author: By the Court, Woodruff, J.

text:
    D. A. Butterfield, Plaintiff and Appellant, v. Spencer, President of U. S. Express Co., et al., Respondents.
    When a written agreement has been duly made by and between two joint stock Express Companies (which they were competent to make) for the consolidation of the two companies and the merging of one of them in the other, bytwbich agreement the one to be merged agrees to buy 2000 shares of the increased stock of the other, and which stock such other agrees to issue and sell for $200,000, and by which the stockholders of the one to be merged are to have the right, mier alia, of becoming purchasers of such 2000 shares, in proportion to the amount of stock they hold in the company to be so merged, or to relinquish their stock to the company of which they are members and receive therefor such sum as they have paid on account of their subscription for the same and ten per cent, in addition thereto; and thé company to be merged, on the making of such agreement, through S., its President, notified all of its stockholders of such agreement and of its provisions, and in such notice offered to each of them, his election of either of the several provisions made, by such agreement, for the benefit of such stockholders, and E., one of such stockholders, on the receipt of such notice and offer, wrote a letter to S. as such President, inclosing in it E:’s certificate of stock (being the only evidence he had of any right to stock in such company), and by such letter declared that he declined to become a purchaser of any part of said 2000 shares, and that he elected to take the amount he had paid on his subscription for such stock, and ten per cent, in addition thereto, held, that, the election tendered to E., by S., on behalf of the company of which he was such President, and the letter sent by E. to S. with the declaration of his election thereby communicated, was an offer by S. (on behalf of said company) to receive back E.’s certificate and pay him therefor, which, on being accepted by E. (by declaring his election to surrender his stock-certificate, and receive the sum so offered to be paid), became a binding contract, irrevocable, except by the mutual assent of E. and of the said company,«as the parties to such contract. ,

      Held also, that, G-., to whom S., as such President, on the day of, and after the receipt of E.’s said letter, sold the stock which E. so declared his election to surrender (G-. having bought and paid for the same in good faith), acquired a valid title to such stock as between himself and E. and as between himself and the plaintifij who, subsequent to G-.’s said purchase, took from B. an assignment of said stock-certificate and of B.’s rights as a stockholder in the said company.
    It was also held, that, the fact that S., after offering to sell such stock to Q., returned said stock-certificate to E., with a request that he would sign an endorsement written by S. thereupon, in these words, viz.: “ I authorize and require Charles C. .Backus, -Treasurer of the U. S. Express Company” (the Company to he merged), “ to cancel the within receipt, and to issue, in its place, a new receipt for the same to such persons as Hamilton Spencer may direct”—, -and then return it to S., did not give and could not be regarded as having been intended to give, to E. a right to renounce the election he had made, or to treat the matter as opened for further negotiation:

      Held also, that, S. having, under such circumstances, sold the stock to Or., and the latter having paid for it, to the company of which S. was President, and the company having adopted the sale, and continuing to insist upon its validity, it did not lie with E., or the plaintiff as his assignee subsequent to such sale, to deny the authority of S. to make it.
    Also held, that, although the consolidation agreement required S., within 24 hours after being notified by any stockholder of the company to be merged, of his election to surrender his stock, and that he declined to be a purchaser of any of the said 2000 shares, to give the like notice, in writing, to the trustees of the other company (who were named), and who agreed that, on that being done, they would take and pay for the stock of such declining stockholder, yet, whether S. neglected his duty, in not giving notice to said Trustees, in the manner and within the time prescribed by said agreement, of E.’s said election, is a question between such trustees and S. or the company of which he was President, and that its just determination did not affect the rights or liabilities of E., growing out of his acceptance of the offer made to him by the company of which he was such stockholder.

      Held also, that, after such sale to G-. of, and payment by the latter for, such stock as aforesaid, E. could not retract his said election and hold the stock, even though it was satisfactorily proved that a conversation was subsequently had between E. and S. at Bochester, in which E. avowed a purpose to retain the stock, and S. expressed his gratification thereat, saying at the same time that the condition of the stock had not been changed since E. had declared his said election, and could not be, until S. returned to New York; and hence, also held, that it was of no importance that the statement of the facts found by the judge who tried the cause, did not-show whether he concluded such conversation to be what E. swore it was, or what S. swore it was; (their testimony in relation to it being in conflict.)
    It was also held, that the plaintiff who purchased from E. the stock-certificate he held and bis rights as a stockholder, after the transaction between S. and G-. had been fully concluded, stands in no better situation than E. would have done, and did not thereby acquire any rights superior to those which B. possessed, at the time of such purchase by the plaintiff.

      Held also, that the plaintiff by inquiring of E., at the time of such purchase, why the unsigned endorsement, or power of attorney, was written on the back of said stock-certificate, and by being informed by E., in answer to such inquiry, “in' substance of the reason why it was there,” acquired a knowledge of facts, and of acts of E., which concluded E., and divested him of the power to reclaim the stock, and consequently that the plaintiff, as such purchaser, acquired no right to t become a purchaser of any of said 3000 shares of stock, or to have any of it * issued to him.
    (Before Boswobth, Hoefhan, and Woodrtot, J.J.)
    Heard January 35.
    Decided May 17, 1856.
    This action was brought by David A. Butterfield, plaintiff, against Hamilton Spencer, individually and as President of the United States Express Company, and Alexander Holland, Treasurer of the American Express Company, and Henry Dwight, Jr., defendants.
    It was tried before Mr. Justice Bosworth, without a jury, in April, 1856, who decided that the plaintiff was not .entitled to the relief sought, and that the complaint should be dismissed with costs. From the judgment entered on the 3d of October, 1856, on such decision, the plaintiff appealed to the General Term. The complaint stated in substance, that shortly prior to February, 1853, a joint-stock company was formed, called the “United States Express Company,” to carry money, packages, and property, and transact the general express business, and its principal office was in the city of Hew York. It consisted of over seven associates; its capital stock amounted, nominally, to $500,000, divided into 5,000 shares of $100 each. Receipts, for instalments called in and paid on each share, had been issued to the several stockholders, in the form of that issued to George Ely, one of the associates and the plaintiff’s assignor, and which reads as follows:
    “ United States Express Company.
    “Received of George Ely, Esq., One thousand dollars, being twenty per cent., the first instalment, upon fifty shares of the capital stock of the United States 'Express Company held by him, for which stock,, scrip will be issued upon the surrender of this receipt.
    “Dated, 4th February, 1853.
    “C. C. Backus, Treasurer.” .

