author: Babboub, J. J cites, J.

text:
    The Farmers’ Loan and Trust Company, plaintiffs and appellants, vs. Abijah Mann, defendant and respondent.
    1. A sum of §200 yearly for eleven years, held not an unreasonable addition to the compensation of the defendant, for services as attorney and counsel for the plaintiffs, for his almost daily services during the greater portion of each of those years, in taking charge of lands bought by them under the foreclosure of mortgages held by them, and in frequent interviews and consultations with their officers and in traveling upon business connected with such agency.
    2. Ten per cent on the sum finally obtained by the plaintiffs, as their share of the assets of an insolvent bank, by the action of the defendant as their attorney and counsel, upon a reference to take the accounts of the receiver of such bank, and examine the claims of its creditors, and in arguing exceptions to the report of such referee, who had awarded over §76,000 to another creditor, in the Supreme Court and Court of Appeals, by which the claim of such creditor was reduced to less than three-tenths of the amount reported, and the plaintiffs? share was thereby nearly doubled, was held not an unreasonable compensation for him, notwithstanding he had previously received about two hundred dollars as counsel fees.
    3. The officers and agents of a corporation, may, in consideration of the final settlement of an account by an agent, make a valid agreement to allow him interest on the items of it, although not strictly chargeable by law.
    4. The settlement by a president of a company of the accounts of its agent, attorney and counsel, who had for eleven years collected its debts, foreclosed its mortgages, taken charge of, managed, and sold their lands, giving rise to numerous transactions, and involving large amounts of money, when he had during all that time, as often as once a fortnight on over several hundred occasions, uniformly consulted only such president or the secretary of the company
    ■ and received instructions from them alone in regard to the management of such business, and on one occasion settled an account of his against such company with its president for over §2000, (without ever receiving instructions from, reporting to, or being interfered with, by any other officer of such company,) is binding upon such company, notwithstanding one of its by-laws required the committee of investments and finance of its board of directors to audit all accounts against it.
    6, The conduct of the company and its officers in thus permitting its president and secretary to manage, exclusively of such committee, business confided to the latter by the same by-law which was that relating to real estate securities and the holding, managing, and selling lands, waived all benefit of the restriction of such by-law requiring all accounts against it to be audited by the same committee.
    6, The creation of the president of a company, member of all standing committees thereof, “ including such finance committee, and conferring upon him the general direction and superintendence” of its affairs, by one of its bylaws, sanctioned the assumption by him of duties so conferred upon the investment and finance committee, and he acted under the general powers thus conferred upon him.
    (Before Barbour, Garvin, and Jones, JJ.)
    Heard December 11,1866;
    decided June 8, 1867.
    This appeal was from a judgment for the plaintiffs for $60.20 of damages, and $381.10 of costs, entered on the report of a referee.
    The action was brought to recover the balance unpaid of the sum of $19,886.34, claimed to have been due from the defendant to the plaintiffs on the 12th day of September, 1857, for moneys collected by the defendant as attorney of the plaintiffs.
    The defendant alleged in his answer that on the said 12 th day of September, he had an account against the plaintiffs for legal services, amounting, with interest, to $8047.85 ; that on that day he presented that account to the plaintiffs’ president and secretary ; that they allowed it; that he then paid them in cash the balance of said $19,886.34, and received from the said president and secretary their receipts in full.
    The plaintiffs claimed as follows, to wit: That many of the charges in the defendant's said account were unreasonable and unauthorized ; that some of them were for services for other parties, in which the plaintiffs had no interest, and for which they were not liable at all ; that the said president and secretary had no personal knowledge whatever of the justice or injnstice of the defendant’s charges, and signed the said receipts in ignorance of the real facts, and that they had no power to sign such receipts ; that these receipts were not conclusive on the plaintiffs, and might be explained; and that the defendant still had in his hands, of the moneys collected for the plaintiffs, several thousand dollars, which they were entitled to recover. Among other items in the defendant’s said account, claimed by the, plaintiffs to be erroneous, was an error in the defendant’s favor of $38.16 in the footing of said account. The referee reported in favor of the plaintiffs for this sum, with interest from said 12th day of September, 1857, amounting to $60.20, and rejected all the residue of the plaintiffs’ claim, on the ground that the transaction of the said 12th of September, 1857, was conclusive on the plaintiffs, and that the settlement then made could not be overhauled. The plaintiffs entered judgment on that report, and the present appeal is from that judgment.

      Charles P. Kirkland, for the appellant.

      Thomas H. Rodman, for the respondent.
   By the Coubt,

Babboub, J.

Only seven items of the defendant’s account were objected to by the plaintiffs, before the referee, and in their exceptions to the report.

First. So much of the item of $3207.12 for the Conant mortgage, as exceeds the price at which it was purchased by the defendant.

The disallowance by the referee of the objection, was proper. The complaint expressly admits that the defendant is entitled to a credit for the entire amount.

Second. The charge of $200 per year, for eleven years’ time spent in the general care and supervision of the plaintiffs’ interest and securities in St. Lawrence county. The testimony taken before the referee, shows that prior to February 7,1845, the defendant, under the employment of the company, had foreclosed a number of mortgages for them, and purchased, in the property for their benefit; that, on the day last mentioned, he was appointed by the company their agent and attorney, to take charge of all the property so purchased in by him, consisting of a large number of parcels of land, and to convert it into money by sales or private negotiation for ready money or on credit, under the direction, and constant advice of the plaintiffs, and, also, to secure and collect as much of a debt due to them from the St. Lawrence Bank, as might be practicable ; and that he was actually engaged in the business of such agency more than eleven years, for a large portion of the time doing something in his office almost daily in regard thereto, and having, during all that period, frequent interviews and consultations with the officers of the company, and making many journeys to St. Lawrence county and elsewhere, in prosecuting the business of such agency. Upon a careful examination of all the evidence touching these matters, I am fully convinced that two hundred dollars per year was a very moderate charge for the services which must have been rendered by the defendant, in the business of his agency alone, independent of, and over and above, such charges as he was properly entitled to or did make, specifically, by way of fees or commissions, for his services as attorney or counsel, in suits brought by or against the company, or in which they were interested, or' for the traveling expenses and other disbursements he has charged in his bill.

Third. The charge of $1539.71, for commissions and. counsel fees in prosecuting, through the courts,, including the Court of Appeals, the disallowance of Henry Van Rensselaer’s claims as a creditor of the St. Lawrence Ranh. That litigation was, originally, a suit in chancery, brought by the bank commissioners of the state of New York against The St. Lawrence Bank and Henry Van Rensselaer, its president. In August, 1848, an order was made appointing Mr. George Redington referee, and directing him to take and state the accounts of R. H. Gillett, the receiver of the bank, to examine the claims of all the creditors of the bank, and report the same, with his opinion, &c. The defendant attended and acted, upon such reference, as the counsel of The Farmers’ Loan and Trust Company, as well as for several other creditors, and the receiver. The whole of the claims allowed by the referee, amounted to $149,321.96 ; of which $76,680.32 was awarded to Henry Van Rensselaer, and $49,413.96 to the Farmers’ Loan and Trust Company. Exceptions were taken to the report in respect to the allowance to Van Rensselaer, and were argued by Mr. Mann, in the Supreme Court and Court of Appeals, the result of which was a new reference and the reduction of the claim of Van Rensselaer to $22,395.28, and the consequent increase of the distributive share of The Farmers’ Loan and Trust Company, in "the realized assets, from $7815.35 to $15,397.18. Considering the amount and nature of the services rendered by the defendant in St. Lawrence county and elsewhere, away from home, during that protracted litigation, and the result thereof, I am unable to perceive that the claim was unreasonable, even though the specific charges of April 24, 1850, and June 1, 1853, of $100 each, be added thereto.

Fourth. The charge of $190.12, for Meyer’s hill of $40.69 for fare and expenses, and $150 for time spent and counsel fee, making in all, $380.69. All these charges were made in the suit brought by Q-illet against Van Rensselaer. The counsel for the appellants claims that The Farmers’ Loan and Trust Company were in' no wise interested in that litigation. It is true, it does not clearly appear from the evidence, whether the suit was brought by Grillet as receiver, or in his individual capacity, although it may well be inferred from the fact that the receipts upon which the action was founded, commenced with the words In the matter of the Receivership of the St. Lawrence Bank,” and acknowledged the receipt of the funds and property therein mentioned, from “ R. H. Gillet, receiver ” &c. and that such funds and property really belonged to the assets in the hands of Mr. Gillet as receiver, that the suit in question was, probably, brought by him as such receiver. The question cannot be very important however, for in either case, the" judgment the moment it was recovered, became and was a portion of the assets held by Gillet in trust as assignee, for the benefit of The Farmer’s. Loan and Trust Company, and the other creditors of the bank. Indeed, those receipts, and therefore, the judgment, when recovered, constituted the principal fund for the benefit of the creditors. How, then, can it be said that The Farmers’ Loan and Trust Company has no interest in that litigation which Mr. Mann ought not to have protected as he appears to have done, by virtue of his powers as their agent ? It may be that Mr. Gillet had made himself personally liable to the creditors for the amount, but it by no means follows that Mr. Mann would have heen justified in omitting to prosecute the equitable claim of the company in that suit against another person, who was also, and primarily, liable. It appears to me that Mr. Mann’s intervention in that suit, in behalf of the company was expedient and judicious, and that his charges for counsel fees and disbursements in the matter were reasonable and proper.

