text:
    Watson & Others v. Husson & Another.
    Mere irrelevancy in an answer is not a ground of demurrer.
    When an answer containing irrelevant matter is demurred to, if it contain a valid defence which may be separated from the irrelevant matter, the demurrer must be overruled.
    The dismission by the Court of Appeals of an appeal for want of prosecution, is not, in judgment of law, an affirmance of the judgment appealed from.
    Hence, in an action for a breach of the undertaking given on the appeal, an averment in the complaint that the judgment was affirmed is not sustained by the admission or proof that the appeal wad dismissed.
    The uudertaking which the Code requires upon an appeal from the terms in which it is expressed, cannot be construed as broadly as the bond which the E. S. required to be given on bringing a writ of error.
    (Before Duer, Campbell, and Bosworth, J.J.)
    October 15;
    October 30.
    It is limited to the affirmance of the judgment, and a judgment is not affirmed until the appellate court, upon an examination of its merits, has by a proper sentence declared its validity.

      Held, that as the answer in this case denied the affirmance of the judgment, and averred the dismission of the appeal, it contained a full defence.
    Judgment at special term overruling plaintiff’s demurrer affirmed with costs.
    This was an action against the defendants for the breach of an undertaking, executed by them as sureties of one Robert Anderson, upon an app'eal made by him to the court of appeals, from a judgment of this court. The pleadings are as follows :—
    The plaintiffs complaining, respectfully show to this court, that on the fifteenth day of May, 1849, judgment was rendered at a general term of this court, in favor of the above named plaintiffs, against one Robert Anderson, for the sum of one hundred and forty-nine dollars and ninety-eight cents, and that on the first day of February, 1850, the said Robert Anderson appealed to the court of appeals from the said judgment, and that upon said appeal, the said Joseph Husson and Daniel M. Dugan, made and executed an undertaking in the words following, that is to say:—
    Robert Anderson, against William Watson, James P. Drummond, William T. Johnson. The plaintiff appeals to the court of appeals frorq. the final judgment of nonsuit, made by the Superior Court of the city of Mew York, at a general term thereof, which judgment was for costs only to one hundred and forty-nine dollars and ninety-eight cents, and entered and docketed the fifteenth day of May, 1849, in the city and county of Mew York; now we, the subscribers, hereby undertake, that if the judgment appealed from, or any part thereof, be affirmed, the appellaqt will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against the appellant upoq the appeal, and that the appellant will pay all costs and damages which may be awarded against him on the appeal, not exceeding two hundred and fifty dollars.

      New York, Feb. 1st, 1850.
    (Signed,) Joseph Husson. '
    (Signed,) _ Danl. N. Dugan.
    And that the said undertaking was duly acknowledged before a commissioner of deeds, in due form of law, by each of the said appellants, and was accompanied by the affidavits of the -sureties that they were each of them worth double the amount specified therein.
    And. the said plaintiffs further show, that by an order of the said court of appeals, made on the 25th day of February, 1850, the said appeal .was dismissed, and the judgment appealed from was in all respects affirmed, and that the appellant has not paid the amount directed to be paid by the said judgment. Wherefore the said plaintiffs pray judgment for one hundred and .forty-nine dollars and ninety-eight cents, with interest, from the 15th day of May, 1849, and costs.
    The defendant Husson put in the following separate answer:
    And this defendant, for his own separate answer to the said complaint, states upon his information and belief, that before the. commencement of this suit, in the said complaint mentioned, .and on or about the third Monday of June, 1840, William T., Johnson, one of the plaintiffs in this action, commenced a suit against the said Robert Anderson, in the court of Common Pleas, in and for the city and county of New York, in which suit the said Robert Anderson appeared by S. F. Clarkson, his attorney, and defended the same, and such proceedings were thereupon had in the said court, that the said Robert Anderson, by the consideration and judgment thereof, recovered the sum of $105. TUo, for the costs and charges of his defence in said suit. That thereupon, and on or about the first Monday of January term, 1842, the said William T. Johnson had, and prosecuted out of the Supreme Court of judicature of the people of the state of New York, a writ of error, to remove into the said Supreme Court, the record of the judgment recovered by said Anderson, in said court of Common Pleas; and upon said suing, and said writ of error, the said William T. Johnson, James P. Drummond, and William Watson, gave their bond to the said Robert Anderson, pursuant to the statute in such case made and provided. ,
    That the said Robert Anderson appeared upon said writ of error, by S. F. Clarkson, his attorney, and defended the same, and such proceedings were thereupon had that the said Supreme Court affirmed the judgment of the said courts of Common Pleas with costs, and the judgment on that affirmance was docketed on or about the 28th day of January, 1843, for $lY4Tff„, that both judgments were for costs only, and that the said Samuel F. Clarkson, as the attorney for said Anderson, in said suit, in said court of Common Pleas, and also in the writ of error so issued out of the said Supreme Court, had a lien and claim upon said two judgments,- for the full amount thereof, of which facts the said defendants had due notice, long prior to the date of the release hereinafter mentioned.
    That a suit was commenced on or about the thirtieth day of January, 1843, in this court, by the said Anderson, against Johnson, Drummond, and Watson, by the said .Samuel F. Clarkson, his attorney, on the said bond so given on the aforesaid writ of error, sued out of the said Supreme Court, at which time said Anderson was a resident in the city of New York; and pending the said suit, said Watson made a motion in the said Supreme Court to off-set the judgments mentioned in the following order, and thereupon the said court made an order, as follows:—
    “ After hearing counsel for both parties, on plaintiff’s motion, that he have leave to set-off so much of the judgments entered in the Supreme Court of the city of New York, recovered by James P. Drummond and William Watson, against Robert Anderson, for $295 29, as may be necessary against the judgments in this court in favor of said Robert Anderson, against said. William T. Johnson, for $174 05, and the costs of affirmance; ordered that said motion be granted, so far as' respects the costs adjudged to the defendant in this case, on the affirmance of the judgment in this case, in December, 1845, by the Court of Errors, leaving the attorney for the defendant in this cause, to take his remedy against the plaintiff therein, for the costs adjudged against said plaintiff in 1843, the amount of which is $174 05, without costs of this motion to either party; that on or about the 29th day of January, 1849, the said plaintiff in this action, or some, or one of them, acting on behalf of the others, or other of them, after due notice, that said judgments were subject to the lien of said S. F. Clarkson, the attorney of said Anderson, on the aforesaid suits, by fraud and collusion with said Anderson, obtained from Mm, without any valuable or valid consideration, a release of that date, by means of which release the said plaintiffs in this smt were enabled to, and did defeat the said suit in said Superior Court, upon said bond, and procured a judgment of nonsuit against said Anderson, which is the judgment mentioned in said complaint.
    “ And this defendant further answering, says, that he admits on the 15th day of May, 1849, a judgment, which has been twice adjudged to have been obtained wrongfully and collusively by the above plaintiffs, and was and is void as to the real party in interest, was obtained against Robert Anderson, the then nominal party, for the sum of $149 98, in this court, of which two decisions the said Watson had notice, that the real party in interest gave notice in the name of said nominal party Robert Anderson, of an appeal from the aforesaid judgment to the Court of Appeals.
    “And from information, this defendant believing said Watson well knew said suit was not prosecuted by said Anderson, but by the real party in interest; that the said suit was commenced in this court in January, 1843, before the Code came into operation, and was brought to recover costs alone which had been adjudged by the Supreme Court of this State, to belong to Samuel F. Clarkson, the attorney at law, ,in said suit of Robert Anderson, the nominal party, of which adjudging and decisions the said Watson also had notice as this defendant is informed and believes. That after said notice of appeal to the Court of Appeals, the transcript from this court could not be and was ndt procured in season to comply with the second rule of the Court of Appeals, so as to invest and give the said Court of Appeals the possession of and jurisdiction over said judgment appealed from, and thereupon, on the 25th day of February, 1850, the said William Watson (one of the above plaintiffs, and acting as attorney and counsel for those defendants), caused to be entered in the clerk’s office of the said Court of Appeals, an order, entitled,.and as following, to wit:—
    “ On filing an affidavit of William Watson, proving that the appeal in this cause was perfected on the second day of February, and a certificate of the clerk that no return has been filed in the Court of Appeals: it is ordered that the appeal from the judgment in this cause be. dismissed for want of prosecution, with costs to be taxed. That this defendant denies the statement in the complaint in this" action, made as follows: ‘ And the judgment appealed from was in all respects affirmed.’
    “ And this defendant further answering, says, that said Watson had, on or about the 13th March, 1850, all the costs for said dismissal, by said Court of Appeals he was entitled unto, under and by virtue of the said order dated February 25th, 1850, taxed at the sum of $27 30, which amount was paid to said Watson on the said 13th March, 1850, he giving his receipt therefor, without, then or since claiming any further amount of money, for or by reason of said notice of appeal, until the commencement of this action.
    “ And this defendant further asnwering the said complaint, says, that he has not -sufficient knowledge to form a belief whether he signed the undertaking as set out in said complaint, but this defendant did not sign any undertaking at the request, directly or indirectly, of the said Robert Anderson, but for Samuel F. Clarkson, the person known by said Watson to be the real party in that suit. To this answer the plaintiffs interposed the following demurrer:—
    “And as to the defence of the said Husson, by him first above pleaded and contained on the first and second pages of his answer, to the words ‘ And this defendant,’ on the fifth line, from the bottom of said page, the said plaintiffs demur to the same for insufficiency. And they assign the following causes of demurrer:—
    “ That the said part of the defendant’s answer is not a statement of any new matter constituting a defence, or set-off, to the matters alleged in the complaint. That it contains nothing whereby the plaintiffs should' be barred from having or maintaining their aforesaid action.
    “ And as to that part of the said answer that immediately follows the portion above demurred to, to the words, ‘ And this defendant further, on information,’ on the 25th line of the fourth, page of the said answer, secondly above pleaded, the said plaintiffs demur to the same, and they assign the following causes of demurrer:—
    “That it professes to admit facts stated in the complaint which are not therein stated, there being no statement in the complaint that a judgment of the 15th day of May, 1844, had been twice, or at any time adjudged to have been obtained wrongfully or collusively by the plaintiffs. .
    “ That the said defence secondly demurred to, is not a plain and concise statement of any new matter constituting a defence, or set-off, without unnecessary repetition, but is an obscure and prolix statement, with unnecessary repetition of facts and occurrences, which, if properly pleaded, would constitute no defence or set-off to the averments in the complaint.
    “ That it sets forth the payment of $27 50, costs on the dis, missal of an appeal, when no demand is made in the complaint of such costs, nor is the suit brought to recover said costs.
    “ That it denies the execution of the undertaking mentioned in the complaint, and alleges new matter as a defence to the said undertaking.
    “ That it is informal, and insufficient in every respect.”
    At a special term of the Superior Court of the City of Hew York, held at the City Hall, in the city of Hew York, on the 24th day of April, 1852.
    Present, W. W. Campbell, Justice.