      In 1850, a.joint-stock company, called the “American Express Company,” was formed, consisting of more than seven associates, and Alexander Holland is its treasurer, and its principal office is in the city of Hew York.
    The defendant Spencer, at the time of the transactions subsequently detailed, was and is the President of the United States Express Company; Henry Dwight, Jr., was and is one of its directors; and the management of its business was committed to a board of directors.
    The business of the two companies being the same, it was deemed for the interest of both that, they should be consolidated, and the United States Express Company merged in the American Express Company. To carry out that object, an agreement, (the validity of which was not called in question,) was entered into between the two companies, bearing date the 7th of March; 1853, which was executed “by John Butterfield” and six others, “ trustees of the American Express Company, of the first part, and the defendants, Henry Dwight, Jr., and Hamilton Spencer, on behalf of the United States Express Company, of the second part.”
    By this agreement the United States Express Company was to buy, and the American Express Company, was to issue, on or before the 30th of April, 1853, to the parties of the second part, for the stockholders of the United States Express Company, full scrip for 2,000 shares of the capital stock of the American Express Company, in such sums and for such persons as the parties of the second part should direct. The parties of the second part agreed to pay for said shares, on delivery of the scrip, $200,000, of which $100,000 was to be divided among those being stockholders of the American Express Company at the time of issuing said 2,000 shares of stock, ratably in proportion to the stock they then held. The other $100,000 was to be held for the benefit of the then stockholders of the American Express Company, and such as should come in under said agreement. The parties of the second part agreed that, on the fulfilment of said agreement, the United States Express Company should be deemed merged in the American Express Company, and its separate organization given up; and that all the stockholders of the United States Express Company, who so desired, might become purchasers of said 2,000 shares, in the proportion in which they might own stock in the United States Express Company on the 30th of April, 1853. That if any of them should decline to become such purchasers, “ and should, within thirty days thereafter, give notice to said Spencer, who should, within twenty-four hours, notify the parties of the first part that they so declined,” then the said parties of the first part agreed to become subscribers for the said stock, to an amount not exceeding $100,000, held by the parties so declining, and repay to each the sum paid on each share of stock, being $20, with ten per cent, on such sum so paid, and the stock in the American Express Company, which such persons so declining would have been entitled to under said agreement, should be issued to said parties of the first part, on their paying the balance, if any remaining to be paid, on the subscription to the stock of the United States Express Company. The stock to be issued under said agreement was to be of the increased stock of the American Express Company. Within thirty days after the 30th of April, 1853, a stock dividend of $99,500 was to be made as follows : $49,500 among those being stockholders of the American Express Company at the date of said agreement, and $50,000 among those who might become stockholders under it.
    The American Express Company, as thereby constituted,, assumed all the property of the United States Express Company, and its value, at a sum agreed upon, was allowed as part payment of the undisposed $100,000, of the purchase-money for the stock in the American Express Company. It was also alleged that the agreement contained other provisions which need not be stated. The complaint averred that both companies approved and ratified the agreement, and on the 30th of April, 1853, the $100,000 which was to be divided among the stockholders of the American Express Company, was paid. That when the said agreement was made, $20 had been called in and paid on each share of the stock of the United States Express Company; and to carry out said agreement, and pay certain general expenses already incurred, a further call of $24 per share was made on its stockholders, payable on the 25th of April, 1853.
    It also averred that the residue of said $200,000 had been paid by the United States Express Company, and that the American. Express Company proceeded, pursnant to said agreement, to issue scrip, or certificates of its increased stock, to such persons, being stockholders in the United States Express Company, as said Spencer and Dwight directed.
    That when said agreement was made, George Ely, of Rochester, held a receipt or certificate, (a copy of which is already set forth.) That on the 23rd of April, 1853, the plaintiff bought it from Ely and paid him for it the full amount Ely had paid in, viz. $1000, and a premium of $500, and Ely, by an instrument in writing, assigned and delivered it to the plaintiff. It averred that the plaintiff, as such purchaser, became entitled to the benefit of said agreement, and to 20 shares of the increased stock of the American Express Company, as his proportion thereof. It averred that he offered on the 25th of April, 1853, to pay the said call of $24 per" share, and. that the President and Treasurer of the United States Express Company refused to receive it, or to allow him to make the payment. That after the 30th of April, 1853, he' required Spencer and Dwight to direcj; the American Express Company to issue to him, his proportion of the increased stock of the American Express Company, which they refused to do. That Spencer was notified of the plaintiff’s purchase on the 23rd of April, 1853, and was requested by the plaintiff and by sEly to have issued, and the American Express Company was requested to issue, to the plaintiff his proportion of such increased stock. That Spencer has repeatedly refused to so direct, and the latter Company has declined to issue any stock to the plaintiff, on the ground that they had issued all which was to be issued, and to such persons as Spencer and Dwight had directed. It averred that the stock to which the plaintiff is entitled has been issued to, and stands in Spencer’s name, and that in May, 1853, the American Express Company declared a dividend of 25 per cent., which entitles the plaintiff to five additional shares, which also stand in Spencer’s name, and that said 25 shares are worth $150 per share. The complaint prays, inter alia, for a judgment compelling the American Express Company to issue to the plaintiff 25 shares of its increased stock, and Spencer to surrender the scrip therefor issued to him, and that Spencer and Dwight be compelled to do whatever is necessary to accomplish this result, and that they pay the damages the plaintiff has sustained, to the amount of $5000, and his costs of this action.
    The defendant, Spekcer, who answered “both individually and as the President of the United States Express Company,” and the defendant, Dwight, interposed an answer, and in and by it alleged that, by the terms of the agreement of the 7th of March, 1853, it was provided that the notice to be given by stockholders in the United States Express Company who might elect not to become purchasers of the stock of the American Express Company, should be given within 30 days after the delivery of that agreement, and not within 30 days after its date, as stated in the complaint, and that it was delivered on the 16th of March, 1853, and not before.
    That on or immediately after the 16th of March, 1853, Spencer sent to Ely a letter or notice, stating the making of said agreement and its contents, (a copy of which is set forth in the answer,) and that Ely replied by a letter dated the 9th, and mailed the 14th of April, in which he declared his election not to become a purchaser of stock in the American Express Company and also declared his election to receive the instalment of $1000, which he had paid into the United States Express Company, with 10 per cent, in addition thereto.
    That Spencer received this letter on the 15th of April, 1853, and that there was inclosed in it, the said receipt or certificate, a copy whereof is hereinbefore set forth. That Spencer within 24 hours thereafter gave the notice required by the said agreement to the parties of the first part thereto, and Spencer was thereupon directed to inform James Y. P. Gardner, of Utica, that he could have the stock Ely had declined to take. That on the 16th of April, 1853, Spencer telegraphed to Gardner accordingly, and stated that he must pay $1100 to be entitled to the stock; and on the same day, Gardner, by telegraph, accepted the offer, and agreed to take the stock and remitted the $1100 by mail to Spencer, which Spencer received on the'lSth, and the same was credited on the books of the United States Express Company. That Gardner thereby became owner otf said shares, and a stockholder in the United States Express Company, and on the 20th of April, 1853, paid the call of $24 per share on the said fifty shares and on other shares held by him, and the treasurer thereupon issued a stock receipt to Gardner, dated the 25th of April, 1858, which stated that the United States Express Company had received from him $6420, being 24 per cent, the second instalment upon 267i shares of the capital stock of said Company, “for which stock, scrip will be issued on the surrender of this receipt,” and that such receipt was received by Gardner on said 20th of April, 1853.
    That the sale was made to Gardner and the moneys received from him, and the said stock receipt was issued to him, solely by reason of Ely’s said letter to Spencer of the 9th of April, 1853, and in reliance thereon, and without any notice that Ely intended to claim or exercise any right over said fifty shares of stock.
    That after said offer was made to Gardner and on the 16th of April, 1853, Spencer wrote to Ely, acknowledging the receipt of his letter of the 9th of April, and informed him that the $1,100 due to him was subject to his order, and would be paid as he should direct, and re-inclosed the said receipt, “with an authority endorsed thereon to transfer the same, and requesting said Ely to return the same, with his signature, to said authority, as a matter of convenience in doing the business.”
    That when the plaintiff offered to pay the call of $24 per share, he offered to pay on condition of receiving from the United States Express Company a stock receipt for said fifty shares, and his demand was refused on the ground that the said shares had been sold to, and were owned by, Gardner, and that Ely had given notice of his election as hereinbefore set forth, and that the plaintiff was then so informed.
    That the twenty-five shares issued to and standing in the name of Spencer, were issued to him, in terms, in trust, in order to close the arrangements between the two companies, and he claims no property therein; and that he told the plaintiff before this suit was brought, that he would not transfer it until the rights of the plaintiff and of Gardner to it were determined, and that in all the transactions detailed in such answer, Spencer has acted in his official capacity as President of the United States Express Company.
    The answer put in issue the allegations of the complaint, as to the time of the plaintiff’s purchase and the amount of consideration paid by hirn, and as to a demand by him upon Spencer to direct the American Express Company to issue stock to the plaintiff, and that the plaintiff gave notice of his purchase on the 23rd of April, and avers it was not given prior to the 25th.
    It insisted that Gardner is owner of said fifty shares, and as such entitled to the benefits of the said agreement between the two companies, and denied that said shares of the .American Express Company’s stock are worth $150 each, or that the plaintiff has sustained, or is entitled to recover any damage. It insisted that Ely could not make any valid transfer of said fifty shares after having given the notice aforesaid, and after it had been acted on and the stock sold, as detailed in the answer, and prayed a dismissal of the complaint, with costs.
    On the trial, and for the purposes of it, the necessity of proving the tender, demand, and refusal mentioned in the complaint, was waived by the defendants. It was proved that the agreement, dated the 7th of March, 1853, was delivered on the 16th of that month. Its seventh paragraph is in these words, viz. 11 If any of the stockholders of the United States Express Company shall decline to become purchasers of the stock of said American Express Company, under this contract, and shall, within thirty days after the delivery hereof, give notice to Hamilton Spencer, at 170 Broadway, in the city of Hew York, who shall, within twenty-four hours after, give the like notice, in writing, to the parties of the first part, at their office, Ho. 10 Wall street, Hew York, that they so decline: the parties of the first part shall become subscribers for the stock of the United States Express Company, to an amount not exceeding $100,000, held by the persons so declining, and shall repay, to each, the sum he has already paid in on such stock, being the sum of $20 on each share, together with ten per cent, on such sum paid in, and the stock in said American Express Company which such person would have been entitled to under this contract, shall be issued to said parties of the first part upon their paying the balance, if any remaining to be paid, on the subscriptions to the stock of the United Express Company.”
    The certificate of the 4th of February, 1853, hereinbefore copied, was also produced and read in evidence.
    The notice of the 16th of March, 1853, which Spencer sent to Ely, was produced and read in evidence. It was proved that Ely received it on the 9th of April, 1853, and it reads as follows, that is to say:—•
    “ Hew York, March 16, 1853;
    “ To George Ely, Esq. :
    “ Sir :—An arrangement has this day been made between the United States Express Company and the American Express Company, for their union.
    “The stockholders of the U. S. Express Company, by the contract, become the owners, on the 80th April next, of two thousand shares of stock in the American Express Company, which divides the stock equally between the stockholders of the two companies.
    “ The U. S. Express Company pay for the stock thus bought, $200,000, one-half of which is divided amongst the present stockholders of the American Express Company, and the residue remains in the treasury for the joint benefit of all concerned. The stock to be issued and paid for on the 30th of April next.

