source: Caselaw Access Project

author: Duer, J.,

license: Public Domain

text:
    Charles H. Carpenter v. Henry Shelden and others.
    In an action against several defendants for malicious prosecution, the separate acts and declarations of individual defendants, ought not to be admitted in evidence to charge other defendants not then present, in the absence of any proof of conspiracy.
    In such an action the jury cannot, upon the question of malice, and in determining the amount of damages, take into consideration facts, establishing against some of the defendants, a case of false imprisonment; that constituting a distinct cause of action for which those defendants may he rendered liable in another suit.
    The question of probable cause, upon a given state of facts, is in all cases a ques- ■ tion of law. It is therefore erroneous for the judge, in an action for malicious prosecution, to submit it to the jury to determine whether the facts and circumstances in evidence afforded the defendants reasonable grounds for believing that the plaintiff was guilty of the offences which they laid to his charge.
    It is also erroneous to shift the burden of proof from the plaintiff to the defendants, by instructing the jury, that if the defendants acted upon information, the jury must be satisfied that they believed in its truth.
    The jury should be instructed that they are bound to presume that the defendants believed in the truth of the information upon which they acted, unless it clearly appears from the evidence that the information was false, and that they knew it to be so.
    A joint verdict against several defendants, as tort-feasors, upon several counts, all of which are good, cannot be reformed by limiting it to particular counts or particular defendants; but if upon any one of the counts, and as against any one of the defendants, it is contrary to law or evidence, it must be set aside.
    (Before Duer, Mason, and Camtbell, J.J.)
    (March 6, 1851.
    June 24, 1851.)
    Motion for a new trial upon a case. The cause was tried at the New York Circuit, in April, 1848, before Justice Hurlbutj and was transferred to this court in. pursuance of the statute. The action was for malicious prosecution. The plaintiff was a stockholder in the Kidd Salvage Company, and the defendants were members and agents of that company. In June and July, 1846, the plaintiff was engaged at Caldwell’s Landing, in investigating certain alleged frauds of the said company, and procuring affidavits tending to prove the existence of said frauds. Whilst so engaged, he was arrested by the procurement of the defendants, and certain other members and agents of said company. On the 14th of July, 1846, at an early hour of the morning, a Miss Lemoine, who was a fortune teller and one of the employees of the said company, acting in concert with the defendants and other persons, some members and some agents of said company, sent Cowles, another agent of said company, and one of the defendants, to the police office of the 10th District of the City of New York, to procure the services of Benjamin Whitehouse and Jackson Bumstead, two police officers of said district. Cowles returned with the police officers before mentioned, to the house of the said Lemoine, in Broome street, where they saw and received instructions from the defendant Shelden. He also induced the police officers to accompany him to the Tombs, and thence to the office of the chief of police. The defendant desired the chief of police to allow the police officers to go to Brooklyn, and ascertain whether the plaintiff had passed counterfeit money at Brooklyn, and near the racecourse. On the earnest solicitations of said Shelden, the chief of police consented to send the said two officers to Brooklyn, where they speedily ascertained that the plaintiff was not the man who had passed the counterfeit money, which information they communicated to the defendant Shelden on their return. Afterwards, the defendants, under pretence of effecting the arrest of one Andros, a notorious counterfeiter, induced the chief of police to send the officers aforesaid to Caldwell's Landing, in company with the defendant Shelden. Shelden informed the said chief of police that the plaintiff was aiding Andros to escape, and induced said chief to direct said officers to arrest the plaintiff, if they should detect him in aiding said Andros, as charged by Shelden.
    • The expenses of the officers were to be paid by Shelden, and he gave Bumstead $5 for that purpose, and on a subsequent occasion, his attorney, George Bowman, paid Whitehouse $20 for his services in the matter. The plaintiff was in New York on ■ that day, and might have been arrested before the boat left the city ; but, in pursuance of the suggestions of the defendants, the arrest was deferred till the boat arrived at Caldwell’s Landing. The officers went to the boat one quarter of an hour before her departure, and there saw the plaintiff, but made no attempt to arrest him. Miss Lemoine and the defendant Shelden were also there, and all the parties went up as passengers in the said boat. On the arrival of the boat at Caldwell’s Landing, the plaintiff, who was accompanied by two ladies, was allowed to go ashore without any molestation, but soon after was arrested by White-house, at the pressing request of the defendants Shelden and others. Before the arrest, the defendant Shelden stated in substance to Whitehouse, at Caldwell’s Landing, that the plaintiff was a notorious counterfeiter, and had passed counterfeit money in four or five places in New York and Brooklyn. The defendants charged the plaintiff with several other crimes, and finally procured his arrest and imprisonment, until the following day, 'when he was carried to New York, and prosecuted by them for several offences, among which was the charge of passing counterfeit money and threatening to shoot Pierson. The plaintiff was, by the procurement of the defendants, taken before nearly all the police magistrates in the city—first, to the office of the chief of police; secondly, to the Tombs ■ thirdly, to Justice Taylor, at Essex Market; fourthly, back to the office of the chief of police, and then again before Wm. Wain Drinker, Esq., the police justice at the Tombs. No one of these magistrates thought the evidence produced against the plaintiff proved such probable cause or reasonable ground to believe the plaintiff guilty, as to warrant his committal, and after a very full examination before Mr. Justice Drinker, he was discharged at about half-past ten or eleven o’clock, P. M., on the fourteenth of July, 1846 ; but, at the request of the defendant’s attorney, Justice Drinker adjourned the examination over till the next Monday, when the plaintiff attended, but no one appearing to prosecute him, he was finally discharged. During all these examinations, the plaintiff did not call any witnesses in his behalf. The examination before Justice Drinker was conducted on the part of the prosecutors by Pierson, Bowman, Coit, and others, and Cram, Cowles, Michael Lynch, and others, were there as witnesses, as well as Shelden and Freeland.. Cram was the chief witness, and he swore to all the affidavits which Bowman prepared for his signature and verification except one. The plaintiff returned to Caldwell’s Landing on the 15th July, 1846, to pursue his investigations, and collect evidence in relation to the Kidd Salvage Company. On the same day, the defendants, Coit and Michael Lynch, acting in conjunction with the other defendants, went to Leonard Gurnee, Esq., a justice of the peace of Rockland county, made a complaint there against him of his (Carpenter’s) shooting at Lynch some three months before that time, with intent to kill. Lynch was a laborer, employed by the Kidd Salvage Company, in carrying on their operations at Caldwell’s. On the examination, it very clearly appeared that the plaintiff did not shoot at Lynch, and after the examination was closed, Lynch admitted that the complaint was altogether unfounded, and that it was made by the instigation of others. The magistrate being entirely satisfied that there was no probable cause for the charge, dismissed it, without calling on the plaintiff to introduce any evidence in his exculpation.
    No sooner had Carpenter, the plaintiff, been discharged from custody, on the complaint of Lynch, than the defendant procured him to be again arrested, on a warrant issued upon the charge of aiding and abetting the escape of Andros, a counterfeiter. This warrant was issued by Justice De Noyells, of Rockland County ; and the defendants in this suit, by their counsel Pier-son, Bowman, Coit,, Prall, and Frazier (who was also district attorney of Rockland county), appeared before the magistrates of Rockland, to prosecute Carpenter. But after Bennett’s discharge, the prosecutors -introduced no evidence against Carpenter, and he was discharged, without offering any evidence himself, or having any offered against him. When he was discharged from this last complaint, his counsel, William Nelson, of Peekskill, and Mr. Cutler, supposing no other prosecution in contemplation, left the village of Haverstraw, where tlie last examination was held, and took the first boat to go to Peekskill. After they had taken the boat, and Carpenter was left at Haverstraw, some of the defendants procured him to be arrested on warrants issued several days before, and which they had kept in their possession for that purpose.

