author: Van Brunt, P. J.: .

text:
    Charles E. Foster and Another, Respondents, v. John W. Bookwalter, Appellant.

      Agency — declarations of the alleged agent as to payment of the cost of procuring a patent — change of the ownership — payment of prior legal expenses — a bill rendered is not conclusive as to the amount changed.

    Agency cannot be established by the declarations of an agent; it requires something more than the written assertion of an alleged agent to establish the fact that he is such agent.
    Where a person agrees to assign letters patent on certain discoveries and inventions and also to assign the improvements which he may thereafter make or discover, he is not interested in the question of obtaining letters patent on such improvements, and although he may have to make an application for the patent on such improvements discovered by him, there is no agreement on his part that the letters patent shall be procured at his expense.

      Where there is a change of condition in the ownership of patents and new interests are created, such new interests cannot he charged with legal expenses under a retainer hy the former owner thereof without an express retainer being given therefor hy the new owners.

      Semble, that a party is not hound hy a hill rendered in respect to the amount of charges therein when he brings a suit thereon.
    Statement as to the form in which a case on appeal should he made up.
    Appeal by tbe defendant, John W. Bookwalter, from a judgment of tbe Supreme Court in favor of tbe plaintiffs, entered in. tbe office of tbe clerk of tbe county of New York on tbe 14th day of September, 1893, upon tbe report of a referee.

      Creo. Iloadly, for tbe appellant.

      F. H. Wilson, for tbe respondents.
   Van Brunt, P. J.: .

Tbis action was brought by tbe plaintiffs, wbo were solicitors in . patent cases and attorneys and counselors at law residing and doing business in tbe city of Washington, D. C., to recover from tbe defendant the sum of $8,555.44 and interest, tbe balance alleged to be due for certain professional services which they alleged that they bad rendered to tbe defendant relative to applications for and tbe obtaining of certain patents and matters relating thereto.

Annexed to tbe complaint was a bill of particulars setting out tbe services rendered and tbe charges made therefor in detail.

The answer of tbe defendant admitted tbe performance of certain of tbe professional services mentioned in tbe bill of particulars annexed to tbe complaint, and in respect to these denied, upon information and belief, their value. Tbe answer further alleged payment for said services, and denied that any other of tbe services or disbursements described in tbe bill of particulars annexed to tbe complaint were rendered to or paid for him, or at bis request, and also denied all liability therefor.

An amended and supplemental answer was served by tbe defendant, in which be repeated tbe allegations of bis original answer, and alleged certain payments which were in full of all services up to certain dates. Tbe answer further admitted tbe rendition of certain services, and then pleaded a tender and a payment of the same into court.

The case coming up for trial at a Circuit Court for the city and county of New York, a motion was made upon the pleadings that the same be referred, and a reference was ordered and a trial had before the referee, who reported in favor of the plaintiffs for the sum of $7,885.44, with interest. A judgment having been entered upon said report, from such judgment the present appeal is taken.

The only question which is presented upon this appeal is whether the conclusion at which the referee arrived is against the weight of evidence. It is admitted that the tender made^pon the part of the defendant was insufficient to liquidate all the claims which the plaintiffs had against the defendant, and that the referee was justified in finding that a considerable amount was due from the defendant for professional services rendered by them to him. But it is claimed upon this appeal that there was no evidence justifying the greater part of the recovery allowed, such services having been rendered to a company who had become the assignee of the defendant in respect to the patents which formed the subject-matter of the original retainer of the plaintiffs by the defendant.

A record has been presented upon this appeal of over 3,500 folios, and so-called briefs .have been submitted upon the part of the appellant 119 pages in length, and upon the part of the respondents fifty-seven pages in length. In view of this plethoric condition'of the record, it is manifest that within the limits of this opinion mere general statements only can be indulged in tending to disclose the reasons which bring the court to the conclusion at which it has arrived. There is, comparatively speaking, very little oral testimony contained in this record, the most of it being made up of correspondence between the defendant and the plaintiffs and the defendant’s alleged agent, and the dignity of the contentions of the appellant almost necessarily depends upon the conclusions arrived at from a reading of this correspondence.

It is to be observed that the referee has without doubt based his judgment very largely upon the fact that he considered that the evidence established that W. E. Lown was the agent of and authorized to speak for the defendant. In this we think the referee manifestly erred. There is no evidence in this case tending to show that Lown was the agent of the defendant except the assumptions of the plaintiffs. It is undoubtedly true that the plaintiffs sent communications to Lown which they expected the defendant to see. But it is also equally true that in none of the correspondence or the assertions of the defendant, as specifically testified to, is there any recognition upon the part of the defendant of the right of Lown to bind him in any particular. Lown swears that he was not the agent of Bookwalter, the defendant, and it requires something more than the written assertions of Lown, if it is claimed that he made them, to furnish evidence that he (Lown) was the agent of the defendant. Agency cannot be proved by the declarations of an agent. And it is probable that this erroneous view of the relations which the evidence established as existing between Lown and the defendant had great weight with the referee in bringing him to the conclusion at which he arrived. And we might very well -say, without considering any other question in the case, that this error having entered into the judgment of the referee the judgment must necessarily be reversed.

It may, perhaps, be not without profit that we should consider a little more in detail a few of the peculiar features of this case. It appears, as has been above stated, that the plaintiffs were co-partners doing business as solicitors in patent cases and counselors at law in the city of Washington, and had, prior to May, 1888, been employed by the defendant to secure patents for various inventors, the services being charged to him personally and paid by him, and that the transactions out of which this action grew commenced with a contract dated the 19th of March, 1888, but executed prior to that time, between the defendant Bookwalter and Lown and Norris, whereby they undertook to secure and develop certain inventions of which the defendant Bookwalter and one Robert were the owners, an interest-in the inventions owned by Robert having been assigned by him to a French corporation. This agreement also contained a provision that they were to organize a corporation for the purposes above mentioned and for carrying on the business of manufacturing iron and steel under these patents. And Bookwalter agreed, without express consideration other than the several provisions of this contract, to convey and assign to said company, to be incorporated as aforesaid, the letters patent for the United States for his discoveries and inventions, as aforesaid, together with all improvements he may hereafter make or discover.”

Following this agreement, on the 12th of March, 1888, these three gentlemen upon the one part made a contract with Robert and the French corporation upon the other part, by which the latter, upon certain conditions, granted to the former the right to certain improvements for the United States in the art of making and manufacturing iron, steel and castings, and agreed to convey to a person to be nominated by the defendant, letters patent to be issued in the United States upon them; and the defendant Bookwalter agreed to grant to Robert and the French corporation the exclusive right to use in continental Europe certain improvements in the art of making iron, steel and castings patented by him.

On the 26th of May, 1888, the plaintiffs received a letter from Thompson & Boult, of London, with drawings on an application for a patent in the name of Robert, and also for an application in the names of Walrand & Delattre, with a request to get the applications on file with the least possible delay, and that Mr. Bookwalter, upon his return to the United States, would call and settle with them directly for their fees. These instructions were confirmed by the defendant in a letter to the plaintiffs dated New York, June 21,. 1888; and the plaintiffs proceeded to carry them out, and rendered sei’vices in connection therewith. On the 6th of December, 1888, in pursuance of the agreement of the 12th of March, 1888, above-referred to, Robert and the French corporation conveyed to the defendant Bookwalter, who was his own nominee, the interest in Robert’s inventions described in the foregoing contract. On the 18th of December, 1888, in pursuance of the provisions of the contract of March 19, 1888, the Bookwalter Steel and Iron Company was organized, of which the plaintiffs had notice. During all this period of time the plaintiffs had been rendering services toBookwalter in reference to these applications for patents. On the-22d of March, 1889, Norris assigned one-tenth of his interest in the-enterprise to the plaintiffs; and on the ninth of April all of those-interested in these patents and inventions, to wit, the defendantBookwalter, Lown, Norris, and the plaintiffs Foster & Freeman, made a proposition to convey to the Bookwalter Steel and Iron Com-pany their interests in the patents and inventions under the above-mentioned contract in consideration of the issue of certain stock of the corporation. This proposition was accepted by the corporation in April, 1889, and on the seventh of May the stock was issued in bulk to the associates jointly in payment of the transfers. On the twenty-second of June Bookwalter transferred to the company by a formal deed of assignment' the letters patent in the United States issued upon the Walrand & Delattre inventions of which Robert had been the assignee, and also the patents issued in the United States for Robert’s invention and his own ; and on the twenty-fifth of June the stock was reissued in separate lots according to the interests of the parties. It further appears from the evidence that Bookwalter and Lown were directors of the corporation, Bookwalter attending to the patents and Lown to the office business.