      “ Within thirty days after the 30th of April next, a stock dividend of $50,000 is to be made and divided among the stockholders of the U. S. Express Company, and a like dividend to the stockholders of the American Express Company, making the whole stock $500,000; equally divided between the stockholders of the two companies.
    “If any stockholder of the U. S. Express Company shall decline to become a purchaser of the stock of the American Express Company, under this arrangement, he shall, within thirty days from this time, give notice in writing to Hamilton Spencer, at the office of the U. S. Express Company, 170 Broadway, Hew York; that he declines, and send back his receipt for the instalment paid by him; and thereupon the amount of the first instalment paid, with ten per cent, in addition thereto, will be refunded to such stockholder.
    “ Or, if any stockholder prefer, he may, within thirty days, give notice, at the same place, to Mr. Spencer, that he elects to sell his portion of the $200,000 of stock receivable pursuant to this arrangement, and send with the notice a power of attorney to said Spencer to transfer the same. Within one year, such stockholder is guaranteed that each share of said $200,000, of stock issued, shall produce $125. The individuals of the American Express Company who give the guaranty being entitled to take the stock sooner if they choose, and being credited towards the price of $125 per share, with all cash and stock dividends which may be received in the meantime. Those who elect to sell upon these terms are not at liberty afterwards to sell their stock, except with the consent of the guarantors, and the stock in the meantime remains in the hands of said Spencer, as the mutual depositary of the parties. This guaranty is given by John Butterfield, James D. Wasson, Wm. GL Eargo, E. P. Williams, and Johnston Livingston, and is believed to be perfectly good.
    “The personal property, leases, etc., of the U. S. Express Company, are transferred, at cost, to the new company thus formed.
    “ To enable the U. S. Express Company to carry out this ■ contract, and to pay certain general expenses already incurred, a further call, of $24 per share, is made upon the stockholders of the TJ. S. Express Company, payable on the 25th of April next.
    “It will be seen that the arrangement now stated offers to each stockholder of the U. S. Express Company his choice of either of three courses:
    “ 1. To now withdraw from the company, receiving back the whole amount paid, and ten per cent, in addition.
    “2. To receive his share of the stock bought, with the right' to elect immediately to sell it at $125 per share, payable within one year in the manner stated-.
    “ 3. To hold his stock, receiving such profits as the business may hereafter afford.
    “ The directors believe that the arrangement now made will prove more advantageous to the stockholders than a contest between the companies could have done, involving, as such a contest must necessarily, a large expenditure of money, which once paid out could not have been recovered.
    “ Suitable forms for notices are appended for such as may elect to avail themselves of them-.
    “By order of the Board of Directors.
    “ H. Spencer,
    “ President U. S. Express Co.”

      It was also proved that said notice, when sent to and received by Ely, had appended to it the following “forms for notices,” viz.
    “ To Hamilton Spencer, Pres’t U. S. Express Co.,
    170 Broadway, Hew York.
    “ Take notice that I decline to become a purchaser of stock in the American Express Co., pursuant to the contract made between that company and the United States Express Go., and that I elect to receive the sum of $-, being the first instalment paid on —-shares of stock held by me, with ten per cent. in addition to such instalment.
    “Dated, 1853.”
    “To Hamilton Spencer, Pres’t U. S. Express Co.,
    170 Broadway, Hew York.
    “ Take notice that I elect to sell to John Butterfield, James D. Wasson, William G. Fargo, Elijah P. Williams, and Johnston Livingston, so much of two thousand shares of stock in the American Express Company, agreed to be issued to the stockholders of the United States Express Company, as I may be entitled to as a stockholder of the U. S. Express Co., at the price of one hundred and twenty-five dollars per share, payable within one year from the first of May, 1853.
    “ And I hereby authorize you, upon the receipt of the price aforesaid, to transfer such stock to said persons, or their assigns, you, in the meantime, and until such payment is made, retaining possession of such stock for me, and immediately upon the receipt of such price, remitting the same to me without charge for your services.
    “ All cash or stock dividends received by me upon such stock, before such transfer is made, are to be allowed as part payment of said price of one hundred and twenty-five dollars.
    “Dated, 1853.”
    It was proved that, in reply to such notice, Ely, on the 14th of April, 1853, mailed to said Spencer a letter, which the latter received on the 15th, and which reads thus:

      “To Hamilton Spenoee, Pres’t IT. S. Express Co.,
    170 Broadway, Hew York,
    “Take notice that I decline to become a purchaser of stock, in the American Express Company, pursuant to the contract made between that Company and the United States Express Company, and that I elect to receive the sum of one thousand dollars, being the first instalment paid on fifty shares of stock held by me, with ten ]i>er cent, in addition to such instalment.
    “Respectfully yours,
    “Geoege Ely.
    “Bated, Rochester, April 9, 1853.
    “Inclosed I send said receipt for instalment of one thousand dollars, on my subscription to the stock of the United States Express Company.”
    Evidence, as to Spencer’s having given notice to John Butter-field and others within twenty-four hours after the receipt of Ely’s letter of the 9th of April, 1853, declaring his. election as aforesaid, was given by both parties. The sale to Gardner was proved, as stated in the answer of Spencer and Bwight, and also that' Gardner paid for the fifty shares as stated in such answer, and also that he paid the further call of $24 per share, and that there was issued to him the certificate, or receipt, as stated in such answer.
    Spencer’s letter to Ely, returning the certificate to him, was put in evidence, and reads thus:— .
    “170 Broadway, 16th April, 1853.
    “Geo. Ely, Esq.
    “ Bear Sir:—Your favor of the 14th inst., inclosing notice, is just received. Please sign the inclosed power on the back of the receipt and return to me, and on its receipt a check for $1100 will be sent you.
    “Very respectfully,
    “H. Spenoee.”
    The power, written'on the back of the certificate when so returned to Ely reads thus:—
    “I authorize and require Charles C. Backus, Treasurer of the U. S. Express Co., to cancel the within receipt, and to issue in its place a new receipt for the same to such persons as Hamilton Spencer may direct.
    “ 10th April, 1853.”
    Ely replied to Spencer’s letter, of the 16th of April, by a letter dated the 20th of April, 1853, which letter Spencer did not receive till several days thereafter, being, when it reached Hew York, in the western part of said State. Such letter reads thus:—
    “Bochester, April 20th, 1853.
    “Hamilton Spencer, Esq.
    “Dear Sir;—Your favor of the 16th inst. was duly received. Since the receipt of your letter, I have determined to hold my Express stock, and shall therefore forward the instalment of $1200, in compliance with the call of the Treasurer. You will, therefore, please send back my notice requiring a return of the first instalment, or consider it annulled and inoperative.
    “Bespeetfully yours,
    George Ely.”
    George Ely was examined under a commission, as to what was said at an interview between him and Spencer, on the 21st of April, 1853, at Bochester, as the latter was returning from the western part of the State to Hew York City. It was admitted that Abraham P. Ely was present at such interview, and would testify as George Ely did. The testimony of the latter, on that point, is as follows:—
    “On the 21st day of April, the defendant, Spencer, was in my office in Bochester, and after I had replied and mailed the letter stating my intention to retain the stock. ' During this interview, I stated to Mr. Spencer that I received his letter of the 16th, returning my certificate,—that I had decided to retain my stock, and should be prepared to meet the call of the Treasurer for the second instalment, due on the 25th, and that I had written to him to that effect the previous day,
    “Mr. Spencer replied, by expressing entire concurrence and satisfaction in this determination. Said he should be pleased to have me remain a stockholder in the company, and was glad I had decided to retain my stock; that it would be good property to hold, and would pay liberal dividends.
    “ My brother, Abraham P. Ely, was present in my office during this interview, and was in a situation to hear what passed between us.
    “During the conversation, Mr. Spencer did not say, intimate, or allude, in any way or manner, to his having transferred, o:? to his having left directions with any persons to transfer, dispose of, or re-issue said stock to any one in his absence. He stated that the condition.of the stock had not been changed, and would not be while he was away; that no alteration or transfer of the stock to another could be made without his direction, and that he had made no disposition whatever of my stock previous to 'his leaving Hew York, and that it still stood in my name, where it would remain, as I desired.”
    Mr. Spencer’s testimony as to that interview was as follows:—
    “ I had an interview with George Ely and Abraham P. Ely at Rochester, just at evening, on the 21st of April, 1853. It was on my return from Buffalo. I had business to transact with Abraham P. Ely, who was the agent of the United States Express Company, to pay him off, and 'close his connection with the company. After completing that settlement, just as I was leaving the office for the oars, George Ely mentioned to me that he had arranged, or concluded, or determined to retain hig stock, I cannot give his exact words. I replied ‘have you’ (or substantially so) ‘ I am glad to hear of it, for I think you will find the stock profitable, and I should be glad to have the original subscribers make the profits, if any.’
    He talked a little farther in regard to the probable profitableness of the stock, and then I left. Hot a word was said in regard to the condition of the stock not being changed, nor about the stock standing in his name, nor in regard to this; that a transfer of the stock would not, and could not, be made in my absence, or that I hái made no disposition of the stock. Hothing whatever was said as to the stock during this conversation, except at the commencement, when Ely said he had arranged, or concluded, or determined, to keep the stock. Í did not say that the condition of the stock had not been changed, and would not be, in my absence, or that it could not be in my absence. I did not tell him I had made no disposition of the stock, or that it still stood in his name. I am as certain of this as I am of my own existence. Nothing whatever was said on any of these subjects.”
    On the cross-examination the witness testified:—
    ■ “ I made no other communication to Mr. John Butterfield in regard to Ely’s declining the stock than what I have stated. I have a very distinct recollection of that conversation of the 21st of April; my attention was called to it the next week, on my return to New York. I state that these things were not said, both from distinct recollection that they were not said, and because I know they could not have been said without my recollecting, nor without my telling Ely a falsehood. I have three reasons for saying that no such conversation took place:—
    “ First. It would have been a lie, and I know I did not tell him a lie; second, it would have been inconsistent with what I then inferred he had done in my absence; third, I distinctly recollect that no such things were said.”
    George Ely wrote a letter to Spencer, which was read in evidence, and bore date the 25th of April, 1858, and which stated in substance that the plaintiff, on the previous Saturday, through an agent at Rochester, made Ely an offer for his stock in the United States Express Go., which he had accepted, and that he had assigned to the plaintiff his receipt and interest in his subscription, adding, “ he will therefore pay the instalment called for to-day.” It assigned as Ely’s reason for selling, that he believed it judicious to accept the offér made to him. Spencer received this letter on the 27th of April, 1853, at New York, and it was post-marked at Rochester on the 26th of April.
    There was also produced, proved, and read in evidence, the guaranty mentioned in the letter or notice of the 16th of March, 1853, sent by Spencer to Ely, which guaranty bears the date last named, and was delivered cotemporaneously with the said agreement of the date of March 7, 1853. Said guaranty-Tead as follows :—
    “We, whose names are hereto subscribed, do hereby, for a valuable consideration, guaranty and agree to and with Hamilton Spencer, President of the United States Express Company, and with each stockholder of the United States Express Company, electing to avail himself as hereinafter provided in this agreement, that so much of two hundred thousand dollars of stock in the American Express Company this day agreed to be sold to the stockholders of the United States Express Company, as the holders of such stock may elect to dispose of, pursuant to this agreement, shall produce to the holders thereof, respectively, within one year from the first day of May, 1853, the sum of one hundred and twenty-five dollars per share.