Fifth. The charge of $2237.12 for five and a half years’ interest, upon the defendant’s account, for services and disbursements. As a general rule, interest is not chargeable, in the absence of a special or implied agreement, upon an open unliquidated account, like that of the defendant, except, perhaps, in so far as such account consists of advances. (Rensselaer Glass Factory v. Reid, 5 Cowen, 587.) If, therefore, the defendant had charged interest upon his claim for services, without crediting the plaintiffs, in his account, with a corresponding sum over and beyond the account to which they were entitled, that would have constituted an over charge which ought to have been disallowed by the referee. But if, on the contrary, the account is so stated that, in its final results, it debits the defendant and credits to the plaintiffs, the full amount of interest which the latter are entitled to have from the former, no injustice has been done because of the particular manner in which such account -of interest was made up and stated by the defendant. Let us see how that is.

The accounts rendered by the defendant to the plaintiffs, were made up in a most inartificial and unbusiness like manner. There are three of them. The first credits the company with the entire amount of all the dividend which the company was entitled to receive from the assets of the St. Law-And charges them the sum of $8423.43, as “ paid per A. M. Jr. account,” (and which is, in fact, precisely the amount of the defendant’s account for services and disbursements, and the interest thereon, ($8047.85.) with the addition of a check for' $375.58, then given by him to the plaintiffs,) and, also, debits to the company $3207.12 for the Conant mortgage, and $190.12 for Meyer’s bill; thus making charges, in the aggregate amounting to $11,820.67, and showing a balance of $8065.67, to the credit of the company, which is left undisposed of in the account, but which is exactly the amount that was paid to the plaintiffs in the defendant’s check. The second is, simply, the defendant’s account for his' disbursements and services, with the interest thereon, amounting to $8047.85, and is stated in the usual manner. The account credits the company with the amount of the bids at the receivers sale, $4759, and the interest thereon, for eleven years, being $3664.43, and making an aggregate of credits of $8423.43; and charges them, there, with the amount of the account of the defendant for services and disbursements, as shown by No. 2, $8047.85, thus leaving another balance due to the plaintiffs of $375.58 ; and which balance was paid by the defendant in his check, and receipted for at the foot of that account. No. 3, by the president of the company. It seems quite clear, therefore, that, in those three accounts taken as a whole, the defendant has charged the company twice with the amount of his bill for services, &c. and the check for $375.58, as offsets to two distinct credits he has given them ; that is, in the first account, as an offset against the $19,886.34, and in the third as an offset against the credit given for the purchase of the assets, and interest thereon.

rence Bank,............$15,397 18
And the accumulated interest,...... 4,489 16
Making, in all,...........$19,886 34

One of those double charges was certainly wrong, if both of the credits so given, to the company, were properly inserted in the accounts and ought to have been allowed; and it follows, in that case, that the defendant is still indebted to the plaintiff in, at least the sum of $8423.43 ; that being the amount of the overcharge in-question. Upon a full and careful examination of the pleadings and evidence bearing upon the subject, however, I am satisfied, that the account No. 3, is wholly erroneous, from beginning to end, including, of course, the credits, as well as the debits. For, not only is no claim made in the complaint for the amount of those bids at the receiver’s sale, but the evidence shows that the defendant was never indebted nor liable to pay to the company any thing whatever on account of such bids. The history of that matter, as disclosed by the testimony, is, briefly, this : at the final sale of the assets of the St. Lawrence Bank, in Albany, by the receiver, on the 2d of September, 1846, the defendant, as agent for the plaintiffs, bid for and purchased property to the amount of $4759, for which he gave a receipt, as such agent, to apply in payment upon any dividend which might be payable to the company, as creditors of the bank : and the defendant added thereto his personal guaranty that such amount should be so applied. After that, an arrangement was made between the defendant and the president of the company, whereby it was agreed that the former should assume those purchases and pay the receiver the amount of the bids, thus making him the debtor, not of the company, but of the receiver, to that extent. Besides, the amount of those bids was paid by the defendant to the receiver, and went into and formed a part of the general fund in the hands of the latter, and is included in the account No. 1, furnished by the defendant to the company, and, is there credited and allowed to them as having been received by the defendant as a dividend, from the receiver. For, the order in the suit of The Bank Commisssioners v. The St. Lawrence Bank, directed that the accounts of the receiver, Mr. Grillet, be referred to and passed before Mr. Redington, (the first referee ;) and upon that reference the receiver brought before such referee his accounts, embracing the whole of his receivership, from first to last. In the accounts so presented to the referee by Mr. Grillet, the latter charged himself with the amount of all the sales made by him in Albany, including those made to the defendant as the agent of the company, as so much money received by him from the assets and property of the bank; and the account was thus passed by the referee. The amount of all those charges against the receiver, and so passed was $29,115.72, from which the referee deducted $5498.56, as an allowance for the costs, commissions and expenses of the receiver, leaving a balance of $23,617.16 in the hands of the latter, as the fund to be distributed to the creditors. That fund, however, was not distributed immediately, such distribution being delayed by reason of an appeal taken to the Court of Appeals from the order of the Supreme Court, confirming the referee's report touching a claim allowed by him to Henry Van Rensselaer, as a creditor ; but not, in any manner, affecting the report as to the balance in the hands of the receiver, the same not being excepted to. After the decision upon that appeal, and in February, 1853, J. L. Russell was appointed a referee to make such a re-distribution of the funds in the hands of the receiver as was found to be necessary under the decision of the Court of Appeals, disallowing a portion of Van Rensselaer’s claim. Under that order, the referee assumed, and took the amount reported by the former referee, Mr. Redington, as in the hands of the receiver, subject to distribution, to be correct, and, after adding thereto the interest to the first of June, 1853, the date of his report, proceeded to, and did, allot and distribute such fund, then amounting, with the accumulated interest, to $29,612.43, to and between the creditors, and, in that allotment and distribution awarded to The Farmers’ Loan and Trust Company as their portion of the fund, $15,387.18 ; which is, precisely, the amount that is credited to the company in the defendant’s first account as the St. Lawrence dividend.” In. examining the question as to the amount of interest that ought to be allowed to the plaintiffs and the defendant, respectively, we may therefore consider the account Ho. 3, as wholly erroneous, and consequently, that no interest upon the amount of the bids therein mentioned, ought to have been allowed to the plaintiffs by the referee. The question, then, is¿ whether such an allowance was, in fact, made by him.

The real condition of the accounts between the parties, at the time of the alleged settlement, may, properly, be stated thus : The company should be credited with

The St. Lawrence dividend,.......$15,397 18
With the interest thereon,....... . 4,489 16
$19,886 34
And charged with
The Conant mortgage, ..... $3,207 12
„ Myers’ bill,........ 190 12
Defendant’s account for services and
disbursements, (No. 2,) . . . 5,810 73
With interest thereon if allowable, 2,237 12
- 11,445 09
Thus exhibiting a balance of,.......$8,441 25
Which balance was then paid by the
defendant, in his check for, . . ■ $375 58
And another for,....... 8,065 67
-- $8,441 25

And all of those credits and charges, and no more, were substantially contained in the account or general statement No. 1; the only exception being, that, in the paper last mentioned, the defendant added the payment of $373.58, which was then made, to the amount of his account No. 2 for services, &c. and debited the same in one sum of $8423.43 as “paid A. M., Jr., account.”

Now, the referee has found, as facts in the case, that the plaintiffs and the defendant, on the 12th of September, 1857, accounted together for the $19,886.34, which had come to the hands of the latter, and for the services performed for, and the moneys paid to the company by him; and that, on such accounting, the balance stated to be due from the defendant to the plaintiffs was $375.58, which sum was then paid over to the latter. That finding was correct, to a single penny, if the referee assumed, as he well might, that the account No. 3, did not form a portion of and was not included in the settlement of the claim of the plaintiffs for the $19,886.34 which had been received by the defendant from the St. Lawrence dividend, but such finding would have been entirely erroneous if the referee had arrived at the conclusion that such account was included in the settlement of that claim. For, in the latter case, it would not be true that “ on such accounting, the balance stated to be due from the defendant to the plaintiffs was $375.58,” but, on- the contrary, .there would have been a balance, stated in and appearing upon the face of such accounts, of $8423.43, due to the plaintiffs, being the amount of the credit given to them in account No. 3.

It seems clear, therefore, that no interest was allowed to the' plaintiffs hy the referee, except what is credited to them in account No. 1, and to that they were entitled, for the reason that such interest, as well as the principal sum, was paid over to the defendant by the receiver; and it follows, that the allowance of interest by the referee, upon the open, running account of the defendant for his services was contrary to the well settled rule of law upon the subject, unless such allowance was warranted by a settlement made between the officers of the company and the defendant; and that brings us to the last exception which it is necessary to consider, to wit:

That the referee erred in deciding that the transaction of the 12ih of September, 1857, between the defendant and the officers of the company, constituted a final settlement of the accounts between the parties.

Undoubtedly it was competent for the company, acting by its proper officers and agents, to make an agreement with the defendant whereby interest should be allowed as credited to him, to which he was not entitled under the strict rules of law, and that agreement, if made upon a final settlement of the accounts between the parties, and in consideration thereof, would be valid. We must, therefore, consider first, whether the acts of the officers of the company in making the arrangements with the defendant on the presentation of his accounts. get up in the answer, were the acts of the company, and if so, then what such arrangement was, and its effect.