It is to be observed that the assignment to the Bookwalter Steel and Iron Company simply covered the American patents, the foreign patents still remaining the property of the defendant Book-waiter ; and it is conceded upon the part of the defendant that all services rendered by the plaintiffs in respect to those patents were properly chargeable to him. It also appears from the evidence that during all this time the defendant was corresponding with the plaintiffs in respect to the question of these patents, urging diligence on their part and substantially calling the business his own, and as late as the áth of September, 1889, urging them to “ Lay aside at once all other of my matters,” and proceed with the one referred to in the letter. Prior to the 7th of October, 1889, and to the assignment of the patents to the corporation by Bookwalter, certain interferences had been declared by the patent office in respect to the Robert patent and services had been rendered by the plaintiffs in relation thereto. On said last-mentioned day the plaintiffs wrote a letter to W. E. Lown inclosing bill against Bookwalter for all these services which had been rendered up to date of the bill in respect to those patents and interferences, in which they stated : “We presume that the charges for the interference should be made against the company, but we have had no authority to do so. Please advise us whether the company assumes the charges for the applications to be made hereafter as well as for the interference business.” On the 9th of October Bookwalter wrote to the plaintiffs: “ Mr. Lown lias shown me the account you have rendered to the B. S. & I. Co. Now, I find you have my personal account mixed up with it. As I desire to keep things separate, you will please make out new accounts; one confined wholly to items concerning the B. S. & I. Co., and the other, those appertaining to my matters. In my personal acct. there should be included all expenses of all applications for my patent in foreign countries, the Churn device, the Button Hook, cost of examining R. R. Tie, etc. If you will send to me personally my account so made out I will remit amt. due.” On the 11th of October, 1889, the plaintiffs wrote to Lown, stating, among other things: “We also inclose to Mr. Bookwalter his accounts separated as required. As regards future charges we are willing to make them against the company, but we must have instructions to that effect from the company itself.” On the twelfth of October Lown replied to this letter, stating: “ I handed Mr. B. the accounts. The smaller one he took to the other office and I presume will send you a check to-day.” And it further appears that Bookwalter left at the office of the company the other account. On the sixteenth of October Bookwalter wrote to the plaintiffs as follows: “ Find inclosed draft for $895 in full of account rendered the 10th inst.” And on the seventeenth of October the plaintiffs returned the bill receipted to Bookwalter in a letter commencing: “Tour favor inclosing check to pay the inclosed receipted bill at hand, for which accept our thanks,” and saying nothing about the bill which related to services for the corporation. Subsequent to this time correspondence took place between Book-waiter and the plaintiffs, and additional services were rendered both in respect to the foreign patents belonging to Bookwalter and also-in respect to those which had been transferred to the corporation.

It is claimed on the part of the defendant that Bookwalter was not responsible for any of the services rendered subsequent to the transfer of the patents on the 22d of June, 1889 ; also, that he was not liable for any services ordered by Lown; that he was not liable for the plaintiffs’ charges in respect to the interferences, and that he certainly was not liable for any services rendered subsequent to the 9th of October, 1889, when the agency was expressly terminated by the defendant. Yarious other points are made which it is not necessary, now to consider.

Certain authorities are cited for the purpose of supporting the proposition that, in consequence of the change in the relations previously existing between all the parties, by the transfer of the patents from Bookwalter to the corporation on the 22d of June, 1889, in order that Bookwalter should be held personally liable thereafter, a further retainer should have been established. We do not think, however, that the authorities cited support the proposition contended for. They seem simply to establish the proposition that where there is a change of condition and new interests come in, the new interests cannot be charged without an express retainer, and, therefore, do not seem to have any relation to the question as to whether a retainer having been once given and apparently been continued, charges for services under such retainer may not be made.

In respect to the charges for services ordered by Lown, it seems to us that they cannot be at all sustained, because, as has been already observed, there does not seem to be sufficient evidence going to show that Lown bore such relations to the defendant as authorized him to bind the defendant by any order or contract which he might make.

It is not necessary in this connection to discuss the question as to the charges for the interferences. But it is apparent that from the 9th of October, 1889, the plaintiffs had notice from Bookwalter that their relations towards him in respect to those patents in which he had a personal interest were different from those which existed in respect to the patents which he had assigned to the company. They were distinctly notified - by Bookwalter at this time that he considered those charges as against the company; although he apparently did not notice the fact that the bills were made out to him. He returns them as bills made out to him against the company, and states that his personal matters have been mixed up with the accounts rendered against the company — not that the company’s accounts have been- mixed up with those which had been rendered to him — and he requests a separation, and when separated he pays his personal account and leaves the other in the office of the company, of which these plaintiffs have notice. It seems to us, under these circumstances, that if the plaintiffs went on rendering these services they did so at their peril. They knew that Bookwalter had no personal interest in any of these controversies in respect to the United States patents. They knew that he was interested in the foreign patents and in those only. They knew that he was an officer of the company, and that he was looking after these patent ' devices and that all he did in this respect was for the benefit of the corporation and not for himself individually.

It is urged upon the part of the plaintiffs that in the contract of the 12th of March, 1888, Mr. Bookwalter agreed to assign to the company to be formed in pursuance of that agreement, all letters patent for the United States for his discoveries and inventions, together with all improvements he might thereafter make or discover, and that he thereby undertook to assign letters patent for those improvements, and that as there was nothing to show that any other person than the defendant was to pay the expenses that necessarily preceded the granting of these letters patent, it is to be presumed that he was to pay for the same. We think this is a very forced construction of the language of the agreement. lie agreed to assign the letters patent for his discoveries and inventions, and also to assign all the improvements which he might thereafter make or discover. Tie was not interested in the question- of letters patent; he agreed to make over the improvement, and although the inventor may have to make the application for the patent, yet there was no undertaking on his part that any letters patent should be procured at his expense.

And furthermore, throughout all the correspondence, even before the /7th of October, 1889, and noticeably in the letter of that date where they admit that the interference charges should be made against the company, the plaintiffs are continually referring to the company and they are corresponding with Lown, the representative of the company, in reference to the services to be performed by them, and when they want money for the purpose of prospective disbursements they apply to Lown as the representative of the company, and they get money loaned by Bookwalter to the company and are notified by Lown that the company is short of money in consequence of the condition of the money market and that he hopes it will let up. And in the course of his examination Mr. Freeman testifies: “ I said one after another, throughout a long list of items, which Mr. Chappell read to me, that they were rendered at the request of Mr. Bookwalter, and that the amounts were reasonable ; it was not always a separate request for every item; of course not; we never received such a request from one of our clients; we are requested by our clients, and especially Mr. Book-waiter requested us, over and over again, to do everything; spend any money that was necessary to carry on these cases; to fight them .to the bitter end,” etc. Here it was evident that Freeman had in mind that he had other clients besides Mr. Bookwalter in respect to this matter, because he associates Mr. Bookwalter with his other clients, namely, the Bookwalter Steel and Iron Company. Again, when additional counsel are engaged, it is through Mr. Lown that the engagement is made, and the payment due the counsel is made by the company, of which the plaintiffs had notice. And furthermore, when they are seeking evidence in the interference cases, they propose to get a witness employed as the engineer of the company and paid by the company, who would be valuable to the company in the giving of testimony. It was not Bookwalter that they proposed should do these things, but the company. And so throughout the whole of this transaction, certainly subsequent to the Ith of October, 1889, they are continually writing about the company’s interest to Mr. Lown, with wdiom they have no interest in corresponding, unless they suppose that he was representing the company, because they certainly had no legal reason to suppose that he represented the defendant any more than that Mr. Bookwalter was acting for the company.

There are circumstances in this case which do not tend to impress the court with the entire ingenuousness of these plaintiffs. We find that for a number of services they had rendered bills for certain amounts. When they come to sue, they double each one of these items, and the referee finds that the original amount was a fair compensation for these services. Although a party may not be bound by a bill rendered in respect to the amount of charges therein when he brings suit, yet, unless it is plainly apparent that the services were worth the sum sued for in excess of that charged in the bill, it certainly shows a discreditable motive in enlarging the amount for the purposes of the suit.

But there is another feature in this case which certainly shows that but little credit is to be given to any statements that these plaintiffs may make in respect to their beliefs or their intentions, where their interests are involved. It appears from the plaintiffs’ case that they considered themselves the personal solicitors of Book-waiter in respect to all of these patent enterprises. It also appears that they considered Mr. Lown to be Bookwalter’s agent — both, therefore, bound to look after Bookwalter’s interest in respect tO' these matters. Mr. Bookwalter became depressed in regard to the future of these enterprises ; seemed to be anxious to dispose of his interest in the case, and then these plaintiffs proposed to Lown to^ take advantage of Bookwalter’s state of mind for the purpose of getting a contract out oh him for the sale of his interests in order that' the plaintiffs might make $100,000 or $200,000 out of it. And they went so far in the carrying out of this design that when the opinion of an expert who had been employed in respect to one of •these patents was sent to Bookwalter, which by the omission of a word conveyed an exactly opposite impression from that which the expert intended — of which fact they were aware. — -they urged upon Lown that Bookwalter be permitted to remain under the impression that the opinion of this expert had been adverse to his. claim, when they knew that it was in his favor, in order that they might further depress him in price as well as in feeling. Such a proposition from a solicitor in respect to the interests of his client seems to make it apparent that but little faith can be placed upon any asseveration or claim made by him. And even if there was no relation of trust between themselves and Bookwalter, they were willing to debauch his agent for the purpose of their own profit,, because, according to the evidence in this case, they believed Lown to be his agent, and made this proposition of suppression to him in the hope of getting an advantageous contract out of Bookwalter.