      “ The stockholders of the United States Express Company, to whom such stock is to be issued shall, on or before the 16th day of April next, give written notice that they intend to avail themselves of this guaranty; such notice to be delivered to Hamilton Spencer, at the office of the United States Express Company, 170 Broadway, New York, who shall, within twenty-four hours thereafter, give a like notice to the undersigned, at their office, No. 10 Wall street, New York, that they desire to sell their proportion of such stock, and, thereupon, the subscribers shall be bound to take such stock at anytime within said year, at the option of the undersigned, and pay for the same at the price aforesaid.
    “But no stockholders, giving such notice, shall be at Hberty thereafter to sell such stock, except with the consent of the subscribers or their authorized agent, and, upon the completion of the sale, the subscribers shall be credited towards the said price of one hundred and twenty-five dollars per share, with all cash or stock dividends and earnings received by such stockholders, and shall be bound to pay only such sum as, together with such cash or stock dividends and earnings, shall be equal to said price of one hundred and twenty-five ($125) dollars per share.
    “ The subscribers shall have the right to take such stock at the price aforesaid, at any time within said year that they shall choose.
    “ Every stockholder of the United States Express Company giving notice as aforesaid, shall thereby become a party to this contract, severally, and may enforce the same in his own name and for his own benefit, so far as relates to stock actually held by him.
    “At the time such stockholder gives notice as aforesaid, each person so giving notice shall deposit with said Spencer, his stock, duly endorsed, so as to authorize its transfer to the subscribers when they pay for the same, and said Spencer shall deliver the same upon receiving payment therefor as aforesaid.
    “ Dated March 16, 1853,
    John Butterfield.
    James D. Wasson.
    Wm. Gr. Fargo.
    E. P. Williams.
    Johnston Livingston.”
    Other testimony was given, which it is unnecessary to state. The facts, found by the court, at special term, and its conclusions of law thereon, are as follows:
    Decision of the Court.—The United States Express Company and the American Express Company, were consolidated at the time, in the manner, and by the agreement and acts stated in the complaint. By the agreement of the 7th of March, 1853, the time for the stockholders of the United States Express Company to notify Spencer, that they declined to become purchasers of the stock of the American Express Company, was, thirty days after the delivery of such agreement, which took place on the 16th of March, 1853.
    George Ely, of Rochester, who was an original subscriber for fifty shares of the capital stock of the United States Express Company, by a letter directed to Spencer, dated April 9,1853, and received by the latter on the 15th of said April, notified Spencer that he declined to become a purchaser of stock in the American Express Company, and that he elected to receive $1,000 being the first instalment paid on the fifty shares held by him,, with 10 per cent, in addition, and in such letter inclosed and sent to Spencer the receipt of the 4th of February, 1853, which had been given to Ely when he paid the first instalment, the form of which is, as stated in the complaint. Spencer within twenty-four hours after receiving such notice and receipt, in order and with intent to notify the parties of the first part to the agreement of the 7th of March, 1853, that Ely had so declined, was about leaving his office to go to the office of said parties at Ho. 10 Wall street, to serve them there, with a notice, in writing, that Ely had so declined, when John Butterfield one of said parties entered the office of said Spencer, who then informed said Butterfield that said Ely had so declined, and exhibited to him the said letter from said Ely. It was then agreed by said Butterfield and Spencer, that James Y. P. Gardner of Utica, H. Y. might become a purchaser of said stock, if he desired to do so, all which occurred within said twenty-four hours. It was also then and there agreed that Spencer should send a telegraphic dispatch to said Gardner to the effect that he could become a purchaser of fifty shares of said stock. Such a telegraphic dispatch was then and there written and handed to said Butterfield to be forwarded by him, as he was a Director in the telegraphic company and could transmit the dispatch without charge to said Gardner and the same was by Butterfield forwarded to said Gardner. Gardner received the same on said 16th of April: He replied by telegraph to Spencer, the same day, accepting the offer, and the same day mailed to Spencer a bank-draft for $1,100, to pay the first instalment and ten per cent, thereon, which was received by Spencer on the 18th of April, who obtained thereon the amount thereof.
    Ely, by notifying Spencer that he declined to become a purchaser of stock in the American Express Company, and by sending back with such notice his receipt for the instalment paid by him, and by the acts of Spencer in giving notice thereof, as aforesaid, within twenty-four hours thereafter, to said John Butterfield, and selling the stock to Gardner, pursuant to the said agreement between Spencer and Butterfield, divested himself and was deprived of all right and power to reassert any rights as owner of said stock, or to make any valid sale or disposition thereof. To this the plaintiff’s counsel excepted.
    Spencer’s letter to Ely, of the 16th of April, 1853, inclosing in it the receipt, for the purpose of having Ely sign the power of attorney drawn on the back of it, gave Ely no right or power to renounce the election declared in his letter of the 9th of April. To this the plaintiff’s counsel excepted. The conversation between Ely and Spencer, at Rochester, on the 21st of April, after Gardner had bought the stock, and paid one thousand one hundred dollars on account of it, could not operate to annul ' the rights which Gardner had acquired by his purchase, or to restore to Ely any rights to or power of disposition over the stock. To this the plaintiff’s counsel excepted.

      v .The plaintiff bought with, such notice of-the previous acts of Ely as 'made it his duty to inquire in relation to them, and his position is no, stronger than it would have been had he inquired and ascertained the actual facts. To this the plaintiff’s counsel excepted.
    Gardner’s. equities are superior to those of Ely, and the plaintiff has no rights in the premises, other than those Ely could have asserted and enforced, if he had not made any transfer to the plaintiff, and was himself seeking the relief which the plaintiff seeks to obtain in this action. To .this the plaintiff’s counsel excepted."
    The plaintiff is not entitled to any of the relief prayed for in his complaint, and the bill must be dismissed with costs. To this the.plaintiff’s counsel excepted.
    . Judgment having been entered upon the decision, the plaintiff appealed from it to the General Term.

      J. M Burrill, for Appellant,

      L. E. Birdseye, for Respondents.
   By the Court, Woodruff, J.

It is not denied on the part of the appellant that the defendants, the United' States Express Company, had, under the articles of their association, authority to enter into the act of consolidation with the American Express Company which has given rise to the present controversy, and no question is made of the entire validity of the agreement entered into for that purpose; nor is it doubted that the respective associations, “The United States Express Company,” and “ The American Express Company,” in their respective aggregate or associate capacity, were in all respects bound by the provisions of that agreement.

It appears by the complaint herein, and by the seventh paragraph of the agreement for consolidation set forth in the “ case,” that it was expressly, agreed, on the part of “ The United States Express Company,” that they would take 2,000 shares of stock in the American Express Company, and pay therefor to the latter the sum of two hundred thousand dollars, to be divided as therein specified. To the performance of this stipulation the United States Express Company were unqualifiedly bound. But, for the relief and benefit of. the United States 'Express Company in their associate capacity, as well as for the relief of such of their stockholders as might prefer to withdraw from the association and not become contributors to the funds requisite to enable the latter to perform their agreement, it was also provided as follows,—“ if any Of the stockholders of the United States Express Company shall decline to become purchasers of the stock of the American Express Company, under this contract, and shall, within thirty days after the delivery hereof, give notice to Hamilton Spencer” (the then President of the United States Express Company), “at 170 Broadway, in the'city of New York, who shall, within twenty-four hours after, give the like notice in writing to the parties of the first part,” (seven individuals described in the agreement as trustees of the American Express Company), “at their office, No. 10 Wall street, New York, that they so decline, the parties of the first part- shall become-subscribers for the stock of the United States Express Company, to an amount not exceeding $100,000, held by persons so declining, and shall repay to each the sum he has already paid in on such stock, being the sum of $20 on each share, together with ten per cent, upon such sum paid in, and the stock in said American Express Company which such person would have been entitled to under this contract shaft be issued to Said parties of the first part, upon their paying "the balance, if any remaining to be paid, on the subscriptions to the stock of the United States Express Company.”

The true construction of this agreement has a very important bearing upon the effect of the election afterwards made by Ely, the assignor of the plaintiff herein.

It is observed, therefore, that, irrespective of the stipulation that in a certain contingency the seven trustees would take and pay for stock of declining stockholders to the amount of $100,000, the United States Express Company were bound to take and pay $200,000,' for 2,000 shares of the stock of the other association.

To this they were bound, whatever might be the amount of stock held by their declining stockholders, whether greater or less than the amount of $100,000, which, upon certain conditions, the trustees agreed to take; and they were so bound whether the condition, upon which the trustees should become bound to take any of the stock, was complied with or not.

