reversed; but we say it is good. The Court of Chancery and Supreme Court, in Equity, often made orders after, and consequent on, the final decree. Here the judgment did not put an end to the action of the court. (~b.) The argument on the other side, would deprive the court, at Special Term, of the power of making order for re-taxing costs, for writs of assistance to set aside executions and make allowances of costs, and the multitude of motions after judgment in all cases where judgment was rendered at General Term. The General Term acts chiefly in an appellate capacity; but does not, thereby, abridge the other powers of the Special Term. 4. The defendants objected that sufficient notice was not given to the defendants John W. Cook and Alexander Cook. To this we say, they were not entitled to notice: “It is not in the bond.” But notice was given, as proved by Armstrong. This was raised as a question of law purely. The jury have passed on the fact of notice. The sureties appeared on the motion for leave to sue the bond. 5. It was objected that there was a levy on the goods of John Cook, upon an execution issued on such judgment of the plaintiff.
    The answers are—
    (a.) That there was no proof of a levy, and, when this objection was made, no offer to prove the fact. (b.) A levy, only, is no bar to this proceeding, for the bond is to pay if ordered, and nothing but payment is a bar. A mere levy, unless the defendant is deprived of his property, is nothing; and would only bar the plaintiff if he obtained payment thereby. (Waddell v. Elmendorf, 5 Denio, 447; Peck v. Tiffany, 2 Coms. 456.) These are all the objections that appear to require a notice in these points.
    IV. If the judge erred in admitting or excluding evidence, that can only be corrected on a new trial, unless as to a mere formal matter, like interest. We ask interest, because it is a single bill, and the penalty and condition are for the same amount, but if that cannot be allowed, as being beyond the contract, at least they should pay interest during the period they unjustly litigate. That should be added.
    V. Rone of the exceptions of the defendants are well taken. There was no offer to prove that Cook was deprived of any goods under the levy, or that the plaintiff obtained any satisfaction thereby, but that the levy was abandoned. (Dyke v. Mercer, 2 Shower, 394.) Eor did they offer to show the proceedings against Westervelt either benefited the plaintiff, or injured the defendants. Besides, all these questions were disposed of when the order to pay the money was made in this court. A party may pursue all remedies till he gets 'one satisfaction. (Ontario Bank v. Hallett, 8 Cowen, 192.)
    VI. John Cook was an incompetent witness, and, therefore, the offer to prove facts by him cannot avail the defendants.
    VTL The objection that the judgment of April 30th, 1849, was not satisfied, is not well taken. If it were satisfied, that would be a perfect defence. The condition of the bond is not to pay the judgment, if satisfied, but when ordered to do so. The statute makes this bond necessary, not as the condition of satisfying the judgment, but as the condition of staying the proceedings by injunction.
    VHI. The part of the charge excepted to by the defendants, is but a repetition of the same principle considered under the third point.

      G. W. Stevens, for defendants, J. W. and A. Cook, and S. Sanxay, for defendant, John Cook, made the following points.
    I. The plaintiff’s damages under the first undertaking were never liquidated as against John Cook. Those damages cannot be liquidated in an action on the undertaking against both principal and sureties. The method of liquidating the damages is pointed out by the Code. (Code, § 222.)
    II. The first undertaking was merged in the bond given by the' defendants, and set out in the complaint as the second cause of action. The sureties were discharged, as sureties, by becoming principals in the second bond. (2 R. S. 3d ed. 251; Cook v. Dickerson, 2 Sand. S. C. R. 691; Theobald’s Principal and Surety, 3; Sprigg v. Bank of Mount Pleasant, 10 Peters, 257; Willis v. Ives, 1 Smedes & M. 307.)
    HI. The Court did not finally decide that John Cook was not entitled to the injunction.
    IV. All the obligors to the second bond are principals, and by the condition they were all to be ordered to pay the sum. mentioned in the condition. No such order was made by the court. (Sprigg v. Bank of Mount Pleasant—above; Willis v. Ives—above.)
    V. The order of the 11th October, 1853, was in enlargement of the condition of the bond, and consequently was not operative as against John W. and Alexander Cook.
    VI. The court, at Special Term, had no jurisdiction to make the order of October 11th and November 13th, 1853.
    Vil. John Cook was a competent witness for the other defendants. (Price v. The Mayor, &c. 4 Sand. S. C. R. 616.)
    VIH. The plaintiff was not entitled to recover more than the amount of the penalty of the bond.
    IX. The judgment docketed in the Supreme Court on the 30th of April, 1849, in favor of the plaintiff against John Cook, not having been satisfied of record, and the injunction restraining the plaintiff from proceeding on that judgment not having been continued by the final judgment of this court in the suit instituted by John Cook against the plaintiff, the plaintiff cannot recover upon the bond given by the defendants upon the reviving and continuing of that injunction, and which constitutes the second cause of action in this suit.
   By the Court. Bosworth, J.

The fair meaning of the condition of the bond of February-22, 1850, is that the defendants would pay the judgment, of $1,130.82, whenever the Superior Court directed that judgment to be paid. The bond does not contemplate, nor was it necessary, that the sureties of John Cook should have had previous notice of the motion, or proceedings, on which such order or direction might be made. It was enough, that the Oourt should order in that action that John Cook pay it.

The order of October 11, 1852, does not modify or vary the judgment of the general term; that the judgment of $1,130.82 is “ a good and valid judgment,” and that it stand as good and effectual between the parties.” It was made by the Superior Court; and though made at a special term, it is as much an order of the Superior Court as if made at a general term. It is not a void order, and its propriety cannot be questioned collaterally.

The judgment of the general term, denying so much of the relief prayed for by the complaint, as consisted of a claim that the judgment for $1,130.82 be vacated, and instead thereof, adjudging it to be a good and valid judgment, and that it should stand as good and effectual between the parties, was, in legal effect, a direction that it should be paid, if it had not been satisfied subsequent to its recovery.

The complaint, in the action of Cook against Dickerson, alleged that the latter had issued an execution on the judgment of $1,130.82, which had been levied on the property of John Cook, and that the Sheriff threatened to sell the same. That allegation was not denied by the answer to such complaint. For aught the court at general term knew, a sale of that property had been made, or might be made, and satisfaction of the judgment in part had been, or might be, produced by such levy, and proceedings consequent to it.

It was therefore proper, that Dickerson should subsequently apply to the court, on notice to John Cook, for an order directing him to pay the judgment, to the end that he might show cause, if any existed, why such an order should not be made. None being shown, to the satisfaction of the court, an order was made, that he pay the $1,130.82, and interest. The court at general term, having previously decided that the judgment was valid, and should stand as good and effectual between the parties, a subsequent order that Cook should pay it, was one which it was prudent, if not necessary, that the plaintiff should obtain, before commencing an action on the bond. Such an order having been made on notice to John Cook, we must hold it to have been rightfully and properly made, and sufficient to entitle the plaintiff to recover, so far as that right depends nakedly on the question, whether the court has made such an order, as is contemplated by the condition of the bond of the 22d of February, 1850.

It was strenuously insisted, on the argument, that the judge erred in excluding evidence that Dickerson had not delivered up to John Cook the bond and mortgage, note and checks, and executed the satisfactions, as ordered by the judgment of the general term, in the suit of Cook against Dickerson.

It is a sufficient answer to this objection, that no such defence is set up in the answer. Perhaps on this ground, the judge deemed the evidence irrelevant, as he also excluded evidence offered by the plaintiff, that they had been surrendered to Cook’s attorney before this action was brought, and also that satisfaction of the mortgage, and of the judgment in the foreclosure suit, had been delivered to the same attorney.

The judgment of the general term, in this respect, if it had not been complied with, would have been enforced by attachment. But as non-compliance is not averred in the answer, proof of it at the trial, as a defence, was inadmissible.

We think none of the exceptions taken by the defendants to the decisions of the judge, over-ruling the evidence offered by them, are tenable. The plaintiff is consequently entitled to judgment on the verdict.