The judgment should be reversed and a new trial ordered before another referee to be appointed in the order to be entered thereon, with costs to the appellant to abide the event.

"We should not, however, dispose of this appeal without a word of commendation as to the manner in which the appellant has made up the case. He has presented to us an intelligible index — a rarity in our experience where there are any number of exhibits. He has also indicated at the top of each page the nature of the contents thereof, thus greatly facilitating us in our examination of the testimony and exhibits, and we hope to see the good example set followed by other appellants.

Follett and Parker, JJ., concurred.

Judgment reversed, new trial ordered before another referee to be appointed in the order to be entered hereon, with costs to appellant to abide event.


source: Caselaw Access Project

author: Yan Brunt, P. J.:

license: Public Domain

text:
    Charles M. Ward, Appellant, v. New York Life Insurance Company, Respondent.

      Sight of a plaintiff to an examination of the defendants books.

    There is no absolute right upon the part of a plaintiff to have an examination of the defendant’s books, in order that he may frame a complaint with more particularity than he would be able to do without such inspection.
    When it is apparent that such an inspection would be a great hardship if it should be finally determined that the plaintiff had no right of recovery, an order of that description should not be granted unless the same is absolutely necessary to enable the plaintiff to frame his complaint.
    Appeal by the plaintiff, Charles M. Ward, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of April, 1894, denying the plaintiff’s motion for an inspection of the books of the defendant.

      J. M. Mitchell, for the appellant.

      W. JB. Horriblower, for the respondent.
   Yan Brunt, P. J.:

It will not be necessary in the disposition of this appeal for this court to pass upon the question as to the rights of the parties arising out of the discharge of the plaintiff from the employment of the defendant,, because a discussion of such rights might lead to conclusions as to the views of this court upon the merits of this action, which might be modified, had it the facts before it as they may be established upon the trial. •

It is evident that there is no absolute right upon the part of this plaintiff to have an inspection of the books of the defendant, in order that he may frame a complaint with more particularity than he would be able to do without such an inspection. And where it is apparent that such an inspection would be a great hardship if it should be finally determined that the plaintiff has no right of recovery, an order of that description should not be granted unless the same is absolutely necessary to the framing of the plaintiff’s complaint.

In the case at bar the first issue which is presented is as to the right of this plaintiff to any relief whatever; and until that is determined it would seem that this extreme right of inspection of an adversary’s books should not be granted. The plaintiff in this action may allege his rights in such a form that upon establishing his right to a recovery he would be entitled to an accounting; or he may assert his rights by such a complaint that the court would have no power as matter of right to compel an accounting by an interlocutory judgment.

It seems to us, however, that absolute justice will be done between the parties if we place them in such a position that if the plaintiff establishes his right of recovery an opportunity to get the evidence which he now seeks will be given him.

We think, therefore, if the defendant stipulates that it will consent that the issues which are raised by the plaintiff’s complaint and its answer may be referred in case the plaintiff so desires, that the order appealed from should be affirmed; because upon a trial in such a forum the question of the plaintiff’s right to recover can be first determined, and if it is held that he has such right, facilities for proving the amount of his claim by the defendant’s books will be within his reach. We adopt this method of disposing of the appeal the more readily because it is apparent that it will be impossible to try the issues involved before a jury if the plaintiff succeeds in maintaining his right to a recovery.

Upon the defendant giving the stipulation in question the order appealed from should be affirmed, with ten dollars costs and disbursements.

Follett and Parker, JJ., concurred.

Upon defendant stipulating as directed in opinion order affirmed, with ten dollars costs and disbursements.


text:
    Hannah Springer, Respondent, v. Robert E. Westcott, as President of the Westcott Express Company, Appellant.

      Injury to a trunk — liability of a baggage express company — effect of the limit of liability in the receipt — burden of proof as to the condition of the trunk — judge’s cha/rge.

    Upon the trial of an action brought to recover the value of the plaintiff’s trunk and the contents thereof from an unincorporated association to which it was delivered for transportation, the plaintiff, in order to establish the contract of carriage, introduced in evidence the receipt given by the defendant for the trunk in question. This receipt, which was signed by the agent of the defendant at the time of the delivery to him of the check for the trunk, contained a limitation of liability, by reason of negligence or otherwise, to an amount not exceeding $100.
    The counsel for the defendant asked the court to charge that “ in no event can the plaintiff recover more than one hundred dollars,” which request was refused and an exception was taken. The court charged the jury certain propositions which were inconsistent with such request, and no exception was taken to such portions of the charge.

      Held, that under such circumstances the defendant had a right to insist upon his exception because of the refusal to charge, although he had not excepted to the charge, as made;
    That as there was no attempt to recover against the defendant upon the ground of misfeasance, but simply for breach of contract, the request to charge was not too broad and should have been granted;
    That when the plaintiff introduced the contract in evidence, for the purpose of establishing her case, she became liable to all the terms of the contract, and the defendant was entitled to the benefit thereof.
    Upon the trial of the action it was shown that the husband of the plaintiff checked her trunk at Troy, and that it was then in good order. There was nothing suspicious in its appearance at the time it was received by the defendant, and when it was delivered at the plaintiff’s house in New York by the express company it was covered with dirt, muddy, the lock broken, the straps hanging out, some of the compartments of the trunk had been taken out, and the trunk was almost empty. It further appeared that this was not the condition of the trunk when it was received by the transportation company.
    The check for the trunk was delivered by the plaintiff to the agent of the express company on a railroad train outside the city of New York. The trunk was to be delivered by the express company at the plaintiff’s residence in New York city.
    The court refused to charge, at the defendant’s request, that the burden of proof was upon the plaintiff to show the circumstances attending the transportation of the trunk from the Troy House to the station of the railroad company at Troy.

      Held, that such refusal to charge was proper.

      Appeal by the defendant, Robert E. Westcott, as president of tbe Westcott Express Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of January, 1891, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order made at the New York Circuit on the 13th day of December, 1893, denying the defendant’s motion for a new trial.

      A. G. Fox, for the appellant.

      JB. F. Fvnstei/n, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover the value of the plaintiff’s trunk and the contents upon allegations in the complaint that the defendant was an unincorporated association, consisting of seven or more persons or associates, and that the defendant Westcott was the president thereof; that the business of said association was that of a common carrier of baggage for hire, and that it conducted the business commonly known as that of an express company in and about the city of New York, and that on the llth day of September, 1889, the plaintiff caused to be delivered to said association, and said association received, her trunk and its contents at the Grand Central Depot in the city of New York, and then agreed to convey the same for a reasonable compensation to a place named in the city of New York and there deliver the same to the plaintiff; that the contents of said trunk consisted of baggage belonging to the plaintiff and were of the value of $2,000 and upward, and that the said association omitted to convey said contents and has never delivered the same to the plaintiff.

The defendants, by their answer, denied the allegation of receipt and failure to deliver, and alleged that the plaintiff piomised and agreed with defendant that she should deliver to it her trunk containing her wearing apparel, such trunk and wearing apparel not to exceed in value $100, and that’if said plaintiff would so deliver it to defendant the defendant would carry and deliver the same to the place named in the complaint, and that such agreement.was upon the terms and conditions of a written contract annexed to the answer. The defendant further alleged that the plaintiff failed to deliver said trunk to the defendant at said station or at any other place.

The plaintiff, to sustain the issues on her part, introduced evidence tending to show the value of the contents of the trunk and the delivery to the agent of the defendant upon a train of the New York Central railroad of a check which she had received from the railroad company at Troy; that at the time of the delivery of such check she received a receipt therefor, which receipt contained a limitation of liability to an amount not exceeding $100; and that several days after the trunk was delivered without any of its contents.

The issues of fact being submitted to the jury, they rendered a verdict in favor of the plaintiff; and from the judgment entered upon such verdict, and from an order denying a motion for a new trial, this appeal is taken.

Various grounds are urged as error upon the part of the court in the trial of the cause.

It is claimed upon the part of the appellant that there was no evidence to show that the defendant received the trunk on Saturday night; and furthermore that there was no evidence to show that the trunk was put upon the train at Troy; and, therefore, that the court erred in charging the jury that if the defendant received the trunk Saturday night then it was liable from Saturday night. From an examination of the evidence it will be seen that this objection is not well taken, and that the court Was entirely correct in its assumption that the defendant did receive the trunk on Saturday night. John H. Green, the agent of the defendant who collected the checks upon the train, admitted the signature to the receipt and stated that he got the check. He further stated that he passed it into the Grand Central Depot upon the same night, and that he did not give up the check without finding the baggage. This evidence is further confirmed by the testimony of the driver Cavanagh, who says that he got the trunk on Tuesday morning, and when he got it he found that it had already been labeled by the express company, clearly showing that the trunk had been in the hands of the defendant long before Tuesday morning, and that the evidence of Green that it had been received on Saturday night was correct, and that that was probably the time at which the trunk reached the defendant.