    The demurrers to the first and second defences set up in the separate answer of the defendant, Joseph Husson, having heretofore been brought on for argument pursuant to notice, and after hearing ¥m. Watson, of counsel for the plaintiffs, and S. E. Clarkson for the defendant, Joseph Husson, and upon due deliberation had, and upon the affidavit and order to show cause as to the settlement of the order and judgment in this action, it is ordered that the demurrer of the plaintiffs, as to, the first defence, is allowed; and that the plaintiffs’ demurrer as to the second defence, in said Husson’s answer, is hereby overruled—the costs to abide the event of this action—and the order to show cause and to stay proceedings, is hereby vacated and discharged without costs on said order, to show cause to either party. Either party may be at liberty to amend in ten days.
    (A Copy.) E. G. Campbell, Glerh.

    The plaintiffs appealed to the general term from part of the above order, which overruled the demurrer to the second defence, and this appeal was now heard.

      W. Watson, for plaintiffs,
    made and argued the following points—
    I. The matters set forth between folios 15 and 22 of the answer, are insufficient and improperly pleaded.
    1. They are a reiteration of the matters contained in the first defence, which has been overruled.
    2. The said answer alleges the payment of $27 30 costs, which are no part of the plaintiffs’ cause of action, and are not demanded by the complaint.
    3. It denies the execution of the undertaking, and alleges new matter in avoidance of the same.. (McMurray v. Gifford, 5 How. Pr. R. 15. Benedict v. Seymour, 6 Pr. R. 303.)
    4. The denial that the judgment was affirmed is insufficient. The answer should deny that it was affirmed in part, as well as that it was in all respects affirmed. (Hopkins v. Everett, 6 P. R. 159.)
    H. These are defects of which advantage maybe taken-in an answer by demurrer. (Code, sec. 153.)
    IH. The said answer contains nothing in bar of this suit, because,
    I. By a" dismissal of the appeal, the judgment below is affirmed. Rules of the Court of Appeals, 2, 7, which provide, that in cases of dismissal, the court below may proceed as though there had been no appeal.

      2. More than two years since the judgment have elapsed, and no appeal will now lie. (Code, sec. 331.)
    IY. The Code, which includes the law in regard to appeals, is a remedial statute, and will receive a liberal or equitable construction. The whole statute will be taken together. The reason and spirit will be considered. The letter may be enlarged or restricted to effectuate the intent. Ex. “ Executors” held to include “ Administrators.” All persons may devise— Held not to include infants and femes coverts. (Dyer, 54. Pow. Dev. 142. Leases by Bishops, &c., 1 Bl. 87—1 Kent Com. 17h ed. 462-5. Bac. Ab. St. 1, 6, 7. Plow. 365, 465. 3 Coke, 7.)

      S. F. Clarkson, contra, for defendant.
    I. That part of the answer of defendant Husson which is included in the second demurrer, embraces different and distinct defences; therefore, if any matter of defence embraced in this second demurrer is good, the demurrer must be overruled, for it cannot be good in part and bad in part. (12 Wend. 169. 1 Denio, 428, Freeland v. McCullough.)

    II. The answer sets forth the order of the plaintiffs, obtained in the Court of Appeals, the 25th day of February, 1850, and it shows that the appeal was dismissed, for no return was filed, and that the judgment was not affirmed. The undertaking set out in the complaint is, to pay only on affirmance. (4 Cowen, 711. 19 John. R. 455.)
    III. The denial by this defendant of the allegation in the complaint, “ and- the judgment appealed from, was in all respects affirmed,” formed a good issue, and therefore the demurrer should be overruled, if other reasons did not exist against the demurrer. (12 Wend. 169. 1 Denio, 428.)
    IY. The complaint sets out that part of the undertaking “ that the appellant will pay costs and damages which may be awarded on appeal;” therefore, this defendant had a right to set forth in his answer, that on the 13th March, 1850, he paid all the plaintiffs demanded, under that order of 25th February, 1850—that is $27 run—and this demurrer is not good to this part of the answer.

      V. Judgment must be given, on demurrer, against the party who commits the first fault in pleading. (Wyman v. Mitchell, 1 Cowen, 316. Griswold, Ins. Co., 3 Cowen, 96.)
    1. Here no demand is stated in the complaint to have been made before this action, though the defendant is surety. (Douglass v. Rathbone, 5 Hill, 143-4.) A demand is parcel of the contract.
    2. Ho breaches are alleged and set forth in the complaint, as the statute requires. (2 R. S., p. 378, sec. 5. Reed v. Drake, 7 Wend. 345. Nelson v. Bostwick, 5 Hill, 39, 40. Barnard v. Darling, 11 Wend. 27.)
    VI. The judgment below should be affirmed, with costs.
   By the Court. Duer, J.

The portion of the answer to which the demurrer is taken doubtless contains much irrelevant matter, which, as such, had the proper motion been made, must have been stricken out. But the issue of law which the demurrer raises is, that admitting all the facts set forth in this portion of the answer to be true, they constitute no defence, and, consequently, if a valid defence may be extricated from the irrelevant matter, this issue must be determined against the plaintiffs. In other words, the judgment at special term overruling their demurrer must be affirmed. (Smith v. Grenien, 2 Sand. S. C. R. p. 700; Fry v. Bennett, 5 id. 62.) The undertaking of the defendants is in the words of the Code, and bound them to satisfy the judgment to which it refers, in case it should be affirmed in the Court of Appeals, and the complaint avers that the judgment is so affirmed ; and that the defendants have not paid its amount, and therefore prays for judgment against" them. The answer, inter aUa, denies the affirmance of the judgment, and avers in effect that the only order made in the Court of Appeals was an order dismissing the appeal for want of prosecution, and the plaintiffs, by demurring, admit that such was the fact..

It follows from this statement, that unless we are bound' to'say that the order dismissing the appeal is equivalent in law to an affirmance of the judgment, there has been no breach of the defendants’ undertaking, and the plaintiffs are not entitled to maintain this action. A judgment affirmed in the court of ultimate jurisdiction can never again be questioned; and if the effect of the dismission of the appeal was to preclude any further examination or impeachment of the judgment, it might reasonably be contended that the averment in the complaint that the judgment was affirmed, is sustained by the admitted fact, that the appeal was dismissed. It is not pretended, however, that such was the effect of the dismission of the appeal. It is not denied that its only effect was to replace the judgment in its former condition, leaving its merits still open to examination upon a second or further appeal; and it is impossible for us to say that a judgment has been affirmed which, after the appeal was dismissed, was still liable to be reversed. The allegation that by the lapse of time an appeal is now barred, is plainly irrelevant. The barring of an appeal by. the lapse of time is not an affirmance of the judgment by the appellate court, and it is to such an affirmance only that the undertaking relates.

The bond which the Eevised Statutes required to be given, when a writ of error was brought which was intended to operate as a stay of execution, not only bound the parties to satisfy the judgment, in case it should he affirmed, hut also in case the plaintiff in error should fail to prosecute the writ, or the same should he quashed or discontinued (2 R. S. 596, § 28), and why these additional and very significant provisions have been omitted in the Code, we have been unable to discover, and are at a loss to imagine. We cannot believe that they were rejected by the framers of the Code, as superfluous, in the belief that they were all virtually comprehended in the affirmance of the judgment. If they really intended that the undertaking upon an appeal should be construed as largely as the bond upon a writ of error, it is to he regretted that they have not expressed themselves in terms that could enable us to carry their intention into effect. We cannot depart so far from all sound and safe rules of interpretation, as to adopt a construction which is plainly inconsistent with the settled and sole meaning of the words they have chosen to employ. To affirm a judgment is'by the judicial sentence of an appellate court to declare its validity, and it is a legal solecism to say that a judgment has been affirmed, when the question of its validity is exactly that which the appellate court refused to consider. The Court of Appeals has said that the appeal should be dismissed; but as it has not said that the judgment is either valid or erroneous, we have no more right to say that it has been affirmed than that it has been reversed.

The judgment at special term is affirmed, with the usual liberty to the plaintiff to withdraw the demurrer upon payment of costs.


source: Caselaw Access Project

author: Duer, J.

license: Public Domain

text:
    Catlin v. Gunter.
    (Before Duer, Campbell, and Bosworth, J.J.)
    October 18.
    November 20,
    When usury is specially pleaded, the proof must correspond, in all respects, with the allegations in the answer. If there is any variance, the defence must be overruled.
    The court will not amend an answer after a trial so as to let in the defence of usury against a holder, for value and without notice, of negotiable paper.
    When the execution of a promissory note, and its possession by the plaintiff as an endorsee, are admitted, a denial that he is the lawful owner, without averring a title in any other person, is irrelevant and frivolous.
    Under the Code, there is no general issue under which facts, in their nature constituting a defence, but not averred in the answer, may be given in evidence.
    Facts, tending to prove that a promissory note, or any other contract, was void in its origin, on the ground of usury, fraud, &c., are in their nature as certainly matter of defence, as facts barring the action which subsequently arose. There exists, therefore, the same necessity for averring them in the answer upon these grounds. Exceptions to the charge of the judge upon the trial overruling a defence of usury disallowed, and judgment, in favor of the plaintiff, affirmed with costs.
    The complaint alleges that on the 24th day of February, 1851, the defendant drew a note to his own order, and endorsed the said note, and transferred the said note so endorsed, so that the same came to the possession of and was owned by the plaintiff; whereby he promised to pay at the Merchants’ Exchange Bank $819 68. That said note became due and payable before the commencement of this action, and the defendant has not paid the same, and is justly indebted to the plaintiff, who is now the lawful holder and owner of the note, in the sum of $819 68, with interest from July 27,1851, and costs of this action.