There is no evidence in the case tending to show that the president of the company was empowered by them to make a settlement with the defendant, except what may he found in the company’s by-laws, the 11th section of which provides that all business relating to * * real estate securities, * * and the holding and managing any lands granted to the company, * * or taken in payment of debts, * * and in selling the same, shall be managed by a committee of investments and finance and the 13th section declares that such committee shall audit all accounts against the company.’’

For more than eleven years prior to and, nearly, if not quite, up to the time of the alleged settlement between the defendant and the officers of the company, the former was employed by and acted as the agent as well as the legal attorney and counsel of the company, and as such, collected debts, foreclosed their mortgages took charge of, managed and sold their lands, including a great number of transactions, and a large amount in value ; during all of which period he was in the habit of consulting with, and receiving instructions from, the president and secretary as often, at least, as once a fortnight, (being some hundreds of times in all,) in regard to the conduct and management of such business, and it may he added, he, also, during that period, settled with the president an account rendered by him against the company, for a portion of such services, amounting to over $2000 ; and there is no evidence in the case that such defendant ever received instructions from, or reported to, or was in any manner interfered with by, any. director or officer of the company, other than the president and secretary, or that he had any knowledge of the existence of their by-laws, until after the alleged settlement. Considering all this, it may well be assumed as a legal conclusion, not only that the defendant had a right to suppose that the officers with whom he had thus transacted business for so long a time without objection on the part of the company, were empowered to settle his accounts, in relation to such business, with him, as had theretofore been done in'a similar case, but that they were in fact legally authorized to do so, for, it will be observed, all the business transacted by the defendant was confided, in the by-laws to the management and control of the finance committee, and, yet, for eleven years, the company permitted its president and secretary to manage the same, to the entire exclusion, for aught that appears, of such committee; thus showing, most clearly, a fixed design and intention on the part of the company to waive and abandon, so far as that business was concerned, the by-laws which they had adopted, for their own government in regard to the powers of the finance committee. Besides,- the same by-laws which direct the finance committee to audit all accounts against the company, also provide that the president shall be a member of all standing committees, including the finance committee, and declare that he “ shall have the general direction and superintendence of the affairs of the company.” There was, therefore, not only an acquiescence on the part of the company in the assumption by the president of the duties which had been conferred upon the finance committee, but he acted under and in pursuance of the broad and general powers thus given to him by the bylaws. My conclusion is that the officers in question were fully authorized to make a settlement with the defendant.

But can it be said that the alleged settlement of the accounts which, were rendered by the. defendant, in the form in which they were presented, and under the circumstances detailed by the witnesses, was a valid settlement of the accounts between the plaintiffs and the defendant as the same really stood, and ought to have been stated ?

It would be difficult to believe, without strong proofs, that the defendant could have rendered, or that the principal financial officer of a great moneyed institution in this city could .have passed and settled as correct, such accounts as those in question ; but the referee has so found the fact to be, and his conclusion in that regard is fully sustained by the evidence. The accounts so presented and passed, were, certainly, erroneous, inasmuch as they included, as a whole, a double credit which was therein given to the defendant for the amount of his detailed account No. 2, for services and disbursements, with interest, being the sum of $8047.85. But that double credit was patent upon the face of the accounts, and could hardly have been passed unnoticed by either of the parties; so, too, it was wholly erroneous to include in such settlement, as a portion of the matters which were to be arranged, the account No. 3, or to apply the payment of $375.58, in satisfaction of the balance of the sum there credited to the company. But the president was "well aware, when such settlement was made, that the defendant had not only assumed those bids as his own, and had undertaken to pay the receiver, and, therefore, was not indebted to the company therefor, but that the amount of such bids was included in the dividend and credited to the company by account No. 1, and he, therefore, knew that the credit given to the latter in account No. 3, did not belong to them. The officers of the plaintiffs, therefore, could not have been deceived, by the presentation of the account last mentioned, nor, indeed, is there any pretense to be found either in the evidence or the entire case, that they were, and, as has already been remarked, if that account is left out, a full, true, and accurate' statement bf all the accounts between the parties, as such accounts actually existed, is, substantially, contained in Nos. 1 and 2, with the single exception of the arithmetical mistake of $38.16, noted by the referee, and which, in fact, is an errror in adding up the items in account No. 2. In view of all this, it seems impossible to arrive at any other conclusion than that the charges and credits in account No. 3 were ignored and disregarded, as they ought to have been, by the plaintiffs’ officers and the defendant in the settlement of the claim for the dividend, upon which this action is founded ; and it follows that the claim in question was fully settled, and that, upon such settlement, and in consideration thereof, the defendant was allowed and credited with the interest upon his chárges for services, as well as disbursements, by a valid agreement between the parties. Ho, error, therefore, was committed by the referee, in the allowance of interest to the defendant, to which the exception in question was taken.

Hone of the exceptions being sustained, the judgment appealed from should be affirmed, with costs.

J cites, J.

The referee has found as a fact that about the 12 th of September, 1857, the plaintiffs and defendant accounted together for money received by the defendant for the plaintiffs and for moneys paid by him to them, and for their use and benefit,. and for the services rendered by the defendant to the plaintiffs at their request and for their use and benefit; and that on such accounting the balance stated to be due from the defendant to the plaintiffs was $375.58, which sum was then paid by the defendant to' the plaintiffs.

The alleged accounting was had with the president of the plaintiffs. On the question as to whether there was an accounting with the president, the evidence is conflicting, and the referee, on the conflicting evidence, having found that there was such accounting, the court will not, on appeal, disturb such finding.

It is, however, claimed that as matter of law the president had no authority to bind the plaintiffs by this' accounting. I think he had, for the reasons given by the presiding justice, in that portion' of his opinion in which he discusses the authority of the president.

The account, although settled, may still be opened for correction, for fraud, mistake, mutual or palpable error.

It may well be doubted whether the plaintiffs are in a position to attack the settlement on either of these grounds, since the action is not brought to open and correct the account; but conceding the plaintiffs to be in a position to attack it, still the evidence Shows no ground for opening and re-settling the account.

There are but seven items objected to. The first six were under the pleadings and evidence properly chargeable against the plaintiffs, for the reasons given by the presiding justice in that portion of his opinion, in which he considers the 1st, 2d, 3d and 4th exceptions. These items being included in the 4th exception.

The 6th item is for interest. It was undoubtedly competent for the plaintiffs to allow interest to the defendant. According to the testimony of the defendant, the subject of allowance of interest to him was expressly discussed at the time of the settlement, and agreed on. Its allowance, under all the circumstances, was but equitable, and seems to have been so considered by the president of the plaintiffs.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Robertson, Ch. J.

license: Public Domain

text:
    The Rector, &c. of Trinity Church, plaintiffs, vs. Alvin Higgins, defendant.
    1. A re-argument of a cause will not be ordered, merely upon the grounds that the court overlooked authorities tending to establish the right of lessors to recover the full amount of an assessment as damages for non-payment of it by the lessee, according to a covenant by him contained in the lease, and also erred in supposing that it could not decree a specific performance of such covenant, under the particular form of the pleadings in the case.
    2. Upon a covenant by a lessee to pay assessments upon the demised premises, the lessor, until he has paid an assessment, or otherwise sustained damage by the ¿On-payment thereof by the lessee, cannot recover at law more than nominal damages.
    3. In such a case, where the lessor has not paid the assessment, a court of equity has not jurisdiction to compel a specific performance of the lessee’s covenant, by directing him to pay such assessment to the municipal officers, it seems.

    (Before Robebtsoií, Ch. J., and Babboub and Gisvra, JJ.)
    Heard April —, 1866;
    decided December 31, 1866.
    Motion for a re-argument.

      A. W. Bradford, for the plaintiffs.

      8. P. Nash, for the defendant.
   By the Court,

Robertson, Ch. J.

The sole grounds for applying for a re-argument in this case are, first, that the court overlooked authorities which established conclusively, the right of the plaintiffs to recover damages for non-payment of the assessment in question by the defendant, contrary to his covenant, to the extent of such assessment, and second, that it had erred in supposing that it could not decree specific performance of such covenant under the pleadings as they stand. This court had occasion in the recent case of Newell v. Wheeler, (ante p. 190,) to specify the nature- of the cases in which a re-árgument may properly be had, and noticed their limited character. It had occasion also to remark upon the indecorum of substantially an appeal, upon the same points, from a court consisting of one set of judges to one consisting of .others, and to point out that the sole remedy for error in such case was by appeal, the only grounds of re-argument even in a court of last resort being the- entire failure of the court and counsel to notice an important legal question or a recent decision or statute. (Mount v. Mitchell, 32 N. Y. Rep. 702.) It is plain that the general effect of permission to re-argue questions, merely because they had been carelessly or slovenly argued on the first occasion, would be to encourage remissness on the part of counsel and throw upon the court the whole labor of investigating such questions, while the privilege would remain with the counsel of endeavoring by more laborious research to impress a differently constituted court with different views. The delay,'too, to parties would be a sufficient ground for refusing a re-argument, since even after a decision upon it, the right of appeal would still remain. In this case both the questions -now raised were substantially passed upon by the court, although perhaps only the first was argued. One of the propositions, laid down in the printed points used on behalfj of the plaintiffs on the former argument, was, that the covenant was not a mere warranty against liens, but an absolute agreement to pay, and several decisions were cited to sustain that proposition. It was clearly passed upon in the opinion of the court. The other, of the power of the court to decree specific performance, was apparently not considered, and may perhaps deserve consideration, if necessary, for the decision of the case.