The obligation assumed by the said trustees was conditional; to bind them to take the stock two things were made essential conditions precedent, viz. that the declining stockholders should, within thirty days, give notice to Hamilton Spencer of their election to decline becoming purchasers of the stock of the American Express Company; and that he, within twenty-four hours thereafter, should give the like notice in writing to the said trustees.

If the stock held by persons so declining amounted to more than $100,000, then the trustees were not bound to take the excess, but the United States Express Company, (composed of the persons who continued to be stockholders under the arrangement), must take and pay for such excess; and if no notice was given to the trustees within the twenty-four hours mentioned in the condition, then the United States Express Company, by the express terms of the agreement, were bound to receive and pay for the whole $200,000 of stock in the American Express Company, unaided by any contribution thereto by such trustees.

The United States Express Company had thus, in its associate capacity assumed a heavy responsibility, looking primarily to its several stockholders for the contributions necessary to enable the Company to perform the agreement, but securing the privilege, (in case any of its stockholders should elect not to become parties to the purchase and contribute accordingly) of calling upon the trustees to aid to the extent of $100,000, by taking stock of declining stockholders to that amount.

The importance of this view of the construction of the agreement is this: that it appears, thereby, that the United States Express Company, in its associate capacity, had a deep interest in the election about to be tendered to the individual stockholders therein, and were in a condition to become parties to such election, when tendered and acted upon by the several stockholders. In the first instance, that Company on the one hand and the individual stockholders making their respective elections on the other, were the proper parties to the contract which was to result from such election.

It is not material, in the views entertained of this case in other respects, to determine whether this Company was bound to give the notice, within the twenty-four hours, to the trustees, or to permit the trustees to take the stock of their declining stockholders without such notice; for if they were so bound, then it is conceived to be quite clear, that, upon a binding election to withdraw being declared by any stockholder, the right of the trustees, to the stock, instantly attached, and the obligation of the Company to permit the trustees to take and pay therefor precluded any revocation of the election so declared.

And if not so bound—and that appears to be a construction best according with the provisions of the agreement—the Company were at liberty to give the notice to the trustees within the twenty-four hours stipulated in the condition, or to forego the benefit of that privilege and perform their agreement, unaided by any contribution from the trustees; and in such case the Company, acting in this respect on behalf of the stockholders, who did elect to continue such and pay their proper contributions, would hold or dispose of the stock, of the declining stockholders, as they thought proper; and in this, there was no technical difficulty founded in the idea of a surrender of the shares to the Company collectively, since the agreement of consolidation itself plainly contemplated the extinction of all the stock of the United States Express Company, and the issue of stock of the American Express Company, in lieu thereof, to such persons as the first named Company, by Dwight and Spencer acting on their behalf, should direct.

In every aspect of the agreement, therefore, it was the United States Express Company, in its associate or aggregate capacity, which had assumed the obligation to pay the $200,000, and, in view of that obligation was interested, primarily and chiefly, if not exclusively, in the election which was about to be offered to the respective stockholders therein. And this rendered it eminently proper to provide that the person who was to receive notice of the election, to be so tendered and declared, should be Hamilton Spencer, the President of the Company, and that he and Dwight, on the behalf of the Company, should direct to whom the stock in the American Express Company should be issued.

Nor is there any difficulty, in this view of the rights and position of the United States Express Company, arising from the fact that it was about to deal and did deal with the individual members of its own association. Whatever difficulty, if any, might exist at law, there is none in equity in regarding the Company as acting in this respect on behalf of, or as in truth consisting of, such stockholders as should continue to hold stock under the agreement for the consolidation, and should contribute thereto.

With this condition of the rights and responsibilities of the United States Express Company, the action of that company, by its Board of Directors, (as appears by the notices issued), was in precise correspondence. By order of the board, Spencer, as President, notified the stockholders of the fact of consolidation and of its material provisions, and offered to each stockholder his election to become a purchaser of stock in the American Express Company under the arrangement, or to decline and return his receipt for the instalment he had paid upon his stock, with the assurance that if, within thirty days, he gave notice in writing to Spencer, at the Company’s Office, the amount of such instalment, with ten per cent, in addition thereto, would be refunded to him. They thus became the direct and immediate parties to the election tendered, and to the offer of repayment. Whether the trustees, of the other company, would be required to make, the repayment or not was not ascertained, and if at all required, the extent, to which the obligation, by the trustees to take to the amount of $100,000, would suffice to cover the stock of declining parties, could not be ascertained. The offer of the election and the offer to repay to the stockholder was, therefore, in this stage of the transaction, a matter simply and only between the Company and its stockholders respectively. And such was in form, substance, and effect, the circular notice issued by the President of the Company, by order of the Board, as set forth in the case herein.

The result of these views seems quite inevitable. The notice sent by the Company to Ely was an unequivocal offer, in which his choice was tendered to him to come in under the new arrangement and share its burdens and responsibilities, with the chance of its profits, or to withdraw from the enterprise, with the assurance that if he declined to become a purchaser of the new stock, and should, within thirty days,. give notice that he so declined, and send back the receipt he held, for the instalment already paid, he should receive the amount of such instalment, with ten per cent, in addition. The acceptance of this offer completed a contract between the parties. Within the thirty days Ely wrote to the President of the Company, in the most unequivocal manner, declining to receive stock in the American Express Company, and electing to receive back the sum of $1,000 (the instalment paid by him), with ten per cent, in addition thereto, and in consummation, on his part, of all that he could do to make his acceptance of the Company’s offer perfect, he returned, to the Company, the receipt held by him, as the voucher for such instalment, and the only evidence in his possession, of his claim to any stock in the Company.

These transactions constituted a contract, binding upon both parties. An offer by the one, duly tendered to the other, and by the latter unconditionally accepted: and from the time of such acceptance the contract was irrevocable, except by mutual assent, Ely, on the one hand, could insist upon its performance by the Company, and for the same reason he was bound, beyond the power,, (of his own mere will,) to retract his acceptance.

Such a condition of things between two individuals would present no question open to discussion. That an offer thus communicated by letter, when accepted by letter, becomes a contract binding according to the terms of' such offer, and binding upon both parties, is not doubtful. Although doubt has formerly been suggested as to the precise moment when an acceptance takes effect, i. e., whether on forwarding the letter of acceptance, or on its receipt by the party making the offer; even that is not now doubtful in this State ’ since the decision of Mactier v. Frith, 6 Wend. 103; and before that decision, it was clear that such offer made and sent, followed by an acceptance duly received, constituted a complete and binding contract, irrevocable by either party.—See cases cited in the above case, Story on Cont’s, § 384, and cases cited in the notes.

It does not appear to us necessary to discuss at length the question, whether the enclosing of the receipt to Ely, with a request to him to sign the power of attorney endorsed thereon, gave Ely any right to revoke his assent to the sale, or indicated any dissent therefrom, by Spencer, on behalf of the Company. In our view, it was a ratification, or rather a recognition of the fact, that the contract was mutually assented to. Though it was not strictly necessary, that any such power of attorney should be signed, it was requested, for the convenience of the Company, and as a suitable voucher to them, in their subsequent use or disposition of the stock. The receipt was not returned to Ely as an opening of the matter for further negotiation. The act and the letter accompanying the receipt, both proceed upon the idea that the contract had been entered into, and'that its actual performance was in the contemplation of the parties. We fully concur in the decision at Special Term upon this point. The act neither gave, nor was intended to give to Ely a right to renounce the election he had made.

Such being the respective rights of the Company and Ely, the stock or the privilege of coming into Ely’s place,- as a subscriber was actually sold by Spencer to Gardner, who paid the sum of $1,100 therefor to the Company. Whether Spencer, as President, had the authority, on behalf of the Company, to make the sale to Gardner or not—he did make such sale, and the Company received the money and adopted the sale. They set it up as their defence herein. It does not lie with Ely or his assignee to deny that authority. So whether it was the duty of Spencer to give the notice to the trustees of the American Express Company within twenty-four hours, and tender the privilege to them, is a question between the trustees and Spencer, or the trustees and the U. S. Express Company. Although the questions were raised on the argument of the appeal, whether Spencer did sufficiently offer the stock to the trustees, and whether he sold it to Gardner by their consent, it is, for the reasons stated, unnecessary for the purposes of the decision to answer them. If by the agreement of consolidation the trustees acquired a right to the stock of a declining stockholder, whether Spencer gave them the written notice or not, then most clearly that right became fixed the moment Ely’s election was duly declared—and if the right of the trustees depended upon,their being notified by Spencer, then a sale, by the Company, without giving the trustees any notice, should not be complained of by such trustees, and was at'the option of the Company. Much more then was the sale to Gardner conclusive upon Ely if the trustees consented thereto.

As before suggested, the Company, in our opinion, acquired a full right to the stock the moment Ely elected to accept the offer which Spencer as President tendered to him, and we now add that after the sale to Gardner, Ely could not retract and claim the stock, whatever may have been the purport of the conversation between Spencer and himself on the 21st of April. In regard to that conversation there is a conflict of evidence. The testimony of the two parties thereto presents it in a very different aspect. The finding of the court does not explicitly state to which of them credence was given, but it will suffice to say, that, for the reasons above stated we quite agree with the conclusion at special term, whichever of the two parties be taken to give the more accurate account of what occurred,

If these views are correct the judgment at special term must be affirmed.