      Carpenter found bail to keep the peace, and was discharged, no one appearing against him at the Rockland Sessions. He then commenced this suit for malicious prosecution.
    At the close of the plaintiff’s testimony, the defendants moved for a non-suit, specifying, among others, the following grounds : —1. That, as to some of the defendants, there was no proof establishing, or tending to establish, any cause of action whatever, and that the court ought so to decide. 2. That this being so, the action being thus far put forth and supported as an action for conspiracy, could not be sustained, and that the court ought so to decide. 3. That the evidence showed no acquittal of the plaintiff in the legal sense of the term, upon any of the charges made against him, and that the counts alleging an acquittal were not sustained. 4. That it appearing that the plaintiff had never been legally acquitted for any of these charges, but only discharged on the application for him to be held to answer, and the defendant’s now offering to prove that he had since been legally held to answer on indictments for the same charges, which indictments were pending untried, such proof should be admitted and held a bar to the action, or the further maintenance of it, the prosecution of those charges not having been legally terminated. 5. That the plaintiff had not established the want of probable cause for the prosecutions. G. That the plaintiff had not proved malice in the legal meaning of the term. 7. That the court was bound to decide if the plaintiff had or had not made out the want of probable cause. The court ruled that the plaintiff had not proved any of the counts of his declaration save the first five, to which counts he must be confined—to which ruling, the plaintiff, by his counsel, excepted. That as to the said first five counts, the court overruled the motion for nonsuit, and overruled all the objections taken by the defendants as applied to the said five counts : To which rulings and decisions of the court, the defendants excepted.
    The testimony being closed, the court charged the jury, and among other things stated that—It was incumbent on the plaintiff to show a prosecution of him by. the defendants; that a prosecution was usually instituted by a written complaint, but it may be merely oral if made upon oath as a criminal charge, and taken down by the magistrate in writing for the purpose of investigation. That such a complaint is sufficient to sustain the action, if the plaintiff appears, and is put to trial or examination upon it. But that it was necessary the jury should be satisfied, that it was made to a magistrate with a view to induce him to entertain it, as a criminal charge. That such a complaint did not appear to be proved here until the parties came before Justice Drinker, and all the anterior proceedings the jtiry might lay out of view in this action, except upon the question of malice, and in determining the amount of damages, if they should arrive at that question. That if the jury should find that there was a complaint by the defendants against the plaintiff before Justice Drinker, and that witnesses were examined upon it, and that he was discharged, the- plaintiff had made out the first step in his case, to wit, a prosecution. That the next question which presented itself, was the question of probable cause. That the plaintiff, to maintain this action,, must show, not only a malicious prosecution, but also that it was instituted and prosecuted without any reasonable or probable cause. That the' plaintiff must show this, or his action could not be maintained,, and it was for the jury to inquire whether that had been done here. That the defendants were not called upon in the first instance to prove that they had reasonable or probable cause—the burden of proof did not lie upon them, but the plaintiff must bear it, and he must show to the satisfaction of the jury, in the first instance, an entire absence of probable cause, for without this, however malicious the prosecution might have been, his action must fail. That it was invariably necessary in an action of this nature for the plaintiff to give some evidence, or to show from the circumstances of the prosecution, that it was groundless. That it is not in general sufficient to prove a mere acquittal, or even to prove any neglect or omission on the part of the defendant to make good his charges. That malice may sometimes be inferred from the absence of probable cause, but the want of probable cause cannot be inferred from the most express malice. That what facts and circumstances amount to probable cause is a question of law when either the facts are undisputed, or.sufficient facts' are established to determine the question. But whether those facts and circumstances exist in a particular case, is a question of fact for the determination of the jury. That whether there was probable cause in the present case, might be regarded as a mixed question of law and of fact, and it became the duty of the court to submit the facts to the jury, with such instructions on the subject, as the case seemed to demand. That probable cause was the existence of such facts or circumstances, or both, as would lead the mind of a man of common sense, and ordinary prudence and caution, to believe the plaintiff to be guilty. That the facts constituting probable cause must have been .known to the defendants, or some of them, or they or some of them must have been informed of such facts before the complaints and prosecutions were instituted, and they must have believed such information to be true. That it was not suEcient that the defendants suspected the existence of crime—they must have actually believed it, and if they acted on information, the jury must be satisfied that they believed in its truth. That it was'for the jury to determine, whether the facts and circumstances detailed in the evidence, afforded the defendants reasonable grounds for believing that the plaintiff was guilty of the offences which they laid to his charge. If probable cause existed, it was a complete bar to. the plaintiff's recovery. That the absence of probable cause alone would not suEce to maintain this action, but the plaintiff must show in addition, that the prosecution against him was instituted by the defendants maliciously. That the malice necessary to support this action consisted in a corrupt intent to do a wrong, or to effect an injury for an improper or unjust motive. That when there is a total want of probable cause, malice may, in some cases, be presumed, or very slight evidence of malice will suEce ; as in case where the accused party is promptly discharged by the magis; trate without being put to the calling of any witnesses. This presumption may, however, be rebutted by showing that the prosecution was instituted and carried on in good faith, and for justifiable ends. That when the advice of counsel is alone relied upon to show the absence of malice, it must appear that such advice was given before the prosecution, upon a fair and full statement of the facts, and that the defendants believed those facts to exist, and the advice given to be correct.
    The judge further charged that the verdict in this case might be against all or any of the defendants, but that the jury could find but one verdict for the plaintiff; and against whatever parties they found a verdict, it could only be against such as they should find acting together in one or more unfounded and malicious charge or charges. That the grounds of their verdict must affect all such defendants acting together. That the plaintiff could have brought a separate suit against each or any of the parties, but having elected to bring one action against all, he could succeed only against such as he could unite by his proof in one or more charges in which such parties acted together maliciously, and without reasonable or probable cause, •and by combination against him. That if the jury should find one -cause of action against some, not implicating the others, they could not find a verdict on that cause of action without acquitting all the others, although some of the others might be liable for the unwarranted institution of the other charges. That the next question was as to damages ; and that if they should find for the plaintiff, they might of course allow him a compensation for his loss of time while under arrest and prosecution, for his expenses, including expenses of defence, and all such damages as were direct and immediate. That the main ground of damages, however, in such an action, is injury to the feelings and character of the plaintiff. That if the plaintiff only recovers for a false and malicious prosecution of a complaint for misdemeanor, or on a prosecution for an offence less than felony, his damages should not be so high as if he recovered for a false and malicious charge of felony. That if he recovered for the complaint of Lynch, or on the charge of concealing Andros, or on the charge of counterfeiting, as these were felonies, he would be entitled to heavier damages than if he recovered for the prosecutions against him for misdemeanors. That it was contended that the plaintiff’s character was bad ; and on this point evidence had been given on both sides, and was before the jury. But if they should find a malicious prosecution for a felony, without any reasonable or probable cause for its institution, and that the plaintiff’s character was. fair, he was entitled to exemplary damages. The counsel for the defendants excepted to so much of said charge as ruled that just and reasonable cause of suspicion, unaccompanied by proof from which the jury might infer that the party relied in good faith upon it, in making his complaint, was not sufficient probable cause. Also to so much of the said charge as deprived the defendants of the benefit of any facts proved by them to establish probable cause, except such as were shown to have been known to them, or had been communicated to them at the time of the complaint. The defendants’ counsel also requested the court to charge the jury that probable cause was-the existence of such facts and circumstances as would lead the mind of a reasonable man (not a lawyer), in the exercise of ordinary judgment and caution, to suspect the plaintiff to be guilty, or to conclude that the question of his guilt or innocence ought "to be investigated. The court declined to charge in these words, having charged on this point as before stated, and the defendants’ counsel excepted. The defendants’ counsel also requested the court to charge that a less amount of evidence than would be requisite to establish a primé facie case of guilt, would be sufficient to establish probable cause. The court declined so to charge, and the defendants' counsel excepted. The defendants’ counsel also requested the court to charge that if probable cause in point of fact existed at the time of the arrest, it was not incumbent on the defendants to show that they at the time knew and could testify to the facts, or knew the witnesses or proofs to establish them; the existence of probable cause, in fact, is a sufficient justification. The said justice then stated that he. had very fully charged on that subject before, and that he could only add to what he had before stated, that probable cause in fact accompanied by evidence or circumstances from which the jury might infer that the defendants knew it, or were informed of it, and acted upon "it, would constitute a good defence, to which the defendants’ counsel excepted. The defendants’ counsel also requested the court to charge that the bad character of the plaintiff, if proved to the satisfaction of the jury, was to be taken into consideration whether there was probable cause, as a man of bad character may be reasonably suspected upon slighter grounds than a man of good character. The court declined so to charge, and the defendants' counsel excepted. The defendants’ counsel also requested the court to charge that if the plaintiff was prosecuted on several charges of felony, and probable cause "for prosecution. on any of these charges was established, it was a bar to the whole action for malicious prosecution. The court declined so to charge, and the defendants’ counsel excepted. ■The defendants’ counsel also requested the court to charge that as the defendants were charged with a conspiracy, which is an Indictable offence, involving moral turpitude, this action could not be maintained, except upon sufficient evidence to convict the defendants of the crime of conspiracy. The court declined so to charge, and the defendants’ counsel excepted.
    The jury retired under the charge of the court, and rendered ■a verdict of guilty against the defendants—Henry Shelden, •James Freeland, William S. Pierson, Michael Lynch, Smith ■Cram, and Theodore G-. Cowles, with $5000 damages and 6 'cents costs ; and of not 'guilty as to the remaining defendants, Henry B. Cowles, William Coit; George W. Norris, Stephen •Lounsberry, and Lawrence Mahon.