But he insists, that he is entitled, on this motion, to review the decisions to which he excepted at the trial, and that if the court is of opinion that there was error in dismissing his complaint, as to the first cause of action, or in disallowing the interest claimed, a new trial should be granted. Ho right is reserved in the case, or contained in the order made at the trial, that he may so move on this ease. He is as much precluded from reviewing the adverse decisions of a judge as the defendant, unless he makes a bill of exceptions or a case for the purpose, and moves upon it for a new trial. Leave might, perhaps, have been given, in a matter coming up, as this does, to move on the case, to which the verdict was subject. When so given, the case would be prepared, and amendments understandingly proposed, with a view to adapt it to both motions, and to present all that bore on the merits of either. But on a case made as this is, merely for the purpose of enabling a plaintiff to obtain a judgment on his verdict, we do not think, he is entitled to move, as a matter of course, to set aside the verdict.

The injunction issued, on the security of the undertaking, was dissolved in about thirty-three days after it was granted. All the damages occasioned by the issuing of that injunction accrued within that time. That was an inj unction pendente lite. It was dissolved, not because the court thought the facts insufficient to entitle Cook to an injunction, but because the security made by the revised statutes, a condition to granting it, had not been given. The court ordered it to be revived and continued, on the execution of the bond. The bond, from the time the injunction was restored, was the security given to Dickerson, as a condition of granting it, and it is not clear that the parties to the undertaking, as such, are liable for the consequences of such revival and continuance.

The plaintiff’s right to recover upon the undertaking is not so clear as to justify us in attempting to interfere, on this case, with the decision made at the trial.

We think it very doubtful, in the most favorable view of the plaintiff’s rights, whether he can recover against the sureties in the bond, anything beyond the amount specified in the penal part of the bond. It is not in terms named a penal sum. But they acknowledge themselves indebted in the specific and precise sum of $1,130.82, and the condition is to pay this sum whenever it is directed to be paid.

On the whole case, we think judgment should be entered for the plaintiff on the verdict rendered.


source: Caselaw Access Project

author: By the Court. Oakley, C. J.

license: Public Domain

text:
    Charles A. G. Depew and Isaac Depew v. John H. Keyser.
    D. H. T. delivered to the defendant certain kitchen-ranges and other articles of hardware, under an agreement in writing, by which the defendant hound him “to sell and account to him (D. H. T.) for, and pay him, the cost prices, and twenty per cent, in addition for all articles sold at retail, and fifteen per cent, for all articles sold at wholesale.”

      Held, that this was a contract of sale, and not of agency or of guaranty; and that the defendant having sold the articles at wholesale became immediately liable for the stipulated price, i. e. the cost prices and fifteen per cent, thereon.

      Held, that such being the true construction of the contract, the defendant was not entitled to deduct the moneys which he had paid for the storage, freight, &a., of the articles previous to the sale made by him.

      (Before Oakley, O.J., Campbell and Boswobth, J.J.)
    May 5, 20, 1854.
    This action was brought by the plaintiffs, as assignees of one D. H. Tichenor, to recover the sum of $1,568.99, as the price of certain ranges and other hardware goods, which the complaint alleged had been sold and delivered by Tichenor to the defendant in December, 1848.
    The answer denied the sale, and averred that the goods had been delivered to the defendant to be sold by him on commission, and that no sale had yet been effected.
    The cause was heard before the Chief Justice and a jnry in December.
    Upon the trial the plaintiffs, to prove the sale and delivery-of the goods in question, produced, and read in evidence, the following agreement, signed by Tichenor and the defendant, dated 27th December, 1848.
    “An agreement between David H. Tichenor and John H. Keyser,
    “ To wit: The stock furnished, as per bill, by D. H. Tichenor, I do agree to sell, and account to him for, and pay him, the cost prices, and twenty per cent, in addition for all articles sold at retail, and fifteen per cent, for all articles sold at wholesale.”
    An invoice of the articles, at cost prices, was annexed to this agreement. The sum total of the cost prices was $1,307.31.
    Evidence was given on the part of the plaintiffs to prove that all the goods, mentioned in the invoice, had been sold at ' wholesale by the defendant. There was, however, a conflict in the testimony as to the quantity and description of the articles sold.

      When the plaintiffs rested, the defendant’s counsel moved for a nonsuit and dismissal of the complaint on the following grounds.
    First. That no sale of the goods by the plaintiffs to the defendant having been proved, no recovery could be had against- - the defendant as a purchaser.
    Second. That no consideration was averred in the complaint, or proved on the trial, to have been received by the defendant either as agent for the sale or as guarantor thereof.
    Third. That no demand had been made for an account of the sales, or for the proceeds thereof, prior to the commencement of the suit.
    His honor, the Chief Justice, denied the motion, and the defendant’s counsel excepted to the decision.
    In the course of the trial the defendant’s counsel offered to prove by the deposition of William H. Judah, taken under commission in this cause, and the deposition of Samuel C. Keyser, taken de bene esse therein, and by other evidence, that the storage, transportation, and freight of the said goods, and other expenses necessarily incurred, and paid by the defendant in the sale of such of said goods as had been sold, exceeded one thousand dollars, and offered to prove the amount of such expenses ; and also that the entire proceeds of such as were sold did not exceed five hundred dollars.

      I

      ■ But the Chief Justice overruled the offer, and refused to admit the evidence, or any part thereof, and the defendant’s counsel excepted to the decision.
    The defendant’s counsel then requested the Chief Justice to - charge the jury as follows:—
    First. That unless the jury are of opinion that the defendant has sold all the goods, for the price of which this action is brought, the plaintiff cannot recover in this action.
    Second. That unless a demand of the proceeds of these goods, or of the amount due the defendant under the contract between him and the plaintiff, prior to the commencement of this suit, has been proved to the satisfaction of the jury, the plaintiff cannot recover.
    Third. That unless the jury shall be of opinion that there was a sale of these goods by Mr. Tichenor to Mr. Keyser, un3er the said contract, the liability of Mr. Keyser can be only that of a guarantor, and that in the absence of proof of fraud, or positive negligence by him, the plaintiff cannot recover unless an extra, commission for the guarantee beyond the ordinary commission for the sale be averred and proved.
    Fourth. That any demand against David H. Tichenor, arising upon contract due to the defendant in his own right, at the time of the assignment, and capable of being ascertained by-calculation, is a proper set-off to the claim of the plaintiff, and may be allowed as such by the jury.
    ■ Fifth. That unless the goods in question were absolutely sold by Mr. David H. Tichenor to the defendant, Mr. Tichenor, as owner, was responsible for all loss and damage which might be sustained, without default, on the part of the defendant..
    ■ Sixth. That all expenses necessarily incurred by Mr. Keyser in the storage, transportation, and sale of said goods, constituted a claim against Mr. Tichenor, which should be allowed by the jury by way of recoupment against the amount, if any, to which they may think the plaintiff entitled.
    ■ But the Chief Justice refused so to charge, and to his refusal tó charge on each of the said several points, as requested, the defendant’s counsel excepted.
    - The Chief Justice charged the jury, that by the contract in evidence, it appeared that the defendant had to sell the goods and pay the plaintiff for them at the prices specified ; that this was an agreement, by which he was absolutely bound, without reference to the subsequent profit or loss on the goods; that had he simply undertaken to sell the goods for Tichenor, and account to him for the sales, his responsibility would have been only that»of an ordinary factor; but that the meaning of- the present contract was that he should have all the profits over fifteen per cent., and should bear all expenses and losses, and that he was liable to the plaintiff in this' action for the price agreed in the contract, viz., $1,302.07, with fifteen per cent, in addition, as the testimony showed that the goods sold by the defendant were sold at wholesalethe jury being at liberty to make a proportionate deduction for any goods they should find remained unsold.
    The defendant’s counsel excepted to so much of the said chai'ge, as stated that the defendant was absolutely bound to pay the sum and per centage specified in the contract, without reference to the profit and loss of the adventure, and that he was liable for the expenses and losses on the said goods; and further excepted to so much as stated that the defendant was liable in the present action.
    The jury retired under this charge, and on their return found a verdict for the plaintiff for $1,503.40.
    The cause was now before the court upon an appeal! from the judgment entered upon the verdict, and upon a ease containing the exceptions taken on the trial.
    There was also a motion, upon affidavit,, to amend the answer so as to let in a defence of a set-off, which, as not properly raised by the pleadings, had been excluded on the trial.