      The answer admits the making of the note, but denies all the other allegations in the complaint.
    .The answer then sets up usury in the transactions between S. Davenport and Wm. A. Beecher in the first negotiation of the note; and that the defendant received no value for the note, and that the note had been misapplied; and that defendant offered to pay Beecher the amount by him loaned, with interest on the note in suit, and a note for $840 16, and a note for $590 16, and that Beecher refused to receive the same without the usurious premium, and claimed that there was then due him $500 .and upwards for the loan and forbearance; that, the note for $840 16, and the note for $590 16, have been paid, and $667 50 has been paid on the other notes, and that Beecher received $170 and upwards for usurious premiums on the loans.
    The reply denies that loans were made to defendant upon the note, as collateral security upon an usurious agreement with Beecher. '
    The reply also denies that defendant offered to pay Beecher the loans made by Davenport, with seven per cent, interest, or that Beecher refused to receive the same, or claimed there was due him for forbearance $500 or upwards, or that Beecher had received for usurious premiums $170 and upwards.
    The reply also denies the note is void, and the plaintiff charges he has not sufficient information to form a belief as to the other matters set up in the answer.
    The plaintiff then charges that said note was regularly transferred in the ordinary course of business, and was taken for full value duly paid therefor, without any usury or illegality whatever, and that he is the true and lawful holder of said note in good faith, and entitled to recover thereon in the manner prayed for in his complaint.
    The action was tried Hay 17,1852, before the Hon, Lewis H. Sandford and a jury.
    The execution and endorsement of the note were admitted, and read in evidence.
    The defendant then called as a witness, Silas H. Crandall, who testified, that he received the note in question, and other notes from the defendant, and gave that note and the other notes to Silas Davenport, to raise money upon. The defendant received nothing upon them. He gave to Davenport, at the same time, the note in action, and another note made by the defendant for $736 93, a note made by R. Heslewood for $450, and a note made by Schlosser for $117 50.
    On his cross-examination, he admitted that the defendant received no consideration for his notes; one of the other notes, the Schlosser note, was a regular note, the other was not; that the defendant did not give both notes at the same time; that the note for $819 68 was given after the other; that he gave these notes to Davenport some time in March, 1851; that he gave him no other notes at that time to raise money upon for him; that he was to give the defendant the money for his notes; there was no time mentioned when he was to give him the money, nor any particular money that he was to give him; that the defendant was to have the money when he wished, and that he had the right to call for the money at any time; that he never paid the defendant for the notes ; that he would have paid the defendant if he had called for it, and that he had got the money; the notes were for his benefit thus far, that he could use the money till defendant called for it.
    Silas Davenport testified, that'he got the note in action for $819 68, and a note of the defendant’s for $736 93, and a note of Heslewood’s for $450, and one of Sehlosser’s for $117 50, about the 18th March, 1851; that he received these notes from Crandall; on the 18th March, 1851, he received from William A. Beecher, $1,500 on these notes, and that he gave him his memorandum check for $1,500, dated March 18th, 1851, and left with him the above-mentioned notes; that he borrowed the money on the security of these notes; that he borrowed it on the 18th day of March, 1851; that he did not recollect of any specific agreement made at the time of this loan between him and said Beecher; that he had made several loans of him at several times previously, which were at eighteen pence per day on one hundred dollars.
    This testimony was objected to by the plaintiff’s counsel, and the court held it to be immaterial, unless there was something proved to connect this affair with those loans or terms.
    That on the 9th day of April, 1851, he paid Mr. Beecher $500, and he returned him the defendant’s note for $736 93, and he paid him $51 88, for the use of the $1,500, from the 18th March, 1851, to that day, according to his memorandum, and gave Mr. Beecher a new memorandum check for $1,000, dated April 9, 1852. Mr. Beecher gave him no money that day.
    A question was then put as to what agreement was made on the 9th day of April, 1851, between the witness and Mr. Beecher, respecting the interest upon the loan of $1,000; but the court, on the objection of the plaintiff’s counsel, and the witness stating that there was no money paid, or advance made by Beecher on that day, refused to let it be answered; the defendant’s counsel excepted to the ruling.
    The witness further testified, that on or about the 15th day of July, 1851, his check for $1,000 was in Mr. Beecher’s hands. That William H. Scofield has since sued him on that check; Heslewood’s note was paid at maturity, prior to July 15, 1851.
    The evidence of the witness as to what occurred on the 9th of April, and as to the check of $1,000, and as to the payment of the Heslewood check, was all and each part of it objected to by plaintiff’s counsel, as irrelevant and not within the issue in the cause.
    The witness further stated, that on the 15th July, 1851, he went to Mr. Beecher’s with the defendant; he knew no other person as principal, up to that time, but Mr. Beecher.
    The witness was shown two papers, which are in the words and figures following:
    S. Davenport.
    F. A. Tallmadge, April 14, - 150
    L. Schlosser, May 14, - 117 50 ’
    H. H. Hunter, July 27, - 819 68
    Do. Aug. 27, - 840 16
    Do. July 20, - 590 16
    H. Durbridge, June 6, - 750
    Robt. Hunter, Aug. 26, - 418 87
    3,684

      Mch. 28, 500
    April 9, 1,000
    May 10, 1,300 75
    2,800 75
    May 23, 100
    2,700 75
    450 00
    2,250 75
    2d Paper.
    Amount of loan July 15, $2,720 48.
    The witness also testified, that on the 15th July, 1851, these papers were made out by Mr. Jones, Mr. Beecher’s clerk, in his presence, and delivered to the witness by his direction.
    These papers were then offered to be read in evidence to the jury; but, on the objection of the plaintiff’s counsel, the court decided they could not be read to the jury; to which ruling the defendant’s counsel excepted.
    The witness farther testified, that the note for $590 16, mentioned in the above paper, was given to Mr. Beecher on some occasion, but he could not tell on what; it was in another operation.
    The defendant’s counsel then offered to show, that the two notes mentioned in the papers just offered, as made by the defendant for $590 16, and $840 19, respectively, had been paid by the defendant, and presented the notes. This evidence was also, on the objection of the plaintiff’s counsel, excluded by the court; to which decision defendant’s counsel also excepted.
    Other evidence was offered, but which was rejected by the judge.
    The learned justice thereupon stated, that the defendant had failed to prove his defence, and directed the jury to find for the plaintiff for the amount of the note and interest. To this statement and direction the defendant’s counsel again excepted.

      The jury found, as directed, a verdict for the plaintiff for $865 09.
    Application was now made lor a new trial upon the exceptions.

      A. Thompson, for the defendant,
    made and argued the following points—•
    I. The first paragraph of the answer, denying that the plaintiff was the lawful holder and owner of the note, and defendant’s total indebtedness to the plaintiff on said note, was a sufficient answer to let in the defendant’s defence of usury. Because, 1. Usury always could be given in evidence under the general issue without special plea. (1 Strange, 498.) 2. Hew matter in the Code means something arising after the giving of the note, and which avoids the payment. (Code, § 149, 2 Wend. 96; 5 Practice Rep. 14; 6 Prac. Rep. 401.)
    H. The answer sets up also that the note had been misapplied ; that Beecher had been notified of such misapplication; that his money had been offered to him, which he had refused to receive, and give up the note.
    The reply takes issue with the answer, and asserts that the note was regularly transferred in the ordinary course of business, and was taken for full value duly paid therefor, without any usury or illegality whatever; and that the plaintiff is the true and lawful holder of the note in good faith, and entitled to recover in the manner prayed for in the complaint.
    HI. The complaint and reply both allege an original holding by the plaintiff; and identify the plaintiff with the first transfer of the note; and do not, as claimed on the trial, set up that the plaintiff is entitled to a different defence from Beecher.
    TV". If it were necessary to set up the defence of usury, by answer, it was sufficiently set up, and the allegations are to be liberally construed (Code, § 159), and it is sufficient to prove the loan, or forbearance, according to its legal effect. (2 Saun- • ders’s PI. and Ev. 897.)
    Y. Ho value was given for this note prior to the 18th March, 1851, when Beecher gave Davenport $1,500 on his check for $1,500; the note in suit $819 '68, defendant’s note for $736 93, Heslewood’s note for $450, and Schlosser’s note for $117 50, being left as security; and then it first had a legal existence. This transaction was usurious, because,
    1. Though no specific agreement was made that day, yet Davenport had made several previous loans for eighteen pence per day on one hundred dollars; and on the 9th of April, 1851, he paid him $51 88 for the use of $1,500 from the 18th March, 1851, to that day.
    2. This was a direct connexion of this loan with those usurious terms, and proved the usury according to the judge’s ruling. (2 Sandford’s Rep. 64.)
    3. This giving and receiving designedly more than seven per cent, per annum was usury without other proof of the corrupt agreement, than the giving and receiving it, such payment and receipt is prima facie evidence of a corrupt agreement. (2 Cowen’s Rep. 705.)
    VI. The judge erred in deciding that the defendant had failed to prove his defence. Because,
    1. Ho explanation was given, and the proof was full, and the judge was bound, as matter of law, to have charged that the usury was proved. (2 Cowen, 705.)
    2. If any claim had been made that the $51 88 had been received for any other cause, that should have been passed on by the jury, (2 Cowen, 706.)
    VII. The judge erred in not allowing testimony as to the agreement between Davenport and Beecher on 9th 'April, 1851; also the papers made out July 15th, 1851, by Beecher’s direction, and Beecher’s claiming more money on that day than was due. Because,
    1. The securities were altered on 9th April, 1851, and a new check given, and usurious premium paid for the past; and the evidence would have shown directly that the loan of $1,500 was usurious; and the renewal for $1,000 was on the same terms; and the statements, written and verbal, made on the 15th July, 1851, if admitted, would have shown the usury also.
    VIÜ. The judge erred also in refusing to receive the testimony offered jn the 28th, 29th, and 30th folios of the case, Because,