      A. L. Jordan, for defendants, argued as follows,
    I. The verdict in this cause cannot be sustained, because there ivas no evidence authorizing the jury to find that the defendants Shelden, Pierson, Freeland, Cram, Lynch, and Theodore G. Cowles were prosecutors of any one charge, for the prosecution of which the action was brought. (1.) In the original arrest neither Freeland, Theodore G. Cowles, nor Lynch had any participation. It is quite clear that the jury must have charged Theodore G. Cowles upon the evidence given against Henry Brown Cowles. T. G. Cowles was not at Caldwell’s at the time of the arrest. He did not go up from New York that evening, but left the boat before she started. (2.) As to the charge of passing counterfeit money, Lynch certainly is not shown to have had any participation in that, nor Cowles nor Freeland.' The court ruled there was no prosecution till the parties came before Drinker. Freeland is not shown to have been before Drinker at all, or to have participated in any way directly or indirectly in the proceedings there. (3.) In the complaint for shooting at Lynch, neither Freeland nor Cowles are shown to have participated. (4.) The prosecution for concealing Andros, and aiding him to escape, was on the complaint of Lounsberry, whom the jury have acquitted, as well as Norris, who was active in that complaint. Indeed the proof was ample to convict the plaintiff on that charge. Neither Freeland nor Cowles are shown to have had any thing to do with it. The verdict in this respect was contrary to the express charge of the circuit judge.
    II. Great injustice has been done by the credit apparently given to Whitehouse. All the aggravation of the case, if any, was proved by him. Yet it is clear he was unworthy of credit, a.nd was swearing to make others responsible for his own wilful acts. His own testimony is full of the most material contradictions.
    III. The circuit judge erred in omitting to submit to the consideration of the jury the circumstances impeaching the credb bility of Whitehouse. And such omission, although not excepted to on the trial, is ground for new trial .upon a case. (Morrison v. Muspratt, 12 Moore, 231 ; Newell v. Wright, 8 Conn. R. 319 ; Dunlop & Meigs v. Patterson, 5 Cow. 243 ; Penfield v. Rich, 1 Wend, 380 ; Brook v. Wood, 13 Price, 667 ; Archer v. Hubbell, 4 Wend. 517, note ; 1 Johns. Cases, 269, note a.)
    IY. The separate acts and conversations of individual defendants were admitted in evidence against all to sustain this action, notwithstanding repeated objections and exceptions. This was totally unwarranted in law, and the verdict must be set aside. To admit this evidence a conspiracy must have been assumed to have been declared on and proved, which is an entire error. (1.) This is not an action for conspiracy, but case for malicious prosecution. The declaration contains no count for conspiracy. (2.) If it were such an action, the conspiracy —the unlawful wicked combination—must first be made out against the defendants, to be charged, before the separate individual acts of one, can become evidence against the other. And in this case no conspiracy had been proved. In prosecutions for' conspiracies, it is an established rule that where several persons are proved to have combined together for the same illegal purpose, any act done by one party in pursuance of the original concerted plan, and with reference to the common object, is in contemplation of law, as well as in sound reason, the act of the whole party ; and therefore the proof of such act will be evidence against any of the others who were engaged in the same general conspiracy, without regard to the question whether the prisoner is proved to

      have been concerned in that particular transaction. 1 Phill. Ev. 94, (chap. 5, sec. 4.) The acts or declarations of a supposed agent or joint conspirator cannot be received in evidence until proof has been first given to establish the agency or combination. (The People v. Parish, 4 Denio, 153 ; Waterbury v. Sturtevant, 18 Wend. 353.) The rule has never been carried further than that when a common design has been proved, the acts of one in furtherance of the design are evidence against his associates ; but the declarations of one can be received only against himself. (State v. Poll & Lavinia, Sup. Court N. C., 1 Hawks, 492.)
    V. The indictments pending against the plaintiff on the very charges for the prosecution of which he complains, were improperly excluded by the circuit judge. (1.) They were admissible for the purpose of showing the prosecution not yet terminated, an absolute determination and end of the prosecution being indispensably necessary to the sustaining of this suit. The prosecution which is charged to be malicious, must be shown to have been determined ; otherwise it'may possibly happen that the plaintiff may recover in the action, and yet if the prosecution is not determined, may be afterwards convicted of the original charge. (2 Phil. Ev. p. 254, chap. 17.) The reason for this rule is given by Lord C. J. Parker, in the case of Parker v. Langley, (10 Mod. 209,) that if the suit be not determined, the plaintiff may recover in the action for malicious prosecution, and yet be afterwards convicted of the original charge. (Morgan v. Hughes, 2 Term R. 228 ; See also Fisher v. Barstow, 1 Dong. 215 ; Whitworth v. Hall, 2 Barn. & Adolph. 695 ; Bacon v. Townsend, 2 Code Reporter, 51.) An indictment on a charge dismissed by a justice is in the nature of an appeal from the justice’s decision. And an appeal is a continuation of the same suit. (Burt v. Place, 4 Wend. 598 ; Quoted in Gorton v. De Angelis, 6 Wend. 420.) (2.) The indictments were admissible as tending to show probable cause for the prosecutions. A true bill found, constitutes a presumption of probable cause. (See Whitworth v. Hall, 2 Barn. & Adolph. 695 ; 22 Com. L. Rep. 173 ; Per Parke, J.) Where brandy was-condemned by sub-commissioners of. excise, held this showed probable cause, although the condemnation was reversed by the commissioners on appeal, and the defendant had judgment. (2 Esp. Nisi Prius, 122.) So as to an inquisition of lunacy. (Osterhout v. Shoemaker and another, 3 Hill, 513 ; Hart v. Denman, 6 Wend. 497 ; Matter of Christie, 5 Paige, 242.) So as to the finding of a sheriff’s jury. (Bayley v. Bates, 8 Johns. R. 186 ; Van Cleef and others v. Fleet, 15 J. R. 147 ; See also Savil v. Roberts, 1 Salk. Rep. 14, 15.)
    VI. - The evidence of causes of action arising in Rockland county was improperly received. The venue in the action was local.
    VII. The parol evidence of the proceedings by Justice Gurnee, and his discharge of the plaintiff, without production of the justice’s minutes, or accounting for them, was inadmissible, and should have been excluded.
    VIII. On the motion for non-suit, the circuit judge erred. (1.) He erred in refusing to say that, as to any of the defendants, the cause of action was not made out. (2.) He erred in deciding, by overruling the defendants’ objections, that the plaintiff had established the want of probable cause for the prosecutions. The plaintiff had not shown want of probable cause. Qn the contrary, probable cause sufficiently appeared when the plaintiff rested. And the plaintiff should have been non-suited. (3.) He erred in excluding the evidence of indictments pending and thereby holding that such indictments had no tendency to show probable cause, while a discharge by a justice of the peace was sufficient proof of the want of it, and also holding in substance and effect that the plaintiff could recover for the prosecution of a charge, which was not legally determined, on which he was indicted and liable to be convicted and sentenced. Both which propositions are submitted to be utterly untenable upon principle or authority. (4.) He erred in holding that the plaintiff had made sufficient proof of malice in the legal meaning of the term. There was no such palpable want of probable cause as to authorize the jury to find malice. Malice is not spite or enmity, but a corrupt intent to do wrong and work an injury for an unjust motive. (Cohen v. Morgan, 6 Dowl. & Ryl. 8 ; 2 Greenleaf on Ev., sect. 367 ; 3 Steph. Nisi Prius, 2278 ; Mitchell v. Jenkins, 5 Barn. & Ad. 588 ; Gibson v. Chaters, 2 B. & P. 121 ; Stokes v. White, 4 Tyrrwhit's R. 800.) And in this action express malice must be proved. (Scheibel v. Fairbairn, 1 Bos. & Pull. 388 ; Gibson v. Chaters, supra ; Sykes v. Dunbar,
      1 Camp. 202 n. ; Ray v. Law, 1 Peters’ C. C. R. 207 ; Cohen v. Morgan, supra ; Spencer v. Jacob, 1 Mood. &, Malk. 180.) And for want of such proof in this case the plaintiff should have been non-suited.
    IX. The circuit judge erred, to the great prejudice of the defendants, in instructing the jury that a prompt discharge by the magistrate, without' calling witnesses for the accused, was evidence of want of probable cause, and would supply the absence of proof of malice, and apparently throwing the whole burden of proof on the defendants in such a case. This is not the law. (Smith v. Macdonald, 3 Esp. R. 7 ; Gorton v. De Angelis, 6 Wend. 418 ; Ray v. Law, 1 Peters’ C. C. R. 207 ; Cohen v. Morgan, 6 Dowl. & Ryl. 8 ; Spencer v. Jacobs, 1 Moody & M. 180 ; Purcell v. Macnamara, 9 East 361 ; Wallace v. Alpine, 1 Camp. 204 n. ; Sykes v. Dunbar, 1 Camp. 202 n.)
    X. The circuit judge erred in declining to charge as requested by defendants’ counsel: “ that probable cause was the existence of such facts and circumstances as would lead the mind of a reasonable man (not a lawyer) in the exercise of ordinary judgment and caution to suspect the plaintiff to be guilty, or to conclude that the question of his guilt or innocence ought to be investigated.” (Baldwin v. Weed, 17 Wend. 233 ; Dupont v. Munro, 3 Wash. C. C. R. 31 ; Foshay v. Ferguson, 2 Denio 617.)
    XI. The circuit judge erred in refusing to charge as requested, that probable cause could be made out on less evidence than would establish a prima, facie case of guilt. If this is not so, no one can complain of a crime without employing counsel, and that precaution would not necessarily insure his protection.
    XII. The judge erred in charging the jury that no facts could avail the defendants to make out probable cause, except such facts as they could and did show were known or communicated to them at the time of making the charge. If this be so, an avowed felon may pocket damages for the prosecution of the felony which he avows and admits. (Baldwin v. Weed, 17 Wend. 229, 231, 233 ; Fisher v. Barstow, 1 Doug. 215 ; Parker v. Langley, 10 Mon. 209 ; Morgan v. Hughes, 2 Term R. 228.)
    XIII. The circuit judge clearly erred in declining to charge the jury that “ the bad character of the plaintiff, if proved to the satisfaction of the jury, was to be taken into consideration upon the question whether there was probable cause : as a man of bad character may be reasonably suspected upon slighter grounds than a man of good character.” It is submitted to be well settled law, that such- evidence is admissible upon the merits as well as upon the' question of damages. It was not offered in mitigation of damages. Where the charge against the plaintiff was for felony, the defendant has been allowed in his defence, after giving some evidence of probable cause, to prove the general bad character of the plaintiff; for in this case, where the point in issue is whether the defendant acted from malice, and without probable cause, it may be thought material to inquire into the situation of the parties, and whether the defendant had any reasonable ground for suspecting the plaintiff. Now the notoriety of the plaintiff’s character for dishonesty is a circumstance of general suspicion not to be disregarded.