      T. Sedgwick, for defendant, appellant,
    argued fully the exceptions taken on the trial, and cited: among others the following cases and authorities. (Nixon v. Bentley, 7 How. S. T. R. 316; Mann v. Morewood, 5 Sand. 557; Catlin v. Gunter, 1 Duer, 253; Morris v. Cleasby, 4 M. & S. 566; Loveland v. Shepherd, 2 Hill, 139; Seabury v. Hungerford, Id. 80; Miller v. Gaston, Id. 188; Spies v. Gilmore, 1 Coms. 321; Wall v. Farmer, 2 Coms. 553; Wheelwright v. Moore, 1 Hall, 201; Lansing v. McKellp, 3 Caines, 286; Baily v. Freeman, 4 John. 480; Stephen N. P. 241; Story on Agency, §§ 33, 215, 328 ; Chitty on Cont. 547.)

      E. Hoffman, for the plaintiff, respondent,
    controverted the positions of the counsel for the defendant, and denied" the application of the authorities cited.
   By the Court. Oakley, C. J.

We are of opinion that none of the exceptions that have been relied on can be allowed.

The single hinge upon which the cause turned, was the construction proper to be given to a written agreement between Ticlienor and the defendant; and this was a strict question of law, which it belonged, not to the jury, but to the judge alone to determine. Had he charged, however, as requested by the counsel for the defendant, the question would have been left, as a question of fact, to the jury. As the pleadings stood, the defence of a set-off was properly overruled, and the refusal of the judge to charge, upon the other points that were raised, as requested by the counsel for the defendant,-is entirely justified, if the construction which he gave to the written agreement is that which we are bound to adopt.

The words of the agreement are certainly not the best that could have been chosen, but we are satisfied that the construction, which the jury was instructed to follow,.is that which is most consistent with its terms, and expresses .the true intention of the parties. It was not their intention that the defendant should be liable to account, as a factor, only for the net proceeds of future sales, retaining, as a compensation for his services, all that might be realized beyond a definite sum, thus casting upon Tichenor the whole risk of future expenses and losses, and incurring himself no other risk than that of a loss of his commissions. Ebr did they intend that the persons to whom sales should be made by the defendant, should be primarily liable or liable at all to Tichenor, the defendant being liable only as a guarantor. In other words, it was not the intention of the parties to impose upon the defendant the responsibility of a factor acting under a del credere commission. Their meaning was that the defendant should be bound'to sell, and, in the event of a sale, should be immediately and solely liable for the stipulated price, that is, the prime cost of the goods, as stated in the invoice, with an addition of 20 or 15 per cent, according to the nature of the sale. A sale by wholesale or retail was a condition precedent to the liability of the defendant as a debtor; but when the sale was made, his obligation to pay the stipulated price became absolute. As the price was then ascertained, a right of action to demand its payment then accrued, and, to maintain the action, no previous demand of an account was necessary to be made or proved.

It is not denied that, if that, which has been stated, is the true construction of the written agreement, it was a contract of sale, and not of agency and guaranty, nor, consequently, that it was properly received as evidence in support of. the ■complaint, and the motion to dismiss the complaint properly denied. It follows, also, that the claim of the defendant to prove and be allowed the expenses incurred by him for storage, freight, &c., was properly rejected. From the nature of his agreement he took upon himself the risk of these expenses, and consented to defray them, trusting to future sales for his reimbursement. They are expenses which could only be charged to Tichenor upon the supposition that the defendant was a factor, and not a purchaser.

But although, upon the merits, a new trial must be denied, we think that the motion to amend the answer so as to let in the defence of a set-off which was rejected upon the trial, is not unreasonable, and, under the circumstances stated in the affidavit, ought to be granted. Upon the service, therefore, of a copy of the amended answer, which was produced, and upon .the payment of the costs of the trial, and of all that have since accrued, the verdict and judgment are set aside, and a new trial granted.


text:
    Caldwell and Others, Respondents, v. Bartlett, Appellant.
    One who tortiously possesses himself of another’s chattels, without a delivery from, or the consent, express or implied, of the true owner, can vest no title to them in a purchaser, though bond Jide. But if the owner delivers possession, under a contract of sale, intending at the time to then part with his property in them, any one bond fide purchasing and taking a delivery of them from the first vendee, will obtain a title valid as against the first vendor, although the latter may have been induced to sell and deliver them, by fraud or false pretences, which would authorize him to disaffirm the contract, and reclaim them from the first vendee.
    Any one who, in the ordinary course of business, makes advances, or incurs a legal liability, on the faith of the fraudulent possessor being the true owner, is entitled to the protection which the law extends to a bond fide purchaser. If a sale of chattels is conditional, an unconditional delivery will enable the pur- ■ chaser to give a valid title to any one who buys from him in good faith and for value! "
    When a delivery is apparently absolute, and without any cotemporaneous decla- '•" rations qualifying it, the onus of proving the delivery conditional, rests upon the vendor. If no such proof is given, the delivery will be deemed absolute, and . . title to the goods will vest in the purchaser.

      It seems, that in case of a sale and delivery, even where the delivery is conditional, a bond fide purchaser from the person to whom such delivery was made, will acquire a valid title.
    A master of a vessel, who receives in good faith, on board of his vessel, goods, from one who has obtained a sale and delivery of them by a fraud, that would authorize the vendor to disaffirm the sale, but without notice of the fraud, or of any facts and circumstances which should have excited the Suspicions of a man of ordinary care and caution, and stows the goods, and issues a bill of lading, binding him to deliver the goods at a remote port, stands in the position of and is entitled to the protection which the law allows to a bond fide purchaser,
    (Before Oaklet, C. J., Campbell and Bosworth, J.J.)
    May 5;
    May 20, 1854
    This action came before the court, upon an appeal from a judgment entered on the report of a referee. The action was brought to recover of the defendant, who was master of the ship Alert, $265.89, the value of goods alleged to belong to the plaintiffs, and to have been converted by the defendant to his own use.
    The referee, to whom the action was referred, made the following report, viz.:—
    Having been appointed sole referee in this action, and dh rected to hear and decide the whole issue therein, and having been attended by the counsel of both parties, and having heard their respective proofs and allegations, I find the facts to be as follows:—
    1. One Reed bargained with one Johnson for the purchase of the goods described in the complaint, at Johnson’s store, in Hew York, for $218.19, payable on delivery. While Johnson was absent from his store, Reed went there and took away, the goods, without paying for them, and without Johnson’s'know? ledge or consent, and immediately put them on board a ship, then loading at Hew York, for San Francisco, whereof the defendant was master.
    2. Reed took from the defendant a bill of lading for the goods, as shipped by John Brown, which name he assumed.' The bill was for sundry articles, including these goods, stating the receipt of them from John Brown, at Hew York, February 11th, 1851, on board the ship, to be delivered to Schultz, and Griffin at San Francisco, on payment of freight, primage, and average.

      3. The defendant stowed the goods in his cargo for the voyage, without knowledge of the fraud on Johnson which had been practised by the shipper; but on Reed appearing to obtain the bill of lading, his peculiar and excited manner caused' some suspicion on the part of the defendant that something was wrong about him.
    4. On bargaining for the goods, Reed pretended that he intended the goods for re-sale in New York; but his actual design was to obtain them without payment, and ship them to California’; and he was then engaged in fraudulent purchases from other parties in New York, and shipping their property by the same ship; and immediately after obtaining the bill of lading, he absconded.
    5. After the goods were stowed in the ship, and the bill of. lading issued, as aforesaid, Johnson made a sale of the goods to the plaintiffs.