It is further claimed that the court erred in refusing to charge that the burden of proof was upon the plaintiff to show the circumstances attending the transportation of the trunk from the Troy House to the station of the railroad company at Troy. It is perfectly clear that this exception is not well taken. The husband of the plaintiff checked the trunk at Troy. It was then in good order. When it was delivered at the plaintiff’s house it was covered with dirt, muddy, the lock broken, the straps were hanging out, some of the compartments of the trunk had been taken out, and the trunk was almost empty. That this was not the condition of the trunk when it was received by the defendant is evidenced by the testimony of Cavanagh, the express man, who says in answer to the question : “ Q. Was the trunk all covered with mud when you found it in the Grand Central Depot ? A. It might be possibly soiled more or less from actual use or the like of that. Q. Was there any mud or dirt on it? A. I don’t remember. Q. Were the straps broken ? A. To the best of my knowledge, it is so long ago, I don’t think there were any straps on it. Q. Was the lock broken ? A. No, sir.”

It is true that this witness swore that he delivered the trunk in the same condition that it was when he received it. But it is manifest from the testimony of the plaintiff and her witnesses that such was not the case. It appears from the evidence of the defendant’s witness that there was nothing suspicious about the appearance of the trunk at the time it was received by the defendant; whereas it was in a dilapidated condition when it was delivered to the plaintiff.

The only other question which is not disposed of by the foregoing suggestions is as to the refusal to charge the request that “ in no event can the plaintiff recover more than one hundred dollars.” As a part of the plaintiff’s case, in order to establish the receipt by the defendant of the trunk in question and to establish the contract of carriage, the plaintiff introduced a receipt which was signed by the agent of the defendant at the time of the delivery of the check, which contained a limitation of liability, by reason of negligence or otherwise, to an amount not exceeding $100. It is urged upon the part of the respondent that no error was committed in the refusal to charge this request; that this request was not relied upon by tlie defendant upon the trial of the case, and that the defendant waived its rights, if it had any, under it. We fail to find any such, waiver in the record. The receipt was introduced in evidence by the plaintiff ; and the request to charge seems to have been duly made and duly excepted to. It is true that the court made charges to the jury which were inconsistent with this and other requests; and that no exceptions were taken to these portions of the charge. But there was an express exception taken to the refusal to charge the request in question which was contradictory .to the propositions submitted to the jury. We understand that, under such circumstances, the defendant has a right to insist upon his point because of the refusal to charge, although he may not have excepted to the charge as made in so many words.

It is further urged that the request was too broad; that it was that “ in no event can the plaintiff recover more than one hundred dollars; ” and that this, if charged, would have prevented the jury from finding for the plaintiff if the loss was occasioned by the misfeasance of the defendant or its agents, which finding would be justified by the evidence, and conceding the existence of the contract the defendant was not exempted from liability for such loss by the terms of the contract. This, we think, is placing an erroneous construction upon the request in question. There was no attempt to recover against this defendant upon the ground of misfeasance, but simply because of a breach of its contract as carrier, the contents of the trunk of the plaintiff being lost through its negligence while in its custody. It was in view of this position of the plaintiff that this request was made; and its fair construction seems to be, and in view of the nature of the charge of the court was evidently understood to be, that no larger recovery could be had because of this contract. This case is presented in a different aspect from those cases in which it has been held that, without showing knowledge of the restriction, the contract would not be binding, because the plaintiff has introduced the contract herself, has endeavored to establish her case partially upon that contract, and cannot repudiate part of the contract and claim the benefit of other parts of it. Therefore, when the plaintiff introduced this contract for the purpose of establishing her case, she became liable to all the terms of the contract, and tlie defendant was entitled to the benefit thereof. The suit appears to have been brought upon this contract and not in tort for a wrong committed.

In this state of the record, much as we regret so to do, because we think justice has been done by the verdict, we are compelled to reverse the judgment and the order denying motion for a new trial.

The judgment and order should be reversed and a new trial ordered, with costs to thé appellant to abide the event.

Follett and Parker, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.


text:
    David J. Lees, as Receiver, etc., of Daniel H. Wickham and Others, Respondent, v. Eldin B. Hayden and Another, Appellants.

      Right of set off — ■effect of the assignment being set aside and a receiver appointed— lien created by filing a bill to set aside an assignment — effect of a decree setting aside an assignment.

    The filing of a bill in equity seeking to set aside an assignment and asking that all the assigned property, as far as it might be needed, should be applied to the satisfaction of a debt due to the judgment creditor, creates a lien upon all the assigned property in the form of choses in action.
    When the law transfers the title of promissory notes' from an assignee for the benefit of creditors to a receiver, there is no intervening gap during which the right to offset a counterclaim can attach; the right to such offset depends upon the condition of affairs existing at the time of the assignment made for the benefit of creditors.
    A decree entered at the suit of a creditor does not set aside an assignment, made for the alleged benefit of creditors, absolutely, but only so far as the assignment prevents the suing creditor from realizing his debt out of the estate, and as between the assignor and assignee and the creditors not attacking the assignment, the assignment still remains in full force and effect.
    Where the debtor of an assigned estate has no right of set-off as against an assignee, he has no right of set-off as against any creditor of the estate, who has acquired a lien upon the assigned property, when the result of such set-off would be to compel creditors of the assigned estate to pay the same.
    Appeal by tlie defendants, Eldin B. Hayden and another, from a judgment of tbe Supreme Court in favor of tlie plaintiff, entered in the office of tlie clerk of the county of New York on the 21st day of December, 1893, upon the verdict of a jury directed by the court after a trial at the New York Circuit.

      Geo. D. Beattys, for the appellants.

      W. J. Townsend, for the respondent.
   Yan Brunt, P. J.:

On the 27th of October, 1890, the firm of D. H. Wickham & Co. made an assignment for the benefit of creditors to one New-witter. At that time the defendant Eldin B. Hayden was indebted to the firm of D. H. Wickham & Co. for goods solds and delivered. Subsequently, and on the 6th of July, 1891, the said defendant executed and delivered to the assignee the promissory note in suit for the amount of such indebtedness payable on demand, which note when delivered was indorsed by the defendant Anna K. Hayden. On the 25th of May, 1892, in an action brought by a judgment creditor of D. H. Wickham & Co., the assignment to Newwitter was adjudged to be fraudulent and void and was set aside, and Newwitter was appointed receiver of the assets of 'the insolvent firm, and as such receiver became possessed of the note in suit. In September, 1892, the receiver made demand for the payment of the note, which was refused, and the note was protested for non-payment, of which the indorser had due notice. This suit was originally commenced in the name of Newwitter as receiver. During the pendency of the action one Lees was substituted in his place. In the answer the defendants pleaded a set-off based upon a draft made upon D. H. Wickham & Co., dated October 6,1890, payable seven months after date, which draft did not mature till long after the assignment, and there is no proof as to when the draft came into the possession of the defendants. And the question involved is whether the defendants are entitled to set off the draft in question against the claim of the plaintiffs.

It is perfectly clear under the decision in the case of Fera v. Wickham (135 N. Y. 223) that if this action had been brought by the assignee of Wickham, no right of set-off would have existed because the draft in question wras not due until after the assignment had been made. But it is urged upon the part of the defendants ' that their right to set-off has accrued because such draft became due prior to the time of the commencement of the action for the setting aside of the assignment and the appointment of the receiver.

The question as to the rights of the parties resulting from the failure of proof as to the time when the draft came into the possession of the defendants, does not seem to have been raised by the objection to the admissibility of the draft.

The case of Clark v. Brookway [3 Keyes, 13) is an authority for the proposition that had this draft become due subsequent to the time of the commencement of the action, it could not have been the subject of a set-off, because the filing of the bill in equity seeking to set aside the assignment, and asking that all the assigned property, as far as might be needed, should be applied to the satisfaction of the debt of the judgment creditors, created a lien on all the assigned property in the form of choses in action. And it is there intimated that the law having transferred the title of the notes from the assignee to the receiver, there was no gap intervening during -which the right to offset could attach. But no such question was involved in that case, and, therefore, the statement was a mere dictum. That the right to offset depends upon the condition of affairs existing at the time of the assignment seems to be evident when we consider that a decree entered at the suit of a creditor does not set aside the assignment absolutely, but only so far as it prevents the suing creditor from realizing his debt out of the estate, and that as between the assignor and the assignee, and the creditors not attacking the assignment, it still remains in full force and effect. The result then of allowing an offset where the claim had matured between the date of the assignment and the filing of a bill by a creditor, would be to take certain of the assets, which were properly applicable to the payment of the debt of the suing creditor, and compel him to seek satisfaction of his judgment from other assets belonging to the assigned estate. The result then would be that, by the allowance of such offset, funds which might otherwise be applied to the payment of the claims of creditors who did not attack the assignment would be diverted, and, hence, the offset would be virtually followed against them notwithstanding the fact of its having matured subsequent to the assignment. It seems to us that no such rule can obtain. Where the debtor of an assigned estate has no right of set-off as against the assignee, how can he have a right of set-off as against any other creditor of the estate who has acquired a lien upon the assigned property, when the result of such set-off is to compel the creditors of the assigned estate to pay the same ? It would be perhaps entirely different if by a proceeding of one or two or three creditors against an assignment such assignment was absolutely wiped out. But it is not. It is only set aside as to the creditors suing; it remains existent and valid as to all others. In this view it would appear that the right of set-off depends upon the state of facts existing at the time the assignment is made, the making of which assignment is the fact which gives the creditor the right to his preference.