    (2 Phil. Ev. 258, ch. 17.)
    XIV. If the plaintiff was arrested on divers charges of felony, and probable cause was made out for one of the felonies for which he was arrested, he could not maintain this action. There was sufficient cause for his arrest and prosecution on the one charge thus sustained, and he has no wrong or damage to attribute to the other charges, rather than the one sustained. The circuit judge erred in declining so to charge. A different charge would probably have produced a different verdict, as all the prosecutors of the charge for concealing Andros were acquitted by the jury, and upon the evidence that charge was' most clearly sustained.
    XY. The circuit judge erred in leaving it "as a prominent question for the jury whether the defendants believed the plaintiff guilty. There were no facts in evidence to impeach the good faith of the charges. In the absence of proof to the contrary, the defendants were entitled to the benefit of the presumption that they believed the facts sworn to. (Foshay v. Ferguson, 2 Denio, 617, 620, 621; Rex v. Stratton, 1 Camp. 549, in notes.)
    XYI. Every objection to the refusal to non-suit, applies with greater force to the final charge of the judge, after all the evidence was in. The defendants were entitled to a direction for a verdict in their favor.

      XVII. On the questions of probable cause, there were facts enough in evidence, undisputed in character, to determine the question in favor of the defendants. To the proof made by the defendants’ own affidavits, (read by the plaintiff,) he (the plaintiff,) made no answer by countervailing proof. The question, then, was whether the depositions of Cram, Norris, Phebe Giles, Mrs. Wakeman, &c., &c, presented sufficient uncontradicted facts to make out probable cause. And this the court was bound to decide, but declined to do so. (Murray v. Long, 1 Wend. 142 ; Weaver v. Townsend, 14 Wend. 193 ; Gorton v. De Angelis, 6 Wend. 421 ; Martin v. Deyo, 2 Wend. 424 ; M’Cormich v. Sisson, 7 Cow. 717 ; Hill and wife v. Yates and another, 8 Taunt. 182.) The defendants had a right to read their own affidavits, if the plaintiff had not read them. (Burt v. Place, 4 Wend. 491 ; Burlinghame v. Burlinghame, 8 Cow. 141.)
    And the warrant on which a party is committed is evidence (when read by plaintiff), of the facts contained in it. (Scott v. Ely, 4 Wend. 555.)
    XVIII. On the whole case, it is submitted that great injustice has been done, and that the defendants are entitled to a new trial.