It .is very evident that if the plaintiffs can recover the amount of the assessment as damages in an action at law, they would not be entitled to specific performance, in equity, as their remedy at law would be adequate and completé. In order to determine, therefore, whether specific performance can be enforced, it becomes necessary to consider preliminarily how well established the doctrine is, that the amount of the assessment cannot, before it is paid be recovered as damages, in an action upon a breach of covenant to pay it. It is very evident the plaintiffs are never damnified to that extent, unless they are obliged to pay and do pay the assessment. There must he some essential difference between the payment of money to a third person and doing some other act for a third person, which enables the covenantee in the former case to recover such sum as liquidated damages, hut in the latter, only the amount of the actual injury to him. There can he no question of the right of the plaintiffs to some damages on the breach of any covenant; the only difficulty is as to the amount. The cases of Port v. Jackson, (17 John. 239;) S. C. in error, (Id. 479;) Holmes v. Rhodes, (1 Bos. & Pul. 638;) Hodgson v. Bell, (7 T. R. 97 ;) Touissant v. Martinnant, (2 id. 100;) Martin v. Court, (Id. 640,) and Saward v. Anstey, (2 Bing. 519,) S. C. (10 Moore, 55;) only establish that an action may he sustained without averring special damages. In Post v. Jackson, (ubi sup.) the question was, whether an assignee or lessee is relieved from a covenant to pay rent, by the assignment of the lease to a third person and the payment by him of rent. It was held in it, as in the before mentioned cases of Holmes v. Rhodes, Hodgson v. Bell, Touissant v. Martinnant, Martin v. Court, and Saward v. Anstey, that it was not necessary to allege any specific damnification of the covenantor, to enable him to recover. In Chase’s adm’r v. Hinman, (8 Wend. 452,) the covenant was, to indemnify against any liability to which the covenantor might be subjected by the reversal of a judgment, and it was held he could recover for costs for which he became liable. In Thomas v. Allen, (1 Hill, 145,) the condition of a bond, to pay a sum to the plaintiff by satisfying a bond and mortgage executed by third parties and to save the plaintiff harmles, was held to impose a positive obligation to pay at the day, and no damnification was necessary. In Churchill v. Hunt, (3 Denio, 321,) the bond was conditioned, to save the maker of a promissory note harmless from liability thereon and to pay the same, or cause it to be paid, and the same doctrine was held applicable. In all such cases to save harmless means something more than to pay.

Some distinction is observed in the cases where a covenant is made to pay a third person, and such payment is to relieve the covenantor from a personal liability, as in Thomas v. Allen, (ubi sup.) and Penny v. Foy, (2 Man. & Ryl. 181,) where the covenantee was liable for the debt agreed to be paid. In the latter case, the defendant, being liable for an annuity, received from the plaintiff’s assignor, who was a bankrupt, a bond conditioned for its payment, which he set off in the action against him. The whole of the reasoning of Lord Tenterden in that case was founded on the fact of the defendant’s liability for such annuity. He said: “ The defendant was entitled either to have the annuity paid by the bankrupt or to have the money deposited in his own hands to enable him to pay it. He was not bound to pay it first out of his own pocket and then apply to the bankrupt to reimburse him. As it is, he is liable for the arrears of the annuity and he has no security or remedy, except the bond, which I think he had a right to put in suit as soon as default was made.” In Saward v. Anstey, (ubi sup.) the covenantee did not appear to be primarily liable for the annuity agreed to be paid, but it was wholly a question of pleading, whether it was necessary to aver damnification.

In Gilbert v. Wiman, (N. Y. Rep. 550,) where the bond in suit was as well to indemnify the obligee against liability on his own note and to pay it, as against the acts or omissions of another, it was held that, for any liability growing out of such acts, he was not entitled to recover until actual damage by payment was shown, but that he might recover for the amount of such note. I have not, however, been able to discover any case, in which, upon a covenant to pay a sum of money to a third party, for which the covenantee was not personally responsible, a recovery could be had by the latter, without damage by forced payment. In no other case could it appear upon the face of the covenant, that the covenantee will necessarily be damnified by the non-payment. Even in the case of incumbrances on lands, non constat but what he may prefer to abandon the lands rather than pay the incumbrance, or at all events that he will necessarily be damnified to the full amount of the incumbrance. In the case of Lethbridge v. Mytton, (2 B. & Adol. 772,) which was an action on a covenant in a marriage settlement to pay off incumbrances within a year, it was evident that the cestui que trust of the covenantees would be damaged to the extent of the incumbrance, and that it was the duty of the covenantor to pay them off,- or, to use the language of Lord Tenterden in Penny v. Foy, (ubi sup.) to deposit the money in the hands of the trustees to pay them.

Until therefore the plaintiffs paid the incumbrances in question, or otherwise sustained damage by the non-payment, I must conclude they could not recover more than nominal damages.

The other suggestion still remains to be disposed of, that the plaintiffs had a right to a specific performance of the covenant. It is a universal rule that where money is a sufficient compensation for the breach of a contract, equity will not interfere, (Carter v. United Ins. Co., 1 John. Ch. 463; Ord v. Johnson, 1 Jur. N. S. 1063, per Stuart, V. C.; Clayton v. Illingworth, 10 Ha. 451; South Wales Railway Co. v. Wythes, 1 K. & J. 186; S. C. 5 De G. M. & G. 880,) and this is peculiarly the case where the only act to be done is the payment of money. Another consideration also ought to prevent sustaining an equitable jurisdiction to enforce the covenant, to wit, that the only means of enforcing the judgment of the court would be by process of contempt and imprisonment; whereas in an action at law for damages, the remedy would be by execution. I am inclined therefore to doubt whether the court has jurisdiction to compel the defendant to pay the assessment in question to the municipal officers.

Hor am I prepared to dissent from the view taken by this court when this case was before it at a former general term, (ante p. 1,) that- the pleadings -as they stand would not warrant a compulsory judgment against the defendant to pay the assessment. It is clear if it was an equity cause, it was not triable before a jury, since no judgment could be rendered upon a verdict on all the issues, except for money pursuant to the finding. A judgment that the defendant pay the assessment to the city collector, could only he given after a trial before a judge without a jury, and the question whether this is an equity case could only he determined upon appeal from a judgment rendered on such trial.

The motion for a re-argument must therefore be denied, with costs. •


author: G-arvin, J. Robertson, Oh. J.

text:
    Ernst Mettlestadt, by his guardian, plaintiff and appellant, vs. The Ninth Avenue Railroad Company, defendants and respondents.
    1. Negligence is always relative, and depends upon concurrent circumstances, unless the case be very plain or extreme, when the court may judicially noticé it. In all other cases it is a question of fact for the jury. Fer Robertson, Ch. J.
    2. Injuries to a boy fourteen years of age, by a city railroad car, upon which, having paid his fare, he was a passenger, received in consequence of having fallen from it, while descending from the top of it, when moving at a moderate rate of speed, and attempting to avoid a second blow aimed by the driver, of such car with his whip, at him, while so descending, after he had struck him once with it, and reaching up his hand to recover his cap, which such driver had snatched from his head also, while he was so descending, are not so attributable to any concurring negligence on the part of such passenger as to take away the decision of that question from the jury, in an action for damages for such injuries.
    3. Although it is the duty of the driver of a street car to stop it, when requested by a passenger, to enable him to get off, yet if he fails to do so, this will not authorize a passenger to negligently expose himself to irijury by jumping from, the car when it is in rapid motion, so as to be dangerous to life or limb.
    4. It is a question for the jury to decide whether a passenger is guilty of a want of ordinary care in descending from the top of a city car to the street, while such car is in motion, though the car be moving at a slow rate of speed.
    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard May 16,1866;
    decided February 11, 1867.
    This was an action for damages for injuries to the plaintiff, caused by the acts of the defendants’ employees. The plaintiff, a boy about fourteen years old, and his companion, a boy about the same age, on the 7th of September, 1865, got upon one of the defendants’ one-horse cars, at Lispenard street, in the city of New York, for the purpose of being taken to Forty-third street, and paid their fares. Just before they arrived at Forty-third street, the plaintiff requested the conductor and driver to stop the car, and allow him to get off at Forty-third street. The conductor did not stop the car at Forty-third street, as requested. The plaintiff’s companion got off at Forty-third street, safely, while the car was in motion. The plaintiff having been carried beyond Forty-third street, attempted-, when about the middle of the block between Forty-third and Forty-fourth streets, to get off the car, the driver still persisting in his refusal to stop and let him get off. As the plaintiff started to get off, the conductor took off the plaintiff’s cap ; and as he reached up one hand to get his cap, the driver'struck him with his whip. The plaintiff, in attempting to avoid the blow, fell, and the wheel of the car passed over his foot, and injured it severely.
    On the trial, before Justice Jones and a jury, after the above facts were proved, the court, on the defendants’ motion, dismissed the complaint, giving the following opinion :
    Jones, J. I think the plaintiff must be nonsuited. The facts are all conceded, and the question is a question of law. I think the getting off the car while in motion was negligence on the part of the plaintiff. It is true, it is difficult to get these cars to stop, either to get off or on, and perhaps it would be well to sustain actions of this sort, for the purpose of preventing the employment of drivers and conductors by railroad companies, that will not accommodate the public by stopping. I do not feel inclined to go against what I have understood always to be the law, in cases of this kind, for the purpose of establishing a doctrine with a view of compelling stoppages. If that is to be accomplished in any way, it must be accomplished in some other way, either by application to the legislature or to the common council, or by some other means that may be devised. The legislature may have power to pass an act that in case the drivers do not stop, the corporations shall be liable for all damages resulting from it. I do not see why, upon principle, the defendants should not be equally as liable for damages incurred by attempting to get on a car in motion, when the driver refuses to stop, as by getting off a car in motion, when the driver refuses to stop. In either case, it may be equally as important for him to get on the car as to get off the car.
    I, therefore, think this motion must be granted, and I will. direct the exceptions to be heard in the first instance at the general term.