      1. Each matter thus offered had been set up in the answer, and denied by the reply and the defendant was entitled prove his defence. The issue was not immaterial; the issue was, whether Davenport loaned the face of the notes, or the face of his check. The jury could have found against the usury, and yet given judgment for the money loaned.
    2. All the paper was then in Beecher’s hands. If the evidence had been admitted, it would have shown only about $5 70 due on the whole of the paper; and all due 15th July, 1851, was offered to be paid.
    IX. The judge erred also in refusing the other testimony offered. Because,
    1. Each issue between the parties had been proved for the defendant.
    2. The plaintiff alleged the note was regularly transferred to the ordinary course of business. It was proved to have been transferred usuriously and misapplied; and it was offered to be shown that Beecher knew it. The plaintiff claimed nothing more than Beecher’s title, nor could he, for he took the note after it was due. (6 Wend. 621.)
    3. The plaintiff claimed only on Beecher’s title; if he claimed that he was entitled to recover on account of any other person having taken the note in good faith for value, before it was due, he should have shown such person’s title; and the defendant was not bound to trace the note from Beecher to the plaintiff. .(2 Denio, 609; 4 Denio, 63; 4 Barn. & Cress. 330; 0 Barn. & Cress. 338 and 208; 4 Adol. & Ellis, 338.)

      C. P. Kirkland, for plaintiff, contra.
    The whole gravamen of the answer is, that this nóte was an accommodation note, and that one Davenport delivered to W. A. Beecher this note and another note of defendant for $840 16, and another for $590 16, and a note of Tallmadge for $150, of Schlosser for $117 50, of Durbridge for $750, and of Hunter for $418 87; as collateral to loans made by Beecher to Davenport, namely, $500 on 18th March, 1851, $1,000 April 9,1853, and $1,300 May 16,1851, and that these loans were usurious.
    Unless this contract is proved substantially as laid, the defence of course fails; and instead of being proved, it is wholly disproved by defendant’s testimony.
    1. From Crandall’s testimony it appears that this note was a business note.
    2. The contract between Beecher and Davenport is proved to have been as follows :—
    Davenport, on 18th March, 1851, delivered to Beecher, as collateral to a loan of $1,500, the following notes
    This note in suit -
    Another note of defendant for -
    Heslewood note -
    Schlosser’s -
    $819 68
    $736 93
    $450 00
    $117 50
    And that no agreement was made as to the rate of interest on this loan.
    This ends the case, and required the judge to charge as he did, that the defendant had failed in his defence.
    H. The defence set up is usury, but the defendant also alleges some payments on the loans alleged in the answer. These loans not being proved, but disproved, it follows that no evidence of payment was admissible. Mo payment proved or offered was admissible under the pleadings and under the proof showing the loan really made. The defendant did not set up the loan really made, nor any payment on that. The Heslewood note is nowhere stated in the answer.
    But this question is not raised in the case; defendant took no exception on this subject.
    IH. The judge properly excluded the question put. Mo money was then paid, or advance made or agreed to be : of course there could not, then, have been any agreement for usurious interest. Besides, the defendant had not at all proved the contract of loan set up.
    IV. The judge properly excluded the papers offered. 1. The defendant had wholly failed to prove any contract under which these papers could be evidence. 2. They were at most but the declarations of a former holder of the paper. (Stark v. Boswell, 6 Hill, 405; Whitaker v. Brown, 8 Wend. 490; Bristol v. Dann, 12 Wend. 142; Paige v. Cagwin, 7 Hill, 361.) 3. They could not be evidence against the plaintiff, till some evidence was given to show that Bulkley and Clafflin, of whom he purchased the note, were not bond fide holders, or that they received the note after its maturity. (Nelson v. Cowing, 6 Hill, 336; Pratt v. Adams, 7 Paige, 629; Pinkerton v. Bailey, 8 Wend. 600; Waterman v. Barrett, 4 Harr. Del. 311; Jones v. Wescott, 2 Brevard, 166; 3 Day, 311, per Livingston, J.)
    V. The judge properly excluded the.evidence as to payment of the notes of $84016 and $59016, as being wholly irrelevant under the proof in the cause: they had no connexion with the $1,500 loan. He also correctly excluded the evidence as to the offer made by defendant to Beecher. Ho offer could be of any materiality. This testimony is also liable to the objections stated under the fourth point. He also, for the same reasons, correctly excluded the evidence as to what Beecher claimed.
    VI. ITnder the pleadings and evidence, the judge could not rule .otherwise than he did, namely, that “ the defendant had failed in his defence.”
   Duer, J.

We think that the learned judge who tried this cause rightly instructed the jury to find a verdict for the plaintiff for the full amount that was claimed, since we agree with bim in the opinion that the proof wholly failed to sustain the defence set up in the answer. All the material allegations in the complaint were admitted by the answer; and there was, in reality, no question of fact arising upon the pleadings and evidence that could properly have been submitted to the determination of the jury.

It has been contended that the answer sets up two or more defences not inconsistent with each other, and distinct in themselves ; but it seems to us quite evident that the only defence which it sets up is that of usury. It is true, that the answer alleges that the defendant received no value for the note in suit, and that it was misapplied by the agent in whose hands it was placed to be negotiated for his benefit; but it contains no averment that either the plaintiff, or Bulkley and Clafflin, from whom he purchased the note, or Beecher, to whom it was first negotiated, had any notice of its fraudulent misapplication, nor was there the slightest evidence to bring home this knowledge to either of them. The plaintiff, indeed, purchased the note when it was overdue, and therefore took it subject to any-subsisting equity; but no equity, of which the defendant was entitled to avail himself, is either averred', or proved, to have been then attached to it. Hence, the averment that the defendant received no consideration for the note, when he placed it in the hands of Crandall, is not otherwise important than as connected with, and indeed forming a necessary part of, the defence of usury. As to the allegation of a partial payment, it is not distinctly connected even in the answer with the note in controversy; and the proof offered upon the trial related wholly to other notes, and was therefore properly rejected as irrelevant. The whole case, therefore, turns upon the question whether the defence of usury, as set forth in the answer, was established by the evidence upon the trial; or, more properly, was any evidence given in support of this defence which the judge ought to have submitted to the jury; and the necessary answer to this question is, that not only were the allegations in the answer embodying the defence of usury unsustained by proof, but they were, in reality, contradicted and disproved by the very witnesses who were adduced to support them.

The allegations in the answer are, that the note in suit and two other note,s made by the defendant,—one for $840 16, the other for $590 16,—a note of F. A. Tallmadge for $150, another of L. Schlosser for $117 50, another by W. Durbridge for $750, and another by R. Hunter for $418 87, were all delivered by Crandall to Davenport, and by him placed in the hands of Beecher, as collateral security for three several loans made to him by Beecher, one of $500 on the 18th March, 1851, one of $1,000 on the 9th of April, and the last of $1,370 75 on or about the 16th May, in the same year; and that each of these loans was made upon an express agreement that Davenport should pay, and Beecher receive, 18f cents upon each $100 for each day that the loan or forbearance should continue.

The transaction, as proved by Davenport, was, that on the 18th March he borrowed from Beecher the sum of $1,500, on the security of the note in suit, of another note made by the defendant for $716 93, a note of R. Heslewood for $450, and the Schlosser note for $117 50, and none other; and that when this loan was made there was no specific agreement whatever between him and Beech'er as to the rate of interest' to be paid.

The answer alleges that there were three loans, founded upon the security of seven different notes, and upon an express agreement for the payment of an usurious rate of interest.

The proof is, that there was but a single loan, not corresponding in amount with either of those stated in the answer, founded upon the security of four notes only, two of which are not mentioned at all in the answer, and accompanied by no agreement whatever as to the rate of interest.

It is needless now to inquire whether other circumstances were not proved by Davenport, from which the jury i would have been warranted to infer that .the loan made to him was, in fact, usurious, notwithstanding there was no express agreement to that effect at the time of the loan; for even had an express, contemporaneous, and clearly usurious agreement been proved, it would still have been the duty of the judge to have instructed the jury that, from the variance between the usury as alleged, and the usury as proved, the defence had wholly failed, and consequently, that the plaintiff was entitled to their verdict. He could not have instructed them otherwise, without departing from the rule that has uniformly prevailed in courts of law, as well as of equity, that where usury is specially pleaded, the proof upon the trial or hearing must correspond, in all respects, with the allegations in the pleadings, or the defence will be overruled; unless the correspondence is exact and entire, the proof must be wholly rejected. (Tate v. Willing, 3 Term R. 538; Vroom v. Ditmas, 4 Paige, 526, 533; New Orleans, G. & B. Co. v. Derby, 8 Paige, 458; Rowe v. Phillips, 2 Sand. Ch. Ca. 14.) The last of the cases cited, Rowe v. Phillips, is particularly strong, since the fact of usury was clearly proved, and the only variance between the proof and the allegation was, that the excess, above the legal rate of interest, was somewhat less than the amount specified in the answer.