      6. The plaintiffs thereupon called on the defendant at the, ship, made known their right to the goods, and demanded them-from the defendant. The defendant refused to deliver up the goods, on the ground that he had given a bill of lading for, them. The plaintiffs thereupon offered to indemnify the defendant against the bill of lading, and against all claims and damages on the part of the shipper. The defendant further refused to deliver up the goods, on the ground that it would cause great labor and expense to overhaul the cargo and take out these goods. The plaintiffs did not offer to pay the defendant for any such labor or expense, but demanded the goods, which the defendant refused to deliver. Shortly afterwards the defendant sailed on his voyage with the goods on board his ship.
    7. It does not appear that the bills of lading ever passed out of Reed’s hands, nor that Schultz and Griffin had any interest in the consignment of the goods.
    . Upon the foregoing facts, and the matters admitted by the pleadings, my conclusions of law are as follows:—
    1. Reed acquired no title to the goods, nor any right of possession thereof; and he was wrongfully in possession of them when he delivered them to the defendant.
    2. The sale by Johnson to the plaintiffs passed to them a good title to the goods, and they became the true owners, and entitled to immediate possession.
    3. The defendant acquired no title, right, or lien, in the goods, as against Johnson or his vendees, the plaintiffs, by means of receiving the goods from Eeed, stowing them in the ship, giving out the bill of lading, and all the other facts above mentioned.
    4. The offer of an indemnity is a sufficient answer to the objection that a bill of lading had been issued, even if it had been transferred to third parties.
    5. The plaintiffs’ title to the goods having arisen after the goods were stowed in the ship, the previous act of stowage was neither a tort of the defendant, of which the plaintiffs can take advantage in this action, nor a service rendered to the plaintiffs, for which the defendant can demand any consideration from the plaintiffs. If the defendant had submitted to the plaintiffs’ demand for the goods, the overhauling of the cargo and taking the goods out must have been the duty of the plaintiffs, and at their own expense; and if the defendant had taken such labor on himself it would have been voluntary, and he could not compel the plaintiffs to employ him in such service,- or to pay therefor. The refusal to deliver the goods, unless the plaintiffs should employ the defendant to take them out, was: therefore a conversion of the goods; and the sailing of the ship was also a conversion.
    6. The goods were of the value of $218.19. The cost of taking them out of the ship should not be deducted ; because the goods were already stowed, and might have been "shipped on the plaintiffs’ account, if their title had been submitted to; and because the value of the goods, to the master of the ship, was no less for their being packed in his cargo. The interest on the value of the goods, from the time of the conversion to the date of this report, is $34.36, making a total sum of $252.55.
    I, therefore, decide the whole issue in favor of the plaintiffs, and report that there is due from the defendant to the plain-: tiffs, the sum of two hundred and fifty-two dollars, fifty-five, cents, and they are entitled to a recovery of the same with costs of this action.
    All which is respectfully submitted.

      WilUam Johnson, the person named in the referee’s report, as the one with whom Beed bargained for the goods, was examined as a witness on the part of the plaintiffs, and among other things, testified as follows: I know the marks and numbers, because I marked the packages, seven or four or five days before, perhaps; I so marked them by Beed’s direction; at the time I so marked the goods, they were at No. 55 Frankfort street; that was my place of business ; it was not the place of business of the plaintiffs; the goods were mine at the time I marked them; the goods, I think, were marked “ S. & G-.” by direction of Beed; Beed told me he was going to sell them to a house in Liberty street, when he first ordered them; I did not deliver the goods to any one; Beed took them away when I was absent; I know the goods were delivered to Beed, from my foreman telling me so; that is the way I know it; he told me Beed had got the goods ; there was an agreement between me and Beed for the sale of the goods—to Beed before I marked them; the sale was to be for cash; I was to have the prices named in the invoice; my foreman made out the invoice in my absence, and when Beed called, he gave him the invoice and the goods; I entered the goods in the day book; I made the entry some two or three weeks previous to his' getting them; at the time Beed ordered the goods.
    Cross-examined—The sale of the goods to the plaintiffs was in writing; I had not given my foreman any direction not to deliver the goods to Beed, without cash; I was temporarily absent, and left no instructions; my foreman was in the habit of delivering goods in my absence; the goods were made up and completed—I mean they were boxed up the morning they went away; I marked them during the morning of that day; Beed had a store at that time, at the corner of Catherine and Henry streets; I called there1 on the Monday following,. tw.o days after the delivery of the goods; I had not sent any bill for the goods before that; I had not sent Beed any message to return the goods.
    On the appeal, it was insisted by the appellant, that the referee erroneously found the fact, that Beed took the goods from the store of Johnson, in the absence and without the knowledge or assent of the latter. The only evidence on that point was the testimony of Johnson himself.

      Wm. H. Leonard, for appellant, made the following points.
    I. The appellant is entitled to the same protection which the law would afford to a bond fide purchaser of the goods in question, from the person who made the shipment thereof. These goods were received by the appellant on board his ship, as a common carrier, entirely in good faith, without any knowledge that the shipper had committed a fraud in the purchase thereof; and before the respondents had acquired any title or right of action in relation thereto, the said goods were stowed in cargo, and a large amount of other goods also received and stowed over them, in such manner that the goods in question could not be delivered without great expense and detention of the ship in unlading to make delivery thereof, beyond even the value of the goods demanded, (a.) The appellant was entitled to payment or indemnity against the expense of unlading the goods, and the demurrage for the detention of the ship, before he could be required to deliver them to the claimants. (b.) Hor was the appellant under any obligation to allow the respondents to overhaul and displace the cargo already stowed, without payment or indemnity against the expense of replacing such cargo as should be removed, and for the detention of the ship. (c.) Johnson, the vendor, or his agent and foreman, delivered these goods to Lucius F. Reed, with the intent to make sale thereof, (d.) Ho felony was committed by Reed in making the purchase, (e.) The fraud of the purchaser in obtaining the goods, if not felonious, gives no right, to rescind the sale and reclaim the goods from a subsequent purchaser in good faith (Patrick v. Parker, 5 T. R. 718; Mowrey v. Walsh, 8 Cowen R. 238; Williams v. Merle, 11 Wend. R. 80 ; Root v. French, 13 Wend. R. 570, 572; Andrew v. Deitrich, 14 Wend. R. 31; Saltus v. Everett, 20 Wend. R. 280; Hoffman v. Carow, 22 Wend. R. 285; Vide Opinion of Chan., p. 292; Opinion of Senator Verplanck, p. 318, 319; Opinion of Senator Furman, p. 307; Ash v. Putnam, 1 Hill R. 302 308; Hoffman, v. Noble,
      6 Metcalf R. 68). (f.) The refusal to deliver the goods was not, under these circumstances, a conversion thereof, (g.) The motion to dismiss the complaint ought to have been granted.
    II. There is no evidence to warrant the fact found by the referee, “ that Eeed took away the goods without paying for them.” This fact cannot be presumed, and is essential to the respondent’s case.
    III. The goods in question, at the time of the pretended sale thereof, by Johnson to the respondents, on the 14th of February, 1851, were not the subject of a sale by him (Stedman v. Reddick, 4 Hawks. R. (N. C.) 29). (a.) The goods were not in the possession of the pretended vendor. The respondents also knew that they could not be delivered without great injury to the appellant, who for that reason claimed the possession thereof until indemnity was given. (b.) Johnson had a mere chose or right in action (2 Blackstone’s Com. 396, 397). (c.) The receipt and stowing of the goods was not an injury to these respondents. Whether the demand thereof was made by the vendor or by the respondents, and whether before or after the sale of 14th February, 1851, the right of action existed before that time, and it was known that it would be complete by a mere formal and technical demand. A change in the party maldng the formal demand, did not convert the case into a tort against these respondents, so as to give them a right of action in their own names (Kelsey v. Griswolds, 6 Barb. S. C. R. 436). The action does not arise in contract, and is not by the amended code assignable.
    IV. The referee erred in excluding the testimony of the appellant. Ten days’ notice of the intention to examine Johnson not having been given, as required by the Code, in case the assignor is offered as a witness, his evidence was inadmissible, (a.) Johnson would not before the Code have been a competent witness for the respondents to prove fraud in the sale of the goods (Rea v. Smith, 19 Wend. R. 293 ; Gardiner v. Tubbs, 21 Wend. R. 169).
    V. The referee erred in admitting evidence of other eotemporaneous purchases of goods by Eeed for which he had not made payment. Proof that the goods in question had not been paid for should have been first offered. The referee has inferred non-payment from cotemporaneons acts. The evidence of Hoppock and of Gustin, was immaterial and irrelevant. The evidence of what was said to the witness, Morris, and to others, by persons at the store, then recently occupied by Reed, was hearsay and inadmissible. The exceptions taken at the trial, in respect to the evidence above mentioned, are well taken.
    VI. The report is erroneous, and.in many respects immaterial, inconclusive, and against the law and the evidence. The first, third, and fourth paragraphs of the conclusions of fact are erroneous. The fifth subdivision of the conclusions of law in said report, is, in great part, argumentative, and deciding upon positions of law which were never assumed. ■
    VH. The • report of the referee ought to be set aside, the judgment reversed, and a new trial granted, to be had before the court.