      Ira D. Warren, for the plaintiff.

      John W. Ashmead, for the defendants.
   G-arvin, J.

The questions presented in this case, upon the facts, are of such a character as should have been submitted to the jury. It is not entirely clear that the plaintiff would have left the car at the time he did, had it not been for the conduct of the driver. The motion of the car doubtless produced the injury, or, in other words, if the car had been stationary, the wheel would not have passed over his foot. If the driver had stopped, and let the plaintiff off, no such injury would have occurred. It was a clear case of negligence on the part of the defendants, but this is not enough to entitle the plaintiff to recover. The plaintiff must come into court without fault on his part. It was the duty of the driver to stop the car when requested, by passengers, and let them off; but, if he does not do so, this would not authorize a passenger to negligently expose himself to injury by jumping from the car when in rapid motion, such as to he dangerous to life or limb, whether the plaintiff would have got off the car had there been no interfence with him by the driver, is not, upon the evidence, so free from doubt as to authorize the dismissal of the complaint for negligence on the part of the plaintiff. If the plaintiff left the car voluntarily, without interference o.n the part of the driver, that might constitute such negligence as to defeat the action, provided the car was moving at a high rate of speed. But, if he merely rose up, preparatory to leaving, indicating to the driver his determination to leave the car, in addition to the request he had already made, and thus induce the driver to stop, and then the driver pulled off his cap and twice struck at him with a whip, and, in dodging, the plaintiff fell from the car and received, the injury complained of, this would present a very different case, and one upon which the court would not have heen justified in dismissing the complaint. This version of the case might have been adopted by the jury, and, we think, is sustained by the evidence before us. Certain facts are undisputed : 1. The plaintiff was a passenger upon the top of the car. 2. The driver refused to stop the car when requested. 3. The plaintiff left the car while it was in motion, but whether the plaintiff left at the time he did of his own free will, or whether his action was precipitated by the conduct of the driver, is not certain. Although there was evidence, tending to prove it, of such a character, that, undisputed as it was in the absence of the testimony of the driver, that would have justified the jury in so finding. The question should have been submitted to the jury. The evidence also shows that the car was moving at a slow rate of speed, and, although the plaintiff was upon the top of the car, it was a question for the jury to say whether the plaintiff was guilty of a want of ordinary care and caution in 'descending from the car under such circumstances. It is quite as safe, many times, to step from a car in motion, as if it was stationary, depending upon the rate of speed at which it is moved. A car may be under such rapid headway as to make it imminently dangerous for passengers to leave it. It is not any particular rate of speed by which the conduct of passengers is to be regulated, in entering or leaving cars, that governs ; but the rule is that of exercising ordinary care and caution, under the circumstances surrounding them.

It cannot, therefore, be said that the plaintiff, as a matter of law, was guilty of negligence in.leaving the car while in motion, even if done voluntarily. Nor can it be successfully contended that being upon the top of the car, was evidence of negligence, for he was called up there by the driver, the car-being full on the inside. Thus far we have considered this case upon the evidence of the plaintiff, in connection with the undisputed facts of the case. We think the evidence of the plaintiff was - susceptible of a construction entirely consistent with such want of negligence on his part as to have required the submission of the case to the jury. But there is another view of the case, which is equally controlling. The witness Haas testified: I saw the driver take hold of the boy by the head and by the cap ; he took his cap away ; then he let him have the cap ; then he hit him with the whip ; the car was going at a slack rate of speed ; I saw the boy trying to get off; after the driver hit the boy he tried to dodge the blow of the whip, (probably a second blow,) and by so doing he fell, and got under the car.” This evidence should have been submitted to the jury, in connection with the testimony of the plaintiff, for, whether this conduct of the driver was willful, or negligent, or otherwise, if the plaintiff was without fault, the defendants are liable for such injuries done while driving a vehicle for the conveyance of passengers, in the same manner ner as the driver would be. (1 R. S. 649, §§ 6, 7.)

If the jury had found, upon these facts, that the act was willful or wanton on the part of the driver, the plaintiff would have been entitled to recover. We must, therefore, sustain the exceptions taken by the plaintiff, and order a new trial, with costs to abide the event.

Robertson, Oh. J.

I am not satisfied that the evidence before us clearly establishes, that the movement of the car when the plaintiff fell, so contributed to cause that fall, as at all to raise the question of his negligence in attempting to descend during such motion. He testified that he was going, (in other words intended,) to get off at Forty-fourth, street, which was some distance beyond where he fell. Another witness, (Haas,) testified that the car was going at a slack rate of speed. He also stated that he saw the driver take hold of the plaintiff by his head and by the cap ; he took the cap away * * then he hit him with his whip * * After the driver hit” the plaintiff, the latter “ tried to dodge the blow of the whip, and by so doing fell and got under the car.” The plaintiff testified on his cross-examination, that he tried to get off at the side ; that there was no step in front to get up ; that there was a board on the side to step on, on which he put his foot when ascending, and climbed up. The same thing, as to such board or step, was stated by another witness, (Bruner.) The plaintiff, however, testified that he actually went off the front part of the car when he fell; that while getting off, the driver took off his cap, and caught him by the hair and struck him with his whip, while attempting to recover his cap, whereby he scared him, and he fell “ right down.” There was no direct evidence that the plaintiff was in the act of descending either by the front or side when he fell. But it is established that the car was going slowly; that he intended to wait until it reached Forty-fourth street before attempting to descend; that the conduct of the driyer in striking and frightening him caused him to endeavor to avoid a second blow, and by so doing, (as the witness Haas testified,) he fell (according to his own statement) over the front part of the car ; when in fact he intended to descend by the side. Such evidence appears to me rather to establish that it was the conduct of the driver than the motion of the car which caused the fall. At all events, if material, the question was in a proper position to be submitted to the jury.

But it is insisted that as a principle of law, the voluntary descent of any passenger from a moving railway car, or perhaps any vehicle, whatever its rate of speed may be, is in law such an act of absolute want of due care, as to shield the owner of the vehicle from any liability for injury received in such descent caused by the negligence of their servants. I do not understand, whether such doctrine is proposed to be limited or not by the qualification, that it must appear that such motion contributed to produce the result; but I assume that it must be, since it would be a strange doctrine, that the mere motion of the vehicle should, be taken as an arbitrary test of negligence. In the case of Lucas, adm’r v. New Bedford and T. R. R. Co., (6 Gray, 64,) the court must have assumed that the rate of speed of the cars was plainly such as to enable the court judicially to know that the deceased, (Mrs. Lucas,) was wanting in ordinary care in attempting to leave a car moving at that rate.

The case of Mulhado v. The Brooklyn City Railroad Co., (30 N. Y. Rep. 370,) wás put expressly upon the ground that the plaintiff had made an attempt to alight from the car while stationary, and that it was “ the setting it in motion before he had accomplished that, which was the cause of the injury.” That is, that the sudden start, without notice, that caused the injury. No case has been presented to us, nor have I been able to find one, that goes the length of deciding that descending from a vehicle while in motion, however slow, is to be taken notice of judicially as ipso facto an act of - negligence in law. Nor am I yet prepared to adopt such doctrine.

If the actual rate of speed of a vehicle, the carelessness of the mode of descent, or the want of mental or bodily capacity to make the descent in a proper manner, renders, in fact, the attempt to alight while the car is in motion, an act of rashness, such attempt would necessarily be an act of negligence, in fact, sufficient to exempt the owner of the vehicle from liability for any concurring negligence of his servants. But negligence must always be relative, and dependent upon attendant circumstances, except in extreme or plain cases where the court may take judicial notice of it. It must, therefore, always be a question of fact for a jury. It cannot be denied that the degree of risk in descending from a moving vehicle actually depends upon the mode of descent, speed of the vehicle, and the capacity of the person descending to control and manage his body and limbs ; and yet it is proposed to ingnore such fact, by the rule of law suggested. If descending from a moving vehicle be want of ordinary care, it is yet daily, hourly, and constantly practiced without injury. Such descent, where not necessary, may possibly be prima facie evidence of want of .care, if the injury is traceable to the motion of the vehicle. I think, therefore, in all doubtful cases, and except in the plain and extreme cases before alluded to, where the injury is palpably caused by the motion of the vehicle, and where such motion is so rapid as to render escape from injury in case of such attempted descent, if not inevitable, highly improbable, the questions should be submitted to the jury, how far such motion had contributed to the accident, and how far the rate of speed rendered an attempt at descending by the party injured, such an act of rashness as is generally termed legal negligence.