      E. Sandford, for the plaintiff, made and argued the following points :—
    I. The plaintiff proved, on the trial of this cause, the several prosecutions charged in the declaration. That they were instituted by the defendants, without probable cause, was manifest from the circumstances by which they were surrounded, and the plain perjury by which they were sought to be sustained ; and that the defendants were actuated by a malicious motive, “ to put the plaintiff out of the way,” because of his disclosures relative to the frauds of the Kidd Salvage Company, establishing beyond controversy the fact that the defendants were not actuated by a love of public justice in making the arrests and prosecutions. 1. The multiplicity of the charges, presented at extraordinary junctures, taken in connexion with the other events occurring about the same time, show the absence of probable cause and malice. 2. Probable cause is a reasonable belief, supported by circumstances, that the person accused is guilty of the offence charged. It depends upon the knowledge or information which the prosecutor had at the time the charge was made, and not upon that which he may have acquired at a subsequent period. (Delegal v. Highly, 3 Bing. N. C. 950 ; Seibert v. Price, 3 Watts and Serg. 438 ; Fashay v. Ferguson, 2 Denio, 617.) 3. Mere suspicion, unaccompanied by proof from which the jury might infer that the party acted, in good faith, upon it, to establish the complaint, was not sufficient probable cause, and the charge of the judge to that effect was correct and legal. 4. Facts and circumstances not known to the defendants before, nor communicated to them at the time of making the complaint, could not furnish them with probable cause. The party charged, being innocent, the object of the party complaining, in showing probable cause, is to show that he had acted in good faith. His good faith cannot be evinced by proving circumstances which were unknown to him. 5. The defendants in this suit were not warranted in giving in evidence the character of the plaintiff, to establish his guilt or their ■ innocence, in respect to the prosecution ; and, of course, it was not admissible to show probable cause on their part.
    II. This action is founded on a tort, and the proof of part in itself amounting to a cause of action is sufficient to entitle him. to a verdict. Therefore, proof of probable cause in respect to part would not bar the cause of action in respect to other parts, and the charge on this point Avas legal.
    III. The proof of a conspiracy in a civil suit is and may be different from and slighter than what is requisite in an indictment ; and, therefore, the refusal of the judge to charge that the evidence in the two cases should be the same, was correct and legal. 'The exceptions in regard to venue are not well taken. ■
    1. The action of malicious prosecution is transitory. (1 Gilb. C. P. 84 ; Tidd’s Prac. 369, 543; 1 Chitty’s Pl. 269, 270 ; 2 ib. 602, in notes ; 3 Black. Com. 294; Com. D. Act N. 12 ; Bac. Ab. act local and transitory ; Paine and Duer’s Prac. 1, 85; Gra. Prac. 3d Ed. 310-313, 590-598; Co. Lit. 282; Cro. Car. 443; 1 Wils. 336; 1 Camp. 161; Rafael v. Verelot, 2 Sir William Black, Rep. 1058; Glen v. Hodges, 9 Johns. Rep. 67; Gardner v. Thomas, 14 Johns. Rep. 134; Smith v. Bull, 17 Wend. 323; Lister v. Wright, 2 Hill, 320.) It is not an action of trespass or assault and battery, or for any immediate wrong accompanied with force, but for an injury to the feelings and reputation, as well as the property of the plaintiff, expended in his defence. 2. For the arrest and ironing, the actions for malicious arrest and assault and battery lie. This is an action for a prosecution, according to the forms of law, but with malicious motives, and without any justifiable cause, (Sutton v. Johnstone, 1 Term. R. 544.) There is no similitude or analogy between an action of trespass or false imprisonment and this kind of action. An action of trespass is for the defendant’s having done that which, upon the stating of it, is manifestly illegal. This kind of action is for a prosecution which, upon the stating of it, is manifestly legal. (Per Lords Mansfield and Loughborough, in Johnstone v. Sutton, 1 Term. Rep. 544.) 2. The statute refers to immediate injuries, accompanied with force, in the subdivision which prescribes the place of trial, i. e. trespass, assault and battery; for, in the next subdivision, actions of libel and slander are made transitory, and it is presumed that the legislature intended to place all actions for injuries to the reputation upon the same footing, as they add the-expression, “ and all other actions for wrongs, and upon contracts, shall be tried where the venue shall be laid. (2 R. S. 3 Ed. p. 506, § 2, Sub. 3.) 3. This is not a statute of venue at all. It does not draw the distinction between transitory and local actions ; but leaves it as it was settled by the practice of the court. It merely prescribes the place of trial, where the court, on motion, will direct the cause to go, and the revisors did not intend to affect the. venue or locality of actions, but merely to prescribe by statute the duty of the court, i. e. to adopt the common law practice, and codify it. (6 Revisor’s Notes, 44, referring to Revised Laws and Tidd’s Pra. 543, “Venue;” 1 Paine and Duer, 85, 86, 89; 1 Gra. Prac. 3 Ed. 310, 313, 590, 598.) See the distinction between venue and place of trial, Gould v. Chaplin, (4 Howard’s Pr. Rep. 185.) And by the old practice this and all kindred actions were transitory, (1 CMtt. Pl. 229 to 273 ; 1 Tidd's Pr. 543.) 4. This is an action for conspiracy. An action for conspiracy may be brought in either the county where the defendants conspired, or where the overt act was committed, so an indictment lies in either county. In this case the agreement was in New York, and the overt acts both in New York and Rockland Counties. (1 Sellon, Prac. 244, citing Cro. Eliz. 574; Bulwer’s Case, 7 Coke, 3, a. like The Mayor, &c., of Berwick v. Evart Black ; Smith v. Cranshaw, 2 Rol. R. 559 ; Boger v. Hildreth, 1 Caines, N. Y. T. R. 1 ; 1 Chitty’s Pl. 269, 276 ; 2 Chitty’s Pl. 602, in notes; People v. Mather, 4 Wend. 227, 265 ; 2 R. S. 3 Ed. p. 506, § 2, Sub. 3.) Conspiracy to commit a felony is merged in the felony. (People v. Mather, 4 Wend. 229 ; People v. Vermilya & Barker, 7 Cow.; People v. Adams, 3 Denio, 190, S. C. 2 Comstock, 173.) But a conspiracy to commit a misdemeanor is not merged in the misdemeanor. (People v. Mather, 4 Wend. 265.) 5. There was material and important evidence to establish the cause of action in the city and county of New York ; and, therefore, the same was properly laid there. (Tidd’s Prac. 554 ; citing 1 Sid. 405 ; 2 Salk. 569 ; 12 Mod. 515; Franklin v. Underhill, 2 J. R. 374 ; Bently v. Weaver, 1 J. C. 240 ; Wood v. Van Rankin, 1 Cane’s R. 95.)
    V. The several exceptions in the case are respectively not well taken.
    VI. The charge of the Judge was conformable to law. The facts were numerous and conflicting, and such as rendered it impossible for the Judge to pass upon the questions of mere probable cause, as a mere matter of law. It was a mixed question of law and fact, and as such, was properly submitted to the Jury, under the instructions of the court, as to what constituted probable cause. The question of malice is always a question for the Jury.
    VII. The verdict of the Jury was conformable to the facts, and is conclusive upon the question of probable cause and the question of malice.
    VIII. The damages are not excessive, and the facts of this case would warrant the court in giving the plaintiff even larger damages than those awarded by the jury, were it in their power. The plaintiff was pursuing a lawful investigation in a lawful way. He was engaged in developing the truth, with a view to aid in the administration of justice. But, whilst thus employed, he was seized by those to whom he was acting adversely, and ironed, imprisoned, and prosecuted, to prevent the development of frauds in which the defendants were supposed to have been implicated. Now, whether he were an entirely pure man or not, he ought to be protected, and the defendants, who have prostituted the process of the court, to wreak their vengeance upon a man whom they know to be innocent of the crimes they urged against him, ought not now to be permitted to urge that the jury have set an undue value upon his sufferings, and the loss of his reputation. (Townsend, v. Hughes, 2 Wend. 150 ; Wilford v. Barkly, 1 Burr. 609 ; Little v. Pope, 2 Black. R. 1327 ; Gilbert v. Bertenshaw, 1 Camp. 230 ; 2 Wils. 405, Redshaw v. Brooks ; Trumbull v. Gibbons, 1 Judicial R. 1, cited in 4 Wend. 141.)
   Duer, J.,

delivered, orally, the opinion of the Court, and stated :—The following, as ^he .principal grounds upon which it was deemed necessary to grant a new trial.

1. That the separate acts and declarations of individual defendants ought not to have been admitted in evidence to charge other defendants, not then present; the allegations of a conspiracy contained in the declaration not being sustained by the proof.

2. That rejecting this evidence, there was an entire failure of proof as to the defendant, Freeland, and that the judge, therefore, erred, in not directing the jury to acquit him.

3. That the judge erred in directing that the proof on the part of the plaintiff, was sufficient to sustain the first five counts of the declaration, and in not instructing the jury, that, upon the third, fourth, and fifth counts, all the defendants were entitled to an acquittal; the existence of a probable cause, in reference to the charges set forth in these counts, being conclusively established.

4. That the judge erred in instructing the jury, that upon the question of malice, and in determining the amount of damages, they had a right to take into consideration the proceedings in Rockland county, anterior to the complaint before Mr. Justice Drinker ; since upon the plaintiffs’ evidence, these proceedings established against some of the defendants a case of false-imprisonment, and ought, therefore, as constituting a distinct cause of action, for which those defendants might be rendered liable in another suit, to have been withdrawn entirely from the consideration of the jury.

5. That the question of probable cause upon a given state of facts, is, in all cases, a question of law, and that the judge, therefore, erred in submitting it to the jury to determine whether the facts and circumstances in evidence afforded the defendants reasonable grounds for believing that the plaintiff was guilty of the offences which they laid to his charge; this was calling upon the jury not merely to pass upon the evidence, but to determine a question which the judge was, himself, bound to decide.

6. The judge also erred in shifting the burden of proof from the plaintiff to the defendants, by instructing the jury, that if the defendants acted upon information, the jury must be satisfied that they believed in its truth. The instruction should have been, that the jury was bound to presume that the defendants believed in the truth of the information upon which they acted, unless it clearly appeared from the evidence that the information was false, and that they knew it to be so.

7. That the court had no power to reform the verdict by limiting it to particular counts or particular defendants, and that being, as found, against law and evidence, it must be set aside.


author: Sandford, J.

text:
    Henry A. Holmes, Respondent, v. Edmund Pavenstedt and Freeland A. Schumacher, Appellants.
    The owners of a vessel, chartered for a particular voyage, if by the terms of the charter party they appoint the master and control the furnishing and navigation'of the vessel, continue in possession as owners throughout the voyage.
    In all such cases they have a lien for the freight stipulated to be paid by the charter party, upon all merchandise transported on the vessel during the voyage, to the extent of the freight on such merchandise, payable by the shippers.

      Hence, the payment of such freight by the shippers or their consignees, to the master or his owner, in discharge of the lien of the owners, is a full defence to an action for the recovery of freight brought against them by the charterer.
    Upon this ground judgment in favor of the plaintiff at special term reversed, and judgment entered for defendants.
    (Before Sandford, Mason, and Campbell, J. J.)
    May 5;
    June 21, 1851;
    This was an action for the recovery of freight on a cargo of logwood, brought in the brig Mary and Jane, from Laguna to New York, and there delivered to the defendants as consignees. The plaintiff claimed to be entitled to the freight as charterer, and therefore owner, of the vessel for the voyage.
    The defence was, that the defendants had paid all the freight due under the bill of lading to the agents of the owners of the brig ; to whom a much larger sum was due from the plaintiff upon the charter party, and that they were compelled to make .this payment in order- to obtain possession of the cargo, the captain refusing to deliver it upon any other terms.
    The cause was tried before the chief justice and a jury, on the 19th June, 1850 ; and on both sides a great, deal of evidence, both oral and documentary, was given, which it is deemed unnecessary to state. It is sufficient to say, that the facts constituting the -defence, as above stated, were fully established by the proofs.
    By consent -of the parties the chief justice directed a verdict and judgment for the plaintiff for $1346.01; the defendants having leave to appeal without security, and to make a case, with liberty to turn the same into a bill of exceptions.
    The cause was now heard upon an appeal from the judgment so rendered and upon the case as settled.