      E. Fitch Smith, for respondents, argued the following points.
    I. The several facts found by the referee under the- first seven subdivisions of his report, were fully established by the evidence in the case, and the finding of the referee on conflicting evidence upon those several facts is conclusive. This court should not set aside the report upon any question-of fact found by the referee.
    II. The evidence shows, and the referee has found the fact, that Reed purchased the goods with the preconceived design not to pay for them, and that vitiates the sale, and Reed, acquired no title to the goods. (Thompson v. Rose, 16 Conn. R. 81; Reid v. Hutchinson, 3 Campbell R. 352 ; Earl of Bristol v. Wilsmore, 1 Barn. & Cress. 514; Hawes v. Crowe, R. & Moody, 414; Ferguson v. Carrington, 9 Barn. & Cress. 59 ; Hitchcock v. Covell, 20 Wend. 167; Carey v. Houghtailing, 1 Hill, 311; Ash v. Putnam, 1 Hill, 302.)
    III. The contract with Reed for a sale was for a sale for cash on delivery. The conditions of the sale were never complied with, nor were the goods ever weighed by Johnson; on this ground Reed acquired no title to the goods. 1. The evidence shows, and the referee has found, that Johnson did not deliver the goods to Reed, and that Reed took them in the absence of, and without Johnson’s knowledge and consent, and without a compliance with the condition of the sale. 2. There was no competent evidence that the foreman did deliver the goods, or that he knew of the conditions of the sale. If there had been any such evidence, the foreman by an act of delivery could not be deemed as having waived a condition of which he had no knowledge. 3. Whether there was an unconditional delivery by the vendor was a question of fact, and the referee has found that there was not, and that is conclusive. (Smith v. Lynds, 1 Seld. 45.)
    TV. The insertion of the name of Shultz and Griffin in the bill of lading, did not give them any property in the goods until delivery of the bill of lading, or affirmative evidence that the goods were purchased on their account, that disposes of all claim from the consignees or their assigns. (Williams v. Allen, 12 Pick. 300; Lawe v. De Wolf, 8 Pick. 101; Buffington v. Curtis, 15 Mass. 53; Abbott on Shipping (Story & Perkins’ ed. 1850), 409, note 1.) The tender covered all claim on the ground of bill of lading.
    V. So long as the bill of lading remained in the hands of Reed no one but Reed could obtain the possession of the goods, and it would have been a good and perfect defence on the part of the carrier that Reed was not the true owner, and, therefore, not entitled to the goods. (King v. Richards, 6 Whart. R. 418; Robinson v. Baker, 5 Cushing, 145 ; Bates v. Stanton, 1 Duer, 29; Wilson v. Anderton, 1 Barr. & Ad. 450 ; 20 Eng. Com. L. 426; Handerson v. Wilcock, 9 Bing. 378; 23 Eng. Com. L.)
    YI. The defendant having claimed the right to detain the goods on the ground of having delivered a bill of lading, by that act assumed to protect and hold the goods for the fraudulent vendor; that act was itself a conversion. (Thompson v. Vail, 2 Carr. & Payne, 334; Thompson v. Rose, 16 Com. R. 84; Wilson v. Anderton, 1 Barn. & Ad. 450; Watts v. Potter, 1 Mason, 77.)
    VII. Ho tender of the expenses incident to receiving and stowing the goods, or of expenses incident to delivering the goods, was necessary in this action, even if under other circumstances the defendant was entitled to have them paid. 1. Because the defendant claimed to retain them upon another distinct ground, that of having delivered a bill of lading. ( Watts v. Potter, 1 Mason, 81; Thompson v. Rose, 16 Conn. R. 84 ; Davis v. Vernon, Ad. & Ell. 448, 49.) 2. Ho claim at the time of demand was made for receiving and storing the goods, hence if defendant had a lien on that ground, he must be deemed as having waived it. (Boardman v. Sill, 1 Campbell R. 410, note.) 3. If the claim on this ground was sufficiently specific, thén the tender of all loss or damage that might arise from a delivery was broad enough to cover loss incident to receiving and stowing the goods.
    Till. The plaintiff was not bound to tender the defendant anything for the trouble and expense incident to a re-delivery of the goods. 1. The plaintiffs, if the defendant had assented to their retaking the goods, wonld have had' to perform that service. 2. The plaintiff was not bound to employ the service of the defendant for that purpose. 3. Because the defendant claimed an indemnity against all the expenses incident to getting out the goods, when much of that expense was incident to undoing much which the defendant had done after he had enough to have put him upon inquiry. 4. The defendant claimed a right to detain the goods upon the other and distinct ground that he had given a bill of lading, so that the tender would have been useless. The claim to detain the goods on the ground of the bill of lading, dispensed with a necessity of a tender of these expenses, even if the defendant otherwise would have been entitled to have such expense paid or tendered. 5. The defendant had no right to a lien upon the goods for any prospective service in reference to them after notice of plaintiff’s right.
    IX. The defendant was not entitled to the protection of a bona fide purchaser. 1. Had the defendant innocently received the goods from Reed, who was a wrongdoer, he.would not have had a lien upon them for the expenses incident to their receipt and storage. 2. His possession was without the consent of the owner, express or implied; and under such circumstances a common carrier is not entitled to protection as a bond fide purchaser. (Robinson v. Baker, 5 Cushing, 137; Fitch v. New-

      berry, 1 Dougl. Mich. R. 1; Angell on Carriers, § 365 to 367.) 3. If under ordinary circumstances a carrier is entitled to protection as a bond fids purchaser, the evidence discloses the fact, and the referee has found the fact, that the defendant, at the time he delivered the bill of lading, from Reed’s peculiar and excited manner, had some suspicion that something was wrong. This was sufficient to put the defendant on the inquiry, whether the shipper was in fact the real owner, or whether he was shipping the goods fraudulently. A neglect to inquire under such circumstances was equivalent to positive notice, and deprives the defendant of the privilege of a bond fide purchaser. (Pringle v. Philips, 5 Sandf. R. 157, and cases there cited, especially pages 168,169, 172, 173.)
    X. The evidence in reference to other cotemporaneous fraudulent purchasers was admissible for the purpose of proving the fraudulent intent of Reed in the purchase. (Thompson v. Rose, 16 Conn. R. 80 ; Carey v. Houghtailing, 1 Hill, 311; Hawes v. Dingley, 17 Maine R. 340 ; Pierce v. Hoffman, 24 Vermont, 525; Greenleaf on Evidence, vol. iii. § 15, p. 16.)
    XX Upon the question of fraud it was competent to show that all the property Reed left behind was not sufficient to satisfy his debt.
    XII. The evidence that Reed had absconded was admissible, and for that purpose it was competent to prove what was learned upon inquiry, at his last place of business, from persons in charge of his store. The fact was, however, fully proven without that evidence. First, Morris proves that he seized and sold his goods, and that Reed never appeared. Johnson proves that he went to the store, and Reed was not in, and that he endeavored to find him after he got the goods, and could not.
    XHI. Should the court arrive at the conclusion that the referee admitted improper evidence, which we believe it cannot, even then, as the cause is before the court upon a case containing the whole evidence, the court, if satisfied that substantial justice had been done, should not, for that reason, set aside the report of the referee.
   By the Court. Bosworth, J.

If the evidence establishes the fact found by the referee, that Reed took the goods from the store of Johnson, in the absence and without the knowledge or consent of the latter, the plaintiffs were entitled tq the goods, on demanding them. If they were so taken, the taking was a naked trespass. One who tortiously possesses himself of another’s goods, without a delivery from, or the consent, express or implied, of, the true owner, can vest no title in even .a bond fide purchaser. (Saltus v. Everett, 20 Wend. 267, 278-9; Hoffman et al. v. Carew, 22 Wend. 285; Angell on Carriers, § 360-369; Buskirk v. Parrington, 2 Hall, W. S. 561; Collman v. Collins, Id. 569; Robinson v. Baker, 5 Cush. 137.)