We certainly have no inclination to depart from the rule which the decisions, to which we have referred, and many others, so clearly establish, nor do we apprehend that the provisions of the Code have released us from the obligation of following it. We have now, indeed, a large discretion in amending pleadings so as to conform them to the facts of the case, as disclosed by the evidence, and we have, not unfrequently, exercised this power at a General Term, even when no motion to amend had been made upon the trial; but, in our judgment, it would not be a proper exercise, but an abuse of our discretion, so to amend an- answer after a trial, as to let in the defence of usury against a holder for value, and without notice, of negotiable paper. It has, however, been insisted, that no amendment of the answer was necessary in the present case, to let in the defence of usury, but that, striking from the answer all the specific allegations which the proof failed to sustain, the defence was admissible under the general denial which the answer contains, that the plaintiff was the lawful holder and owner of the note, and that the defendant was indebted to him thereon in the sum claimed to be due, or in any sum whatever. But these positions appear to us so manifestly groundless, that, had not the defence of usury been specially pleaded, the answer would, in our opinion, have been plainly frivolous, and the plaintiff entitled to an immediate judgment. The answer controverts no material averment in the complaint. It admits the making and transfer of the note, and its possession by the plaintiff, and these are all the facts which the plaintiff was bound to aver, and if denied, to prove, in order to maintain his action. Hence the denial in the answer, that the plaintiff was the lawful owner of the note, and that the defendant was indebted to him thereon, raised no issue of fact whatever, but was a denial merely of a conclusion of law, which, as such, the judge upon the trial, so far from admitting evidence under it, was bound to disregard as irrelevant and nugatory. We are in the constant habit of striking out such a denial as irrelevant or frivolous, and we believe that the same construction has uniformly been given to it by the judges of the Supreme Court. (Pierson v. Squire, 1 Code Rep. 91, id. 84; McMurray v. Gifford, 5 Howard P. R. 14; Biddington v. Davis, 6 Howard, 402.) The Code has given no sanction to the revival in any form of a general issue, under which facts, in their nature constituting a defence, although not aA'erred in the answer, may be given in evidence upon the trial; and facts tending to prove that a promissory note, or any other contract, was void in its origin upon the ground of usury, fraud, duress, &c., are, in their nature, just as certainly matter of defence, as facts subsequently arising; and .there exists, consequently, thesame necessity for averring them specifically in the answer. The system of pleading which the Code has introduced, whatever objections upon other grounds may be made to it, rests upon very sound and obvious principles. The complaint must distinctly aver all these facts which, if denied, the plaintiff must, in the first instance, prove upon the trial, in order to maintain his action. The answer must aver as distinctly all those which, when the case of the plaintiff is admitted or proved, the defendant must prove, in order to defeat a recovery. There are other questions arising upon the evidence in this case, which we have deemed it unnecessary to consider. It may be seriously doubted, whether the note in suit was not a valid business note, in the hands of Crandall, and if not, whether there was any evidence that it was first transferred upon a usurious consideration, that, under any state of the pleadings, conld properly have been submitted to the jury; but we decline to express a definite opinion upon these questions, as we prefer to place our decision upon the single ground, that no other defence than that of usury was set up in the answer, and that the allegations in the answer were wholly unsustained by the proof.

The exceptions stated in the case are overruled,. and the judgment upon the verdict affirmed with costs.


author: By the Court. Bosworth, J.

text:
    Stephen Whitney, Resp’dt, v. Joseph Meyers, Appellant.
    The plaintiff demised to defendant by lease, under seal signed by both parties, dated February 3d, 1849, certain premises for one year thereafter, at $700 per annum, payable quarterly in advance. The action was for the last quarter’s rent. The defence was a surrender by operation of law prior to 1st of February, 1850, and also an eviction during the last quarter in March, 1850, by summary proceedings at the instance of the plaintiff.

      Held, 1st. That an absolute and unconditional lease by parol during the term, of the whole premises, to a new tenant, occupation and payment of rent by such new tenant pursuant thereto, would work a surrender by operation of law. 2d. That a parol lease for less than a year would be valid in law and effectual to vest an estate for the agreed term in the new tenant: that there was no evidence on which to submit to the jury the question of a surrender. 3d. That where rent is payable quarterly in advance, an, eviction during the quarter, but after the rent becomes due, does not bar an action for the rent. The most the evicted tenant can equitably claim is a deduction for so much of the quarter as elapses after his eviction.
    (Before Duer, Campbell, and Bosworth, J.J.)
    October 18, 19 ;
    Nov. 20, 1852.
    Appeal from a judgment at special term on a verdict in favor of the plaintiff. The action was brought on a sealed lease executed by both parties, dated February 3d, 1849, by which the plaintiff leased to defendant certain premises for one year from the 1st of May thereafter, at §700 per annum, payable quarterly in advance, and by which the defendant covenanted to thus pay the rent, and not to assign, let, or underlet the whole premises without the written consent of the plaintiff under the penalty of forfeiture and damages. The complaint alleged the execution of the lease, its terms, and entry under it by defendant, and payment by defendant of the first three quarters’ rent, and non-payment of the rent for the last quarter.
    The defendant admitted in his answer that he went into possession, and that he had fully paid three’ quarters of the rent of said premises due and owing by him for the occupation of the premises.
    He then averred that before the rent payable February 1st, 1850, fell due, the defendant gave up possession to the plaintiff with his assent.
    That on or about the 1st of February, 1850, the plaintiff rented the premises to David and Joel Mandlebaum, or to one of them, and on such letting they or one of them paid the plaintiff the rent agreed upon, and that they or one of them entered into possession as tenants of the plaintiff.
    That on or about the 9th of March, 1850, the plaintiff, “ under the statute of summary proceedings, obtained judgment against all persons claimed by said plaintiff to be then in possession of said premises, and entered upon and took possession of the same.” The • reply .put in issue the new matter contained in the answer, except obtaining the judgment by summary proceedings, and averred “ that the premises were unoccupied when he took possession of the same, as is alleged in the answer.”
    Judge Sandfobd, before whom the cause was tried, charged the jury that there was no evidence on the part of the defendant to warrant them in finding a surrender of the premises to the plaintiff; that the jury would find for the plaintiff, deducting such sum as was proportioned to the amount of rent from the time plaintiff’s new tenant took possession in the spring of 1850, and left to them to find at what time such possession was taken. The defendant excepted to each part of the charge separately, and requested the court to charge that the entry of the plaintiff into the premises before the expiration of the quarter, for the rent of which the suit was brought, was an eviction, and that the plaintiff could not recover any part of the rent for that quarter. He refused to so charge, and the defendant excepted. The jury, under the charge given, found a verdict for the plaintiff for $131x\„, to the first of April, 1851. This is an appeal by the defendant from the judgment entered on the verdict, and brings up for consideration the correctness of the decisions made at the trial. All other facts essential to a full understanding of the case are stated in the opinion of the court.

      Bryan, for appellant,
    made and argued the following points—
    There was sufficient evidence on the part of the defendant, to go to the jury, on the question of a surrender, by operation of law, of the premises for the rent of which this action was brought, before the rent accrued due.
    There was, evidence on the part of defendant, to show that the witness, Julius Mandlebaum, went into possession of the premises in November, 1849, and was substituted as a tenant therein by mutual consent of plaintiff and defendant.
    A good term, from November to May, vested in Mandlebaum.
    That the plaintiff collected from the substituted tenant the rent monthly, showing a new agreement, the defendant always having paid quarterly.
    That the plaintiff took summary proceedings against the substituted tenant Mandlebaum, to get him out of possession for non-payment of rent.

      The court erred in ruling that there was no evidence of a surrender of the premises, and iñ directing the jury to find for the plaintiff on that point.
    There was a change of possession by mutual consent. (Stone v. Whitney, 2 Starkie Rep. 235; Thomas v. Cook, 2 Barn. & Alder. 119; Hamerton v. Stead, 3 Barn. & Cress. 473; Whitehead v. Clifford, 5 Taun. 518; Grumman v. Legge, 5 Barn. & Adolph. 324; Nichols v. Atherton, London Jurist, vol. ii., part 1, page 778; 2 Barbour, 180.)
    The court erred in charging that there was some evidence that the plaintiff entered by his new tenant on the 15th April, 1850. It being admitted by the pleadings, that the plaintiff obtained judgment in ej ectment, and entered March 9,1850; such entry worked at least a discharge of the rent from the time it took place, and was good as a recoupment against the plaintiff’s claim. (Hinsdale v. White, 6 Hill, 509; Woodfall, L. & T.)
    As to the effect of not specifically denying a material allegation in answer, see Code, sec. 168.
    The court erred in admitting evidence as to the state of repairs of the premises, and the nature of the building; such evidence was immaterial, irrelevant, and applied to no question in issue. Ho evidence can be admitted, which does not tend to prove or disprove the issue joined. (Russell on Ev. vol. ii., 772; Phillips on Ev. vol. clxi. and Cowen & Bill’s notes, vol. ii.; Greenleaf, Starkie.)
    The court erred in refusing to charge that the entry .of the plaintiff into the premises before the expiration of the quarter for the rent of which the suit was brought, was an eviction.
    That the entry on March 9,1850, was admitted, and that .the plaintiff was not entitled to recover rent for that quarter. (Burn v. Phelps, 1 Starkie R. 94; 4 Rawle Rep. 339; Taylor L. & T. 183, 285.)