I am, of course, unprepared to accede to the other extreme, that carrying a passenger beyond his place of destination warrants any act of rashness, of which no man of ordinary caution would be guilty, in escaping from his quasi imprisonment. A prior wrong, whether completed or continued, for which the law affords an ample remedy, cannot justify such a subsequent act to exempt from the consequences of such wrong as no prudent man would commit, and thereby make such wrongdoer liable for the consequences of such act. Indeed, I am unable to see how the omisssion of the defendants to stop their car when requested, has any bearing on any question in this case, except on the propriety of the plaintiff’s preparing himself to descend at Forty-fourth street, upon which, being first abused, he was so struck by the driver, as to cause him, in attempting to evade a second blow, in his fright, to fall off. Such previous failure to stop the cars can hardly properly be said to be an act of negligence at all, certainly not' one material on the question of the cause of the accident, unless the plaintiff would, by such failure, become entitled to employ a desperate mode of alighting, and was injured by its employment.

I concur, therefore, in thinking a new trial should be granted, in order to submit to the jury four questions : (1.) Whether an attempt to descend from the car in question by the plaintiff, at the rate at which it was moving when he fell, was an act of negligence. (2.) Whether the plaintiff was in the act of voluntarily descending when he fell. (3.) If it was not an act of negligence, or the plaintiff was not so descending, whether he fell in consequence of the conduct of the driver. (4.) And, lastly, whether such conduct of the driver was in any way connected with the discharge of his duty, or the apparent scope of his authority. (Weed v. Panama Railroad Company, 17 N. Y. Rep. 362.)

Hew trial granted.


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

text:
    Myron H. Strong, plaintiff and appellant, vs. Jerome K. Place et al. defendants and respondents.
    1. A partnership inter sese is not created between the members of a prior partnership and a third person, by an agreement between them, whereby such third person agreed to furnish such information as he might obtain in regard to the probable action of the congress of the United States, in respect to duties on certain articles of merchandise (spices,) and such firm agreed to purchase those articles to a specified amount when advised by him; furnish the funds or credit for the purchase of such articles; sell the same on joint account; and pay him one half the net profits.
    2. In an action for a breach of contract, the burden of proof lies upon different parties, when the promise of the defendants claimed to be broken was made, ttpoit condition that certain statements of the promisor were true, and when such promise is unconditional, but claimed to be void, by reason of the willful falsehood of representations of the promisor, upon the foith of a belief in which such promise was made. In the first case it lies upon the plaintiff to prove the truth of such representations, and in the second, upon the defendants to prove the making of such representations and their falsehood. •

      Z. Evidence that after statements made, and information communicated by a promisee in a contract, and the compensation demanded by him therefor fixed, the promissors undertook to give such compensation, does not sustain a finding by a referee that such promise was made conditionally upon the truth of such statements and information, where the only condition affixed was that they were “ of value.”
    4. The burden of proof lies upon a party who claims that he was induced to make a contract on the faith of certain representations, to establish that they were made.
    6. It is the duty of every tribunal before whom a cause is pending, when the evidence in it is conflicting and of equal weight on both sides, and there are no circumstances to detract from, or add to, the weight of that on either side, to decide against the party upon whom the burden of proof rests, and where it has not done so, it may be inferred that such tribunal was governed by an erroneous rule of evidence.

      6. A finding by a referee that a person- represented that he knew that a committee of congress had done a particular act, is not sustained by mere proof that he stated he that knew they would do it. Nor is a finding, that he had. asserted the absolute occurrence or existence of a fact, sustained by proof, that he had stated he was so informed by a certain individual whom he named.
    7. Other things being equal, more credit is to be given to a positive statement of a fact by one witness, than the failure to recollect it by another.
    (Before Bobertson, Oh. J., and Moneíl and McCunn, JJ.)
    Heard October 18, 1866;
    decided March 14, 1867.
    Appeal by the plaintiff from a judgment entered on the report of a referee, dismissing the complaint, with costs.
    The complaint set out as a cause of action a promise by the defendants to pay his assignor (Mr. Griffith) one half of their ¡irofits in buying and selling certain articles of merchandise (spices.) It alleged the consideration to have been an agreement by Griffith, to furnish them with what information he might obtain “respecting the probable action of the United States congress” in regard to duties on spices, and “ advise them respecting the probable future condition of the market resulting therefrom.” It demanded as relief an accounting for such profits, claiming that such agreement was one for a co-partnership.
    The answer put in issue the making of such agreement or any similar one, except as thereinafter stated. It admitted the making of a conditional promise by them to pay Griffith three eighths of the profits of their dealings in spices, “if certain representations previously made by him were true.” Those representations were that, at the time of making them (February 17,1864,) he (Griffith) had “positive knowledge that the committee of ways and means of the house of representatives of the United States was considering a bill imposing duties upon goods imported into the United States and had adopted a rate of duties to be imposed upon imported spices ;” and also of “ what that rate was; and that it was very large. That he was the only party outside of such committee, who possessed such knowledge.” And again, “ That he positively knew that such committee had agreed to recommend to the house of representatives the passage of a law fixing the duties or taxes upon imported spices ” at certain rates on each article, which he enumerated. It further alleged that before making such promise, Griffith proposed to the defendants to impart such, his, knowledge to them, if they would agree to give him “ as a compensation to him for imparting such Icnowledge to them ” one half of the net profits they should make upon certain spices which he named, purchased by them “after receiving such knowledge and before such committee should report and its action otherwise become public.” And that the defendants, in answer to such proposal, requested him to state “what duties such committee proposed to put upon spices, and assented to entering into some arrangement” with him upon the subject of such proposed enhancement, if duties upon spices “ made it an object." Upon which he made the statement before mentioned, of the amount of the several duties. Such answer also averred that the payment of such net profits was “ a compensation to him for imparting his said knowledge to the defendants.”
    The answer further alleged that the defendants - entered into such agreement, believing such statements, and representations of Griffith to be true, and upon the faith thereof. That the information so given by him, and all such statements and representations were untrue at the time he made them ; and he knew the same to be untrue at that time, and made the same fraudulently to procure money from the defendants. It also negatived the statements' contained in such representations, and stated some facts inconsistent with their truth.
    The case was tried by a referee, who found as facts : That the representations stated in the defendants’ answer, were made by Griffith as therein set forth. That the defendants, believing such representations to be true, and upon the faith thereof, made the agreement with Griffith set out in their answer. That thereupon the defendants purchased the spices mentioned in the complaint. That all the statements and representations so made by Griffith were untrue, and Griffith had no reason to believe the same to be true. That such committee had not agreed, and Griffith had not been informed, that it had agreed to recommend the passage of a law, fixing the duties upon imported spices at the rates stated hy Griffith. That long after such representations and after such purchase, such committee adopted a rate of duties a great deal lower than the rate stated by Griffith. The referee further found that the defendants did not enter into a co-partnership agreement with Griffith, of the tenor or to the effect alleged in the complaint.
    Upon the facts so found, the referee decided that the agreement made between Griffith and the defendants was void, by reason of the defendants having been induced to enter into it by and through the aforesaid false and fraudulent statements and representations of Griffith, and he dismissed the complaint, with costs.

      T. B. Fldridge and T. J. Fithian, for the appellant, plaintiff.

      L. B. Marsh, for the respondents, defendants.
   By the Court,

Robertson, Ch. J.

The pleadings in this case agree in their statement of the fact of a promise by the defendants to pay the plaintiff’s assignor a portion of their net profits upon certain articles of merchandise, but differ as to the proportion. They differ, also, both as to the consideration or motive for making such a promise, and the existence of a qualification of it. The complaint alleges the consideration to have been a future collection of information by Griffith; the answer, a communication of information then possessed by him. The promise in the complaint is absolute and unqualified ; that in the answer is conditional, and made to depend upon the truth of representations made. The answer claims the avoidance of such promise by fraud in obtaining it.

The arrangement between the parties was evidently not a copartnership as between themselves, since, by it, Griffith acquired no interest in the goods bought, was not liable for any losses, and the part of the net profits received by him was compensation for information, either then communicated or to be afterwards communicated. The variance between the shares of the profits promised, as set out in the complaint and answer, was not material as to the right to recover something, as, whichever was correct, the plaintiff was entitled to recover whatever it was, if there were no other objections.

The mere addition of the condition set forth in the answer to the promise of the defendants, would not defeat the plaintiff’s right to recover under the complaint, although it might impose upon him the necessity of establishing in advance the truth of Griffith’s representations. It would, however, he repugnant to any claim that the promise was made on the faith of the truth of such representations. Being made part of the contract in which all prior negotiations are merged, covering precisely the same ground as such representations, it would be more effectual in its protection of'the rights of the defendants, and form a stronger barrier against fraud, than even rescinding the contract on such ground. For it throws upon the promisee the burden of proving the truth of his representations, and renders it unnecessary for the promissor to show guilty knowledge on the part of the former, and thus renders proof of fraud unnecessary and immaterial. It would be illogical to predicate fraud in making it, of a contract, by whose very terms the truth of the matter alleged as a deceit, is made a condition of its obligation. Possibly, where damages had ensued from acts done under such a contract, fraud might be given in evidence to enhance them ; but where a conditional contract rests in fieri, and nothing has been done, or is to be done, under it, until its final performance, and any question arises as to its obligatory character, proof of fraud is superfluous, at least, until the occurrence of the contingency constituting the condition is' established.