But when an owner delivers possession of chattels, intending at the same time to then part with his property in them, anyone bond fide purchasing them from the person to whom they were so delivered, will obtain a title valid as against the first owner, though he'may have been induced to sell and deliver them by fraud or false pretences, which would authorize him, to disaffirm the contract and reclaim them from the person to whom he had delivered them. (Mowry v. Walsh, 8 Cowen, 238; Parker v. Patrick, 5 J. R. 175; White v. Garden et al., 5 Law and Equ. R. 379; Stevenson v. Newman, 16 Law and Equ. R. 401-408; Rowley v. Bigelow, 12 Pick. 307; Hoffman et al. v. Noble et al., 6 Met. 68; Colton et al. v. Gage et. al., 13 Illinois R. 610, 614; McMahon v. Sloan, 2 Jones, 283; Kingsbury v. Smith, 9 N. H. R. 109; Carpenter v. Nixon, 5 Hill, 260; Ward v. The People, 3 Hill, 395.)

. Any one who in good faith advances money, or, in the ordinary course of business, incurs legal liabilities, on the faith of the fraudulent possessor being the true owner, and without any knowledge or notice to the contrary, is entitled to the protection which the law extends to a bond fide purchaser.

It seems that in case of a sale and delivery, even where the delivery is conditional, a bond fide purchaser, from the person to whom the delivery was made, will acquire a valid title.. (Covill v. Hill, 4 Denio, 323-330; Smith v. Lynes, 1 Seld. 41-48.)

If the sale was conditional, but the goods were delivered unconditionally, the title vested in Reed on the delivery, so' that he could clearly confer title on a purchaser in good faith.. .

If Reed took the goods as a trespasser, the master to whom he delivered them would not be liable until they had been demanded of. him, and he had refused to allow the owner to take them. The mere receiving then on board of the vessel, when so delivered, would not be a trespass, nor amount to a conversion. (Ely v. Ehle, 3 Coms. 506.)

If the master, when he received the goods on board, had notice of the fraud, if any there was, of Reed, or notice of facts and circumstances which should have put him on inquiry, and which, on reasonable inquiry, ' would have enabled him to ascertain the truth, he cannot claim the protection which the law extends to a bond fide purchaser.

Hence, it is evident that, on the case as now presented, the' rights of the parties depend on the question, whether the. evidence justified the referee in finding that the goods were taken by Reed as a trespasser, without the knowledge or con- • sent of Johnson. If taken by delivery from, and with the knowledge and consent of, anyone authorized by Johnson to make the delivery, theh, in judgment of law, they were delivered by Johnson. The testimony is, that a sale had been contracted on the terms that Reed should pay on delivery. The goods were made up and boxed. They were boxed on the morning of the day they were taken away. They were marked that morning by Johnson. During his absence that day, his foreman, a part of whose duty it was to superintend the delivery of goods, made out an invoice and delivered that and the goods to Reed. So Johnson’s foreman told him. Johnson does not make the foreman say that Reed made any misstatement to obtain the delivery, or that the delivery was made on any condition, nor does he say that what his foreman stated was untrue. The delivery was on a Saturday. On the following Monday Johnson called at Reed’s place of business. He had not previously sent any bill of the goods to Reed, nor any request" to him to return the goods.

From this testimony it is quite evident that the goods were taken by delivery from the foreman of Johnson, whose business it'was to make delivery. The foreman had not been instructed not to deliver without actual payment. Whatever was" done by the foreman, within the general scope of his authority, and with his knowledge and consent, was done, in judgment of law, by Johnson, and with his knowledge and consent. If the transaction between the foreman and Reed was no more than Johnson testifies his foreman to have said about it, and what the foreman said took place is all that occurred, then it does not appear that any condition was connected with the delivery, nor what occurred or was said in relation to payment.

It being found that the master received and stowed the goods in good faith, without any knowledge of the fraud practised on Johnson, the plaintiffs, in order to charge the defendant, should establish a clear j/rima fade case of continued property in Johnson, down to the time of the sale- to themselves. Presumptively it was in- their power to have shown what took place at the time of the delivery to Reed. As the delivery was under a contract of sale, we do not see how it can be found that it was upon a condition that would prevent the title passing, or with a clear intent that it should not pass, until payment was made, without proof other than that the goods were delivered, with an invoice of them-, to' Reed, at his request, by a person authorized to make a delivery of them.

When the- delivery is absolute, without any contemporaneous declaration qualifying it, the- &mis of proving the condition rests upon the vendor. If no such proof is given-, the,delivery will be deemed absolute, and the title to- the goods will pass to the vendee. (1 Selden, 45, 46.)

The judgment must be- reversed, the report set aside, and rule of reference vacated, and a new trial ordered with costs to abide the event.


text:
    William Grim and Six Others v. Harrison G. Dyar.
    J. D., by bis last will and testament, devised all his real estate to his five children, named as tenants in common, in fee, with.a lien over to the survivors in case either of his children “ should die under age, or married leaving no lawful issue.”

      Semble, that the word “ or” should be construed “ and,” so as to confine the limitation oyer to the event of a child dying without issue, under age.

      Held, that it was not necessary to decide this question, as the claim of the plaintiffs to the premises in question was clearly barred by an adverse possession of more than twenty years.
    (Before Oakley, C. J., Campbell and Bosworth, J.J.)
    May 8, 20, 1854.
    The action was brought to recover the possession of one-sixteenth part of three lots of ground in the city of New York,, in. Houston street, and one in Broadway. The plaintiffs claimed title as the heirs-at-law of one Catharine Corbett,.deceased.. The defendant in his answer denied the title, and, as a bar to the recovery, set up an adverse possession of more-than twenty years.
    The following are the material facts, as they were- admitted by the counsel of the parties upon the trial:—
    John Dyckman, the elder, died' seized- of the premises in question, in the month of July,, 1793.. He left five children surviving him: First, Catharine, then- the wife of Peter Grim, jr., and after his death married to Zachariah Corbett ;• second, Rebecca, then the wife of John Yreelandt; third,. Teunis E.; fourth, Matthew; fifth, John-;' all of whom were of full' age before the death of their father.. Under the provisions of 'the last will of the father, all the estate,, of which he died seized, vested in the children, as tenants- in common, in fee, immediately upon his death. Upon a partition made between them, shortly after the death of their father, the premises in question became the property of Catharine, Rebecca, Teunis, and' John, and by them (the husbands of the daughters uniting) were conveyed in fee in September, 1793, in part to William Sloo, and1 the residue to Anthony Smith, and from those grantees the defendant, by sundry mesne conveyances, derives his title. The-actual possession from the year 1793 has been in conformity to the successive conveyances.
    Peter Grim, the husband of Catharine, died in 1798. She afterwards married Zachariah Corbett, who died in 1813. She-died herself in December, 1849. Rebecca died, without leaving issue, on the 11th September, 1830.
    The plaintiffs are the children and grandchildren, and as such the heirs-at-law of Catharine Corbett. They found their claim to recover, in consequence of the death of Rebecca without issue, upon the construction given by their counsel to the following clause (the fifth) in the will of John Dyckman, the ancestor:—
    “ Item, it is my will and pleasure, and I hereby order and direct, that in case either of my children should die under age, or married leaving no lawful issue, that then, and in such case, the part of him or her so dying shall go to the survivors, their heirs, and'assigns for ever, to be equally divided between them," &e.
    By consent a verdict was rendered for the defendant, subject to the opinion of the court at General Term.
    The counsel for the parties now submitted the casé upon their printed points.