      W. Kent, for defendants.
    Even without resorting to the special provisions of the charter party, by the general rules of maritime law, the whole freight of the return cargo from Laguna to New York, was due-to the owners of the vessel, to be applied in satisfaction of what was due to them under the charter party, and the master as their agent was bound to retain the cargo until this freight was paid by the defendants ; but all possible doubt was removed by the terms of the charter party, by which the return cargo was expressly bound as a security to the owners of the vessel. He cited the schooner Volunteer, 1 Sumner, 541, certain logs of mahogany, 2 do. 589 ; Gracie v. Palmer, 8 Wheaton, 605 ; and several other cases.

      A. Mathews, for plaintiff.
    The plaintiff is the only person whom the defendants had a right to know as the owner of the vessel. He was the owner for the voyage, and there was no privity between them and the-absolute owners, that could authorize them in paying the freight to the master. If the owners had any claim,, it was a lien upon the merchandise only, which could not entitle them to demand, of the defendants the specific freight mentioned in the bill of lading. If the owners had any claim for the freight as against, the plaintiff, the defendants ought to have commenced proceedings in the nature of a bill of interpleader,.in which proceedings, all the parties being before the court, their relative rights and interests would have been properly determined. The counsel also insisted, that the defendants’ possession of the bill of lading, coupled with the facts, that they had a power of attorney from, the plaintiff to demand a delivery of the- logwood from the-captain, and that they had in fact commenced legal proceedings-to compel its delivery, divested the plaintiff of possession, and of the right of possession, and amounted to, such a delivery of the logwood to the defendants as entitled the plaintiff to' the-payment of freight according to the bill of lading. In support of this last position, the counsel referred to Chapin v. Rogers, 1 East. 192 ; and in the course of his argument he cited Chandler v. Belden, 18 John. 157 ; and Sander v. Clark, 1 Hall, 373.
   By the Court.

Sandford, J.

The defendants have paid the freight demanded by the plaintiff in this suit, to the owners of the vessel. They were right in so paying it, if the owners had a lien for the freight; otherwise it must be paid to the. plaintiff.

This depends upon the question, whether the possession of the vessel passed out of the owners’ hands to the plaintiff as charterer of the vessel; for if it did, it is clear they retained no right of lien as against sub-freighters.

By the charter party, the owners were to keep the vessel “ tight, staunch, well fitted, tackled, and provided with every requisite, and with men and provisions necessary for the voyage” on which she was chartered. They put all the room in the vessel, except the cabin and necessary room for the crew, fitments and provisions, at the disposal of the charterer, who agreed to freight and hire the vessel.

The effect of the Instrument was, to hire the vessel to the plaintiff for a stipulated sum per month, in lieu of freight, at specified rates, on the goods shipped, the owners appointing the master, and controlling throughout the furnishing and navigation of the vessel.

It is well settled that, under such circumstances, the owners continue in possession of the vessel, as owners, during the voyage for which she was chartered, and have a lien for their chartdrfreight upon all merchandise transported in her to the extent of the freight payable by the shippers on such merchandise. There are exceptions to this rule, as when the payment of the freight by the charter is postponed in terms beyond the time for delivering the cargo ; but there is nothing of the sort in this case. The principle is laid down in many cases. We refer particularly to McIntyre v Boune, 1 John. R. 229 ; Marcadier v. Chesapeake Insurance Company, 8 Cranch 49 ; Clarkson v. Edes, 4 Cowen, 470 ; Ruggles v. Bucknor, Paine’s C. C. R. 558; Abbott on Shipp. 63, 288 to 299.

The attempt of the defendants to obtain possession of the merchandise consigned to them, by a legal proceeding, did not affect the lien of the owners, and, therefore, could not preclude the defendants from acquiring the possession, in a lawful manner, by discharging the lien.

The judgment at the special term must be reversed, and a judgment entered for the defendants as upon a ruling of the law in their favor, at the special term.


author: Mason, J.

text:
    Aquila M. Fenly v. John D. Stewart and Nelson Tunnicliff.
    Since the Code, an agent is a competent witness against his principal, though the effect of his evidence is to discharge himself from a written- contract which he has entered into in his own name, and to cbarge the principal as a party to the contract.
    It is sufficient, under the Statute of Frauds (2 R. S. 136, § 3), that the contract should be signed only by the party to be charged; it is not necessary that it should be signed by the party who seeks to avail himself of its advantages.
    In an action upon a written contract, parol evidence is inadmissible to show that the party who signed it as principal was only agent of a third person, and thus to charge such third person as the principal, his name not appearing on the face of the instrument.
    It is immaterial whether such contract is required by the Statute of Frauds to be in writing or not.
    The dictum of Parke, B., in Higgins v. Senior (8 Mees. & Weis. 834), that although it is not competent for a person who has signed a contract in his own name to discharge himself from liability by parol proof that he acted as agent for a third person, yet that it is competent by parol proof to charge such third person as principal, denied to be law. ^
    (Before Sandford, Mason, and Campbell, J.J.)
    (May 20.
    June 21.)
    This was an action of assumpsit, commenced in the Supreme Court and transferred to this court; the object of which was to charge the defendants as principals upon a contract to deliver oats, made with the plaintiffs by A. W. Otis & Co., in these words:
    “ For a valuable consideration to us in hand paid, we have sold A. M. Fenly two thousand five hundred bushels of canal oats, at forty-five cents per bushel of thirty-two quarts, to be delivered in this city at any time at our option between the first and fifteenth of June next, to be cash on delivery.
    A. W. Otis & Co.
    “New York, April 23, 184l7.“
    On the trial before Justice Mason (without a jury), both the Messrs. Otis were examined as witnesses for the plaintiff, though objected to as interested, and proved that they executed the contract as agents for the defendants, and that the oats had not been delivered. The evidence to connect the defendants by parol with the contract was objected to.
    The other facts appear in the opinion of the court.
    Judgment was rendered pro forma at the special term for the plaintiffs, from which an appeal was taken to the general term.

      Wm. Curtis Noyes, for the defendants, argued the following points:
    I. The evidence of the witnesses, A. W. & W. H. Otis, was not competent. 1. They were interested, as it appeared that the contract declared on had been made with them, and with them alone. 2. The contract declared on was void unless in writing; the plaintiff, was not at liberty to' show by parol in regard to the writing mentioned, that parties not named in it were bound by it; it was “ adding to, varying and altering the terms of a written contract,” which cannot lawfully be done by parol. (1 Greenleaf’s Ev. §§ 273-4; 13 Mass. Rep. 168, Brown v. Gilman; 1 Philipps’ Ev. 567; 1 John Ch. Rep. 429, Stevens v. Cooper; 5 John Ch. Rep. 553, Steere v. Steere; 11 Mass. Rep. 27, Stackpole v. Arnold.) 3. It makes no difference in this respect that it was in the course of an attempt to charge a party as principal with the act of his alleged agent. There is no rule which makes this case an exception to the general doctrine already adverted to, and the evil which the statute was intended to prevent is as imminent in this case as in any other. To allow the exception here is equivalent to a repeal of the statute. (2d Kent’s Com. 630; 11 Mass. R. 27, Stackpole v. Arnold; 10 Wend. 271, Pentz v. Stanton; 1 Denio, 226, Newcomb v. Clarke.)
    II. The contract declared on was void by the Statute of Frauds, for want of mutuality. 1. There was no obligation on the part of the plaintiff to take the oats and pay for them, nor did he “ subscribe ” the contract proved. (Chitty on Con., 5 and 15, and notes; 2 R. S. 136, § 3, sub. 2; 26 Wend. 341, Davis v. Shields.) 2. If it be said that a separate contract was signed, the answer is, that none was produced, and the parol evidence was objected to. Besides, all the' writings constituted together but one contract, and the whole should have been produced.