      J. Larocque, for respondent,
    insisted on the following points—
    I. The rent being payable, by the agreement, in advance, the whole quárter’s rent for "that quarter ending May 1, 1850, accrued and became due on the 1st February, 1850, and the plaintiff’s right of action was then vested,

      H. There was no valid surrender or acceptance of the premises or of the lease. 1. The evidence distinctly shows that the plaintiff declined to accept the surrender, and made the absolution of Meyers from his liability for the-rent, dependent upon its payment by Mandlebaum. 2. If he had verbally agreed to accept Mandlebaum, Meyers’s assignee, as his tenant, it would not bind him; the lease expressly requiring such consent to be in writing. (Fol. 26.) 3. There was no evidence of the acceptance of rent from Mandlebaum, otherwise than on account of Meyers ; the receipts not having been produced, and the evidence excluded by the court on account of their non-production. (Fol. 36.) • 4. The parol surrender would be void under the Statute of Frauds. (2 R. S. 194, Sec. 6, 3d Edit.; 1 Archbishop, 6 East. 86 of York; Rowan v. Little, 11 Wend. 616 and 621; Croswell v. Crain, 7 Barb. 191; and cases cited.)
    HI. There was no eviction. 1. The judgment without execution was not an eviction-; and if it were, did not divest the right of the plaintiff to the rent which had fallen due on the first of February preceding, (Hinsdale v. Wight, 6 Hill, 507.) 2. The entry of Lettman, after the defendant and Mandlebaum had abandoned the possession, was no eviction. The lease to him gave him the right to the possession only from the first of May.
    IY. The rulings of the court upon the questions of evidence and the charge to the jury were correct.
   By the Court. Bosworth, J.

The important question in this case is, did the judge before whom it was tried correctly decide “ that no evidence had been given on the part of the defendant, sufficient to go to the jury on the question of a surrender of the lease in question?”

If it was agreed absolutely and unconditionally between the plaintiff, defendant, and Mandlebaum, that plaintiff would accept the latter as his tenant in lieu of the defendant for the residue of the term, and take payment of the rent monthly in advance, instead of quarterly, at the rate of $70ff p<fer annum, and if this agreement was executed by the defendSnt’s yielding possession to Mandlebaum, and by the latter taking possession and paying rent monthly in advance to the plaintiff, and by the plaintiff’s accepting it from him as such substituted tenant under and pursuant to such agreement, such agreement and acts of the parties under it, would amount to a surrender of the lease by “operation of law.” (1 Sand. S. C. R. 5. Bailey v. Delaplaine, 1 Law & Eq. E. 374; Smith & Coles v. Lovell.)

It is necessary, in order that the new agreement may be effectual to work a surrender by operation of law, that it be valid and sufficient to vest in the new tenant or lessee the estate or term contemplated by the agreement of the parties, and bind him to pay the stipulated rent. (Schiefflin v. Carpenter, 15 Wend. 400; Smith v. Niver & Rockfeller, 2 Barb. S. C. 180. Doe ex dem. v. Courtenay, 11 Ad. & El. N. S. 702; Doe ex dem. v. Poole, id. 713.)

A lease to Mandlebaum for six months, the balance of the term, would be valid though made by parol.

In Doe ex dem. Biddulph v. Poole—Eble, J., in delivering the opinion of the court, says, “ that an express surrender may be on condition either precedent or subsequent, is clear upon the authorities, as if it be with reservation of rent, and conditioned to be void if the rent be not paid.” (Shep. Touchst. 307.) A condition annexed to a surrender, may revest the particular estate, because the surrender is conditional.” (Co. Lit. 218 b.)

“ This being so as to express surrenders, we can discover no reason why an implied surrender may not also be taken' to be conditioned to be void on a given event. As the surrender is by implication only, it is equally open to imply a conditional of absolute surrender; and, where the implication of a conditional surrender prevents injustice and gives effect to the real intention of the parties, the true spirit of the law requires that implication to be made, and forbids an implication leading to the contrary consequences.”

Was there such evidence, as made it the duty of the judge presiding at the trial, to have submitted to the jury the question, whether the plaintiff rented the premises to Mandlebaum for the last six months of the term, and whether the latter entered and occupied- under such letting and paid rent as such tenant to the plaintiff ?

The only evidence, if any, which made it incumbent to submit that question, was given by Mandlebaum, who was examined de bene esse, through an interpreter. The fact that it was necessary in examining him to have the aid of an interpreter, shows that no great reliance can be placed on his capacity to understand and repeat accurately what was said, when he and the defendant and the plaintiff held the conversation, in which it is claimed the new parol lease was made to the witness. From his testimony it appears that he bought or contracted to buy of Meyers his interest in the unexpired term of the lease before the two went to see the plaintiff on the subject. The lease contained a consent, that the defendant “ would not assign, let, or underlet the whole of the said premises, without the written covenant of the party of the first part, under the penalty of forfeiture and damages.”

It was therefore necessary to obtain the consent of the plaintiff to the sale made, or contracted to be made, of the lease from the defendant to Mandlebaum. The following questions were put and answers made thereto on his direct examination, viz:— Q. What took place when you hired the premises of the plaintiff Mr. Whitney ? (fol. 35.)

A. He (meaning the witness) bought the place out from Mr. Meyers, and then Mr. Meyers went with me to Mr. Whitney 5 he, Meyers, asked Whitney if he was satified that Meyers should sell the premises out to witness. Mr. Meyers told me I had to pay the rent, fifty-eight dollars and some cents. I paid it, and Mr. Whitney gave me a receipt in my name.

Q. State all that Meyers said to Whitney when you were there to take the premises, and all that Mr. Whitney said. (Objected to as leading.)

A. I went there with Mr. Meyers and my brother, David Mandlebaum, went to the office of Mr. Whitney. Mr. Meyers said there is a man who wants to buy my house out, as I am going to Europe. Mr. Whitney asked him what, man I be; Mr. Meyers said, I (witness) would pay the rent. Mr. Whitney said he was satisfied if I’d pay the rent.

Mr. Meyers had the lease in his hand, and told Whitney he had to put my (witness’s) name in the lease. Mr. Whitney said it was no use to put his name in it, it was good enough if witness paid the rent to the first of May, and got a receipt in his name. (fol. 3,9,)

This is the whole conversation at the time the new parol lease is claimed to have been made, to which the witness testified on his direct examination.

According to this not a word was said about letting the premises to Mandlebaum, but the point of inquiry was, whether Mi*. Whitney would consent that the defendant should sell out to him ?

The cross and re-examination of the witness do not substantially vary his statement of the actual conversation had between him and the plaintiff and the defendant.

The following questions, and answers thereto, occur in the testimony of the witness, but not in the order here stated:—

Q. How did you engage to pay the rent to Whitney ?
A. By the month, and in advance.
Q. Did you so pay it ?
A. I did.
Q. Were you to pay the rent in the same manner that Mr. Meyers did—according to the lease ?
A. There was nothing said about how I should pay the rent (f. 53).
Q. Where did you first go to see Mr. Whitney about the premises, and when ; give the day and month of the year. (£46)?
A. Two years ago, in December, 1849, at his office.
Q. In what month did you take possession of the premises (£58)?
A. In November, 1849, for the last six months before the first of May, 1850.
Q. How much rent have you paid Whitney in all (f. 71) ?
A. Three months—$175.
Q. Did you pay any rent on the first of February, 1850, for the quarter commencing on that day ?
A. I paid only for three months.

It is evident that there is no evidence thus far of a parol demise of the premises by Whitney to Mandlebaum, for six months from Nov. 1, 1849, or for any other period.

The witness testifies that he paid, during three months, rent to Mr. Whitney monthly, in advance, or- $58 33-J- per month, and took receipts for the rent so paid, Parol evidence of the contents of the receipts was excluded by the judge, and we think the decision correct, as the non-production of the receipts was not satisfactorily explained.

Whether the receipts by their terms stated the rent to have been paid by Mandlebaum, as a tenant of Whitney, or on behalf of the defendant, did not therefore appear. The non-production of the receipts would not justify any inference or presumption that their terms were adverse to the plaintiff’s claim.

Confessedly, there has been only nine months’ rent paid in all, including the three months’ rent paid by Mandlebaum.

The complaint avers that “the defendant paid the three quarters’ rent, which fell due on the first days of May, August, and November, respectively in said term, but has not paid the quarter’s rent falling due the first of February, 1850.”

The answer admits that the defendant “ has fully paid three quarters of the rent of said premises, due and owing by him to the said plaintiff for the occupation thereof.”

This seems to be an express and unqualified admission, that all the rent that has in fact been paid, has been paid by the defendant, and that the occupation to the first of February was his occupation, and that all the moneys paid were due and owing from him for such occupation.

The answer then sets up a surrender of the lease before the accruing of the rent falling due on the first of February, 1850, that the defendant gave'up possession of the premises to the plaintiff, and with his assent, but not stating when this was done. It then alleges that on or about the first of February, 1850, the plaintiff let and rented the premises to one David Mandlebaum, to Joel Mandlebaum, or to one of them, and that on such renting they, or one of them, paid him the rent agreed on between them for the use and occupation, and that thereupon they, or one of them, entered into possession of said premises as tenants to the plaintiffs. This answer is signed and verified by Meyers.

If there was any parol demise of the premises to Joel Mandlebaum, it must arise out of conversation had between Meyers and the plaintiff. Mandlebaum, according to his own testimony, was a mere listener at the time of this conversation. He does not swear that he said anything himself. As the aid of an interpreter was necessary on his examination, there is no very great presumption that he could have taken any part in making this parol lease, even if he had attempted to do so. Its terms were fixed, if one was made, by the conversation had between Meyers and the plaintiff His answer, taking it to be true, does not imply that Meyers had much knowledge in relation to it, as he does not undertake to state when it was " made, or whether to two or to one, and if to but one; to which one of the two, nor its terms.

We are of opinion that the judge correctly refused to submit the question of a surrender to the jury. The evidence, taken as a whole, in connexion with unequivocal admissions contained in the pleadings, shows that Whitney was asked to consent to a sale by the defendant, of his interest in the premises to Mandlebaum, and that he did consent, and said it would be all right if the rent was paid to the first of May. That as the defendant was going to Europe, he probably intimated that he would not insist on enforcing his right to be'paid quarterly in advance, provided it was punctually paid monthly in advance. But he did not agree, and was not asked to agree to resume possession himself, and relet the premises to Mandlebaum.

The old lease was not given up, nor was a request made that it should be. According to Mandlebaum, a request was made that his name should be inserted in the lease. If he is correct in this, it is enough to say that it was not done, and Mr. Whitney declined acceding to the request.