      C. W. Sandford for plaintiffs.
    I. Catharine Corbett, upon the decease of Rebecca Yreelandt, her sister, who died married, leaving no lawful issue, became seized, as tenant in common, of one equal tenth part of the premises in question, under the fifth clause of the will óf her .father. 1. The limitation over is made to take effect upon the contingency of either of the children dying under agé, leaving no lawful issue, or dying married, leaving no lawful issue. 2. This construction gives effect to all the words used, and is rational in itself, and consistent with every other part of the will, and with the situation of the testator’s family. ’ (5 Barn. & Ald. 917.) 3. This is the natural and proper sense of the words used, and there is nothing in the clause, nor in any other part of the will, to require or authorize the rejection of the disjunctive sense of the word “ or.” (Woodward v. Glassbrooke, 2 Vern. 388 ; Roosevelt v. Thurman, 1 Johns. C. R. 219, 228.) 4. The rule of construction by which the courts have in some cases changed “ or” into “ and,” has no application to the present will, (a) The rule is-confined to cases where an estate of inheritance is devised to a person with a limitation over, depending on his age or issue; and is adopted to effectuate the general intent of the testator, and because otherwise if the first taker should die under age, though leaving issue, such issue would be disinherited; and to cases of the like nature. (Fairfield v. Morgan, 2 Boss. & Pull. 38 N. R.; Jackson v.
      Blan, 6 Johns. 54; Haunus, lessee, v. Shuts, 2 Binn. 532; 1 Powell on Devises, by Jarman, 375, 5th Law Lib.) (i) In the present case the limitation depends on the failure of issue, with the additional circumstance of dying under age or married. The failure of issue being the leading contingency, the case is not within the reason of the rule, (c) If “ or” in this case is changed into “ and,” the word “ married” will be rendered nugatory, and the intent of the testator to preserve to his family the share of a son or daughter who might be married and die without issue, be defeated, (d) It would also defeat his intent, if any of his children died under age and unmarried, (e) The rule in question is not to be extended to any new class of cases, unless absolutely necessary to effect the intent of the testator. (Douglas v. Eyre, Gilpin, 148 ; Bos. & Pul. 51.)
    ., II. The deed executed by Mrs. Corbett with her husband, passed no greater estate than she then possessed, and cannot operate against her by way of estoppel, to prevent her taking the, estate which descended to her upon the death of her sister. (Jackson v. Vanderheyden, 17 Johns. R. 167; 3 Paige C. R. 471; 2 Kent’s Com. 149, 168 ; 2 Ves. Junr. 676; Pellerteau v. Jackson, 11 Wend. 110 ; Martin v. Develly, 6 Wend. 13.)
    HI. The plaintiffs being tenants in common with the defendants, and holding under the same title, there is no adverse possession.

      C. A. Shermam for defendants.
    L. Rebecca, daughter of John Dyckman, having attained the age.of twenty-one years, had a fee simple estate in the property in question, which was not divested by her dying without issue, and she lawfully, after she came of age, conveyed the lots in question to William Sloo and Anthony Smith, in 1793, as before stated. The fee was contingent only upon her dying under age, and if under age, without issue. The settled construction of the words contained in John Dyckman’s will, “ under age, or married leaving no lawful issue,” is that the contingency ceases on the happening of either event, to wit, attaining twenty-one years, or leaving issue. (Jackson ex dem. Burhans and wife v. Blanshaw, 6 Johns. R.; 54 Jarman on Wills, vol. i. 416, &c. (2d Am. ed. 1849); Hilliard’s Abdgt. vol. ii. 520 and 521, chap. 41, §§ 13, 14, and 15, and cases cited.) In sup port of this position many other cases may be cited, of which the following are a part:—Barker v. Surtees, 2 Stra. 1175; Walsh v. Peterson, 3 Atkin. 193; Framlingham v. Brand, Cruise Digest, vol. vi. 131, and cases there cited (Am. ed.).
    H. The plaintiffs are barred also by the statute of limita-' tions. 1. The defendant and those from whom he claims have been in possession under conveyances since 1793. (See R. S. vol. ii. 293, §§ 5, 8, 9, and 10.) 2. The plaintiffs are not within any of the exceptions of the statute. Rebecca Yreelandt died September 11, 1830; Catharine Corbett, her sister, could then have brought suit, if she could not have done so before; she1 was under no disabilities. But suit was not brought till the year 1853, nearly 23 years thereafter.
   By the Court. Oakley, C. J.

We think that we should be fully justified, by a long series of decisions, in holding that, in order to carry into effect the apparent intent of the testator, the word “ or,” in the fifth clause of the will, must be construed “ and,” so as to make the limitation over depend upon the contingency of the death of one or more of the children under age, without issue then living. The construction of the plaintiffs’ counsel, in effect, expunges the words “ under age” from the will, for supposing the testator to mean that the limitation over should take effect upon the death of any of the children without issue, whatever might be the age of the person so dying, the words “ under age” are plainly senseless. Had such been his meaning we cannot think that they would have been used. It is true that the word married” creates some perplexity. It embarrasses a construction that otherwise we could not hesitate to adopt, yet we cannot believe that the testator meant that marriage should have the effect of making an estate defeasible that otherwise would be absolute. Such, however, would be the necessary consequence of holding that the word “ married” was used to denote an alternative contingency. Oh the other hand, it is just as difficult to believe that he meant that the share of a child dying under age, and without issue, ■should, go over, if he were then married, and not otherwise. Upon either construction, retaining the word “ or,” or' substituting “ and,” marriage, if any effect is to be given to the word “married,” is made a necessary condition of the limitation over. It is hardly possible that this could have been the intention of the testator, and hence, in order to give any reasonable interpretation to the clause of limitation, it seems that the word “ married” must be stricken out entirely. We think that the share of the child dying without issue should go to the survivors, whether the child should be married or unmarried at the time of his or her death, and that he probably meant that the limitation over should only take effect, in the event of such a death, during the minority of the person dying. And were it necessary it is this last construction that we should be inclined to adopt.

It is not necessary, however, nor do we mean to place our decision upon this ground, since we are all of opinion, that, adopting the plaintiffs’ construction of the clause of limitation, their claims, as the heirs-at-law of Mrs. Corbett, are effectually barred by the adverse possession, which is shown to have continued without interruption for more than twenty years prior to the commencement of this action. In 1830, when her sister Rebecca died, without issue, Mrs. Corbett was under no disability. She had then, if at all, an immediate right of entry, that she might then have enforced by suit. The statute, therefore, then commenced to run against her, and as nothing has since occurred to suspend its operation, the statutory period was more than completed when this action was brought. Hence it has perfected the title of the defendant, and raised a full bar to a recovery by the plaintiffs.

It is true, as a general rule, that the possession of a tenant in common is not considered to be adverse, since in judgment of l$w the possession of one such tenant is the possession of all, but the rule is not applicable when there is sufficient evidence of an ouster of the co-tenants; and in the case before us we think that the evidence of an ouster, setting the statute in motion, is not merely sufficient but conclusive. During the whole statutory period there has been an exclusive possession, an exclusive reception of rents and profits, and an exclusive claim of title. The defendant, and all those from and through whom he derives his title, from the year 1793, have held the possession under deeds which, in terms, gave to them in succession an absolute fee, and nothing has been shown to shake the legal presumption that they have all claimed the title which their deeds purported to convey. There are other difficulties in the way of a recovery by the plaintiffs in this case, to which,- as they seem .to have been overlooked by the counsel of the parties, we deem it unnecessary to advert; we mention the iact merely to repel an inference that might otherwise bé; drawn from our silence. It. is sufficient now to say that the defence of an adverse possession, which, by force of the statute, bars a recovery, has, in our opinion, been fully established.

Judgment, upon the verdict, must be entered for the defendant with costs.


author: By the Court. Campbell, J.

text:
    Tobias Weyant v. The New York and Harlem Railroad Company.
    The plaintiff was thrown out of his wagon by a collision with a railroad ear, the property of the N. Y. and N. H. R. E. Co., but which was drawn by horses owned by the N. Y. and H. R. R. Co., and was driven by a driver in their employ.

      Held, that the plaintiff’s action for the injuries sustained by him was properly-brought against the N. Y. and H. R; R, Co., the proprietors of the horses and employers of the driver.
    (Before Oakley, C. J., Campbell and Boswokth, J.J.)
    May 9;
    May 20, 1854.

    This action was tried before Mr. Justice Duer and a.jury, on the 14th of Hovember 1853. The pleadings and evidence established the following facts.
    ' The defendants, The Hew York and Harlem Railroad Company, were proprietors of a railroad running through certain streets in the city of New York, The cars of the New York and New Haven Eailroad also regularly passed over the defendants’ track for a considerable distance in the city, and in Canal street there was a short line of track, leading from the track used by the defendants and the New Haven Eailroad Company in common, to the depot of the New Haven Eailroad Company in Canal street. This short track had been laid down by the defendants for the use of the New Haven Eailroad Company. The Harlem Company, the defendants, were further under contract with the New Havén Company to draw the cars of the latter, furnishing horses and drivers therefor, from their Canal street depot up to Thirty-first street.
    The plaintiff was a dealer in ice, engaged in the business of supplying customers from a covered ice-cart. On the 25th day of July, 1851, the plaintiff, in his wagon, was passing through Canal street, on the right-hand side of the track, and between the track" and a pile of bricks. A car owned by the New Haven Company, but drawn by horses owned by the Harlem Company, and driven by a driver in their employ, came up behind his wagon, and, through the uncontroverted negligence of the driver of the car, it struck the wagon, broke it, threw the plaintiff out, and passed on, leaving the plaintiff and his horse and wagon, as .one of his witnesses expressed it upon the trial, “ all in a heap up against the bricks.”
    • The driver of the car was in general subject to the directions of the conductor employed by the New Haven Company, but it did not appear that the conductor had given him any directions at this time.
    The learned judge who tried, the cause charged the jury, that if the collision happened through the negligence of the driver of the car, and without any negligence on the part of the plaintiff, the latter was entitled to recover. He further instructed them for the purposes of the trial, that the action, if it could be sustained at all, was properly brought against the defendants. To this portion of the charge the defendants’ counsel excepted.
    The jury found for the plaintiff, and assessed his damages at five hundred dollars. Judgment was reserved, with leave to the plaintiff to move for judgment upon a case to be made, and upon such motion subsequently made, judgment was rendered for the plaintiff, from which the defendants now appealed.
    The only question discussed upon the appeal was, whether the defendants were the party liable.