The judgment should be affirmed, with costs.

Parker, J., concurred; Eollett, J., concurred in the result.

Judgment affirmed, with costs.


author: Eollett, J.:

text:
    The Southern Cotton Oil Company, Respondent, v. The Prudential Fire Association of New York, Appellant.

      Wire insurance policy — provisions therein as to ownership — effect of a change in the ownership. .

    A fire insurance policy contained the words: “ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership.”

      Held, that such sentence related to the ownership of the subject of the insurance at the date of the policy, and not to subsequent changes in the ownership thereof.
    Such policy also contained a provision that “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if any change other than by the death of an insured take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment, or by voluntary act of the insured, or otherwise.”

      Held,, that the word “ interest,” as therein used, was broader than the word “title,” and embraced both legal and equitable rights in the property insured ;
    That, if there was a change in the interest of the insured in the subject of the insurance, a recovery could not be had under the terms of the policy upon the destruction by fire of the insured property.

      Appeal by the defendant, The Prudential Eire Association of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 11th day of December, 1893, upon the verdict of a jury directed by the court after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 14th day of December, 1893, denying the defendant’s motion for a^ new trial made upon the minutes.
    This action was begun July 23, 1891, to recover on a policy of insurance, executed September 26, 1889, by which the defendant insured the plaintiff against loss by fire in the sum of $5,000 on its cotton seed oil stored in its tanks at Atlanta, Georgia, for one year from noon September 19, 1889, until noon September 19, 1890. The policy contains the following clause, over the construction and effect of which this litigation arises :
    “ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership ; * * * or if any change other than by the death of an insured take ¡olace in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal jirocess or judgment, or by voluntary act of the insured, or otherwise.”
    In June, 1890, the plaintiff contracted to sell to Armour & Co., Chicago, a large quantity of cotton seed oil at an agreed price per gallon, to be delivered at Chicago, freight paid, with the right of the purchaser to inspect and reject in case the quality of the oil tendered was inferior to the grade of oil contracted to be sold. Part of this oil was delivered. On the 11th of June, 1890, the -plaintiff had not delivered 104,980 gallons of the oil contracted to be sold, and on that day it executed and delivered to Armour & Co., Chicago, four receipts, of which the following is a copy, except as to quantity and number of tank in which the oil mentioned in the receipt was stored:
    “Receipt No. 1.
    Atlanta, Georgia, June IliA, 1890.
    “We have in store and will hold subject to the order of Armour & Company, Chicago, Illinois, 23560 gallons Prime Summer Yellow Cotton Seed Oil, stored in tank No. 1 in Oil House of Southern Cotton Oil Company, Atlanta, Georgia.
    “THE SOUTHERN COTTON OIL COMPANY,
    “ By L. W. Haskell, Manager.

    “ Insured under our policy,
    “THE SOUTHERN COTTON OIL COMPANY,
    “ Alan H. Harris, TreaswrerP

    Receipt No. 2 was for 23,560 gallons stored in tank No. 2; receipt No. 3 was for 23,560 gallons stored in tank No. 3; receipt No. 4 was for 34,300 gallons stored in tank No. 4; the total quantity of oil mentioned in the four receipts being 104,980 gallons.
    On the 13th of June, 1890, the plaintiff mailed these receipts to Armour & Co., and drew a sight draft on them for $28,479.88, the price agreed to be paid for the 104,980 gallons, less freight from Atlanta to Chicago, which draft was paid.
    Between the date of these receipts and July 10, 1890 (the date of the fire), 1,608 gallons of oil were added to each of the tanks numbered 1, 2 and 3, and 43,904 gallons of oil to tank No. 4, making 48,728 gallons of oil added to the four tanks between the date of the receipts and the date of the fire.
    July 10, 1890, 198,546 gallons of refined cotton seed oil of the value of $56,585.61, and 1,186 gallons of crude cotton seed oil of the value of $2,217.20 were destroyed by fire, making the total loss on oil $58,802.81. The refined oil was stored in tanks numbered from 1 to 5 inclusive and in two clarifying tanks. The crude oil was stored in tank No. 6, and in two refining tanks.
    September 30,1890, the plaintiff repaid Armour & Co. the price of the oil, $28,479.88.
    The litigants have stipulated that in case the plaintiff is entitled to recover for all of the oil burned in tanks Nos. 1 to 4 inclusive — 153,708 gallons — that its recovery will be $5,071.71, with interest, or in case the plaintiff is not entitled to recover for 104,980 gallons represented by the receipts given Armour & Co., but is for the remainder — 48,728 — (153,708 minus 104,980 equals 48,728) that it is entitled to recover $3,025.91.

      John F. Parsons, for the appellant.

      W. W. MacFarlancl, for the respondent.
   Eollett, J.:

The sentence “ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if tlie interest of the insured be other than unconditional and sole ownership,” relates to the ownership of the subject of the insurance at the date of the policy and not to subsequent changes of ownership. When the policy was issued the insured was the unconditional and sole owner of the oil insured and burned, and the policy was not void, but took effect as a legal contract. The sole question presented by this appeal is, did the contract between the plaintiff and Armour & Go. annul, in whole or in part, the policy? The question arises under the following clause of the policy: “ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment, or by voluntary act of the insured, or otherwise.”

The. important words in this sentence are “possession,” “interest” and “ title.”

The defendant does not assert that there was any change in the possession of the oil.

The word “ interest ” is broader than “ title,” and embraces both legal and equitable rights in the oil, and if there was a change “ in the interest ” of the insured in the subject of the insurance the plaintiff cannot, under the terms of the policy, recover for its loss.

In the letter of June 7, 1890, written by the plaintiff’s president to Armour & Co., he stated: “We have been letting the oil at Atlanta remain in tanks, as it is improving daily in its condition, and we will be glad to accommodate you and let it remain there-until you may want it — say for the next sixty days — without storage charge, provided it is at your risk and insurance expense. We have some obligations to meet and we want funds for this oil for that purpose. If it is satisfactory to you we will draw with warehouse receipt attached and covered under our policies as to fire risk, or have the fire insurance policy made in your name as you may elect. Please wire if this is satisfactory. It would be entirely agreeable for us to draw for say fifteen tanks next week and the balance early the week following. We earn, designate same, gi/oi/ng you, number of tank in which the oil is stored. We xoill have no other oil there but the lot sold you.”

On the tenth of June Armour & Co. replied to this letter by a -telegram, saying: “ You can draw for balance of oil due without any additional expenses and we will take as soon as possible.”

On the 11th of June, 1890, Armour & Oo. wrote in reply to plaintiff’s letter of June seventh, saying: “¥e will honor your draft with warehouse receipts for the oil and send our cars for •same as soon as possible. In the meantime same to be stored and insured free of expense.”

The plaintiff’s president, in his testimony, gave his own construction of the meaning of the term “ your risk and insurance expense.” He testified it meant “ risk of leakage, risk of deterioration in quality sometimes. . If you keep it a certain time it oxydizes and becomes rancid, sometimes in stress of weather or what not it deteriorates. Any gentleman will understand that, and that is what we mean in that sense of risk. * * * That is the technical

term used, at your risk; and we say buyers’ expense of insurance we mean he takes the fire risk and pays for the insurance.” The president of the plaintiff also testified that when the receipts were issued they embraced all the oil then in the tanks. In the letter of June seventh he wrote : “We can designate same giving you number of tank in which the oil is stored. "We will have no other oil there but the lot sold you.” Under this correspondence and the receipts, taken in connection with the fact that this oil was paid for, it seems to us that Armour & Co. acquired an interest in the oil stored in those tanks; that the plaintiff became the trustee of Armour & Co., who acquired not only an insurable interest in this particular oil, but such an interest as would have entitled them, in case the plaintiff had failed, to have taken the oil from its receiver or assignee. ■

The previous dealings between the plaintiff and Armour & Co. might be important to aid in the. interpretation of an ambiguous contract, but the definite agreement made on this occasion, which is evidenced by the receipts, the letters and telegrams, cannot be controlled or limited by the former • contracts and course of dealing between the parties.

The mere fact that Armour & Co. had the right to inspect and reject, any oil tendered by the plaintiff at Chicago, did not deprive them of an interest in the oil stored in the four tanks.

It seems to us that there was a change of interest, not only in the 104,980 gallons represented by the receipts, but in all the oil contained in the tanks at the time of the fire. When the policy was issued the insured owned every gallon stored in the four tanks, but at the time of the fire it had ceased to lie the owner of any particular part of the oil. It was the fault of the plaintiff that other oil was added to those tanks between the date of the .receipts and the fire, and was in violation of its letter of June seventh, in which it said: “We will have no other oil there but the lot sold you.” The plaintiff is not entitled to recover for the loss occasioned by the destruction of any part of the 153,708 gallons of oil burned.