      T. H. Rodman, for the plaintiffs, argued these points:
    I. Parol evidence was admissible to prove that the defendants were the principals of A. W. Otis & Co., although the written contract in question was made by the agents and signed by them in the name of their own firm. Parol evidence is always admissible for the purpose of charging the principal and never for the purpose of discharging the agent. And this is so, whether the contract be or be not required to be in writing by the Statute of Frauds. (Thompson v. Davenport, 9 B. and C. 78; also 2 Smith’s L. C. 212 and note; Story on Agency, § 270 note; Jones v. Littledale, 6 Adol. and Ell. 486; Higgins v. Senior, 8 Mees, and Wells. 834; Patterson v. Gandasequi, 15 East 62; Addison v. Gandasequi, 4 Taunton 574.)
    . TI. The effect of the admission of parol evidence in this case is not to contradict or vary the written contract, or to exempt from liability those whom it purports on its face to bind. It only shows that it binds another, by reason that the act of the agent in signing the agreement in pursuance of his authority, is in law the act of the principal. (Story on Agency, § 270 ; note and cases cited.) On the same ground parol evidence is invariably admitted to prove that a third person, whose name does not appear upon the contract of a firm, made in the name of the ostensible partner or partners only, is in fact a dormant partner. The only distinction between the two cases, is, that in the latter the unknown party sought to be charged, contracts jointly with the ostensible party; in the other, he contracts individually through that party as his agent. The authority of partners to bind each other rests upon the doctrine of agency. Hence, when the firm is dissolved, they cease to be agents for each other, and one can no longer bind the rest. (2 Smith’s L. C., note to Thompson v. Davenport, 305, 307.)
    III. The Statute of Frauds has been complied with. A. W. Otis & Co. were fully authorized to make the contract for the defendants, one of whom was in the city of New York when it was consummated. It was made under his express authority. The contract was subscribed by A.W. Otis & Co., “ as the lawful agents” of the defendants. (2 R. S., p. 136, § 3, 8, 2d Ed.) And they might have maintained a suit in their own names as principals to enforce the contract against the plaintiffs. “ The real owner of the property is the proper person to bring the suit, although the sale was made by an agent or factor.” (Hicks v. Whitmore, 12 Wend. 553.) Having the right to enforce the contract as principals by a suit in their own names, they must be bound to respond as principals in a suit by the buyer.
    IV. This suit is not brought upon the written contract made by A. W. Otis & Co., in the sense in which a suit is brought upon a bill of exchange or promissory note. The writing here does not constitute the contract, but is the memorandum only, the evidence of the contract required by the Statute of Frauds. The contract in such case is made before any signature by the parties. (Birkmyr v. Darnell, 1 Smith’s L. C. 134.) The language of the R. S. plainly recognises this distinction. (2 R. S. 136, § 3, 2d Ed.)
    V. If the bargain had not been consummated by the agents in their own names as was done, but in either of. the other modes prescribed by the statutes, viz., by the delivery of a part of the oats to the plaintiff, or by his paying' part of the price, and the written memorandum had been dispensed with, the contract would unquestionably have been valid, and been deemed for every purpose the contract of the defendants. The fact that the contract is in writing does not extinguish or diminish their liability.
    VI. The agents were competent witnesses for the plaintiff against their principals, to prove their agency, having no interest in the suit, (S. 398, Code.)
   By the Court.

Mason, J.

When this cause was before us, on a motion to set aside the report of the referee, we held that the Messrs. Otis were incompetent witnesses for the plaintiff, on the ground of interest; that they were themselves liable upon the contract for breach of which the action was brought, having-executed the contract in’ their own names ; and that the necessary effect of their testimony would be to charge the defendants and thereby discharge themselves. We therefore set aside the report, and ordered a new trial, without passing upon the other questions presented in the case, and discussed by the counsel on the argument.

The code of procedure, however, which was enacted after the former trial, has altered the rule of law in this respect, and by providing that no person offered as a witness shall be excluded by reason of his interest in the action, has rendered these individuals competent witnesses, and they were properly admitted to testify in the subsequent trial before one of the justices of this court. As upon that trial no other evidence was adduced than what had been given on the former trial, a pro forrm judgment was rendered for the plaintiff, and the case now comes here on an appeal from that judgment, presenting the questions, not passed upon, when the cause was previously before us.

The first point taken by the counsel for the defendants was, that the contract on which the action is brought was void for want of mutuality—that there was no obligation on the part of the plaintiff to take the oats and pay for them, and that he did not subscribe the contract which was produced and proved.

But the Statute of Frauds (2 R. S. 136, § 3) requires, not that the contract shall be signed by both parties, but, by the parties to be charged thereby ; and the uniform construction has been, that a signature by the defendant alone—that is, by the party sought to be charged—is sufficient to sustain the action. (Abbot v. Allen, 3 Taunt. 169; Laythorp v. Bryant, 2 Bing. N. C. 735; Ballard v. Walker, 3 John. Cas. 60; Clason v. Bailey, 14 John. R. 484.) The Revised Statutes have not altered the law in this respect. (Davis v. Shields, 26 Wend. 341, Op. of Senator Verplanck; Harris v. Aspinwall, 3 Sand. S. C. R.) This construction has proceeded not on the ground that contracts need not be mutual, but that the statute, in certain enumerated cases, has taken away the power of enforcing contracts, which would otherwise be mutually binding, unless the parties against whom they are sought to be enforced, have subscribed some note or memorandum thereof in writing. If a mutual contract is made, and one of the parties to it gives the other a memorandum, in pursuance of the statute, but neglects to take from that other a corresponding memorandum, he has but himself to blame if he is unable to compel its performance, while he is bound to the other party. The difficulty is not that the contract, as originally entered into, is not mutual, but that one of the parties has not the evidence which the statute has made indispensable to its enforcement. It necessarily follows, however, from the provision of the statute, that all inquiry as to whether or not a contract was originally mutual is immaterial. It may be enforced against the party who has subscribed a note or memorandum of it, though the other party, by not having signed, is, by the express words of the statute, freed from its obligation. The objection, therefore, of want of mutuality is not well taken.

A more formidable objection to the plaintiff’s recovery and the one chiefly relied on by the defendants’ counsel, was, that the memorandum was signed by the Messrs. Otis in their own names, and without any intimation, on its face, that they acted as agents for the defendants; that they held themselves out as principals, and that to allow them to show by parol proof that persons, not named in the memorandum, were in fact the principals, would be in direct contravention of the Statute of Frauds.

The statute requires that the note or memorandum be signed by the parties to be charged thereby, or by their lawful agent. (2 R. S. 136, § 3, Sub. 2, § 8.) Otis & Co. appear on the face of this contract as the parties to be charged. They contract as principals, and subscribe as principals. Can the plaintiff in an action, on the memorandum itself, show by parol that the parties who appear on the face of the memorandum to be the principals, were, in truth, but agents for third persons, and thus charge these third persons as principals ?

It cannot require any argument, we think, to show, that to allow of parol proof to discharge the Messrs. Otis would be to contradict the written instrument, and would thus be contrary to well-established principles. We are not, however, without direct adjudications on this point. Thus, in Lincoln v. Crandell (19 Wend. 101), it was held, that where two parties enter into a contract, under seal, in their individual characters, not describing themselves, as agents or a committee, they are personally responsible, and that parol proof is inadmissible to show that it was not intended they should be personally responsible. The same rule was applied to a memorandum of sale in Mills v. Hunt (20 Wend. 431), not under seal, by an auctioneer; and there are numerous cases establishing the position, that an agent, drawing, accepting, or endorsing negotiable securities, in his own name, is personally liable upon them to the holder.

But the case of Higgins v. Senior (8 Mees, and W. 834) is supposed to have decided, that although it is not competent for a person who has signed a contract in his own name to discharge himself from liability by parol proof that he acted as an agent for a third person, yet that it is competent by parol proof to charge such third person as the principal. “ There is no doubt,” says Mr. Baron Parke, “ that where such an agreement is made, it is competent to show that one or both of the contracting parties were agents for other persons, and acted as such agents in making the contract, so as to give the benefit of the contract on the one hand, and charge with liability on the other, the unnamed principals ; and this whether the agreement be or be not required to be in writing, by the Statute of Frauds; and this evidence in no way contradicts the written agreement. It does not deny that it is binding on those whom on its face it purports to bind, but it shows that it also binds another, by reason that the act of the agent in signing the agreement in pursuance of his authority, is, in law, the act of the principal. But on the other hand,” he adds, “ to allow evidence to be given that the party who appears on the face of the instrument to be personally a contracting party, is not such, would be to allow parol evidence to contradict the written agreement, which cannot be done; and this view of the law,” he says, “ accords with the decisions not merely as to bills of exchange signed by a person without stating his agency, but as to other written contracts ; ” and he refers to several cases in support of this latter proposition. Now, it requires very nice powers of discrimination, we think, to perceive how the introduction of a new party into the contract is not a contradiction of the written instrument, as well as the striking out-of a party already in. According to this mode of interpreting the statute, Otis & Co. are liable on the contract before us, because they have subscribed it as parties and as principals ; they cannot therefore be discharged by parol. To discharge them would be to contradict the written instrument, and to violate the statute; but it is no contradiction of the written instrument, and no violation of the statute, to admit parol proof to show that the- defendants, although not named in the contract, are nevertheless parties to it, and are to be charged with its performance. They are to be charged as principals, not on their own signature, but on parol proof of the relation in which they stood to Otis & Co., who themselves subscribed the contract as principals, and as such are bound to its performance.