It is proper however to add, that, in relation to the plaintiff, we are entirely agreed that he stands in no better situation, in this controversy, than his assignor Ely would have done. At the time of the alleged sale to him, by Ely, the plaintiff’s agent examined the power of attorney upon the certificate, which Spencer had forwarded to Ely for Ms signature, and mquired the cause of its bemg there, and was then informed by Ely “ M substance of the reason why it was there.” If so, then the plamtiff, by his agent, knew of the very facts wMch under the opmions above expressed, concluded Ely and deprived him of the power to reclaim the stock.

True, Ely says, he also informed him of Ms conversation with Spencer, but as before remarked, that conversation would not avail to reinstate Ely in the ownersMp of the stock, and although, the fact, of a sale to Gardner, was not known to Ely or to the plaintiff’s agent, there was enough to put him on inquiry by wMch he would have learned the true condition of the matter.

The judgment should be affirmed.


source: Caselaw Access Project

author: By the Court. Bosworth, J.

license: Public Domain

text:
    P. H. and J. D. Hurlbut v. R. H. Post, impleaded with Ryerson.
    An instrument in writing, by which one party “agrees to let for one year from its date” certain premises, and by which the other party agrees to pay the stipulated rent quarterly, and declaring that the “agreement shall continue in force and effect for one year from the date hereof)” operates as a lease, in presentí.

    When one person enters into a contract with two others by name, without knowing or having at the time any reason to suspect that they have a partner in the business to which such contract relates; in a suit upon such contract the two with whom it is made may alone be sued, and it is not necessary to make their partner, if they had one, a party. As to such a transaction, and under such circumstances, he may be treated as a dormant partner, although the plaintiff knew before suit brought that, the two had such a partner at the time the contract was made.
    When a lessee, not being permitted to take possession of the whole of demised premises, nevertheless enters into possession of the residue, and occupies and enjoys such residue, and pays full rent, for two quarters without claiming a deduction, and is sued for the third quarter’s rent, he cannot set up the fact that he at no time had possession of the whole, as a bar to the action. Such a withholding of a part is not an eviction, nor a matter of equivalent effect. He must pay for the part he has enjoyed, upon the principle of a quantum meruit.

    When the lessor, in a lease to two persons as lessees, agrees to render services of a stipulated character, for the lessees during the lease, for a commission, and the lessees, before the expiration of the lease, dissolve their co-partnership, and thenceforth each prosecutes the same business on his own account and solely for his own benefit, such lessor is not bound to render the stipulated services for only one of such lessees, and his neglect or refusal to do so is no bar to an action to recover subsequently accruing rent, nor will it give to either of such lessees a right of action which can be interposed as a counter-claim in a suit against the two to recover such rent.
    Nor will the fact of such dissolution, and an agreement between the lessees that each shall thenceforth occupy separately a distinct portion of the demised premises, accompanied by such separate and several enjoyment, of themselves and alone, affect the lessor’s right to maintain an action against such lessors jointly, to recover the rent which, by the lease to them, they stipulated to pay.
    (Before Oaeuey, Oh. J., and Bosworth and HoramH, J.J.)
    Argued February 18th, and
    decided April 11th, 1857.
    This action comes before the Court at General Term, on an appeal by the plaintiffs from a judgment against them in favor of the defendant, Post. It was brought by Peter H. and John D. Hurlbut, against Russel H. Post and John Ryerson. The complaint alleged that the plaintiffs, on the 15th of August, 1854, “ demised and leased unto the defendants certain premises, to wit, an office in the third story of No. 84 South street, for one year from the date aforesaid, at the rate of $600 per annum, payable quarterly, and under and by virtue of said demise, the defendants entered into possession of said premises, and by reason of said demise and possession, the defendants became indebted to the plaintiffs, on the 15th day of May, 1855, for the sum of $150, for the quarter ending at that date, and though requested, the defendants have not paid the same, nor any portion thereof.
    “ Wherefore the plaintiffs demand judgment against the defendants, with interest and the costs of this action.”
    The defendant, Russel H. Post, alone answered, and alleged, First, that the demise mentioned in said complaint was made to the defendants and Benjamin Dunning jointly, and not to the two defendants alone. Second.—Post, for a further and separate answer, “ denies the said indebtedness, in manner and form as set forth in the complaint, or in any other way or manner.”
    Third.—An eviction of the defendants and Dunning, after they had entered into the demised premises, under said demise, and on or about the 1st of September, 1854, by the plaintiffs, from a part of the premises, and a continuance of such eviction during the residue of the term.
    “ Fourth.—The said defendant Post, for a farther and separate answer, says the defendants’ and said Dunning’s obligation to pay rent, by the terms of the said demise, was subject to a condition precedent, to be performed on the part of the plaintiffs, which condition was not performed on the plaintiffs’ part, but was broken in this, to wit: the plaintiffs undertook, and promised the defendants and said Dunning, to procure for them freights, both foreign and coastwise, for such vessels as the said defendant and Dunning might put up; and that they would use their best efforts to promote the interests of said defendants and Dunning with respect to such vessels, during the whole term of said demise. This defendant Post says, that the plaintiffs fulfilled that agreement for a short time after the making of said demise, that is to say, for about three months, and from that time wholly neglected their duty in that behalf, and for the residue of said time used all their influence and efforts to divert freights and business from the defendants, and thereby damaged this defendant Post at least one thousand dollars, as this defendant Post states on information and belief. And the plaintiffs, by violating their duty in that behalf, by the terms of said demise, precluded themselves from all right to demand rent. And so this defendant Post says the plaintiffs are not entitled to recover in this action, and he demands judgment against them, that the said complaint be dismissed with costs.”
    “ The plaintiffs reply to the answer of the defendant, and deny that the terms of said demise were subject to the condition precedent, to be performed on the part of the plaintiffs, or that the same was broken, as in the said answer is stated, or that the defendant has been damaged, by the non-fulfilment by the plaintiffs of any agreement on their- part to be performed, in any amount whatever.”
    The action was tried before Mr. Justice Woodruff and a Jury in March, 1856. Elisha D. Hurlbut was sworn as a witness for the plaintiffs, and was shown an unsealed agreement, which, as he testified, was executed by the parties and signed by himself as a subscribing witness. The plaintiffs offered it in evidence ; the defendant Post objected on the ground that “said paper was not a lease, or instrument under seal, and was a mere agreement for use and occupation, which objection was sustained by the Court, and said agreement was excluded. Whereupon it was agreed by the parties to go to trial on the merits, and that the complaint and answer should be deemed amended, so as to conform to the merits, as the same should be established by the proofs.” The said paper or agreement was then read in evidence to the jury, and is as follows, viz;
    “ Memorandum of an agreement made this fifteenth day of August, 1854, between John D. Hurlbut and P. H. Hurlbut, of the firm of Hurlbut & Co., of the one part, and Post & Ryerson of the other part. The said Hurlbut & Co. agree to lease unto Post & Ryerson the office in the third story of 84 South street, (heretofore occupied by E. D. Hurlbut & Co.) for the term of one year from the date hereof, at the rent of ($600) six hundred dollars per annum, payable quarterly. And the said Post &; Ryerson shall also have the use and privilege of all the office and furniture, reserving to the said Hurlbut and Oo. the privilege of two desks to transact their own business.
    “ And the said Hurlbut & Go., promise and agree that they will procure freights, both foreign and coastwise, for such vessels as may be put up by said Post & Eyerson, and that they will use their best efforts to promote the interests of the said Post & Eyerson with respect to such vessels.
    “And the said Post and Eyerson, on their part, agree, that they will hire the said office on the conditions above named, and also will pay the said Hurlbut & Co., as compensation for their services, an amount which will be equal to one-fifth of the net commissions (after paying brokerage thereof) of all outward, foreign, and coastwise freights, and of outward, foreign, and coastwise charters, on all vessels put up to load outward by the said Post & Eyerson.
    “ It is, however, expressly understood between the parties to this agreement that, nothing herein contained shall be construed to prevent the said Hurlbut & Go. from transacting any business they shall think proper, which shall not injure or interfere with the business of the said Post & Eyerson, or the obligation of the said Hurlbut & Go., under this contract, to promote their interests.
    “ Signed this day and year first above written.
    “ It is mutually agreed that this agreement shall continue in force and effect for one year from the date hereof.”
    It was proved that the defendants occupied the premises in the third story of 84 South street from the 1st of February to the 1st of May, 1855. They had all that story except two desks in the portion partitioned off in the rear.
    On the cross-examination of this witness, some evidence was given tending to show that the defendants and Dunning were partners when the above agreement or lease was executed; but whatever may be its effect in that behalf, it did not tend to show that the plaintiffs knew, or had reason to suspect that Dunning was a member of the firm of Post & Eyerson.
    The plaintiffs then read in evidence an agreement between Post and Eyerson, dated the 6th of January, 1855, by which Eyerson sold and assigned all his interest in the firm of Post & Eyerson to Post, including “ all and singular the lease of the office in the building number 85 South street, retaining an interest in the office number 84 South street.” To that agreement was annexed a written memorandum in these words, viz:
    “ Memorandum.—It is agreed that J. H. Ryerson is to have the use of three desks in the front office of 84 South street, until expiration of the lease to Post & Ryerson. The three desks are to be the first three back desks on the north-easterly side of the office, as named verbally: when R. H. Post and others connected with him leave the said office finally, the said J. H. Ryerson to have the full privilege of all the said office, as far as R. H. Post has power in the premises, and also all claim that B. Dunning may have to said premises. It is understood that R. H. Post will vacate the office 84 South street as soon after the 1st May next as he can obtain possession of the office 85 South street, after a reasonable time to fit it up for use, and when he so vacates the office 84 South street, the said Ryerson is to have entire possession of the whole house and premises.
    Witness, Russel H. Post,
    E. H. Owen, John H. Ryerson.
    Hew York, 6th January, 1855.”
    The plaintiff next read in evidence, a notice published in the Hew York Journal of Commerce, of the Dissolution of the Partnership of Post and Ryerson, and of the new partnership of Post, Smith & Co., as follows:
    Hotice.—The firm of Post and Ryerson has been this day dissolved by the mutual consent of the parties interested. The business of the late firm will be liquidated and settled by either member of the firm, at their former place of business, 84 South street.
    Hew York, Dec. 29th, 1854.
    Russel H. Post,
    John H. Ryerson.
    The undersigned have this day formed a Copartnership, for the transacting of a general shipping and commission business, under the firm and name of Post, Smith & Co.
    Hew York, Jan.-1st, 1855.
    Russel H. Post,
    W, James Smith,
    Benj, Dunning,