The judgment should be reversed and a new trial granted, with-costs to the appellant to abide the event.

Van Brunt, P. J., and Parker, J., concurred.

Judgment reversed, new trial granted, costs to appellant to abide event.


author: Follett, J.:

text:
    Rosa Flood, Appellant, v. Sarah Cain, Individually and as Guardian of Nellie Cain and Others, Infants, and Others, Respondents.

      Mortis causa gift by deed — burden of proof— remero of questions of fact.

    In an action brought to set aside a conveyance of real estate upon the ground that it was executed by the grantor in apprehension of death, and that the grantee agreed to reconvey the same to the grantor in case she survived, the burden of establishing that the conveyance made was a conveyance causa mortis. is upon the plaintiff.
    The General Term will not review a question of fact upon an appeal where the case contains no statement that it contains all of the evidence; and when the case has not been settled and ordered filed by the trial judge, if no error appears in the judgment roll, the judgment must be affirmed.
    Appeal by the plaintiff, Bosa Flood, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 24th day of July, 1893, upon the decision of the court on a trial at the New York Special Term dismissing the plaintiff’s complaint upon the merits and for costs.
    Brooke, OBulli/van dk Brooke, for the appellant.

      James O’JVeill, for the respondents.
   Follett, J.:

By a deed dated September 30, 1884, acknowledged November 10, 1884, and recorded January 27,1885, the plaintiff conveyed certain real estate in the city of New York to Peter Cain for the recited consideration of one dollar. From that time on the grantee retained the title and collected the rents, through the plaintiff, until January 7, 1890, when he died, devising the property to the defendants in this action. On the 15th of October, 1890, this action was begun seeking to set aside the conveyance upon the ground that it was executed by the grantor in apprehension of death, and that the grantee agreed to reconvey it to her in case she survived. It will be observed that nearly six years elapsed between the date of the deed and the death of the grantee, and no proceedings were taken to compel a reconveyance. The only question in this action is one of fact, whether the conveyance was a deed of gift in anticipation of death. The parties to the deed were brother and sister, and it appears from the record, for several years preceding the death of Peter Gain, they had various transactions in resjiect to their property — conveyances from one to the other. The burden of establishing that this was a conveyance causa mortis was upon the plaintiff. The learned judge at SjDecial Term held that upon the evidence the plaintiff failed to establish the cause of action alleged in her complaint. Assuming that all of the evidence given upon the trial is contained in the record, we cannot say that this decision is contrary to the weight of evidence, but there is an insurmountable difficulty in considering the question as to whether the decision is contrary to the weight of evidence. So far as we can discover, the case contains no statement that it contains all of the evidence, and in the absence of such a statement, this court will not review a question of fact.

The case does not seem to have been settled and ordered filed by the trial judge, and no error appearing in the judgment roll, the judgment should be affirmed, with costs.

Van Brunt, P. J., and Parker, J., concurred.

Judgment affirmed, with costs.


text:
    Lewis C. King, Appellant, v. John Townshend, Respondent, Impleaded with Another.

      Action to determine adverse claims to real estate — affirmative judgment for defendant— demurrable answer to an insufficient complaint — sufficiency of a complaint.

    "Where, in an action brought to determine conflicting claims to real estate, pursuant to article 5 of title 1 of chapter 14 of the Code of Civil Procedure, the ■defendant, by his answer, simply denies the plaintiff’s possession and not his title, and does not allege title or possession in himself, he is not entitled to a judgment for affirmative relief; such defense is demurrable on the ground that it does not state facts sufficient to constitute a defense.

      Semble, that in case an answer is demurred to and a cause of action is not set forth in the complaint, judgment should be rendered for the defendant.
    It is not necessary, in order to state a cause of action in an action brought to determine conflicting claims to real estate, pursuant to article 5 of title 1 of chapter 14 of the Code of Civil Procedure, that the plaintiff should allege in the complaint that he is the sole owner in fee of the premises therein described.
    Sole ownership is fairly implied from an allegation that the plaintiff is the owner in fee, and an allegation therein contained that the plaintiff has been in possession of the land since he acquired his title, is equivalent to an allegation that he has been in possession as sole tenant.
    The complaint in an action brought under the provisions of the Code of Civil Procedure to determine conflicting claims to real estate contained the following allegation:
    ■“3. That the defendant, John Townshend, unjustly claims an estate, or interest therein, adverse to that of plaintiff, to wit, the adverse claim that he is seized of said premises in fee.”

      Held, that the allegation was not an allegation of a conclusion either of law or of fact, but was an allegation of what the defendant had asserted as a fact;
    'That- such allegation was sufficient and in compliance with the provisions of subdivision 3 of section 1638 of the Code of Civil Procedure;
    The possession of a tenant is the possession of his landlord, and a person in the possession of land by his tenant may maintain an action to compel the determination of an adverse claim to it.

      Appeal by the plaintiff, Lewis G.King, from an interlocutory judgment of the Supreme Court in favor of the defendant, John Townshend, entered in the office of the clerk of the county of New York on the 19th day of March, 1894, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to the third defense alleged in said defendant’s answer.
    This action was begun December 6, 1893, to determine the claims of the parties to real estate, pursuant to the 5th article of the 1st title of the 14th chapter of the Code of Civil Procedure.
    It is alleged in the complaint that January 29, 1890, William Moores conveyed the land to the plaintiff, who owns it in fee and has been in possession of it since the date of his deed; that the defendant unjustly claims to be the owner in fee of the same land.
    For a third defense the defendant alleged as follows:
    “Three- — For a third defense this defendant denies that the premises described in the complaint at the time of the commencement of this action, and for one year and upwards next preceding, had been in the possession of the plaintiff, and this defendant alleges that at the time of the commencement of this action said premises-were, and for more than one year next preceding the commencement of this action had been, and were, and still are, in the possession of one John Hughes, holding the same as tenant or sub-tenant of plaintiff for a term which will expire on May 1, 1894.”
    To this defense the plaintiff demurred on the ground that it does-not state facts sufficient to constitute a defense.

      L. A. Gould, for the appellant.

      John Townshend, defendant and respondent, in person.
   Follett, J.:

The special proceedings for the determination of claims to real property authorized by title 2 of chapter 5 of the 3d part of the Devised Statutes, were a substitute for the ancient mode of . * barring claims to real estate by fines and recoveries (1 Gra. Pr. [2d ed.] 71), authorized and regulated by chapter 58, Devised Laws of 1813 (vol. 1, p. 358), which act was repealed by paragraph 93 of section 1 of chapter 21 (2d session), Laws of 1828 and by 2 Revised Statutes, 343, section 24. (McGregor v. Comstock, 11 N. Y. 162.) In 1849 section 449 was added to the Code of Procedure, by which actions were authorized to compel the determination of claims to real property, pursuant to the provisions of the Revised Statutes. After the adoption of this section it was held that adverse claims to real estate might be determined by an action or by a special proceeding; that the remedies were cumulative. (Burnham v. Onderdonk, 41 N. Y. 425 ; Fisher v. Hepburn, 48 id. 41.)

September 1, 1880, chapter 14 of the Code of Civil Procedure took effect, the 5th article of which embraces the substantive law of the Revised Statutes, with some changes, in respect to the determination of such claims, and by section 1 of chapter 245 the provisions of the Revised Statutes were repealed. The substantive law and the law of procedure relating to this subject are now ■embraced in the 5th article of the 1st title of the 14th chapter of the Code of. Civil Procedure.

It should be borne in mind that this action was begun after article .5, last referred to, was amended in 1891. The substantive law, prescribing cases in which actions may be brought, is contained in .section 1638, and the law regulating the procedure and the effect of judgments in such cases is embraced in sections .1639 to 1646 inclusive, but on the record the questions presented are controlled by sections 1638, 1639 and 1640, for so far as it appears (only the third defense being printed) the defendant has simply denied the plaintiff’s possession, not his title, and has not alleged title or possession in himself, and could not have a judgment for affirmative relief as provided in the subsequent sections. The following are the sections referred to:

■ “ § 1638. Where a person has been, or he and those whose estate he has, have been for one year In possession of real property, or of ■any undivided interest therein, claiming it in fee or for a term of years not less than ten, he may maintain an action against •any other person to compel the determination of any claim adverse to that of the plaintiff which the defendant makes t5 any estate in that property in fee, or for life, or for a term of years not less than ten, in possession, reversion or remainder, or to any interest in that property, including any claim in the nature of an easement therein, whether appurtenant to any other estate or lands or not, and also including any lien or incumbrance upon said property, of the amount or value of not less than two hundred and fifty dollars. But this section doe's not apply to a claim for dower.”

“ § 1639. The complaint in such an action must set forth facts showing:

1. The plaintiff’s right to the real property; whether his estate therein is in fee, or for life, or for a term of years not less than ten; and whether he holds it as heir, devisee or purchaser, with the source from or means by which his title immediately accrued to him.