These considerations press themselves upon us, because the promise made by the defendants is found in the report of the referee to have been a conditional one, precisely as alleged in the answer, and following its very words. As such report also finds, as a fact, that the representations, on whose truth the obligation of such contract was thus made to depend, were untrue, any evidence of such conditional contract would end every question as to such report; for the referee must be held to have pronounced his judgment upon the supposition of the making of such conditional contract, unless there be something in his report to show the contrary. But I have looked, in vain, through the evidence, for any proof as to the attachment of such a condition to the obligation of the contract, although there was some of a similar one prior to its making. The defendant James K. Place, who alone made the contract, does not state that any such condition was attached. He simply states that, after Griffith had made his statements and communicated all his information, and the proportion of profits to be given as compensation for such information was fixed, he himself said, they, the defendants, would agree to it/’ adding no qualification thereto. On his cross-examination he stated, substantially, the same thing, only adding, “ if the information was of value.” The finding, therefore, that the contract was conditional, is not borne out by the evidence, and if the report is only sustainable on that basis, it should be set aside.

But whether the attachment of a condition to the contract is to be disregarded, or proof of fraudulent misrepresentations be equally admissible and available to avoid it whether such condition had not or had been attached, (which the learned referee seems to have assumed, since he rests his decision on only one conclusion of law, to wit, that such misrepresentations avoided the contract,) it becomes necessary to look at the evidence of the making of such statements as are alleged in the answer. Upon that point it cannot be questioned that, by well settled laws of evidence, the proof of the affirmative rests on the defendants, as such statements formed no qualification or part of the contract, but were extrinsic matter, forming part of the elements by which it might be defeated, if they were established. And I cannot but think, that the learned referee suffered himself to be misled on that point, and -did not keep in view, in reference to the burden of proof, the distinction between the evidence relating to the terms of the contract- itself and that relating to extrinsic matters affecting it, such as the making and falsity of the representations in question. In the opinion accompanying his report he commences by assuming that, “ if the conversation (between the defendants and the plaintiff’s assignor) was such as the defendants say it was, no' such contract was made as was set out in the complaint ; and * * * * * ' the contract actually made was made void by reason of the representations made by Griffith being untrue.” But, as I have already shown, so far as the plaintiff’s cause of action was concerned, the promise of the defendants, as stated by both parties, (unless the- amount and condition referred to be taken into consideration,) was substantially the same. If, in the terrh “ contract,” the learned referee included the promise of Griffith, set forth in the complaint, to procure information, of course that was not the same, but that did not take away the plaintiff’s right to recover. The referee then proceeds to lay down, as a principle,, that “unless there be something in the residue of the testimony tending strongly to corroborate Mr. Griffith, and to discredit the accuracy of the defendants’ recollections or their honesty as witnesses in the action, the plaintiff has failed to establish the cause of action stated in the complaint. The burden of proof is on the plaintiff to establish his case. This cannot be said to have been done in this case, unless, upon a fair view of the whole evidence, there is a clear preponderance in favor of the plaintiff.” This, evidently, implies that the plaintiff must disprove by preponderating evidence, the malcing of the representations, and the subsequent part of the opinion fully corroborates this view. For, after analyzing the testimony of the two defendants and their brother, (Charles Place,) the referee examines the question whether their acts or the other testimony in the case, or both, “ tend so strongly to discredit their memory, or honesty as witnesses, that th % plaintiff’s testimony should be accepted as accurate and the defendants’ treated as erroneous.” He concedes that both parties, in testifying, believed the truth of what they stated. After weighing probabilities of the truth bf the statements of the parties, he considers the testimony of the defendants as reconcilable, and concludes that it ought not to be discredited. Although he “ saw nothing in the conduct of Griffith, as a witness, to lead ” him “ to suspect that he did not testify in good faith,” he still considered his testimony incompatible With that of Mr. Charles Place, in reference to a contract not involved in this action. And the learned referee finally arrives at the conclusion that no such contract was made as that stated in the complaint, but only that stated in his findings of fact. From this synopsis of the course of reasoning of the referee, it is impossible to escape the conclusion that he considered, either that it was indispensable for the plaintiff to establish the consideration stated by him for the promise of the defendants, as part of the contract, or that the representations mentioned in the answer formed a part of it and that the burden of the proof, or rather disproof, of having made them, lay with the plaintiff. Either principle Was erroneous, for the reasons before assigned.

But it may be said that the legal results of the referee’s decision depend upon his findings of fact and conclusions of law, and cannot be controlled by his mere opinion, which forms no part of the record ; that his report must be sustained, if upon any facts of which there is any evidence, and the application of any correct rules of law to them, the defendants were entitled to judgment. Such a rule would be difficult of application, where a mere erroneous rule of evidence had been adopted, without any error as to- the legal rights of the parties. " Possibly, there may be some mode of procuring the insertion of the rule of evidence so adopted among the conclusions of law., But, in any event, where the only evidence is conflicting and of equal weight, with no circumstances to detract from the weight of, or corroborate that on either side, and where the determination of the facts in issue either way, must depend upon who has the affirmative, the court has a right to infer that the ultimate finding, if not in favor of the party having the negative, was based on a wrong rule of evidence.

The defendant (James K. Place) was the person with whom the plaintiff’s assignor made whatever agreement was made, and the only person who testifies to the representations, upon the faith of which, it is alleged that it was made. His brothers, the other defendant (E. B. Place) and Charles Place, testified to similar representations at or about the same time, and such testimony seems to have been referred to, in order to corroborate, his. The testimony of Mr. Charles Place, as to representations to him, on which he made.a contract with such assignor with whose terms he complied, although at first excluded by the referee, in consequence of an objection by the plaintiff’s counsel, was ultimately admitted by their consent. This admission by consent, however, will of course not make it relevant as evidence upon issues upon which it would otherwise be irrelevant, and, at most, only waives the exception. The learned referee seems to have considered it available, not only to corroborate the testimony of the defendants as to similar representation to them, but to impugn the veracity or memory of Griffith, by contradicting a statement by him on his cross-examination, that he had never made such statement to Charles Place. Its availability for either purpose depends entirely upon its admissibility as a corroboration of the defendants’ statement, otherwise it was on a collateral subject, and the answer of Griffith must be received as conclusive. Such transaction with Charles Place was not established to have been fraudulent, even if the representations were precisely the same. It related to other articles, a share in the profits on one of which, (sardines,) was paid by Place to Griffith, without a demur. Even if it had been fraudulent, I am not aware that the rule of evidence admitting cotemporaneous similar acts as evidence of fraudulent intent, (Cary v. Hotailing, 1 Hill, 311; Hall v. Naylor, 18 N. Y. Rep. 588; French v. White, 5 Duer, 254;) has ever been extended so far, as to make similar contracts evidence of similar representations, for it is only to the question of intent, after other proof of such representations having been made has been adduced, that it is applicable. If not admissible as corroborative evidence, the question put to Griffith, on his cross-examination, as to making such statements to Charles Place was merely as to collateral matter, and not as if it had related to admissions made by him of his representations to the defendants. His answers were therefore conclusive. Besides, the credibility of both witnesses was equally balanced.

The testimony of the defendant, Ephraim B. Place, shows .that no contract was made while he was present. His interview with Griffith, in which the latter, (according to his statement,) disclosed all the details of the information he professed to have, ended in that defendant’s merely referring him to his brother. Such representations evidently formed no inducement to the contract, as the witness said he never conferred with his co-defendant respecting them, or heard him say there was a contract. He only knew that goods were bought under some contract with Griffith. That interview only lasted from five to ten minutes. After it, Griffith had no means left to secure a share of the profits by withholding his information, and had only obtained an expression of willingness to join in an arrangement, if his brother would consent. This is hardly corroborative of an agreement made with another person next day, on the faith of representations then made and entered into, in consideration of the disclosure contained in such representations. So that after all, the whole proof of the making of them rests on the testimony of Mr. *James K. Place, the defendant.

[The court then entered into a minute and critical analysis of the testimony of that defendant, and then proceeded.]

The defendant did not accede to the proposition upon the terms as adjusted, until after Griffith had disclosed the name and position of his informant. This corresponds with the answer of the defendants, in which they make their promise to pay, the result of a previous disclosure by Griffith of all he knew, and its performance a compensation therefor. This would deprive such promise of all legal consideration, and make it entirely gratuitous.