      The plaintiffs then rested.
    Evidence was given by the defendant, Post, as to the manner in which the demised premises had been occupied from the date of the lease. It appeared that the premises consisted of a front and back office, the defendants and their clerks occupying the former, and the plaintiffs the latter. So much of the evidence, as bears upon the question whether the plaintiffs had at all times exclusive possession of the back office, and as relates to efforts of the defendants, or of either of them, to have more use of it than they actually enjoyed, as is deemed material, is stated in the opinion of the Court.
    It appeared that Ryerson and one William Laytin, and Peter H. Hurlbut, one of the plaintiffs, formed a partnership about the 1st of January, 1855, under the name of Laytin, Ryerson & Hurl-but, for the prosecution of the same business as that conducted by Post, Smith & Co.
    It appeared that Post and Ryerson, prior to their dissolution, had obtained a lease of 85 South street. After their dissolution, and after the formation of the two new firms, and until Post, Smith & Co. moved into Ho. 85 South street, the latter firm occupied the front office of Ho. 84 South street, and Laytin, Ryerson & Hurlbut the back office. Prom the time of the formation of such new firms, the plaintiffs rendered no services in procuring freights for Post, but, on the contrary, as he alleged and attempted to prove, they solicited business for the firm of Laytin, Ryerson & Hurlbut, to Post’s damage, individually, and as a member of the firm of Post, Smith & Co. It was admitted that, the defendants paid to the plaintiff fall rent up to the 1st of February, 1855.
    The testimony being closed, the Counsel for the plaintiffs requested the Court to direct a judgment for the plaintiffs, upon the ground that there was no evidence of the non-joinder alleged in the answer, or of any eviction of the defendants, or of any breach of contract, or any evidence of damage to the defendants by a non-fulfilment of the contract between them and the plaintiffs.
    The Court refused so to direct, and charged the Jury
    First—That the plaintiffs were bound to join Dunning as defendant, if he was one of the co-partners comprising the firm of Post & Ryerson, at the time of making the agreement of August 15th, 1854, and that membership was open and notorious, and was, in fact, known to the plaintiffs. And, if they so found, then, that the defendants were entitled to a verdict, upon the defence, set up in the Answer; that the said Dunning was not joined as a defendant.
    To which plaintiffs’ Counsel excepted.
    Second—That if the plaintiffs withheld from the defendants a portion of the premises, beyond the use of the two desks mentioned in the agreement, without the consent of the defendants, and against their will, from February 1st, 1855, to May 1st, 1855, such withholding entitled the defendants to a verdict.
    To which plaintiffs’ Counsel excepted.
    Third—That the plaintiffs were not at liberty, (unless the defendant Post discharged the plaintiffs, or assented to their discontinuing their services,) after the dissolution of Post and Ryerson, and the transfer by the latter to the defendant Post, to interfere with the business of the defendant, Post, by engaging in an opposition to the defendant Post, in the same business, and, by lending their services to a rival house and soliciting and procuring freight for themselves, or the new firm of Laytin, Ryerson & Hurlbut, to the injury of the business of the defendant Post. And if they did so without his consent, and against his will, they were liable to the defendant, Post, and in the amount of damage which he sustained by their doing so, and that such damage should be allowed to the defendant.
    To which the plaintiffs’ Counsel excepted.
    That the rent was not divisible, and must be fixed at the amount mentioned in the agreement, of $150 per quarter. The Court further directed the Jury to return answers to the following interrogatories, to which the Jury returned answers in writing as to the several questions propounded, viz.
    First—Was Benjamin Dunning a member of the firm of Post and Ryerson, by whom the agreement for the premises in question was made, and was that fact known to the plaintiffs at the time of the commencement of this suit?
    Answer by the Jury—Yes.
    Second—Did the plaintiffs withhold from the defendants a portion of the premises, (beyond the use of the two desks mentioned in the agreement), without the consent of the defendants, anj against their will? If yea, did that withholding continue from 1st February, 1855, down to the 1st May, 1855 ?
    Answer by the Jury—'Yes.
    Third—Did the plaintiffs perform their agreement in relation to procuring freights, down to the time of the dissolution of the firm of Post & Ryerson ?
    Answer by the Jury—Yes.
    Fourth—Did the defendant, Post, at, or at any time after that dissolution, discharge the plaintiffs from such performance, or assent to their discontinuing such services? ,
    Answer by the Jury—No,
    Fifth—Did the plaintiffs refuse or neglect to render the services stipulated in that agreement, after such dissolution, and the assignment by Ryerson to Post of the co-partnership property? Answer by the Jury—Yes.
    Sixth—Did the plaintiffs interfere with the business of Post from and after the 1st of January, 1855, by procuring freight for themselves, or the new firm of Laytin, Ryerson & Hurl-but, to the injury of the business of the defendant, Post? Answer by the Jury—Yes.
    Seventh—If yea, what damages were sustained by defendant, Post, by reason thereof.
    Answer by the Jury—$150.
    To all which questions the plaintiffs’ Counsel objected.'
    To the First—On the grounds elsewhere stated, that it is immaterial, and that there was no evidence whatever that the plaintiffs had any knowledge that Dunning was a member of the firm.
    To the Second—That there was no evidence of such withholding ; the evidence being express, that the defendants always continued in possession of the same premises which they originally took, and for which they continued to pay, without objection, to February 1st, 1855.
    To the Third—That there was no evidence introduced to show or tending to show, any failure to fulfil the agreements on the part of the plaintiffs, before the dissolution.
    To the Fourth—That it was immaterial—the performance of the agreement having been rendered an impossibility by the dissolution, which was the voluntary act of the defendants.

      .. .To the Fifth—On the same grounds as the preceding, and on the ground that there was no evidence of any demand on the part of Post, or refusal on the part of plaintiffs.
    . To the Sixth—On the same grounds as the preceding, and on the .ground that, the dissolution of the agreement dissolved any obligations of the plaintiffs to the defendant, Post.
    To the Seventh—On the same grounds as the preceding, and on the ground that there was no evidence as to damages.
    The Case was then submitted to the Jury, who found a verdict for the defendant, and returned written answers to the first, second, third, fifth, and sixth, interrogatories in the affirmative, and an answer to . the fourth interrogatory in the negative, and in- answer, to-the .seventh interrogatory, the sum of one hundred- and fifty, dollars, as above answered in writing by the Jury.
    On the 13th of June, 1856, a judgment was entered -under the direction, of .the Court, in favor of the defendant, Post, against the plaintiffs for $150 damages, and his costs of the action. From that judgment the plaintiffs appealed to the General Term.

      C. A. Nichols, for Piffs and Appellants.

      E. Seeley, for Def't Post; Resp't.

   By the Court. Bosworth, J.

The instrument of the 15th of August 1854, signed by the plaintiffs and defendants, is a lease for one year from its date, and the plaintiffs should have been allowed to read it in evidence, under their complaint.

Hallett v, Wylie, 3 J. R. 44; Thornton v. Payne, 5 id. 74.

If-the plaintiffs did not know, when that agreement was made, that Dunning was a member of the firm of Post & Byerson, he may be treated as a dormant partner, and they are not obliged to make him a defendant. They contracted with Post & Eyerson alone, and there being nothing in the style of their firm to indicate that any other person was a member of that firm, and the plaintiffs having no notice at the time of contracting, of any such fact, it was not necessary for them to make him a defendant.

N. Y. Dry Dock Co. v. Treadwell, 19 Wend. 525;. Clarkson v. Carter, 3 Cow. 84; Clark & Bissell v. Miller & Lozee, 4 Wend. 628; Mitchell v. Dall, 2 Har. & Gill. 159 and 171-2.

The evidence does not justify the finding of, and the jury have not, in fact, found an eviction. At most, there was an unreasonable persistency on the part of the plaintiffs in objecting to Post & Ryerson’s putting an additional desk in the back office: The defendants acquiesced to this extent. They paid full rent for a time subsequent to their dissolution, without claiming or asking a deduction on account of it: There was no application; by either of them after that dissolution, to the plaintiffs, for leave to put more desks in the back office, nor any complaint that they had not been permitted to do so.

A reference to the testimony shows very clearly, that the action was tried on the theory, that the evidence tended to show, and that the defendant Post, was endeavoring to prove, that from the date of the Lease, the plaintiffs had exclusive possession of the back office, and that Post & Ryerson, in fact, at no time had, or were able to obtain any use of it.