Mr. Whitney, according to this witness, said the lease “ was good enough if witness paid the rent to the first of May, and got a receipt in his name.” Whatever consent was given or agreement made by the plaintiff, it had this condition annexed to it. There was a failure on the first of February, 1850, to pay either a quarter’s or a month’s rent in advance. The consent or agreement ceased to be operative, either to relieve the defendant from his liability to pay the quarter’s rent falling due that day, or to confer any right on the defendant to occupy the premises thereafter. The testimony, taken together, does not tend to show a demise by the plaintiff to Mandlebaum.

The objection that the plaintiff evicted Mandlebaum by sum. mary proceedings during the last quarter,..and therefore no rent can he recovered for any part of that quarter, is wholly untenable. Proceedings were commenced about the 9th of March, i860, and, according to the language of the answer, the plaintiff “ obtained judgment against áll persons claimed by said plaintiff .to be then in possession of said premises, and entered upon and took possession of the same.”

It is not. stated against-whom the proceedings were taken, nor whether they were had against persons alleged to be ten-' ants of Whitney, or undertenants of the defendant, whether a warrant was issued to remove the parties proceeded against, nor that any one was in fact dispossessed by virtue of such proceedings. The proceedings themselves were not put in evidence.

Such proceedings operate to cancel and annul the relation of landlord and tenant, between the parties, and the contract or agreement for the use of the premises, from the time of,the issuing of' the. warrant for the removal of the tenant from the demised premises, and not from the time of commencing the proceedings (2 R. S. 515, § 43; 6 Hill, 507; Hensdale v. White.)

In this case the rent fell due on the first of February for the whole succeeding quarter. The rent being payable in advance, an eviction before, the end of the quarter is.no bar to an action for the rent that bad previously become due. (Giles, Receiver, &c. v. Comstock, 270 of 4 Coms.)

The most that the defendant could claim on any equitable ‘ principle, was exemption from rent for so much of the quarter - as elapsed after the plaintiff took possession of the premises. The jury were instructed to make such a deduction, and they deducted for the month of April. The charge of the judge on this point was not prejudicial to the defendant, and we are satisfied with the finding of the jury.

A new trial must be denied, and the judgment appealed from affirmed with costs.


author: By the Court. Campbell, J.

text:
    West v. Newton.
    (Before Duer, Campbell, and Bosworth, J.J.)
    Oct. 19, 20;
    Nov. 20, 1852.

      Semble, that a contract in writing to sell and deliver coal at a stipulated price, although signed by the vendor alone, is not void under the Statute of Frauds.
    Such a contract is mutual on its face, the price to be paid for the coal on its delivery being a sufficient consideration for the undertaking of the vendor to deliver it.
    Where it is proved that the vendor by any subsequent act recognised the validity of the contract, it is probably binding on both the parties; but whether it is rendered so merely by its delivery to the vendee—dubitatur.

    When, by the terms of the contract, the vendee was to direct at what places in the city of Hew York the coal should be delivered; the designation of the places hy a notice to the vendor before the time fixed for the delivery of the coal, is a condition precedent to his obligation to make the delivery.
    Hence, in an action claiming damages for the non-delivery of the coal, unless it is proved that the requisite notice was given in due time to the vendor, the plaintiff must be nonsuited.

      Held, that in the principal case this necessary proof had not been given. Judgment for defendant, dismissing complaint, with costs, accordingly rendered.
    This action was brought upon a- bond given by the defendants on an attachment issued against the property of Jacob Carrigan', of Philadelphia. The plaintiff claimed damages against Carrigan for the non-fulfilment of a contract to deliver coal, and procured an attachment to be issued against his property in Yew York, to relieve which property from' the lien, the defendants gave the bond in question. In their pleas the defendants set up the same matters in defence, which Carrigan might have interposed had he himself been sued upon his contract. The pleadings are voluminous, but their contents need not be stated, as no question in the cause turned upon their construction. The issues made by the pleadings were tried before the chief justice and a jury in May term, 1852; and upon the trial, the contract given in evidence was as follows:—
    “I do hereby agree to deliver to J. Selby West, at such places as he shall (Erect, during the months of August, September, and October next in about equal quantities each month, five hundred tons of egg and five hundred tons of good size stove coal, best quality of red ash Peach Orchard, at five dollars per ton, cash, or interest added, after delivery, as he shall prefer. The above coal to be in good order and gross tons. Credit not to be over three months.
    “ Moréis Buckman, Agent,
    “ For Jacob Oaeeigan, Jr.
    “ Hew York, April 16,1846.”
    Ho counterpart was executed by the plaintiff. A brother of the plaintiff testified that at some time during the months of August, September, and October, and he believed in September, though it may have been in October, he heard a conversation between the plaintiff and Morris Buckman, who had acted as agent for Carrigan in making the contract, which conversation had reference to the place where the coal was to be landed, and'the plaintiff told Buckman to send the coal to the foot of 28th street. The counsel for the plaintiff also put in evidence the following correspondence between the plaintiff and Carrigan:—
    “ Hew York, Oct. 28th, 1846.
    “ Mr. Jacob Oaeeigan, Jr.,
    “ Dear Sib,—Inclosed you have a copy of my contract with you, no part of which has been filled. The time for performance expires on the 31st of this month. As I wish the coal, although it is too late to forward it within the time called for in the contract; still, if you will deliver me the coal forthwith, I will receive it as a fulfilment on your part, otherwise I must hold you responsible. Please to let me hear from you by return of mail, without fail, and let me know what you will do about it.
    “ J. Selby West.”
    “ Phtladelfhia, Hovember 4th, 1846.
    “ Mr. J. Selby West, Hew York:
    “Dear Sir,—Your note of October 28th is received. As the contract made with you called for you to notify me where the coal was to be landed, I have waited and' waited for such notice from you, knowing your means were so limited you would not want any of it stored.
    “ The coal has been ready and waiting such notice from you. I am certainly a little surprised, at this late day, to receive such a note from you. I had come to the conclusion that you did not want the coal. All whom I sell to in the same way notify me regularly how they want it shipped, and at what pier to land it.
    “ Yours respectfully,
    “Jacob Carrigau.”
    The plaintiff then proved that the price of coal in the city of New York was in August, 1846, $5 10 per ton; in September, $5 20; and in October, $5 42; and on the 1st of November, $5 62. The defendants offered no evidence, but moved for a nonsuit on various grounds. The motion was denied by the judge, reserving the right to afterwards grant a nonsuit, if one ought to have been granted at the trial. The court instructed the jury that the plaintiff was entitled to the difference between the contract price and the market price at the close of the month. To which instruction the defendant excepted.
    And the court further charged that the jury might also allow interest on that difference.
    To which instruction the defendant’s counsel also then and _ there excepted.
    The jury found a Verdict for the plaintiff for $208 33, as damages for not delivering coal, and added thereto the sum of $23 51 for the costs on issuing the attachment.
    The- court then directed a verdict for the plaintiff to be entered for $231 84, subject to the opinion of the court on a case, with liberty to enter a nonsuit.
    Either party to be at liberty to turn the case into a bill of exceptions.

      H. S. Dodge,

    in moving that a nonsuit be entered, insisted upon the following points and authorities i
    I. The only evidence furnished of the contract alleged is the paper signed by Buckman. It does not appear even that plaintiff assented to it until October, 1846, much less that he ever contracted to take the coal. The proof, therefore, shows an offer or promise -without mutuality, or any consideration in point of fact. (Chitty Contracts, p. 15, 16, &c.; Addison, do. p. 26, &c.; Egerton v. Mathews, 6 East. 307; Lees v. Whitcomb, 5 Bing. 34; Sykes v. Dixon, 9 Ad. & E. 693; Utica & Schenectady R. R. Co. v. Brinckerhoff, 21 Wend. 139.) 2. The word “agree” does not import a consideration. (Newcomb v. Clark, 1 Denio, 226; Bennett v. Pratt, 4 Id. 275.) 3.. Although it maybe construed as the promise of both parties, when both sign the same paper. (Barton v. McLean, 5 Hill, 256; Eno v. Woodworth, 4 Comst. 240;) but not where one party only executes. (Payne v. Ives, 3 D. & R. 664; 2 C. M. & R. 51.)
    H. The same objection is fatal, if a consideration were proven extrinsically, because the writing does not express it. ;
    I. For although by the statute of frauds, Carrigan might be charged, although the plaintiff had signed no memorandum, yet there must be shown such a contract as would have bound the ‘ plaintiff (if he had signed a note of it), and the consideration must appear in the memorandum of Carrigan.
    HI. The memorandum is not sufficient, because it is not the undertaking of Carrigan, but of Buckman. At least it is equivocal ; and parol evidence only can determine the ambiguity, which is inadmissible. (Moss v. Livingston, 4 Comst. 208; Fenly v. Stewart, 10 Leg. Obs. 49.)
    IY. There was no evidence whatever furnished of plaintiff’s readiness and willingness to receive the coal, except his offer in the letter of Oct. 28th, when it was too late; and this offer is rather evidence that he was not ready before October. The third, sixth, ninth, and tenth pleas deny this allegation, and plaintiff was bound affirmatively to prove it. (Topping v. Root, 5 Cowen, 404; Coonley v. Anderson, 1 Hill, 519.) And in this case he could not prove it, without proving also that he gave the notice where to deliver. (Cook v. Ferrat's Exr. 3 Wend. 285.)
    Y. The plaintiff was not entitled to recover, without proof that he had named and directed the piers for delivery as stipulated. The only proof of this allegation (which is denied in the second and eighth pleas) is the evidence of some conversation with Buckman in October. But no proof was offered that Buckman. was agent to deliver the coal or receive notice ; and notice in October was too late.
    1. The contract was entire; Carrigan was not bound to execute such part as plaintiff selected, and plaintiff was bound to give notice before the first of August, as to all the deliveries, so that Carrigan might exercise his right to make delivery, at any time in each month. (Topping v. Root, 5 Cowen, 404; Goodwin v. Holbrook, 4 Wend. 377; Vyse v. Wakefield, 6 M. & W. 442; Affd. 7 Id. 126; Rae v. Hacket, 12 Id. 724; Harrison v. Great Northern Railway Co., 8 Law and Eq. R. 469.)
    2. As to necessity of notice of an act to be done by the plaintiff, to acquire a right, and the distinction from cases where defendant has to tender in discharge of a duty, vide Notes to Lent v. Radelford, 2 Am. L. C. 53, &c.; Birks v. Trippet, 1 Saund. 32; Douglass v. Howland, 23 Wend, 49.
    VI. The court erred in the instructions excepted to. The plaintiff ought to be nonsuited, pursuant to the reservation in the case.