I do not, however, discover in the testimony of J. K. Place, any statement that Griffith ever said, as alleged in the answer, and found by the report of the referee, that he “ positively knew,” that the committee in question “had agreed to recommend to the house of representatives the passage of a law, increasing ” the rate of duties upon the designated articles. His statement was that such committee, or, “in general terms, congress would place a large duty” on them, which was merely prophetic, conjectural, or promissory, and did not assert an existing fact or past occurrence. And he immediately not only stated his knowledge to be on information, but gave the name and position of his informant, being (as J. K. Place testified on his direct-examination) the president’s private secretary, and also secretary of such committee. Griffith plainly asserted nothing of his own knowledge, but that everything stated by him was on information, whose reliability was placed upon the • position and means of knowledge of his informant. The defendants were not content to rely simply on his statement of the fact represented, but demanded the source of his information, on which they evidently most relied, as they inquired of a witness (Hussey) whether it was reliable. The representation, therefore, if any, on the faith of which they made their promise, was the communication of such information by the secretary of such committee (Stoddard) and not the resolution of' the committee itself. All that was stated by Griffith would have been true, if such secretary had made such communication to him, and there is nothing in the case' to disprove it, whatever had been the act or omission of the committee. Yet no such issue was made or tried, but one which went straight to the conduct of the committee itself, without regard to Griffith’s means of information. Upon the issue actually made and tried, evidence that the secretary had so informed Griffith would have been immaterial, even on the question of fraudulent intent, because it was personal knowledge that was at issue, not merely a reasonable ground of belief. The finding of the referee, therefore, that Griffith had no reason to believe the representations made by him were true, or that he had not been informed that the committee in question had agreed to recommend the passage of a law fixing the rate of duties on imported spices at the prices stated by him was immaterial, and unsupported by any thing, unless the mere absence of evidence be sufficient. In fine, there was no affirmative evidence sustaining the allegations in the answer as to the character of the representations (if any) made to the defendants, to induce them to make the promise sued upon.

But, even if all the allegations in the answer as to such representations had been positively testified to by the defendant, James K. Place, there are, besides their positive denial by Griffith upon the stand, (which would have required a finding against them for want of a preponderance of evidence in their favor,) one or two circumstances which detract from the reliability of Mr. Place’s statement.

On the 9th of March, about three weeks after the making of such contract, and some days before the last purchase under it was made, the very secretary, as to whose statements such representations related, wrote in a letter to Griffith : “ The committee have not fixed their figures absolutely and irrevocably upon any article, but have discussed the subject of teas ■and spices freely. They have decided that those articles must and shall stand a very large additional tax.” That part of such letter Griffith testified positively that he read, about the time he received it, to the defendant, James K. Place, while the latter was only able to state that he could not remember whether he had ever done so or not. So, too, the same secretary wrote to the plaintiff, then engaged in procuring information for Griffith, in a letter to him, dated March 21, 1864, (which was after the last purchase :) “You demand points and figures on articles to which no allusion has yet been made by the committee of ways and means. Tell your men not to be discouraged; they shall have all the points as fast as they are made in the committee. * * Tell them they cant have the figures till the committee fix them, or come so near it that I feel safe in giving them the points.” Griffith testifies that he also read this letter to the same defendant, which the latter does not deny, hut says he cannot recollect it. In such a case, other things being equal, the positive recollection must prevail. And, although such letter to the plaintiff does not allude to spices, yet it would naturally have excited the defendant to inquire what it referred to, in which he was interested, particularly succeeding, as it did, the other letter.

Such letter to Griffith, of the 9 th of March, plainly showed that the committee had not resolved on any thing definite ; and if Griffith had made different representations, its reading ought not only to have made some impression on the memory of such defendant, but have induced him, at that time, to charge Griffith with duplicity, notify him of a rescission of the contract for fraud, and discontinue all operations under it. The fact that he did neither, goes far to show that such positive statements as he testified to were never made. The learned referee, feeling the force of this view, urges, in his opinion, in reply, that there was no certain evidence, at what time Griffith received the letter of the 9th of March, what part of it he read to the defendant, and when ; that he did not pretend to know when he received it; that there was no entry on it of the time of its receipt; that he did not allow the defendants to read it, and only- read such parts of it as he saw fit; and that he made no entry on it of the parts he read. As to not permitting the defendants to read it, it appears that it contained allusion to other matters, and the hearing it read, was as good notice of its contents as if it had been read by the defendants. As to the time of the receipt of the letter, its reading, and the parts read, the testimony of Griffith, which is the only evidence on those subjects, was in substance as follows : That he received such letter- in due course of mail, and "showed it at once to the defendant, as he made it a point always to do ; and read it to him on the day he received it; and that he read all contained therein that related to the duties on spices, there being other matters therein; and that such was his habit. Allowing two days for receiving the letter from Washington, there was sufficient evidence of all the important part of it having been communicated to the defendants before the 14th of March, when the last purchase was made. But whenever received or read, it should have awakened the indignation of the defendants at the fraud attempted to be perpetrated, and have induced them forthwith to have notified Griffith of a rescission of the contract. But they went on, selling the spices, which they had bought, as they state, relying upon such information, and making large profits, but never notified Griffith that the contract was at an end, until his assignee (the plaintiff) was referred, when he made a demand, to their counsel, without a word of explanation.

Griffith’s statement of what passed in making the contract is corroborated by evidence of his receipt of similar information from Stoddard, through the plaintiff, the continuance of the plaintiff’s efforts to procure further information, and his arrangements for the purpose, as well as the facilities possessed by those on whom he relied for getting information. While, on the other hand, allowance must be made for a probably innocent exaggeration by him in his representations of the certainty of the result, which may, in the memory of the defendants, disappointed in their expectations of greater gain, and unconscious of the precise foundation on which they rested, after the lapse of nearly two years, have been converted into the supposition that it was the assertion of an undeniable fact. The testimony of the parties might be reconciled on such a supposition. At all events, the plaintiff ought not to be deprived of whatever rights he has, under the promise of the defendants to pay his assignor a proportion of their profits, merely upon such evidence as that before us of untrue representations made to obtain such promise. I have not deemed it advisable to consider the question of illegality of the contract, as it does not appear what it was from the report of the referee.'

The judgment should be reversed, the order of reference vacated, and a new trial had, with costs to abide the event.

McOunn, J. concurred.

Monell, J.

(dissenting.) The only material issue in this case to which the evidence before the referee was directed, and upon which he has disposed of the case against the plaintiff, was, whether the contract between the parties was such as was alleged in the complaint, or such as was stated in the answer.

Upon such evidence the referee has found that the defendants did not enter into a co-partnership agreement of the terms or to the effect claimed by the plaintiff, but that the agreement was such as was claimed by the defendants. The plaintiff’s proof of the agreement consisted of the testimony of Griffith, who testified it was such as was alleged in the complaint. The defendants’ evidence was the testimony of both. They denied the making of any other agreement than such as they had set forth in their answer. The respective statements of Griffith and the defendants are not merely contradictory and conflicting, but they are completely opposed to each other. Much of the testimony, both upon the direct and cross-examination of the witnesses, seems to have been drawn out with the view of testing the recollection, or the animus, feeling or intent of the witness and thereby affecting his credibility. Such facts as relate to the agreement, are brief, clearly stated, and embrace a small part only of the entire evidence.

The precise terms of the agreement were, therefore, to be determined from the evidence. If it was found to be such as the defendants alleged it to be, then it became necessary further to find, that the representations were untrue and known by Griffith to be false.

The decision of a referee' upon a disputed fact, is in all respects like the verdict of a jury; and the principle, so long and so well settled, that a finding either way upon conflicting evidence, will not be disturbed (ad questiones facti non respondent judices ; ad questiones legis non respondent juratores) is as applicable to the one as the other form of trial.- (Bearss v. Copley, 10 N. Y. Rep. 93. Woodruff v. McGrath, 32 id. 255.)

The referee has found that the contract alleged in the complaint was not made. Had he stopped there, a dismissal of the complaint would necessarily have followed, because of a failure of proof. And such I understand to be his meaning when he says in his opinion, that the burden of proof was on the plaintiff. He did not mean, that in finding, as he did further find, that the contract was of the • nature set up in the answer, that the burden of disproving such contract was on the plaintiff; but he meant merely, that the burden of proof was on the plaintiff to establish the contract upon which he had sued, and on which he relied to recover, and that failing to establish such a contract, he could not succeed.

It was not denied, that if the representations, testified by the defendants to have been made by Griffith and relied on by them, were not true ; nor was it contended that if made, they would not render the contract void. The evidence on the part of the defendants was chiefly directed to sustaining their allegation, that such representations were made ; and the referee concludes his opinion by saying, that the evidence “ brings me to the conclusion that no such contract was made as the complaint states, but that it was such as is stated in the finding of fact.”

It seems to me to be quite clear that such finding was intended to be upon the whole evidence, and covered all the issues raised by the pleadings. In finding against the plaintiff’s ■contract, the referee assumes the burden of proof was on the plaintiff; but there is no such assumption in the finding in favor of the representations. Upon that issue, he has found, upon all the evidence that the representations were made, and in so finding, must necessarily have placed the burden of proving them on the defendants.

It was an affirmative issue, and required affirmative and preponderating proof, and the referee could not have sustained it, except under the conviction that it was affirmatively proved. Otherwise his finding would have been that the plaintiff had failed to disprove it.

This case seems to have been examined with great care.

In his opinion, the referee has reviewed the evidence, and reconciled such contradictions as may have existed; and upon a careful scrutiny of each, fact and circumstance, giving weight to the one side, or affecting the credibility of witnesses on the other, he has come to the deliberate conclusion that the plaintiff has failed to establish a cause of action.

To disturb such a result would violate the well settled principle to which I have referred. The tribunal whose function it was to hear and determine the issue the parties had made, was more competent to decide where credit should be given, than any appellate court, whose office is to look merely at testimony on paper.

In support of the judgment, the defendants have insisted, that independently of the finding of the referee that the contract was fraudulently made, such contract was also void, as being against public policy. I have not, however, found it necessary to examine that question. The fraudulent representations which induced the making of the agreement, rendered it null, and no recovery could be had upon it. That is a sufficient reason for upholding the judgment.

I am in favor of affirming the judgment, with costs.