2. That the property at the commencement of the action was, and, for the one year next preceding, has been in his possession, or in the possession of himself and those from whom he derives his title, either as sole tenant, or as joint tenant, or tenant in common with others.

3. That the defendant unjustly claims an estate or interest or easement therein, or a lien or incumbrance thereupon of the character specified in the last section.

The complaint must describe the property as prescribed in section fifteen hundred and eleven of this act. The demand for judgment may be to the effect that the defendant and every person claiming under him be barred from all claim to an estate in the property described in the complaint, or from all claim to an interest or easement therein, or a lien or incumbrance thereupon, of 'the character specified in the last section, or it may combine two or more of said demands with other demands for appropriate relief.

“ § 1640. If the defendant, in his answer, puts in issue the matters specified in subdivision second of the last section, and succeeds upon that defense, final judgment must be rendered in his favor, dismiss ing the complaint and awarding to him costs against the plaintiff.”

The defendant invokes the application of the rule that in case the answer is demurred to and a cause of action is not set forth in the complaint, judgment should be rendered for the defendant. (People v. Booth, 32 N. Y. 391; Clark v. Poor, 73 Hun, 143; Abb. Tr. Brief Pledgs. § 461.)

Under this rule the question first to be determined is, does the complaint state a cause of action ? The land in dispute is described and it is alleged that the plaintiff owns it in fee; that he acquired his title from William Moores and wife, by a deed executed January 29, 1890 ; that when the action was begun, and for one year next preceding, the plaintiff had been in possession of the land, claiming it in fee. This complaint complies with the 1st and 2d subdivisions of section 1039, and it is not necessary, in order to state a cause of action, that the plaintiff should allege in the complaint that he is the sole owner in fee. The sole ownership is fairly implied from the allegation that he is the owner in fee. No authority is cited for the position that an allegation that the jrlaintiff is the owner of commercial paper sued on, that he is the owner of a chattel, or is the owner of a piece of land, is not equivalent to an allegation that he is the sole owner of such paper, chattel or land. For the same reason the allegation that the plaintiff has been in possession of the land since he acquired his title, is equivalent to an allegation that he has been in possession as sole tenant. The more serious question arises under the third paragraph of the complaint:

“ 3. That the defendant, John Townshend, unjustly claims an estate, or interest therein, adverse to that of plaintiff, to wit, the adverse claim that he is seized of said premises in fee.”

Upon Austin v. Goodrich (49 N. Y. 266) and Brown v. Teel (59 Hun, 91) it was held by the learned Special Term that the allegation last quoted was not a compliance with the 3d subdivision of section 1639, above quoted, and that it was necessary for the plaintiff to set out the particulars of the defendant’s claim. The case first cited arose under the Kevised Statutes, which, as amended by chapter 50, Laws 1848, provided :

te g * * * He (the person instituting the proceedings) may compel a determination upon any claim which any other person may malee to any estate, in fee or for life, or for a term of years not less than ten, in possession, reversion or remainder, to such lands and tenements, in the manner and by the proceedings hereinafter specified.

§ 2. He (the person instituting the proceedings) shall serve a notice * * * on such claimant, stating * * *

“ 4. That the person to whom such notice is directed unjustly claims title to such premises.” (2 K. S. 312, §§ 1, 2.)

It was alleged “ that the defendant unjustly claims title to said premises.” The defendant demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action. In discussing tlie question as to whether the allegation that the defendant unjustly claims title to said premises ” was sufficient, it was stated: She (plaintiff) can have a right of action against another only when he makes a claim to an estate to such lands or tenements, in fee or for life, or for a term of years not less than ten. In stating her right of action against him she must bring him, by the averments of her complaint, within some of these provisions. He must be shown by them to make a claim to an estate in fee or for life, or for a term of years not less than ten, to such lands and tenements. Failing to do this, she fails to show any right to bring him into court to assert and make good his claim or be forever barred. If he makes claim other than as specified in the statute, and makes no claim as therein specified, she has no right to compel him to assert it and make it good or be forever barred.”

The demurrer in that case was held good upon the ground that the plaintiff failed to allege that the defendant claimed an estate “ in fee, or for life, or for a term of years not less than ten.” It was not there held or intimated that a plaintiff is required to set out the particulars of a defendant’s claim, but the intimation is that had the plaintiff alleged that the defendant claimed an estate in fee, for life, or for a term of years not less than ten, it would have been sufficient.

' In the second case cited, an action under the Code of Civil Procedure, it was alleged that the plaintiff was the owner in fee simple,” and that the defendants, who are children and grandchildren of said Elisha Brown, deceased, unjustly claim an estate in fee in said premises.”

All of the defendants made default, except Teel and Hunn, who separately answered, Teel denying that she had any claim or interest in the land, and Hunn interposing a general denial. On these issues the action was tried on the merits at Special Term. On the trial the plaintiff failed to show that either of the defendants had ever claimed any interest in the land, notwithstanding a judgment was directed against them, with costs, from which they appealed, not claiming on the appeal any interest, legal or equitable, in the land ; the judgment was reversed on the ground that the plaintiff failed to prove a cause of action, which was clearly right, and it was affirmed by the Court of Appeals. (128 N. Y. 678.) Neither of these judgments supports the contention of the defendant. It was not held in either case that the plaintiff must set forth the particular’s of the defendant’s adverse claim of an interest in fee. The allegation that defendant claims to be an owner of the fee of the laud is not an allegation of a conclusion either of law or of fact, but it is an allegation of what the defendant has asserted, as a fact. The plaintiff may not know the ground of the defendant’s assertion, which may be exclusively within his knowledge. We do not think it will do to hold that in case A. is in possession of land, claiming to own it in fee simple, and B. asserts when, where and to whom he pleases, that he owns the land in fee, without disclosing how he owns it, that A. may not, by alleging his ownership and B.’s claim, require the latter to abandon or defend his claim. Should the rule contended for by the defendant be adopted, would the plaintiff be required to state truly all the particulars and grounds of the defendant’s claim, at his peril? We think that in such a case the defendant should be required to allege the grounds and particulars of his own defense, and that the burden should not be imposed on the plaintiff. Again, it should be observed that the 1st subdivision of section 1638 requires the plaintiff to set forth the source of his title and the quality and quantity of his estate, and whether he acquired it by descent, by devise or by grant, but the 3d subdivision does not require such particularity in respect to the defendant’s claim. The requirements of the two subdivisions are quite different, and rest upon the theory that the plaintiff knows the particulars of his estate, but may not know the particulars of the defendant’s claim.

The sections of the Code are well pleaded. (Rothschild v. The Rio Grande Western Ry. Co., 15 N. Y. St. Repr. 809.) The complaint states a good cause of action. «

The facts stated in the third division of the answer, to which the demurrer is taken, do not constitute a defense. The defendant alleges that John Hughes, the plaintiff’s tenant, is in possession of the premises. It is a familiar rule that the possession of the tenant is the possession of the landlord. The defendant’s contention is that the owner of land in fee which happens to he in the possession of his tenant cannot maintain an action to determine the validity of an adverse claim to it, and that a plaintiff must be actually in the personal possession of the disputed land before he can maintain such an action.

The Revised Statutes provided that a proceeding might be maintained by a person in “ actual possession,” which language was incorporated in the Code of Civil Procedure, and there remained until 1891, when the word “actual” was stricken out, which was done to obviate the very objection now raised by the defendant. Under the Code, as it now stands, a person in possession of land by by Ms tenant may maintain an action to compel the determination of an adverse claim to it. We are asked to order a final judgment against the defendant on this appeal. This we cannot do, for the whole of his answer is not contained in the record, and he may have interposed some good defense to the action.

The interlocutory judgment should be reversed and the demurrer sustained, with costs in this court and at the Special Term.

"Van Brunt, P. J., and Parker, J., concurred.

Interlocutory judgment reversed, and demurrer sustained, with costs in this court and at the Special Term.


author: Pajrker, J.:

text:
    Albro Akin, Respondent, v. Ezra M. Meeker and Another, Appellants.

      Assignment of contract — delivery of the original contract unnecessary — action for a breach of warranty of title, when maintainable.

    Where one person agrees with another to assign to him all his interest in certain contracts and his entire interest therein, and such agreement does not provide that the contracts to be assigned shall be delivered to the person agreeing to purchase the same, the mere failure to put such person in possession of the original contracts does not constitute a breach of such agreement, .which, when executed by the assignment in writing of each of the several contracts referred to therein (a copy of each contract being annexed to the assignment thereof), operates as a valid assignment of the assignor’s interest in such contracts.
    Wltere the persons, who have agreed by a written agreement to purchase certain contracts of another, accept the performance thereof tendered to them by him, they are left to such rights and remedies as may accrue to them by virtue of any warranty, expressed or implied, contained in the written agreement.