      H. Brewster, contra,
    insisted that the plaintiff was entitled to retain the verdict upon the following grounds:
    I. 1. That the paper given in evidence shows a contract. It says, “I agree,” (not “I propose”) to deliver, &c. 2. Hie acceptance of the agreement by the plaintiff made it obligatory on both parties. (Roget v. Merritt, 2 Caines, 117; Ballard v. Walker, 3 J. Cas. 65; Opinion of Judge Kent.) 3. That a contract was made, not merely proposed, is shown by the letter of Carrigan; and that such a fact may be proved by letters or other evidence out of the memorandum required by statute, vide Allen v. Bennett, 3 Taunt. 169: Saunderson v. Jackson, 2 Bos. & Pul. 238; Gale v. Nixon, 6 Cowen 445.
    II. The contract was sufficiently executed to conform to the requirements of the Statute of Frauds. 1. The statute does not require the note or memorandum to express the consideration. (2 R. S. 136, § 3.) The statute is similar to that of 1813, and the English statutes. (1 R. L. 79, § 15; 29 Oh. 2 C. 3, § 17.) The last statute has not changed the law. (2 Kent. Com. 510, 511; note c.) The rule under this statute has been settled by an unbroken line of decisions. (Egerton v. Matthews, 6 East. 407: Allen v. Bennett, 3 Taunt. 169; Western v. Russell, 3 Ves. & B. 192; Ballard v. Walker, 3 Johns. Cas. 60; Saunderson v. Jackson, 2 Bos. & Pul. 238; Roget v. Merritt, 2 Caines, 117; Russell v. Nicoll, 3 Wen. 112; Clason v. Bailey, 14 Johns. 484; Davis v. Shields, 26 Wen. 341.) I also refer to the following elementary works: Story on Cont., Section 783 : Long on Sales, 54; 2d Stark. Ev. 356. 2. The contract shows on its face that Carrigan is the contracting party, and Buckman a mere agent. (Rathburn v. Budlong, 15 John. 1; Long v. Colburn, 11 Mass. 97; Ballow v. Talbot, 16 Id. 461; N. E. Ins. Co. v. De Wolf, 8 Pick. 56; Hale v. Woods, 10 N. H. 470 ; Hovey v. Magill, 2 Conn. 680; Wilkes v. Back, 2 East. 142; 2 Wend. 485; 6 Howard P. R. p. 1.) 3. If the terms of the contract were equivocal, the question should have been submitted to the jury.
    HI. The plaintiff commenced proving that he kept a coal-yard and had plenty of room to, and did store coal, at the time this was to be delivered, and was stopped by the court, and the fourth obj ecti on ought not to prej udice the party now. But the plaintiff was not bound to give proof of his readiness because Carrigan was first to perform on his part. The plaintiff had an option of three months’ credit, and this court at a general term held that the plaintiff was not bound to exercise this option until the delivery. And also, by the very terms of the agreement, it was cash after delivery,' or a credit of three months.
    IY. The plaintiff was under no obligation to give notice to Carrigan at what piers he would receive the coal, until Carrigan had the coal ready and requested such information. 1. It was Carrigan’s duty to seek the plaintiff and ask his directions. (La Farge v. Rickert, 5 Wen. 187; Lush v. Druse, 4 Id. 317.) 2. If the notice was required sufficient notice was given. 3. If there was any question as to the notice being in time, the defendants could have gone to the jury on that point. It was not a ground of nonsuit.
    Y. There is no error in the charge. Carrigan had the whole month of October in which to deliver the coal, and therefore the plaintiff had no right to abandon the contract and get his supplies elsewhere until the end of the month. As to interest, a jury are at liberty to allow it. (Dox v. Dey, 3 Wend. 356.) But as they did not allow interest in this case, the defendants were not prejudiced by this part of the charge.
   By the Court. Campbell, J.

The defendants moved for a nonsuit on the trial, and now claim that the same should be granted, because the alleged contract given in evidence was signed only by Carrigan, and did not bind the plaintiff, and was merely an offer to sell; that it was void for want of consideration, and is not a sufficient memorandum within the statute of frauds; that without extrinsic evidence it was not the contract of Carrigan, but of Buckman; that, admitting it to be the contract of Carrigan, the plaintiff could not recover, because he had not shown he was ready and willing to receive the coal and perform on his part before the 28th of October, when it was too late; that the plaintiff was bound to give notice before the 1st day of August of the place where he would receive the coal, and that there was no default until such notice was given; —at all events, that he was bound to give such notice before the 1st of each month as to all the coal to be delivered in that month, and there was no evidence of any such notice.

The objection that the memorandum was insufficient under the statute, we incline to think is not well taken. The contract is not a mere proposal, and is mutual on its face, since the price stipulated to be paid for the coal is a sufficient consideration for the promise to deliver it. Had the memorandum been expressly assented to and signed by the plaintiff, there can be no doubt but he would have been bound, and a contract sufficiently clear, and with an adequate consideration expressed, would have been made out.

It was contended, that the mere receipt by the plaintiff of the agreement, or the acceptance of it by him, was alone sufficient to make it operative and binding upon both parties. This may well be doubted; but, admitting the proposition to be correct, the material and vital question remains to be considered—namely, whether notice ought not to have been given by the plaintiff to Carrigan of the time and place, when and where, he wished the coal to be delivered. As the city of Hew York was the residence of the plaintiff, it is a presumption of law that it was contempfated that- the coal was to be delivered ,in this city; but at what wharves or piers the delivery was to be made could not be known to C¿irrigan, without notice from the plaintiff, and this notice, by a reasonable construction of ‘his contract, w.e think he was bound to give. The promise of Carrigan was to deliver the coal at such piers as the plaintiff should direct; and until this direction was given—in other words, until the piers were designated by a previous notice—we ■ do not see how the obligation to deliver could arise or attach. Various reasons might be given tending to show why it might be important to Carrigan to know in'advance the precise point to which vessels or barges laden with this coal should be taken on their arrival at this port. But whether the information was, or was not, important to be given, the terms of his agreement required it to be given, and, until it was received, imposed upon -him no obligation to act. The only proof relied on to show that the proper notice was given was that of a conversation between plaintiff and Buckman, who had made the contract, and which the witness thinks was in one of the months' of August, September, or October, but is not certain as to which. It does nót appear that Buckman was. Carrigan’s agent for the delivery of this coal, and, if he had been, this notice was too late. The contract was to deliver in about equal quantities in each month, and the agreement was signed on the 16th April, three and a half months before any coal was to be delivered. The contract was entire, and a fulfilment of it required the delivery of the thousand tons, in about equal quantities, in each of the months of August, September, and October. The notice required should, at all events, have been given a sufficient time before the month of August, so as to have enabled Carrigan to comply with the delivery of the one6third in that mOhth. But as each party was to take the chance of a rise and fall of the market, the plaintiff could not be compelled to take or Carri- ’ gan to deliver the' whole coal in any one month, nor any part thereof, unless in about equal quantities in each month. On the 28th of October, three days before the time fixed for the last delivery, the plaintiff incloses to Carrigan a copy of the contract, and demands its fulfilment. It would seem from the letter of Carrigan put in evidence by the plaintiff, that this was the first notice which he had received, and that he had come to the conclusion—and a very reasonable one under the circumstances—that the plaintiff did not want the coal, and had abandoned the contract. It was not necessary for plaintiff to have proved on the trial his readiness and willingness to pay for the coal, because by the very terms of the agreement he had an election of a credit for three months. He proved that he was a coal dealer, and had a coal-yard in the city of New York at the time, and this probably is sufficient evidence of his readiness to receive it, had he given the requisite notice. But it is said that the plaintiff was under no obligation to give notice to Carrigan at what piers he would receive the coal, until Carrigan had the coal ready, and requested such information, and that it was Carrigan’s duty to seek the plaintiff and ask his directions. The cases of La Farge v. Rickert (5 Wend. 181) and Lusk v. Druse (4 Wend. 317) are relied upon. They establish this proposition only—that, when a party has a duty to discharge or an obligation to perform, then he must seek the person to whom the duty or obligation is due, when no place is fixed for its performance, and make a tender. The tenant who has rent to pay, or the obligee in a bond, if no place of payment is named, must seek the landlord or the obligor at his usual residence. There is no analogy between those cases- and the present. If Carrigan had wished to charge the plaintiff on the supposition that he, the plaintiff, was bound by the contract to accept the coal, it would have been probably necessary for Carrigan to have sought out the plaintiff, and asked his directions, and to have offered to deliver the coal. But this admission does not at all affect the truth of the proposition, that in order to put Carrigan in default by creating an obligation on his part to deliver the coal, a designation by a previous notice of the places at which the delivery should be made, was indispensable; the giving this notice was a condition precedent, the fulfilment of" which the plaintiff was bound to prove. No proof of the fact was given on the trial that in our judgment could properly be submitted to the jury, and consequently the motion for a non-suit then made ought to have been granted. According to the reservation in the case, we have power to grant it now? and we accordingly direct that a judgment of nonsuit, with costs to the defendants, be now entered.