It is to be observed, that the remarks of Baron Parke which we have .quoted were not necessary to the decision of the question then before the court. That question was not, whether the unknown principals should be charged, but whether the defendants, who signed the contract in their own names, could be discharged by parol proof that they were agents merely. His remarks, therefore, although entitled to the highest respect, as coming from a profound and learned jurist, yet have not the weight of an authority, and would not be regarded as such in his own court. The doctrine which he thus advanced, however, is adopted by Mr. Justice Story, in his work on agency. He says that “ a written contract made by a factor in his own name, for the purchase or sale of goods for his principal, will bind the principal, and he may be sued thereon exactly as if he were named in it, for it is treated as the contract of the principal as well as of the agent.” (Story on Agency, § 161.)

We were not ón the argument referred to, and our own investí-, gations have not discovered, any case decided in England supporting the position thus laid down by Baron Parke and Judge Story. The cases which come nearest to it are, Wilson v. Hart (7 Taunton, 295), decided in 1817, and Truman v. Loder (11 Ad. & Ellis, 589), decided in 1840 ; but, upon examination, it will be found that they do not bear out the doctrine. In Wilson v. Hart, although the defendant was made liable for goods where the bought note was signed by one Reed, in his own name, as principal, yet it was distinctly put to the jury to say whether it was a sale to Reed or to the defendant, who had obtained possession of the goods ; and whether the mode of the purchase was not a fraudulent device between Reed and the defendant, to enable the latter by means of it to get possession of the plaintiffs' goods, in order to apply them to the payment of a debt which was due from Reed to-the defendant. Baron Parke, in Higgins v. Senior, admits that the case turned altogether on the fraud, and says, that if it had not, it would have been an authority for the admission of parol evidence to charge the defendant, and not to discharge Reed. In Truman v. Loder, the defendant was made liable on an executory contract, in which one Higginbotham appeared as principal, and the defendant's name was not mentioned ; but the decision was placed expressly on the ground that the defendant, who resided abroad, traded in England under the name of Higginbotham; and that all business done by Higginbotham was his, the defendant’s business, and done with his capital and credit. Besides these two cases we have found no express decisions in England apparently sustaining the dictum of Baron Parke in Higgins v. Senior, that upon a contract which the statute requires to be in writing, signed by the parties to be charged, a third party, whose name does not appear in the writing, may be charged by parol evidence, that the party signing in his own name, acted as an agent for such third party. There are numerous cases in the English books, where a party has been charged on a contract signed by a broker or other person in his own name, without adding to his signature the word agent, or expressing in the mode of signing that he was acting for such party ; but in all such cases the name of the party charged is in the body of the memorandum, .and it appears from its whole tenor that the party signing acts simply as a broker or agent. Such is the usual form of brokers’ notes in England; and those brokers’ notes which are given in the reported cases in this State, are in this respect similar to the brokers’ notes in England. • (Peltier v. Collins, 3 Wend. 459; Davis v. Shields, 26 Wend. 341; Clason v. Bailey, 14 John. 484.)

The question, in the form now presented, does not appear to have been brought before our courts, but we think that the principle involved has been clearly settled. .Thus in Stackpole v. Arnold (11 Mass. R. 27), which was on a note made by one Cook in his own name, and given for premiums on policies of insurance effected by him as agent and factor of the defendant, the court remarked, that no person in making a contract is considered to be the agent of another, unless he stipulates for his principal by name, stating his agency in the instrument which he signs. This principle,” says Parker, J., in delivering the opinion of the court, “ has long been settled, and has been repeatedly recognised ; nor do I know an instance in the books of an attempt to charge a person as the maker of any written contract appearing to be signed by another, unless the agent professed to act by procuration or authority, and stated the name of the principal on whose behalf he gave his signature. It is also held, that whatever authority the signer may have to bind another, if he does not sign as agent or attorney, he binds himself and no other person and after discussing the point at large, that learned judge re-affirms, as applicable to the case before them, the principle that, generally, oral testimony is not to be received to contradict, vary, or materially affect, by way of explanation, any written contract, whether within the Statute of Frauds or not, provided the contract is perfect in itself, and is capable of a clear and intelligible exposition from the terms in which it is composed. The case of Pentz v. Stanton (10 Wend. 271) went a little further than Stackpole v. Arnold. The suit was on a bill of exchange, signed by one “ Henry F. West, agent,” drawn upon and accepted by one Casey, which had been protested for non-payment, and notice given to the defendant. The declaration alleged that West was the agent and servant of the defendant in drawing the bill; and it appeared on the trial that the bill was given in payment of goods' bought by West for the defendant, and received and used by him. But the court held that, to render the principal liable, the agent must sign the name of the principal to the bill, or it must appear on the face of the bill, in some way, that it was in fact drawn by him, or the principal will not be bound; and that any. parol testimony to show that West acted as agent in signing, and not as principal, was inadmissible, as contradicting or varying the written contract. Newcomb v. Clark (1 Denio, 226) comes, however, nearer to the present case. The suit was brought on an agreement in the form of a letter to one Henry Peters, in which Newcomb agreed to pay him (Peters) the rent of part of the house hired of him by a third person, in case he, the third person, should fail: the rent to be paid quarterly. Peters was merely the agent of Clark, the plaintiff, in the court below, but on the face of the paper he appeared as principal. The- court decided that the writing was void, for want of consideration, and that Clark could not sustain an action upon it in his own name. “ The rule in regard to parties to actions,” the Court said, “ seems to be, that every action on an express contract must be brought in the name of the person to whom the engagement violated was originally made, unless it is transferable as a negotiable note, &c. In the present case, the promise or agreement is expressly made with Peters. Clark’s name does not appear in the writing. It was not competent to contradict or amend the agreement by parol proof, by substituting Clark’s name as the promisee in place of Peters.”

The case before us is the converse of Newcomb v. Clark, but the principle is the same.

The reason of the rule, which excludes parol testimony tending to vary or contradict a written contract, applies with greater force to those contracts, which are required by the statute to be reduced to writing, than to others. If a party can be added by parol evidence, why not add also to the quantity of goods sold or the price ? and if one item may be added, why not add to or vary all the particulars of the contract ? It is clear that the admission of such evidence would not only contradict the written instrument, but nullify the statute.

The doctrine we have here laid down is supposed to clash with the general and well-established rule, that where goods are bought by an agent who does not disclose that he is acting as such agent, the vendor, although he has debited the agent, may, upon discovering the principal, resort to him for payment. The Supreme Court did not suppose, in Pentz v. Stanton, that there was any inconsistency between these two principles, because, while they held in that case that no action lay against the defendant on the bill drawn by the agent in his own name, yet they held the defendant, as principal, liable, on the common counts, for the price of the goods, for which the bill had been given.

The distinction appears to be this: where a contract is reduced to writing, whether in compliance with the requisitions of the Statute of Frauds or not, and it is necessary to sue upon the writing itself, there you cannot go out of the writing, or contradict or alter it by parol proof, and consequently cannot recover against a party not named in the writing ; but where the contract of sale has been executed, so that an action may be maintained for the price of the goods, irrespective of the writing, there the party who has had the benefit of the sale may be held liable, unless the vendor, knowing who the principal is, has elected to consider the agent his debtor. (Thompson v. Davenport, 9 B. & C. 78.) The distinction is thus stated by Mr. Justice Livingston, in the United States v. Parmelee (1 Paine, C. C. R. 252), which was a suit in the name of the United States on a written contract of the defendant, by which he acknowledged to have received from one Rainy one hundred barrels of flour, and agreed to be holden' therefor to Alexander Wolcott or order. “ Courts of law,” he says, “ out of their great solicitude to protect the interests of a principal, have gone great lengths in identifying him with his agent or factor, and as a necessary consequence have permitted a suit in his own name, although he be not, except by implication of law, a party to it. N But the Court does not know that such a suit was ever sustained on the contract itself, where one in writing took place between the factor and vendor, in which the name of the vendor did not appear. What use might be made of such a paper as matter of evidence is one thing, but that a suit could be brought upon it in the name of any but a party to it has not been shown, nor is it believed that such is the law.”

We are satisfied that the plaintiff cannot, in accordance with established principles, recover against the defendants on this contract. The judgment at the Special Term therefore is reversed, and judgment rendered for the defendant.