      In an action brought by a vendee against his vendor, for an express or implied breach of warranty of title, there can only be a recovery where proof is made of actual loss.
    When the vendee relies upon the warranty of title he must either return to the true owner the property in question, or be prepared to prove its loss under compulsory proceedings, or the payment of money through judgment obtained against him, or voluntarily in answer to a claim made, and in the last-mentioned case he must also affirmatively establish that the claimant was the true owner and that his vendor was without title.
    Appeal by the defendants, Ezra M. Meeker and another, from a judgment of the Supreme Court in favor of the plaintiff, ■ entered in the office of the clerk of the county of New York on the 23d day of December, 1893, upon the verdict of a jury directed by the court after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 18th day of December, 1893, denying the defendants’ motion for a new trial made upon the minutes.

      Ia/wrence JE. Sexton, for the appellants.

      John M. JBoioers, for the respondent.
   Pajrker, J.:

Defendants contracted with the agents of plaintiff in the State of Washington that defendants would pay $2,800 for the assignment of nine contracts which plaintiff and A. J. Luce & Co. had entered into with nine different growers of hops in that State.

Defendants obtained from seven of the nine growers the quantity of hops stipulated for, and netted nearly $15,000 out of the transaction. Two of the contracting hop growers refused to deliver their hops to defendants, but sold them elsewhere, and as their action in that respect operated to prevent a further addition to the profits accruing to the defendants under their contract, it is made to serve as an excuse for this attempt to wrong the plaintiff out of substantially the entire sum which the defendants promised to pay.

The ground upon which the defendants base their claim to defeat a recovery by the plaintiff is, that he failed to perform his agreement in that he did not properly assign the entire interest ” in the nine contracts. The contract recites that Akin (this plaintiff) has this day sold to E. Meeker & Co. (these defendants), at sixteen cents per pound, “ all my right, title and interest in the following hop contracts for the crop year of 1890.” Then follows a list of the names of the persons with whom the contracts were made, together with a statement opposite to each name of the number of pounds which the grower had contracted to sell and deliver. The contract continues, “and I further agree to properly assign the entire interest in the above contracts now in my possession to said E. Meeker & Co.”

There were other provisions in the contract, but they need not be alluded to. Before this contract was executed plaintiff’s agents explained fully to the defendants, Meeker & Co., that the contracts were in Akin’s hands in New York; that they ran to Akin and A. J. Luce & Co.; that Luce & Co. had been enjoined at the suit of Akin, by the Supreme Court, from having anything to do with the receipt of hops under the contracts during the year. The contract was drafted by the defendant Meeker, who did not insert in it a stipulation that the original contracts should be delivered to him, but contented himself with a provision that plaintiff sells all his right, title and interest in the contract, and agrees to properly assign the entire interest therein to the defendants.

As soon as Akin had learned of the making of the contract by his agents, he sent a copy of the contracts, each bearing a separate assignment, to his agents Thompson & French, who in turn delivered them to the defendants. They made no objection at that time because Akin had sent them copies instead of the original contracts. At the same time growers’ advance notes given to Akin for moneys advanced on account of tlie crops, to the several hop growers with whom he had contracts, were turned over by the agents to the 'defendants, and they were also accepted and retained. Immediately after the receipt of the assignments and the copies of the contracts, together with the growers’ advance notes, defendants wrote to each of the hop growers informing him that they had purchased his contract with Akin, and inquiring where he wished the advances due September first sent. All replied except Simpson & White, whose contracts, taken together, called for about one-eighth of the entire quantity of hops.

A few days later defendants offered Simpson & White the advances called for in the contract, but both refused to receive them, It does not appear that Simpson & White challenged defendants’ title to the contract. They simply refused performance of their contract.

Some time after that defendants wrote plaintiff, asking him to send the originals of the contracts, at the same time informing him that they understood they were to have the originals placed in their hands. As soon as the letter reached the plaintiff in the city of New York, he telegraphed defendants that he had mailed to Thompson & French, his agents, the original contracts assigned. Defendants testified they did .not see any of the originals until some time during the ensuing month of October, but do not say that they made any attempt either to see or obtain the originals in the meantime. Their conduct, as disclosed by their own version of it, creates the impression that for some reason they had concluded that it was not wise to have litigation with Simpson & White, because of their refusal to perform, and that instead they had concluded to attempt to make good whatever loss, if any, should result, out of the plaintiff, in a contest with whom they would have the advantage accruing from the possession of the sum which they had agreed to pay him for the contracts.

There was nothing in the contract between plaintiff and defendants providing that the original contracts with the hop growers should be delivered, but the instrument did assign the interest of the plaintiff and stipulated to assign the entire interest.

The mere failure to put defendants in possession of the original contracts, therefore, did not constitute a breach of the contract. The agreement between the agents of the plaintiff and defendants, followed by the assignment in writing of each of the several contracts, of which a copy was annexed to the assignment, operated as a valid assignment of Akin’s interest in the contracts. (Horner v. Wood, 15 Barb. 371; Doremus v. Williams, 4 Hun, 458 ; Anderson v. Read, 106 N. Y. 333.)

Defendants complained on the trial that after the original contracts arrived at the State of Washington, plaintiff’s agents, instead of delivering them over to defendants without question, attempted to secure for the plaintiff a sum of money, which was due him under the contract. The defendants successfully resisted this attempt of the plaintiff, to secure his debt without litigation. Whether it would have been better for the plaintiff’s agents to have omitted that precaution is not now and was not then a matter of legal consequence. A delivery of the original contracts had not been contracted for, and was not essential to vest in the defendants the interest which plaintiff and A. J. Luce. & Co. had in them. The defendants apparently had no occasion -to make use of the originals, but had they chosen to compel performance of the contracts of Simpson & White by action, and their title had been called in question, the production of the original contracts in evidence would have fully accomplished defendants’ purpose. It is quite .apparent from the discussion already had, that defendants’ suggestion that in some way damage resulted by reason of the failure of the plaintiff to deliver in the first 'instance the original contracts, is wholly without support in the evidence.

The proposition upon which defendants apparently place more reliance than those so far considered, is that defendants were entitled to succeed because plaintiff failed to perform his agreement in that he neglected properly to assign the entire interest.”

But we think the trial court rightly disposed of that question by its direction of a verdict in favor of the plaintiff, thereby necessarily holding that defendants having accepted plaintiff’s tender of performance the defendants were left to such rights and remedies as should accrue to them by virtue of any warranty, expressed or implied, in the contract, and that the only warranty, either expressed or implied, was one of title, touching the alleged breach of which defendants failed to make such proof as entitled them to redress. As to whether there was an acceptance of plaintiff’s performance, there was no dispute as to the facts. It was not controverted that the copy-contracts, with assignments and growers’ notes for advances, were put in the possession cf the defendants after the making of the contract in suit and kept by them; that they used them, claiming under and by virtue of them to be the owners of the hops described in them; that they accepted and paid for the hops delivered under such copies and assignments, never having had in their possession the seven original contracts, any more than the two of Simpson & White; that as to the Simpson & White contracts, they acted upon the assignments in' the same way as with the others; made tender to the growers under the assignments; consulted a lawyer how they should enforce them. These facts, being undisputed, show an acceptance by defendants of the performances tendered by plaintiff. The clause in the contract by which Akin agreed to properly assign the entire interest in the above contracts amounted to an express warranty of title, and in order to defend against an action for the price of the things sold, defendants must show, in the absence of fraud, an eviction or its equivalent. Or, where the action is brought by a vendee against his vendor for an express or implied breach of warranty of title, there can only be a recovery where proof is made of actual loss. (O'Brien v. Jones, 91 N. Y. 198.) And when the vendee relies upon the warranty of title, he must either return to the true owner the property in question, or be prepared to prove its loss under compulsory proceedings, or the payment of money through judgment obtained against him, or voluntarily in answer to the claim made; and in that case he must also affirmatively establish that the claimant was the true owner and that liis vendor was without title. (Case v. Hall, 24 Wend. 102; Delaware Bank v. Jarvis, 20 N. Y. 226; Burt v. Dewey, 40 id. 283; McGiffin v. Baird, 62 id. 329 ; O'Brien v. Jones, supra)

The alleged defect in the title is, that A. J. Luce & Co. had an interest in the contracts, as well as the plaintiff, and that there was no assignment of an interest other than that of the plaintiff. The defendants did not return the contracts assigned to them by plaintiff, nor prove any loss by reason of compulsory proceedings on the part of A. J. Luce & Co., the payment of money through judgment obtained by them against defendants, or even that A. J. Luce & Co. had made any claim against them whatever.

On the trial, as appears from the record, it was shown that A. J. Luce & Co. and Alfred G-. Luce were the same person; that from the 9th day of August, 1889, down to the 5th day of July, 1892, Luce was restrained by injunction order and by an interlocutory judgment, at suit of Akin, from demanding or receiving any of the hops covered by the contract which constitutes the basis of this action. By the final judgment determining the respective rights of Akin and Luce, the suit at bar was provided for in such a way that Luce cannot maintain any action against these defendants on account of the transaction which is the subject of this litigation.

It is apparent, therefore, that the evidence failed to establish any right on the part of defendants to recover damages against the plaintiff by reason of the alleged breach of an expressed warranty of title.

The judgment and order should be affirmed, with costs.

Van Brunt, P. J., and Follett, J., concurred.

Judgment and order affirmed, with costs.