      C. W. Sandford, for appellants.

      E. H. Owen, for respondent;

       Reported by Lyman Abbott, Esq, and the opinion of the judge taken down by him in short-hand.

   By the Court. Campbell, J.

In this case the facts are briefly these. Weyant was thrown out of his wagon and injured in Canal street, by a car which belonged to the Hew Haven Railroad Company, but the horses which drew it, and the driver who was driving it, were in the employ of the defendants, the Harlem Railroad Company.

The sole question which arose was, whether the Harlem Railroad Company, or the Hew Haven Railroad Company, were liable.

This exact question has not, I believe, arisen before in this country. It has arisen, however, in several cases in England; and among these, I refer especially to the following—Laughley v. Pointer, 5 B. & Cross. 560; Quarman v. Burnett, 6 M. & Wels. 697; Rapson v. Corbett, 9 M. & W. 709; Allen v. Haywood, 7 Ad. & Ell. S. 960. In LanigMey v. Povnter, the judges were divided, but in all the others they were unanimous, and the true rule deducible from all of them is undoubtedly that which is lucidly stated by Parke, Baron, in Quarman v. Burnett. In that case, the defendant was the owner of a carriage, and had hired from a third person a driver and pair of horses to draw the same for a short time, and during this time, the plaintiff’s horse, through the carelessness of the driver, was injured. The question was, whether the defendant, as owner of the carriage, was liable. The judges were all of opinion that he was not, and in delivering their judgment, Parke, Baron, said—“ Upon the principle, ‘ qwifaoit per alvam facit per ss,’ that person is undoubtedly liable who stands in the relation of master to the wrong-doer, who had selected him from the knowledge of, or belief in, his skill and care, who could remove him for misconduct, and whose orders the wrong-doer, as a servant, was bound to receive and obey.” It is evident that every word here said is applicable to the case before us.

The Harlem Bailroad Company was the owner of the horses which drew the car, and the driver was in their employ, paid by them, bound to receive and obey their orders, and liable to be dismissed by them at pleasure.

The fact of negligence has not been in dispute at all, but we have simply to determine which of the companies is liable, in damages, to the plaintiff. We think the proper parties are sued in this case.

The sole distinction between this and the English cases already cited is, thát the conductor, who came down in the Hew Haven- cars, might have had a supervision over the driver of the car; but it does not appear, that, in point of fact, this conductor gave any direction in relation to these matters at all. We have, therefore, the case of the Harlem Company being the owners of the horses, and the driver being their servant, and in their immediate employ. Hnder these circumstances, it appears to me that the Harlem Company were alone liable, and that the judgment rendered against them should be affirmed with costs.


text:
    Leopold Burchard and Another v. William Tapscott and Others.
    A bill of sale conveying a vessel, with her masts, bowsprit, sails, boats, anchors, cables, and all other necessaries thereto appertaining and belonging, does not pass the ballast which is on board the vessel at the time of the sale; movable ballast, whether it consists of iron, stone, or any other substance, not being a necessary appurtenance to the ship.
    (Before Oaklet, C.J., Campbell and Bosworth, J.J.)
    May 10; 20, 1854.
    The action was brought to recover the value of fifty tons of iron, which the complaint alleged belonged to the plaintiffs, and had been unlawfully taken possession of, and converted to their own use by the defendants. The value of the iron was averred to be $1,000, for which sum judgment was demanded.
    The answer took issue on all the material allegations in the complaint. ■ •
    The cause was submitted to William Kent, Esq., as sole" referee, who found that the iron in question was the property of the plaintiffs, and had been xxnlawfully converted by the defendants to their own use, and reported that judgment should -be entered for the plaintiffs, against the defendants, in the sum! of $1,077besides costs.
    The defendants appealed from the judgment entered upon this report, and the cause was heard upon a case containing the pleadings, the proofs taken before the x-eferee, and his report. It is deemed unnecessary to state the evidence "before the referee, as all the facts proved before him upon which, in the judgment of the court, the controversy turned, are sufficiently stated in the opinion of the court.

      F. B. Marbury, for the defendants, appellants,
    insisted that the judgment ought to be reversed, and the report of the referee set aside as contrary to law and evidence. He cited Edwards v. Hooper, 11 Mees. & Wels. 369; Bell v. Covell, 1 Comst. R. 524; 2 Greenleaf’s Evid. § 644; Phillips on Evid. 224-28.

      T. W. Tucker, for the plaintiffs, respondents,
    cited Kynter’s case, Leonard, 48; Lane v. Mate, 2 Starkie, 105 ; S. C. 1 Eng. Com. L. R. 269 ; Richardson v. Clarke, 15 Maine R. 422; Abbott on Ship. 5-9 ; 1 Duer on Ins. 192, 198.
   By the Court. Bosworth, J.

This suit is brought to recover the value of fifty tons of iron, usually known as/‘ kentledge,” xxsed as ship ballast. The facts out of which thé contróvei'sy grew are these : The plaintiffs being the owners, entered into a contract with W. & J. T. Tapscott & Co., who comprised all the defendants, to charter a vessel to them for a voyage to Australia and back. The stipulated sum to be - paid was $10,000. The vessel was to sail on the 10th of October! There was a provision in this contract that at anytime before the Vessel actually sailed, Tapscott & Co. might become the purchasers of her at the price of $15,000, and on the payment to the plaintiffs of such disbursements as they might have made for new sheathing. A few days before the vessel sailed, they gave notice of their election to purchase the vessel at $15,000. The sale was made, but instead of the bill of sale being executed to the plaintiffs alone, some arrangement seems to have been made by which Henry A. Bailey, the then master of the vessel, became a purchaser of one-half, and a bill of sale was executed directly to him for one-half; he paid $7,500, and a bill of sale of the other one-half was executed to James T. Tapseott, one of the defendants. The question is, whether the bill of sale carried this kentledge.

The terms of the conveyance are, that Burchard does bargain and sell unto the said James T. Tapseott, one-half of the bark or vessel, together with one-half of the masts, bowsprit, sails, beats, anchors, cables, and all other necessaries thereto appertaining and belonging. The kentledge was on board of the vessel at the time the contract to charter was made, and the vessel was put in the defendants’ possession under that contract. The vessel had performed, according to the evidence, one or two voyages before the kentledge was procured.

It was urged on the part of the defendants, that-the legal effect of the bill of sale was to vest in them the title in the kentledge, and on that ground objection was made to any parole evidence being given of what was said between the parties at the time the charter-party was made, and subsequently to that, and prior to the execution of the bill of sale. Passing over that evidence, therefore, we shall consider the case upon the legal construction of the bill of sale. In the case of Baur v. Mate, reported in the 2nd of Starkie, 105, it was decided that kentledge did not pass by an instrument conveying a vessel in these terms; that it was not a necessary appurtenance; that common ballast might be used as well as kentledge; and that vessels might perform voyages, and frequently did, without anything for ballast other than the cargo. This rule we find to be also laid down by elementary, writers, and we think, therefore, that the referee correctly decided that the bill of sale did not pass title to the kentledge.

If we look outside of the bill of sale, to determine upon the parole evidence whether the kentledge was in fact sold, we have no reason to be dissatisfied with the finding of the referee. Judgment affirmed, with costs.

       Ex rel. L. Abbott, Esq.