Elisha D. Hurlhut, testified that, “ the Hurlbuts had exclusive possession of the back room”—

R. H. Hoadley, that, “the back office was used by Hurlbut & Co. exclusively,”—

“ The plaintiffs’ counsel objected to evidence tending to show that, the plaintiffs were at all times from and after the execution of said lease, in the exclusive possession of said back office, and wholly excluded therefrom the said firm of Post & Ryerson, prior to the first of January, and said Post & Dunning at all times thereafter, up to the first of May, when said firm of Post, Smith & Go. removed to said No. 85, upon the ground that such evidence is inadmissible under the pleadings. The Court in accordance with the previous ruling and consent, allowed the pleadings to be amended and received the evidence, and plaintiffs’ counsel excepted”—

“ I heard'Mr. Dunning say, the members of the firm of Post & Ryerson had a right to the back office”—(R. H. Hoadley’s testimony.)

B. Dunning, who was objected to as incompetent, and admitted as a witness against the objection and exception of the plaintiffs, testified that, “ the back office was occupied by the Hurlbuts; we, (Post & Ryerson), wanted more room; the reason we asked for the back room. I went in there with Capt. Post, and applied for room in that back office.”

The plaintiffs excepted to the admission of this evidence.

“I went in with Capt. Post into the back office; he told them he wanted to put a desk in that office; Mr. J. D. Hurlbut objected to it; Capt. Post urged it; He wanted more desk room— objections were made in different ways; Capt. Post wanted to move the sofa so as to put a desk there. Mr. Hurlbut objected to it, and would not consent. Mr. Hurlbut said they wanted all of it; There was room for more desks: Capt. Post could not get possession.”

“ The firm of Hurlbut & Co., had always occupied the back office, as a private office.”

Russel H. Post, the defendant testified that, “Hurlbut & Co., had the exclusive use of the back room, except that we went in, occasionally, to speak to them about business—soon after the copartnership of Post & Ryerson was formed, we applied to Hurlbut & Co. for the back office, and tried to get possession of it, to put in a desk there, and we told them, that by the contract they were entitled only to the use of two desks—this was soon after we hired. They said they wanted the exclusive use of that office, and refused to let us have it. They would not consent, and we did not get possession.

“ The reason we did not pay the rent for the last quarter, was because we owed them none. We could not consistently occupy the office. Had no proper use of the office with them, with Lay-ton and Ryerson carrying on an opposition on the same floor, and keeping the back office and so much of the front. Under such circumstances, the office was of no value to us, but we remained there until May.”

John H. Ryerson, testified that “Hurlbut & Co. occupied the rear office. There were two desks at the time. * * I rather think I made objection about the desk room in the back office. I told Hurlbut we thought we ought to have desk room in the back office to transact private business, with Hattrick Hurlbut. There were two desks and the sofa. One or the other was generally vacant, and there was no necessity for another. I think Capt.. Post went in and had some high words with Hurlbut, but cannot say what it was about.

“ I never recollect, but once, of Capt. Post having high words in the back office. I never went but once¡ to my knowledge, to the back office, to see about the desk-room.”

This is the whole evidence relating to the question of eviction, or failure to put Post and Ryerson in possession of the whole premises leased to them.

It is to my mind quite clear that there was no pretence of an entry by the plaintiffs on the demised premises) and of an expulsion, by them, of the defendants from any part thereof.

The great effort was, to prove that the plaintiffs wrongfully kept exclusive possession of a part, from the date of the lease, and continued to withhold it until the 1st of May following.

The charge of the Judge, and the question submitted by him, harmonize with this view.

He charged, “ that if the plaintiffs withheld from the defendants a portion of the premises, beyond the use of the two desks mentioned in the agreement, without the consent of the defendants, and against their will, from February 1, 1855, to May 1, 1855, such withholding entitled the defendants to a verdict.

“ To which plaintiffs’ counsel excepted.”

The second question submitted was—“ Did the plaintiffs withhold from the defendants a portion of the premises, (beyond the use of the two desks mentioned in the agreement), without the consent of the defendants and against their will ? If yea, did that withholding continue from 1st of February, 1855, down to the 1st of May, 1855 ?”

Answer—“ Yes.”

The defence set up in the answer was, that “the plaintiffs wrongfully entered upon the said demised premises, and evicted the said defendants and the said Dunning from a part thereof, to wit, on or about the 1st of September, 1854, which eviction was continued during the Whole residue of said term.”

Hence the plaintiffs objected to evidence that, they had at all times had exclusive possession of the back office from the time of making the lease) as inadmissible under the pleadings. But the judge ordered the answer amended so as to admit, and thereupon received such evidence.

It seems to me, therefore, quite clear that all that the defendants tried to prove, and all that the jury have found, is that the defendants never had full possession of all they hired. It is not a case, therefore, of an entry by the lessees into possession, and a subsequent expulsion of them by their lessors from a part, either by force, or by acts recognized in law as of equivalent effect.

I find no decision to the effect, that when the lessees never obtained possession of all they hired, but entered upon and enjoyed a part during'the term, that they are not liable to pay anything for the part they actually enjoyed.

The contrary was held in Etheridge v. Osborn, 12 Wend. 529.

The same rule is asserted in Lawrence v. French, 25 Wend. 443-447. The observations of the Court in the case last cited are open to the objection, that that question was not before the Court for adjudication.

In Christopher v. Austin, 1 Kern, 218, the Court say, that where the tenant enters, but is prevented from obtaining the whole of the premises, by a person holding a part under a prior lease from the landlord, it has been placed upon the same footing as an eviction by title paramount, and the landlord has been permitted to recover for use and occupation, on a quantum meruit,” and cite Lawrence v. French, 25 Wend. 443; Ludwell v. Newman, 6 T. R. 458; and Tomlinson v. Day, 2d Brod. & Bing. 680.

The facts of this case are peculiar. By the lease, the lessors reserved the use of two desks for their private business. The acts of the parties show an understanding by all, that the lessors were to have the two desks, which were in a small room by themselves, and which room had always been used as a private office. The lessors were also serving the lessees, for a commission. Under such circumstances, if nothing more occurred than a demand by the lessees of the right or permission to put a desk in the back office, and that was refused by the lessors, and after that the whole rent was paid without complaint or objection, and Post did not demand any such permission after he and Ryerson had dissolved, the whole ought to be regarded either as an acquiescence by the lessees in the propriety of the refusal by the lessors to consent to have a desk placed in that room, or as presenting a case in which possession of every part of the demised premises was never given to the lessees.

The view, most unfavorable to the plaintiffs, which can be taken of this case, upon the evidence, the charge of the judge, and the fact specially found by the jury, is, that the' defendants never had possession of all they hired.

If they did not, but took and occupied a part, without insisting that they must have the whole, or they would pay nothing, they are liable to pay, upon the principle of a quantum meruit, for that which they have actually enjoyed.

I think, therefore, that the jury were erroneously instructed as to the legal effect of the fact, which they found in answer to the question secondly submitted.

The fact that, the plaintiff, after the dissolution of Post & Ryerson, rendered no services for either, is no bar to a recovery in this action.

Post & Ryerson dissolved on the 6th of January, 1856. They dissolved on the evident understanding that, each was thereafter to prosecute a rival business on the premises, until the first of May thereafter, for his own benefit. They agreed what part of the demised premises each one should occupy, as his own, during that period.

Post formed a partnership with Smith & Dunning, and Ryerson with Laytin & P. H. Hurlbut.

After the dissolution of Post & Ryerson, the plaintiffs could render no services to that firm, nor could they have the responsibility of that firm‘for any services they might render to either Post or Ryerson.

It being impossible to render services for them, they were not obliged to remain unemployed. And, Post & Ryerson having dissolved, in order each to prosecute the same business on his own account, and each one forming a new firm for the purpose' of carrying on such business, and on the same premises, the fact that one of the plaintiffs became a partner of Ryerson, and that such firm was advertised at the time it was formed, no objection being made to it by Post, is quite conclusive to show that, neither Post nor Ryerson considered that either of them had any claim upon the future services of the plaintiffs, or that either of them should abstain from serving either Post or Ryerson, under such ' arrangements as either of the latter might make with them.

Post & Ryerson are bound by their covenant to pay the stipulated rent. They have, in fact, had the enjoyment of the premises up to the first of January 1855 jointly, and thence to the first of May, 1855, of such separate parts in severalty, as conformed to arrangements made solely by themselves.

By the agreement of dissolution between Post & Ryerson, Ryerson was to have exclusive possession of the whole of the demised premises from and after the first of May 1855, or as soon thereafter as Post could get possession of 85 South street.

As the case now stands, it does not appear that, either of the plaintiffs made any agreement with either Post or Ryerson, which affected the duration of the lease, or the claims of the plaintiffs under it. The failure to render services to Post & Ryerson, after they dissolved, does not affect the plaintiffs’ right to recover.

On the evidence given, it cannot properly be said that, Post established a cause of action in his favor against the plaintiffs.

And if he had, it is not such a matter as falls within the definition of a counterclaim.

In a suit against two, as partners, a several claim, in favor of one defendant only, cannot be enforced as a counterclaim. The separate judgment in favor of the defendant Post is erroneous.

If the plaintiffs, on another trial, on their pleadings as they may be amended, or on the facts that may be proved, shall be reduced to the necessity of recovering the fair worth of the part actually occupied by Post, and to elect whether they will proceed against him alone, or Ryerson alone, it may be quite proper, in order to ascertain what would be a just compensation for the part occupied by either, to admit proof of the nature of that occupation, and of its value as it was in fact enjoyed, as compared with such enjoyment as the terms of the lease contracted to give. Whatever it may be worth, the plaintiffs are entitled to recover, unless more shall be proved on another trial than appeal’s on the case before us.

The judgment must be reversed, the verdict set aside, and a new trial granted, with costs, to abide the event.